The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
On October 4, 2005, plaintiff filed a motion (# 107) to dismiss the claim against defendant Dan Workman ("Workman") on the ground that plaintiff fails to state a claim upon which relief can be granted, there is no alleged actual physical injury, and qualified immunity applies. For the reasons stated below, the Court grants Workman's motion.
The First Claim in plaintiff's amended complaint (# 9) includes the following claim against Workman:
1. That between August 16, 2000 and September 1, 2000, Dan Workman violated the plaintiffs Eighth Amendment right to be free from cruel and unusual punishments causing severe emotional trauma and being a direct party to the pain and suffering of the plaintiff.
2. That between August 16, 2000 and September 16, 2000, Sergeant Austin violated the plaintiffs Eighth Amendment right to be free from cruel and unusual punishment causing severe emotional trauma and pain and suffering.
3. That an unknown number of corrections officers did, with malicious intent violate the plaintiffs Eighth Amendment rights to be free from cruel and unusual punishment, denied medical attention, and causing severe emotional trauma, physical pain and suffering, between August 16, 2000 and September 1, 2000.
4. That between about 10:00 p.m. and 10:30 p.m. on August 17, 2000, three unknown guards did violate the plaintiffs Eighth Amendment rights to be free from cruel and unusual punishment by assaulting the plaintiff causing severe emotional trauma, pain and suffering, and permanent physical damages.
5. At a meeting on August 16, 2000, with Counselor Workman, the plaintiff requested to be moved from the facility for personal reasons of safety. This was the same counselor who had been asked for a transfer several times before. Mr. Workman refused by stating that until the plaintiff is assaulted, the only option would be to sign into protective custody. (Amend. Compl., at 2-3.)
The standard for reviewing a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. is "the same standard as that applicable to a motion under 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party." Gowins v. Greiner, 01 Civ. 6933 (GEL), 2002 U.S. Dist. LEXIS 14098 (S.D.N.Y. Jul. 31, 2002); citing King v. American Airlines, Inc., 284 F.3d 352, 356 (2d Cir. 2002). Of course, the Court must read a pro se complaint liberally and interpret it to raise the strongest arguments it suggests. Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 145-46 (2d Cir. 2002).
A plaintiff, "'has no constitutional right not to be transferred from one facility to another.'" Arroyo v. Coughlin, et al., __ F.Supp. __, 1994 U.S. Dist. LEXIS 15077 at *3 (W.D.N.Y. 1994) (quoting April 8, 1993 Order, Arroyo v. Coughlin and ...