The opinion of the court was delivered by: Christian F, Hummel U.S. Magistrate Judge
REPORT-RECOMMENDATION AND ORDER*fn1
Plaintiff pro se Issac Shannon ("Shannon"), an inmate in the custody of the New York State Department of Correctional and Community Services ("DOCCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendant, a DOCCS nurse, violated his constitutional rights under the Eighth Amendment. Compl. (Dkt. No. 1). Presently pending is defendant's motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). Dkt. No. 18. Shannon opposes the motion. Dkt. No. 29. For the following reasons it is recommended that defendant's motion for judgment on the pleadings be granted.
The facts are related herein in the light most favorable to Shannon as the non-moving party. See subsection II(A) infra.
From the age of twelve, Shannon suffered from progressively worsening episodes, beginning with falling sensations and a loss of consciousness to full-blown tonic-clonic seizures*fn2 . Dkt. No. 1 at 7. The frequency of Shannon's seizures have increased since his incarceration in 2007, with Shannon reportedly experiencing two to three episodes a month during the first part of 2011 and one episode a week during March of 2011. Dkt. No. 1 at 7.
On July 2, 2011, Shannon was brought to the infirmary after suffering a seizure while he was in the yard during recreation. Compl. at 4. Shannon's seizure lasted approximately thirty minutes prior to medical personnel providing him with Versed, an anticonvulsant medication which resulted in his seizure subsiding. Id. at 4-5; Dkt. No. 1 at 7. However, after the administration of the drug, Shannon ceased breathing and cardiopulmonary resuscitation ("CPR") was commenced by one of the corrections officers. Compl. at 4-5; Dkt. No. 1 at 7. CPR was performed for approximately one minute, after which time Shannon was successfully resuscitated. Dkt. No. 1 at 7. Emergency medical services were called and Shannon was taken to Auburn Memorial Hospital, and later Upstate Hospital, for further evaluation. Id.; Compl. at 4.
Shannon states that medical personnel at Auburn Memorial told him he had been "intoxicated with barbiturates [sic]." Compl. at 4, 5. Shannon also contends that he suffered physical damage and "couldn't really move around," although he fails to specify of what those damages consisted. Compl. at 5. Shannon also states that physical therapy was recommended by the hospital but, as of July 30, 2011, he had not yet received any therapy at the facility. Id.
Shannon contends that his Eighth Amendment rights were violated when defendant Goon provided him with medication which caused a cardiac arrest and almost killed him. Defendant argues for dismissal because (1) she was not personally involved in the provision of the medication; (2) Shannon's constitutional claims are meritless; and (3) Goon is entitled to qualified immunity.
1. Legal Standard*fn3 "The standard for granting a Rule 12(c) motion . . . is identical to that of a Rule 12(b)(6) motion for failure to state a claim." Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001) (citations omitted). 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 judgment against a pro se litigant, a court must afford the non-movant special solicitude. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006). As the Second Circuit has stated, [t]here are many cases in which we have said that a pro se litigant is entitled to "special solicitude," . . . that a pro se litigant's submissions must be construed "liberally,". . . and that such submissions must be read to raise the strongest arguments that they 'suggest. . . . . At the same time, our cases have also indicated that we cannot read into pro se submissions claims that are not "consistent" with the pro se litigant's allegations, . . or arguments that the submissions themselves do not "suggest, . . ." that we should not "excuse frivolous or vexatious filings by pro se litigants" . . . and that pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law . . . ."
Id. (citations and footnote omitted); 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 ...