The opinion of the court was delivered by: Richard J. Holwell, District Judge
MEMORANDUM OPINION AND ORDER
Defendants New York City Department of Corrections ("NYCDOC") and Marie Devezin ("Devezin") move to dismiss Plaintiff Darnell Mitchell's claim under 18 U.S.C. § 1983 for injuries and alleged improper treatment he received when a forklift ran over his foot in the storeroom of a correctional facility. For the reasons that follow, the Court finds that Mitchell has not stated a claim under § 1983 for a violation of the Eighth Amendment and grants defendants' motions to dismiss.
Mitchell's complaint alleges the following. At the time of the events giving rise to this action, Mitchell was incarcerated at the NYCDOC's Robert N. Davoren Complex ("R.N.D.C.") on Rikers Island. (Compl. at 1.) At 9:30 a.m. on July 30, 2009, Mitchell was at work in the storehouse at R.N.D.C. in direct custody of "C.O. Cork #12310." (Id. at 1-2.) Mitchell was "operating a manual jack with another inmate" when "someone pushed the loaded jack with over one thousand pounds of cargoover [his] left foot." (Id.) Mitchell was not trained or supervised in performing this work and was not given boots despite having "asked numerous times" for them. (Id. at 2.)
After sustaining his injury, Mitchell was taken to the clinic at R.N.D.C. where Devezin gave him "aspirin to subdue the pain." (Id.) Mitchell alleges that he "was left in the clinic in extreme pain for two and a half to three hours" before a nurse "went to another doctor, who prescribed the plaintiff a shot of a pain killer." (Id.) Thereafter, Mitchell was sent to another medical facility on Rikers Island for x-rays which turned up negative and then "immediately" to "an outside hospital" for additional x-rays which revealed that Mitchell's "left foot was fractured and had lacerations on the first and fourth toes. . . ." (Id. at 2-3.) Mitchell remained in the hospital overnight on July 30 and was discharged the following day with a temporary cast. (Id. at 3.)
In the days after his discharge back to R.N.D.C., Mitchell continued to experience pain. His prescription painkiller was refilled. (Id.) On August 11, 2009, Mitchell was again sent to an outside hospital where he was fit with a permanent cast. Some time thereafter, Devezin again examined Mitchell and cleared him to be sent to Downstate Correctional Facility. (Id.) Upon arrival at that facility, Mitchell was informed "that his foot had a distinct odor." (Id. at 4.) At some later time, an orthopedist at cut through the cast, revealing "a hole as big as a gunshot wound all the way to the bone." (Id. at 4.)
On January 14, 2010, Mitchell filed this action  alleging "deliberate indifference" and "violations of [the] Eighth Amendment" against NYCDOC as well as against Devezin and a party identified as "CORK -- CORRECTION #12310 OFFICER (5 am to 2 pm)" in their official capacities. (Id. at 4.) Summons on "CORK -- CORRECTION #12310 OFFICER (5 am to 2 pm)" was returned unexecuted  on the ground that nobody fitting that description was employed by NYCDOC. That nominal defendant is therefore not formally a party to this action. On May 21, 2010, Devezin filed a motion  under Federal Rule of Civil Procedure 12(b)(6) to dismiss Mitchell's action for failure to state a claim for which relief can be granted, or, in the alternative, for summary judgment under Federal Rule of Civil Procedure 56. On May 25, 2010, NYCDOC filed its own motion  to dismiss under Rule 12(b)(6).
"Courts ruling on motions to dismiss must accept as true all well-pleaded facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor." Dickerson v. Mut. of Am., 703 F. Supp. 2d 283, 290 (S.D.N.Y. 2010). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare 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). Rather, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).
"A document filed pro se is 'to be liberally construed,' and a 'pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 94 (2007)(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Courts must "read such submissions 'to raise the strongest arguments they suggest.'" Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). "However, even pro se plaintiffs asserting civil right claims cannot withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise a 'right to relief above the speculative level.'" Bridgewater v. Taylor, 698 F. Supp. 2d 351, 357 (S.D.N.Y. 2010) (quoting Twombly, 550 U.S. at 555). See also Andino v. Fischer,698 F. Supp. 2d 362, 376(S.D.N.Y. 2010)("While held to a less stringent standard, the pro se plaintiff is not relieved of pleading requirements, and failure to plead the basic elements of a cause of action may result in dismissal."). Indeed, "pro se status does not relieve a plaintiff of the pleading standards otherwise prescribed by the Federal Rules of Civil Procedure." Pandozy v. Segan, 518 F. Supp. 2d 550, 554 (S.D.N.Y. 2007).
Mitchell has brought a claim against both the NYCDOC and Devezin. Mitchell's claim against the NYCDOC is technically barred by the New York City Charter which provides that "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law." N.Y. City Charter Ch. 17 § 396.
"Thus where a plaintiff has named the Department of Corrections as a defendant, he has sued a non-suable entity." Adams v. Galletta, 966 F. Supp. 210, 212 (S.D.N.Y. 1997). See also Sulehria v. City of New York,670 F. Supp. 2d 288, 325 (S.D.N.Y. 2009); Pressley v. Green, No. 02-CV-5261, 2004 WL 97701, at *2(S.D.N.Y. Jan. 16, 2004).Nevertheless, because Mitchell's claim must "be liberally construed," Erickson, 551 U.S. at 94, and read "to raise the strongest arguments [it] suggest[s]," Bertin, 478 F.3d at 491, the Court will construe Mitchell's claim against NYCDOC as a claim against the City of New York.
However, "a municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell v. Dep't of Soc. Serv. of City of New York, 436 U.S. 658, 691 (1978) (emphasis in original). "Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Id. at 694. See also Shomo v. City of New York,579 F.3d 176, 184(2d Cir. 2009)("To ultimately prevail on his municipal liability claim against the City, [a plaintiff] must establish that violations of his constitutional rights were precipitated by a municipal policy or custom."). Thus, "[t]o hold a city liable under § 1983 for the unconstitutional actions of its employees, a plaintiff is required to plead and prove ...