The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff Antoinette Brown, appearing pro se, commenced this action under 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), alleges that her constitutional rights were violated in connection with an altercation between her and another inmate at Albion Correctional Facility ("Albion"). Defendants, who at all relevant times were employees of DOCS, have moved to dismiss plaintiff's claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff has not responded to the motion.
I. Plaintiff's Failure to Respond to Defendants' Motion
The Court of Appeals for the Second Circuit has held with respect to a motion for judgment on the pleadings pursuant to Rule 12(c) that "[w]here ... the pleadings are themselves sufficient to withstand dismissal, a failure to respond to a 12(c) motion cannot constitute 'default' justifying dismissal of the complaint." Maggette v. Dalsheim, 709 F.2d 800, 802 (2d Cir. 1983). The court has also held that "[t]he same principle is applicable to a motion pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss an action on the basis of the complaint alone." McCall v. Pataki, 232 F.3d 321, 322 (2d Cir. 2000). The court stated in McCall that "[i]f a complaint is sufficient to state a claim on which relief can be granted, the plaintiff's failure to respond to a Rule 12(b)(6) motion does not warrant dismissal." Id. at 323. Accordingly, I will proceed to consider the sufficiency of the complaint, notwithstanding plaintiff's failure to respond to defendants' motion.
The complaint alleges that on June 27, 2004, plaintiff was standing in line at the mess hall at Albion when another inmate, Erica Moore, approached her and told her that two other inmates were looking for plaintiff because of a recent altercation between plaintiff and another inmate. The conversation between plaintiff and Moore became heated, and they exchanged hostile words, and then punches.
A crowd began to gather. As plaintiff turned to look behind her, Moore stabbed plaintiff in the left ear with a pen. Defendant Correction Officer ("C.O.") Francisconi came over, broke up the fight, and took plaintiff to the infirmary. Plaintiff was treated for her ear wound and fractures in her hands (presumably from punching Moore).
On July 5, 2004, defendants Lt. McKeon, Sgt. Tschante, C.O. Tarra and another unidentified C.O. entered plaintiff's infirmary room. McKeon "pointed his finger in [plaintiff's] face and began speaking aggressively," telling plaintiff that she and Moore were being transported the next day to Erie Medical Center ("EMC"), that they would be riding together in the same van, and that McKeon "did not want no bullshit" from plaintiff during the ride. Tschante also told plaintiff, "Your [sic] going to keep your big mouth shut!" The officers then left.
Plaintiff and Moore were taken to EMC the next day, apparently without incident. Both plaintiff and Moore were shackled during the ride.
Plaintiff's claims are not articulated with great precision, but she appears to assert several factual bases for her claims. On her form complaint, plaintiff circled "Failure to Protect" as the basis of her claim. Complaint at 8. In her factual allegations, plaintiff also states that "the administration failed to protect [plaintiff] and did a bogus investigation into the incident ... ." Id. at 12.
Plaintiff also alleges that "the penalty E. Moore received [fifteen days solitary confinement] was unfair," and that "they should have brought legal charges against E. Moore ... ." Id.*fn1 Although nothing happened between plaintiff and Moore on the trip to EMC, plaintiff also alleges that they should not have been transported together in the same van, and that Moore "could have pushed [plaintiff] down and made [plaintiff] bust [her] chin if she really wanted to ... ." Id. at 14.
None of these allegations state a viable claim under § 1983. As to the failure-to-protect claim, the Supreme Court has stated that a "prison official's 'deliberate indifference' to a substantial risk of serious harm to an inmate violates the Eighth Amendment ... ." Farmer v. Brennan, 511 U.S. 825, 828 (1984). In order to demonstrate such deliberate indifference, it must be shown that the prison official had "knowledge that an inmate face[d] a substantial risk of serious harm and ... disregard[ed] that risk ...