The opinion of the court was delivered by: SCHWARTZ
ALLEN G. SCHWARTZ, DISTRICT JUDGE,
Before the Court are defendants' motions to dismiss the complaint and, in the alternative, for summary judgment. For the reasons stated, these motions are denied.
The essential facts are not in dispute. Plaintiff Vincent Robbins was convicted in March 1991 of Assault in the First Degree and Attempted Robbery in the First Degree. In April 1991, he was sentenced to a term of 5 to 15 years in state custody. Prior to sentencing, Robbins was held at a New York City Department of Correction ("DOC") facility as a pretrial detainee. On April 16, 1991 following sentencing, he was transferred to a New York State DOC facility. In November 1993, Robbins' conviction was reversed by the Appellate Division of the New York State Supreme Court.
After his conviction was reversed, Robbins' status reverted to that of a pretrial detainee. The parties do not dispute that, as a matter of law, custody of pretrial detainees is to be maintained in City DOC facilities and that State DOC facilities are to be used for the confinement of persons under sentence of imprisonment. However, after his conviction was vacated, Robbins was not returned to a City DOC, but was kept in Woodbourne Correctional Facility ("Woodbourne"), a general confinement state correctional facility. In January or February of 1994, Robbins twice told defendant Hanslmaier, Acting Superintendent of Woodbourne at the time, that he should not be at Woodbourne as a pretrial detainee. Hanslmaier promised to investigate. On March 21, 1994, Robbins was transferred to a City DOC facility on Rikers Island ("Rikers") for a court appearance and remained at Rikers for court appearances in March and April 1994. On May 24, 1994, Robbins was transferred from Rikers back to Woodbourne. Upon his return to Woodbourne, Robbins informed the Grievance Coordinator that he should be returned to Rikers because his conviction had been reversed. However, no action was ever taken on his request.
On June 27, 1994, Robbins filed a pro se complaint seeking damages and requesting to be transferred out of the state prison. However, even after the filing of this complaint, Robbins was transferred back and forth between Woodbourne and Rikers several times. On July 5, 1994, he was transferred from Woodbourne to Rikers for a court appearance on July 12, 1994. On July 28, 1994, he was transferred back from Rikers to Woodbourne. On August 11, 1994, he was transferred from Woodbourne to Rikers for a court appearance on August 17, 1994. On August 31, 1994, he was transferred back to Woodbourne. On September 19, 1994 he was transferred back to Rikers from Woodbourne. During these transfers, Robbins was usually transferred through Ulster Correctional Facility. According to Robbins, his custody in the State facility continued for a period of at least 10 months following reversal of his conviction, from November 1993 to September 1994.
Robbins now claims damages pursuant to 28 U.S.C. § 1983 resulting from his wrongful confinement in Woodbourne for the extended period following the reversal of his conviction. Specifically, Robbins claims that as a result of his being held at Woodbourne, he (1) suffered stress and mental anguish as a result of being far away from his family, (2) missed several court appearances in New York State Supreme Court related to his retrial, (3) was subjected to testing for tuberculosis each time he was transferred between State and City DOC facilities, (4) faced an increased risk of physical harm and violence during each transfer and (5) was required to work on a regular basis at Woodbourne (something he would not have had to do as a pretrial detainee in a City DOC facility).
The State defendants, Coughlin, Hanslmaier and the Superintendent of Ulster Correctional Facility (who is designated only as "John Doe" in the pro se complaint), have moved to dismiss the complaint. Defendant New York City Department of Correction has moved to dismiss the complaint and, in the alternative, for summary judgment. For the reasons stated, these motions are denied.
On a motion to dismiss a complaint, the allegations are liberally construed and considered in the light most favorable to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). "[A] complaint should not be dismissed for failure to state a claim unless 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, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Similarly, a motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). In considering the record before it in connection with a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party, and may not properly grant summary judgment where the issue turns on the credibility of witnesses. Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1994). In this case, plaintiff's allegations are sufficient to survive defendants' motions.
A. Plaintiff's Constitutional Claims
To assert a § 1983 claim, a plaintiff must allege that certain conduct, committed by a person under color of state law, resulted in a deprivation of the plaintiff's rights under the Constitution of the United States. Patterson v. Coughlin, 761 F.2d 886, 890 (2d Cir. 1985). The Due Process clause protects a person against "punishment" prior to adjudication of guilt conducted in accordance with due process of law. See Bell v. Wolfish, 441 U.S. 520, 533-537, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). Thus, "the government may detain a defendant prior to trial consistent with the Due Process Clause of the Fifth Amendment so long as [the] confinement does not amount to punishment of the detainee." United States v. Millan, 4 F.3d 1038, 1043 (2d Cir. 1993).
In general, as this Court has held, a pretrial detainee's transfer between state correctional facilities, for a limited period of time, does not amount to "punishment" under the Fourteenth Amendment. Butler v. New York State Correctional Dept., 1996 U.S. Dist. LEXIS 11057, 94 Cv. 5054, 1996 WL 438128 at *5 (S.D.N.Y. Aug. 2, 1996). Indeed, "pretrial detention of a defendant, when of reasonable duration, serves important regulatory purposes, including the ...