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LOVANYAK v. COGDELL

September 30, 1996

MICHAEL J. LOVANYAK, Plaintiff, against WILLIAM COGDELL, Warden, WILLIAM FRASER, Deputy Warden, and NEW YORK CITY DEPARTMENT OF CORRECTIONS, Defendants.


The opinion of the court was delivered by: BARTELS

 Defendants William Fraser and New York City Department of Corrections ("DOC") move under Fed.R.Civ.P. 12(b)(6) to dismiss Plaintiff pro se Michael J. Lovanyak's 42 U.S.C. § 1983 action for failure to state a claim upon which relief can be granted. For the reasons set forth below, the motion to dismiss is granted.

 Background

 Lovanyak alleges the following facts in his complaint, which the Court accepts as true for the purposes of this motion. On April 11, 1994, while awaiting transport from a holding cell in the Brooklyn House of Detention to a court appearance, four or five inmates attacked him, knocked him unconscious and took his new pair of sneakers. As a result of this altercation, Lovanyak received several lacerations and damage to several teeth.

 Lovanyak then informed a corrections officer, but was immediately called for transportation to court. He subsequently informed the captain supervising the holding cell and the judge presiding over his case of both the incident and his desire for medical attention. Upon returning to the Brooklyn House of Detention later that day, he similarly informed another corrections officer. Lovanyak then was sent back to his housing unit, where he informed a housing officer, who in turn informed the captain on duty, at which time, twelve hours after the original incident, Lovanyak was examined by a doctor and returned to the housing unit, without receiving any treatment.

 Two days later, on April 13, 1994, Lovanyak was transferred to Rikers Island, and to his knowledge, the incident was neither investigated nor pursued by DOC.

 Lovanyak then filed the instant action on January 23, 1996 under § 1983 seeking $ 250,000 for "physical and emotional pain and suffering as a result of the negligent handling of this incident." Lovanyak does not identify any of the officers involved in the events of April 11, 1996 nor does he name them in the complaint, but sues only DOC, Warden Cogdell and Deputy Warden Fraser.

 Lovanyak served DOC and Fraser with process in this action, but never served Cogdell. DOC and Fraser join in this motion to dismiss the action pursuant to Rule 12(b)(6). Lovanyak has not filed opposition papers.

 Discussion

 I. Local Rule 3(b)

 Local Rule 3(b) *fn1" of the Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York authorizes the Court to grant the motion of DOC and Fraser solely on the basis of Lovanyak's failure to oppose the motion. See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996); Federal Trade Commission v. Metropolitan Communications, Corp., 1995 U.S. Dist. LEXIS 13028, No. 94 Civ. 0142, 1995 WL 540050 at *1 (S.D.N.Y. Sept. 11, 1995). The Court, however, will address the merits of the motion nevertheless.

 II. Standard of Evaluation for Rule 12(b)(6) Motion

 On a motion to dismiss under Rule 12(b)(6), the Court must accept all of Lovanyak's material allegations as true, Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 163, 113 S. Ct. 1160, 1161, 122 L. Ed. 2d 517 (1993), and must construe all reasonable inferences in his favor. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974). The Court may only grant the motion if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957); Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984). ...


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