The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
REPORT-RECOMMENDATION AND ORDER*fn1 Plaintiff pro se Christopher Morrishaw ("Morrishaw"), an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendant, an ophthalmologist with DOCS, violated his constitutional rights under the Eighth Amendment. Compl. (Dkt. No. 1). Presently pending is defendant's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Dkt. No. 17. Morrishaw has failed to respond to the motion.*fn2 For the following reasons, it is recommended that defendant's motion be granted and that the complaint be dismissed.
The facts are related herein in the light most favorable to Morrishaw. as the non-moving party See Ertman v. United States, 165 F.3d 204, 206 (2d Cir.1999).
Sometime before February 2009, Morrishaw was evaluated by defendant Dr. Druger at Walsh Regional Medical Unit ("Walsh"). Compl. at 4. Morrishaw was prescribed Xalantan drops at the appointment to attempt to prevent an onset of glaucoma. Id. at 5. Morrishaw took the drops for a few weeks and began experiencing blurry vision. Id. at 7. At his next appointment, Morrishaw told Dr. Druger about his reaction to the drops and Dr. Druger told Morrishaw to keep taking the drops as prescribed. Id. Morrishaw continued taking the drops, but they "didn't help [and he] kept informing [Dr. Druger about their ineffectiveness] everytime [Morrishaw] went to see [Dr. Druger]." Id.
On February 23, 2009, Dr. Druger conducted a visual field test on Morrishaw which concluded that his vision "was very poor," potentially from an "on set [of] glaucoma . . . ."
Compl. at 7. To confirm that the problem was with Morrishaw's eyes, he was sent to a neurologist for testing, who determined that his neurological functioning was normal. Id. Morrishaw says that presently, his vision is "fading fast and because of the long delays . . . has gotten extremely worse." Id. at 8. This action followed.
Morrishaw claims that his Eighth Amendment rights were violated when Dr. Druger failed to respond to his complaints that his eye drops were ineffective, essentially allowing his glaucoma to worsen. Defendant moves for dismissal claiming that Morrishaw has failed to state an Eighth Amendment claim and that Dr. Druger is entitled to qualified immunity.
Rule 12(b)(6) authorizes dismissal of a complaint that states no actionable claim. When considering a motion to dismiss, "a court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). However, this "tenet . . . is inapplicable to legal conclusions[; thus, t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (holding that "entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action . . . [as] courts are not bound to accept as true a legal conclusion couched as a factual allegation.")).
Accordingly, to defeat a motion to dismiss, a claim must include "facial plausibility . . . that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556 (explaining that the plausibility test "does not impose a probability requirement . . . it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal [conduct].")); see also Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009) (holding that, "[o]n a motion to dismiss, courts require enough facts to state a claim to relief that is plausible . . . .") (citations omitted). Determining whether plausibility exists is "a content specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950-51.
When, as here, a party seeks summary judgment against a pro se litigant, a court must afford the non-movant special solicitude. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.2006); see also Sealed Plaintiff v. Sealed Defendant # 1, 537 F.3d 185, 191-92 (2d Cir.2008) ("On occasions too numerous to count, we have reminded district courts that 'when [a] plaintiff proceeds pro se, ... a court is obliged to construe his pleadings liberally.' " (citations omitted)).
The Eighth Amendment explicitly prohibits the infliction of "cruel and unusual punishment." U.S. Const. amend. VIII. This prohibition extends to the provision of medical care. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). The test for a § 1983 claim is twofold. First, the prisoner must show that the condition to which he was exposed was sufficiently serious. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Second, the prisoner must show that the prison official demonstrated deliberate indifference by having knowledge of the risk and failing to take measures to avoid the harm. Id. "[P]rison officials who actually knew of a substantial ...