HUGH B. SCOTT, District Judge.
Before the Court are the following motions: the defendants' motion to dismiss (Docket No. 10); the plaintiff's motion granting the complaint (Docket No. 14) and the plaintiff's motion for appointment of counsel. (Docket No. 23).
The plaintiff, David Eccheverria ("Eccheverria"), commenced this action against the defendants alleging that the defendants were deliberately indifferent to his medical needs. (Docket No. 1). The plaintiff states that in June of 2008 he injured his back while lifting a heavy locker while incarcerated at the Bare Hill Correctional Facility. (Docket No. 1 at ¶ 1; (Docket No. 14 at page 1). Ecchiverria states that several days later he was later seen by a doctor and prescribed pain medication. (Docket No. 1 at ¶3). The plaintiff asserts that his back pain continued and an x-ray was taken on November 3, 2008 revealing that he was suffering from mild multilevel degenerative disc disease. (Docket No. 1 at ¶ 6). On January 5, 2009, Ecchiverria was transferred to the Southport Correctional Facility ("Southport"). (Docket No. 1 at ¶ 7). He states that he immediately advised the medical staff at Southport of his continuing back pain and asked that an MRI be performed. (Docket No. 1 at ¶ 8). According to the plaintiff, the defendants advised him that he had "mild arthritis" and prescribed pain medication. (Docket No. 1 at ¶ 8). Ecchverria alleges that on June 21, 2009, he wrote to the nurse practitioner stating that he continued to have severe pain in his back and left leg, and again, asked for an MRI to be performed. (Docket No. 1 at ¶10, see also June 21, 2009 letter attached to the complaint as Exhibit B). The plaintiff received a written response to his letter on June 29, 2009 stating that he had already been seen by the facility doctor and that he should continue to use the sick call procedure to address his medical concerns. (Docket No. 1 at ¶11; see also June 29, 2009 response attached to the complaint as Exhibit C). On July 19, 2009, Ecchiverria filed a grievance stating that the pain medications were not helping and that he was denied an MRI. (Docket No. 1 at ¶ 12). The plaintiff's grievance was granted "to the extent that he had an x-ray on his back on November 3, 2008 which shows he has mild arthritis in his back. The MD doesn't feel that an MRI is indicated at this time." (Docket No. 1 at ¶¶13-14; see also grievance response attached to the complaint as Exhibit E). Ecchiverria appealed the denial of his grievance to Inmate Grievance Program Central Review Committee which upheld the denial of his grievance noting that the physician has not deemed an MRI to be medically necessary and that Ecchiverria had been scheduled to start physical therapy to address his back pain. (Docket No. 1 at ¶14; see also August 26, 2009 decision denying appeal of grievance attached to the complaint as Exhibit F). Almost a year later, in July of 2010, the plaintiff asserts that he was transferred to the Auburn Correctional Facility ("Auburn") where he continued to complain of his back pain. An MRI was performed on November 23, 2010 revealing that the plaintiff had various herniated discs and advanced degenerative disc disease at the L1-2 through L5-S1 levels. (Docket No. 1 at ¶18; see also MRI report attached to the complaint as Exhibit G). On March 3, 2011, the plaintiff was seen by Dr. Antonio Culebras, a neurologist. According to Ecchiverria, Dr. Culebras stated that the plaintiff could not have his condition corrected surgically because he had too many herniated discs. (Docket No. 1 at ¶ 20). Dr. Culebras' report, upon examination, found: "chronic back pain with multiple level broad disc herniations. Clinically no evidence of radiculopathy, atrophies or sensory changes. Pain on percussion at lumbar spine. Recommend TENS applications. Wear corset in lumbar region. Consider lumbar injections to reduce inflammation (Pain Clinic at UH). Continue physical therapy." (See Dr. Culebras' report dated March 3, 2011, attached to the complaint as Exhibit H). Ecchiverria claims that the medical personnel at Southport were indifferent to his medical needs because they failed to order an MRI which might have revealed the seriousness of his back condition at an earlier stage allowing for corrective surgery. (Docket No. 1 at ¶ 22).
Motion to Dismiss
The defendants have filed a motion to dismiss the complaint asserting that the plaintiff's complaint "amounts to nothing more than a dispute over medical care and does not state a claim of constitutional dimension." (Docket No. 11 at page 1). The plaintiff has filed a cross-motion to have his complaint granted (Docket No. 14) as well as various additional responses to the defendant's motion to dismiss. (Docket Nos. 19 and 22).
Standard of Review
The defendants move to dismiss some of the claims in the Complaint pursuant to Rule 12 of the Federal Rules of Civil Procedure. The court accepts the material facts alleged in the complaint as true and draws all reasonable inferences in favor of the plaintiff and against the defendants. See Chance v. Armstrong , 143 F.3d 698, 701 (2d Cir.1998); Cohen v. Koenig , 25 F.3d 1168, 1171-72 (2d Cir.1994); Atlantic Mutual Ins. Co. v. Balfour Maclaine Int'l Ltd. , 968 F.2d 196, 198 (2d Cir.1992). However, legal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness. Albany Welfare Rights Org. Day Care Ctr., Inc. v. Schreck , 463 F.2d 620 (2d Cir.1972), cert. denied, 410 U.S. 944 , 93 S.Ct. 1393, 35 L.Ed.2d 611 (1973). The court is required to read the complaint broadly and with great latitude on a motion to dismiss. Yoder v. Orthomolecular Nutrition Inst. , 751 F.2d 555, 558 (2d Cir.1985). The court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden , 754 F.2d 1059, 1067 (2d Cir.1985).
The Supreme Court has clarified the pleading standard required to withstand a motion to dismiss. "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009) (internal citation omitted). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id .; see also Bell Atl. Corp. v. Twombly , 550 U.S. 544, 565-66 (2007)(Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)). Under Iqbal, factual allegations must be sufficient to support necessary legal conclusions. Iqbal , 556 U.S. at 680-681. "A court can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.'" Hayden v. Paterson , 594 F.3d 150, 161 (2d Cir.2010) (quoting Iqbal , 556 U.S. at 680). The Court must then consider the factual allegations in the complaint to determine if they plausibly suggest an entitlement to relief. Iqbal , 556 U.S. at 681; see also Harris v. Mills , 572 F.3d 66, 72 (2d Cir.2009).
Thus, while the pleading standard under Rule 8 does not require detailed factual allegations, it demands more than unadorned, conclusory accusations. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action is not sufficient. To 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. 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. The plausibility requirement is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. 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. Iqbal , 556 U.S. at 681.
The Plaintiff's Eighth Amendment Claim
The Eighth Amendment outlaws "cruel and unusual punishments." U.S. Const. amend. VIII. "This includes punishments that involve the unnecessary and wanton infliction of pain.'" Chance v. Armstrong , 143 F.3d 698, 702 (2d Cir.1998) (quoting Gregg v. Georgia , 428 U.S. 153, 173 (1976)). See also Hernandez v. Keane , 341 F.3d 137, 144 (2d. Cir. 2003). While "society does not expect that prisoners will have unqualified access to health care, " Hudson v. McMillian , 503 U.S. 1, 9 (1992), an inmate can nevertheless prevail on an Eighth Amendment claim arising out of medical care by showing that a prison official acted with "deliberate indifference" to the inmate's serious medical needs. Hathaway v. Coughlin, ("Hathaway I") , 37 F.3d 63, 66 (2d Cir.1994) (quoting Estelle v. Gamble , 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)).
This standard incorporates both objective and subjective elements. The objective "medical need" element measures the severity of the alleged deprivation, while the subjective "deliberate indifference" element ensures that the defendant prison official acted with a sufficiently culpable state of mind. Smith v. Carpenter , 316 F.3d 178, 183-184 (2d. Cir. 2003). To prevail on a constitutional claim of deliberate medical indifference, a plaintiff must prove that he suffered from an objectively serious medical condition, which the defendants knew of and deliberately disregarded. Green v. Senkowski , 2004 WL 1292786, *1 (2nd Cir. 2004) citing Chance , 143 F.3d at 702 (collecting cases). A serious medical condition is one that may result in death, degeneration, or "chronic and substantial pain." Id .; see Hathaway I , 37 F.3d at 66. This standard contemplates a "condition of urgency, one that may produce death, degeneration, or extreme pain." Nance v. Kelly , 912 F.2d 605, 607 (2d Cir.1990) (Pratt, J., dissenting)). A serious medical need arises where "the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain." Chance , 143 F.3d at 702. To satisfy the subjective prong of the test, prison officials must have acted with a sufficiently culpable state of mind, i.e., deliberate indifference. Plaintiff must therefore show that prison officials intentionally denied, delayed access to, or intentionally interfered with prescribed treatment. See Estelle , 429 U.S. at 104-05. See also Farmer v. Brennan , 511 U.S. 825, 837 (1994)("[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference."). "[T]he subjective element of deliberate indifference entails something more than mere negligence... [but] something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.'" Hathaway II, 99 F.3d at 553 (quoting Farmer , 511 U.S. at 835). Accordingly, subjective recklessness can satisfy the deliberate indifference standard only where "the official has actual knowledge that the prisoner faced a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Farmer , 511 U.S. at 847. However, "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle , 429 U.S. at 106.
Also, it is well-established that a prisoner is not entitled to receive the medical treatment of his choice. So long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment or a different doctor does not give rise to an Eighth Amendment violation. Dean v. Coughlin , 804 F.2d 207, 215 (2d Cir.1986) (The essential test is one of medical necessity and not one simply of desirability). A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a §1983 claim. Chance v. Armstrong , 143 F.3d 698, 703 (2d Cir.1998); Dean v. Coughlin , 804 F.2d 207, 215 (2d Cir.1986); Franklin v. Oregon , 662 F.2d 1337, 1344 (9th Cir.1981). The Constitution does not require that an inmate receive a particular course of treatment, or that an inmate see a requested specialist. Dulany v. Carnahan , 132 F.3d 1234, 1239 (8th Cir.1997), Davis v. Hall , 992 F.2d 151, 153 (8th Cir.1993). Similarly, a showing of nothing more than a difference of medical opinion as to the need to pursue one course of treatment over another is insufficient, as a matter of law, to establish deliberate indifference. Chance v. Armstrong , 143 F.3d. 698 (2d. Cir. 1998); Johnson v. Snow, 2008 WL 2224949 (N.D.N.Y., 2008); Sanchez v. Vild , 891 F.2d 240, 242 (9th Cir.1989); Sires v. Berman , 834 F.2d 9, 13 (1st Cir.1987) ("Where the dispute concerns not the absence of help, but the choice of a certain course of treatment, or evidences mere disagreement with considered medical judgment, [a court] will ...