The opinion of the court was delivered by: Norman A. Mordue, Chief U. S. District Judge
MEMORANDUM-DECISION AND ORDER
In this pro se action under 42 U.S.C. § 1983, plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), claims that defendants confiscated his medically prescribed eyeglasses in violation of his constitutional rights. Plaintiff asserts Eighth and Fourteenth Amendment causes of action and claims that defendants retaliated and conspired against him after he made complaints to prison officials. Defendants moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) (Dkt. No. 26) and plaintiff cross moved to amend the complaint. (Dkt. No. 28). The motions were referred to United States Magistrate Judge Randolph F. Treece for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c). Magistrate Judge Treece issued a Report and Recommendation (Dkt. No. 30) recommending that defendants' motion to dismiss be granted, plaintiff's cross motion be denied and the complaint dismissed.
Plaintiff filed specific objections to the Report and Recommendation. (Dkt. No. 31). Defendants have not responded. In view of plaintiff's objections, pursuant to 28 U.S.C. § 636(b)(1)(c), this Court conducts a de novo review of these issues. The Court reviews the remaining portions of the Report-Recommendation for clear error or manifest injustice. See Brown v. Peters, 1997 WL 599355, *2-3 (N.D.N.Y.), aff'd without op., 175 F.3d 1007 (2d Cir.1999); see also Batista v. Walker, 1995 WL 453299, at *1 (S.D.N.Y. 1995) (when a party makes no objection to a portion of the report-recommendation, the Court reviews that portion for clear error or manifest injustice). As explained below, the Court accepts the Report and Recommendation in part and rejects it in part.
On September 11, 2006, plaintiff, an inmate at Coxsackie Correctional Facility, was transported from the facility to Albany Medical Center for medical services. During the trip, prison officials told plaintiff he could not wear his prescription eyeglasses. Plaintiff advised prison officials that he suffered from "dry eyes", a condition that made exposure to natural light extremely painful and could cause permanent blindness. Defendants continued to demand his eyeglasses. Plaintiff asked to speak with a supervisor to complain about "defendants' deliberate indifference to the serious consequences that could befall on plaintiff". Defendants refused to call a supervisor, "prompting plaintiff to give clear notice of his intent to seek administrative relief against said defendants through the inmate grievance procedure".
C.O. John Doe confiscated plaintiff's eyeglasses. Defendants claim that the eyeglasses were seized pursuant to a municipal policy which prevented inmates from taking eyeglasses on outside hospital trips. Plaintiff alleges that, "[i]t is not DOCS policy to prohibit eyeglasses on outside medical trips . . . [t]he inmates denied access to their eyeglasses are those in need of reading glasses, and inmates who can safely move about with out aid". Plaintiff needs his eyeglasses to "move about safely". Plaintiff's eyeglasses were never returned and he claims they were destroyed.
On November 1, 2006, and for approximately 26 months thereafter, plaintiff made several complaints to R.N. Jane Doe and Dr. Miller with regard to his eye condition. Plaintiff requested, but was denied, temporary eyeglasses and told he would need to pay for replacement eyeglasses. Plaintiff claims defendants conspired to continue to withhold his eyeglasses. As a result of being denied prescription eyeglasses, plaintiff suffered extreme eye pain, excruciating headaches, a loss of vision and loss of balance.
Plaintiff alleges that defendants retaliated against him and seized his eyeglasses when he expressed his intent to pursue administrative redress and continued to retaliate and conspire against him by not returning his eyeglasses. Plaintiff also claims that defendants were deliberately indifferent to his serious medical needs and that defendants Goord, Fischer, Wright, Rivera, Lape, Montuscello and Smith developed and maintained policies and/or customs exhibiting deliberate indifference to plaintiff's constitutional rights.
A. Standard on Motion to Dismiss
Defendants move to dismiss the complaint under Fed.R.Civ.P. 12(b)(6). To survive a dismissal motion, "a complaint must plead 'enough facts to state a claim to relief that is plausible on its face.'" Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court must accept as true all factual allegations in the complaint and draw all reasonable inferences in plaintiff's favor. See ATSI Commc'n, Inc., 493 F.3d at 98. The issue before the Court on such a motion "is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." King v. Simpson, 189 F.3d 284, 287 (2d Cir.1999) (quoting Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995)). A complaint should be "especially liberally construed when it is submitted pro se and alleges civil rights violations." See Jacobs v. Mostow, 271 F. App'x 85, 87 (2d Cir.2008) (citing Fernandez v. Chertoff, 471 F.3d 45, 51 (2d Cir. 2006)). The submissions of a pro se litigant should be interpreted to raise the strongest arguments that they suggest. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
Plaintiff objects to this portion of the Report-Recommendation. 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 defendant acted with a sufficiently culpable state of mind. Id. at 184 (citing inter alia Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)).
To establish the first element, plaintiff must show that he has a sufficiently serious illness or injury. Smith, 316 F.3d at 184 (citing Hudson v. McMillian, 503 U.S. 1, 9 (1992)). A medical condition is considered "sufficiently serious" when there is a "condition of urgency," one that may result in death, degeneration, or extreme pain. Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). If unnecessary and wanton infliction of pain results from the denial of treatment, or if the denial of treatment causes the inmate to suffer a lifelong handicap or permanent loss, the condition may be considered "sufficiently serious." Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F.Supp.2d 303, 310 (S.D.N.Y. 2001)(citing Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000)). Courts, "do not require an inmate to demonstrate that he experiences pain that is at the limit of human ability to bear, nor do courts require a showing that his condition is life-threatening". Santos v. New York City Dep't of Corr., 2010 WL 1142066, at *6 (S.D.N.Y. 2010) ...