The opinion of the court was delivered by: Andrew T. BAXTER*fn1, United States Magistrate Judge
This matter has been referred for Report and Recommendation, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c), by the Honorable David N. Hurd, United States District Judge. In this civil rights complaint (Dkt. No. 1), plaintiff alleges that, while he was an inmate in the custody of the Upstate Correctional Facility ("Upstate"), defendants denied him constitutionally adequate medical care by delaying his prescription for an asthma inhaler and ultimately replacing it with a different one. He seeks substantial damages.
Presently before this court is defendants' motion to dismiss plaintiff's complaint for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 17). After defendants' motion was filed, plaintiff filed a response in opposition to defendants' motion (Dkt. No. 19). For the following reasons, this court recommends that defendant's motion to dismiss be granted, and plaintiff's complaint be dismissed.
Plaintiff was under the care of the medical staff at Upstate from April 2009 through August 2009, when he filed his complaint. (See Compl. ¶ 4, Pl.'s Ex. 8). On March 30, 2009, while he was still at Great Meadow Correctional Facility, plaintiff received a prescription for Proventil HFA (albuterol sulfate) to treat his asthma. (Pl.'s Ex. 1). He alleges that on May 19, 2009, he requested a medication refill for his asthma inhaler, but "never received his adequate medicine." (Compl. ¶ 4). Plaintiff refused the inhaler delivered to him on May 28, 2009, because it was not exactly the same kind as he had before.*fn2 (Compl. at 6).*fn3 Plaintiff filed a grievance and appealed it to the Superintendent and the Central Office Review Committee. (Pl.'s Exs. 6, 7, 8). Plaintiff now fears defendants will "retaliate and somehow attack" him.*fn4 (Compl. at 9; see also Compl. at 6).
Defendants move to dismiss the complaint, arguing (1) that plaintiff is claiming mere disagreement with the medical judgment of prison medical providers regarding appropriate treatment and has not alleged any facts demonstrating "deliberate indifference" on the part of any defendant; (2) that plaintiff did not establish a serious medical need.
To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is "plausible on its face." Ashcroft v. Iqbal, U.S. , 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," do not suffice. Id. (citing Bell Atl. Corp., 550 U.S. at 555). Plaintiff's factual allegations must also be sufficient to give the defendant "'fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp., 550 U.S. at 555 (citation omitted).
When ruling on a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in the non-movant's favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 71 (2d Cir. 1995). The court must heed its particular obligation to treat pro se pleadings with liberality. Phillips v. Girdich, 408 F.3d 124, 128 (2d Cir. 2005); Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999) (per curiam).
In deciding a motion to dismiss, the court may review documents integral to the complaint upon which the plaintiff relied in drafting his pleadings, as well as any documents attached to the complaint as exhibits and any statements or documents incorporated into the complaint by reference. Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d at 72 (the court may take into consideration documents referenced in or attached to the complaint in deciding a motion to dismiss, without converting the proceeding to one for summary judgment).
This court concludes that, even under the liberal standards applicable to a motion to dismiss a pro se complaint, the complaint fails to state a viable cause of action against any of the defendants or on any of the possible constitutional or statutory grounds referenced by plaintiff. Accordingly, this court recommends that the complaint be dismissed.
III. Claims of Inadequate Medical Care
In order to state an Eighth Amendment claim based on constitutionally inadequate medical treatment, the plaintiff must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). There are two elements to the deliberate indifference standard. Smith v. Carpenter, 316 F.3d 178, 183--84 (2d Cir. 2003). The first element is objective and measures the severity of the deprivation, while the second element is subjective and ensures that the ...