The opinion of the court was delivered by: Barrington D. Parker, Jr., District Judge.
MEMORANDUM DECISION AND ORDER
Plaintiff, Sprint Spectrum, L.P. ("Sprint"), commenced this
action under the Federal Telecommunications Act of 1996 and
42 U.S.C. § 1983 alleging violations of the Act as well as of
various constitutional provisions. Before this Court is
defendants' motion to dismiss the complaint for failure to
state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Since
plaintiff has stated a claim under the Telecommunications Act
of 1996 and 42 U.S.C. § 1983, the defendants' motion to dismiss
is denied except that it is granted, in part, as to defendant
Richard P. Mills.
In deciding a 12(b)(6) motion, the Court must accept as true
all material facts alleged in the complaint and draw all
reasonable inferences in the nonmovant's favor. See Thomas v.
City of New York, 143 F.3d 31, 36 (2d Cir. 1998). Dismissal of
a complaint pursuant to Fed.R.Civ.P. 12(b)(6) is permitted
"only where it appears beyond doubt that the plaintiff can
prove no set of facts in support of the claim which would
entitle him to relief." Scotto v. Almenas, 143 F.3d 105,
109-10 (2d Cir. 1998) (quoting Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). "The task of the
court in ruling on a Rule 12(b)(6) motion is `merely to assess
the legal feasibility of the complaint, not to assay the weight
of the evidence which might be offered in support thereof.'"
Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (quoting Ryder
Energy Distribution Corp. v. Merrill Lynch Commodities, Inc.,
748 F.2d 774, 779 (2d Cir. 1984)).
A. Plaintiff Has Stated Claims
To state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of
the United States, and must show that the alleged deprivation
was committed by a person acting under color of state law.
West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d
40 (1988). A number of courts have recognized a claim under §
1983 for alleged violations of the Telecommunications Act of
1996. See, e.g., Smart SMR of New York, Inc. v. Zoning Comm'n
of the Town of Stratford, 995 F. Supp. 52, 60-61 (D.Conn.
1998); MCI Telecommunications Corp. v. The Southern New
England Telephone Co., 27 F. Supp.2d 326 (D.Conn. 1998);
Sprint Spectrum L.P. v. Town of Easton, 982 F. Supp. 47, 53
The facts as pled by plaintiff adequately state claims under
the Telecommunications Act of 1996 and under 42 U.S.C. § 1983
against defendants Szuberla and Thurnau. Here, Sprint has
alleged that it is a public utility licensed by the FCC to
provide telecommunications services in furtherance of the goals
of the Telecommunications Act of 1996; that defendants, state
officials, have impeded plaintiff's effort to provide
telecommunications services by denying its application to
install a cell site at Ossining High School, and that
defendants' actions violated plaintiff's rights under several
provisions of the 1996 Act and 42 U.S.C. § 1983. Defendants'
motion to dismiss is denied as to defendants Szuberla and
B. Mills Lacked Personal Involvement
Defendants argue that plaintiff has failed to state a claim
against New York State Department of Education Commissioner
Richard P. Mills in his personal capacity because Sprint's
Complaint "is devoid of any facts alleging that Commissioner
Mills had any personal involvement in the denial of Sprint's
building permit." Defendants' Memorandum in Opposition at 24.
Because the complaint does not adequately plead defendant
Mills' personal involvement in the alleged violations,
plaintiff's claims against him in his individual capacity are
Where damages are sought in a § 1983 action, the defendant must
be responsible for the alleged constitutional deprivation.
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994), AL-Jundi
v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989).
"[T]he general doctrine of respondeat superior does not suffice
and a showing of some personal responsibility of the defendant
is required." Al-Jundi, 885 F.2d at 1065 (internal quotations
omitted). A defendant who occupies a supervisory position may
be found personally involved in the deprivation of a
plaintiff's constitutionally protected rights in several ways.
See Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986).
The defendant may have directly participated in the infraction;
the official, after learning of the violation through a report
or appeal, may have failed to remedy the wrong; the official
may be liable because he or she created a policy or custom
under which unconstitutional practices occurred, or allowed
such a policy or custom to continue; and lastly, a supervisory
official may be personally liable if he or she was grossly
negligent in managing subordinates who caused the unlawful
condition or event. Wright, 21 F.3d at 501; Williams, 781
F.2d at 323-24. In addition, supervisory liability may be
imposed where an official demonstrates "gross negligence" or
"deliberate indifference" to the constitutional rights of a
plaintiff by failing to act on information indicating that
unconstitutional practices are taking place. Wright, 21 F.3d
For the foregoing reasons, defendants' motion to dismiss is
denied as to Thurnau and Szuberla and granted as to defendant
Mills. The Clerk of the Court is directed to enter judgment
dismissing the ...