The opinion of the court was delivered by: Scheindlin, District Judge.
Defendants now move, pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6), to dismiss plaintiff's Complaint for lack of
subject matter jurisdiction and for failure to state a claim upon which
relief may be granted. Specifically, defendants contend that: (1)
plaintiff failed to exhaust his administrative remedies; (2) plaintiff
fails to adequately state a claim under the Eighth Amendment; and (3)
even assuming plaintiff has adequately set forth an Eighth Amendment
claim, plaintiff fails to plead that defendants Meinsen, Whitney and Maly
were personally involved in the alleged constitutional violation. For the
following reasons, plaintiff's Complaint is dismissed without prejudice
with respect to defendant Rivera. The Complaint is dismissed with
prejudice with respect to defendants Meinsen, Maly and Whitney.*fn2
The facts set forth below are taken from the Complaint and are presumed
true for purposes of this motion.
Plaintiff is an inmate currently incarcerated at the Auburn
Correctional Facility in Auburn, New York. The incident in dispute
allegedly occurred at Downstate while plaintiff was incarcerated there.
On April 6, 1998, defendant Rivera escorted plaintiff to the "tier
hearing room" to provide a urine sample for drug testing. See Complaint
§ IV. When plaintiff realized he was about to undergo drug testing,
he informed Rivera that the test results would be positive for drug use.
See id. Rivera told plaintiff that if plaintiff "were in fact positive
for drugs," he would be placed in Downstate's Special Housing Unit (the
"SHU").*fn3 See id. Plaintiff claims he immediately told Rivera that he
"could not be placed [in the SHU] because [he] had known enemies, listed
with corrections in that housing unit." Id. Rivera ignored plaintiffs
concerns, stating "so what." See id. Plaintiff then asked to speak with
Whitney, Meinsen or Glass. See id. Rivera refused plaintiff's request
stating that Whitney, Meinsen and Glass "didn't have time" to speak with
him. See id.
Following plaintiff's conversation with Rivera, a different Sergeant,
whom plaintiff is unable to identify, escorted plaintiff to the SHU. See
id. Plaintiff reiterated his concerns regarding the SHU to this
unidentified Sergeant. See id. Specifically, plaintiff told the
unidentified Sergeant that he "was being put where [he] had known
enemies." Id. The Sergeant told plaintiff that he "need not worry",
because plaintiff would be locked in his cell for twenty-three hours. See
id. Plaintiff claims that approximately four hours after he was placed in
the SHU, he was cut "severely" on his left hand. See id. Plaintiff does
not identify who cut him, nor does plaintiff provide any details
surrounding the cutting incident, such as whether it took place inside
his cell or in a common area.
On April 30, 1998, approximately three weeks after the incident, the
Department of Corrections transferred plaintiff from Downstate to Attica
Correctional Facility ("Attica"). On February 26, 1999, when plaintiff
filed his Complaint, he was housed at the Orleans Correctional Facility
("Orleans"). Although plaintiff acknowledged that Orleans has prisoner
grievance procedures in place, he admitted that he did not avail himself
of these procedures as the "incident did not occur at [Orleans]." See
id. § II. Plaintiff seeks unspecified compensatory damages for his
injury. See id. § V.
Dismissal of a complaint pursuant to Rule 12(b)(6) is proper "only
where it appears beyond doubt that the plaintiff can prove no set of
facts in support of the claim that would entitle him to relief." Scotto
v. Almenas, 143 F.3d 105, 109-10 (2d Cir. 1998) (internal quotation marks
and citation omitted). "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." Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998)
(internal quotation marks and citation omitted). Thus, in deciding such a
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, 37 (2d Cir. 1998).
Nevertheless, "[a] complaint which consists of conclusory allegations
unsupported by factual assertions fails even the liberal standard of Rule
12(b)(6)." De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 70 (2d Cir.
1996) (internal quotation marks and citations omitted).
However, pro se complaints are held to "less stringent standards than
formal pleadings drafted by lawyers," and are to be construed liberally
on a motion to dismiss. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct.
594, 30 L.Ed.2d 652(1972). Thus, a pro se 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." Hughes v. Rowe, 449 U.S. 5, 10, 101
S.Ct. 173, 66 L.Ed.2d 163(1980).
A. Dismissal Pursuant to 42 U.S.C. § 1997e(a)
Defendants assert that plaintiff's claims should be dismissed for
failure to exhaust administrative remedies. See Defendants' Memorandum of
Law in Support of their Motion to Dismiss the Complaint ("Def.Mem.") at
3-6. A prisoner must exhaust all available remedies before bringing an
action regarding prison conditions. See Wright v. Dee, 54 F. ...