The opinion of the court was delivered by: Charles J. Siragusa United States District Court Judge
The case is before the Court on the motions of Defendants Goord (# 25), Farr and Brown (# 15) for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) or 12(b)(6), or both. For the reasons stated below, the motions are granted.
For the purpose of these motion, the Court assumes the facts plead in the complaint are true. Plaintiff's amended complaint, filed on January 9, 2007, alleges as a first cause of action that on December 13, 2005, he was assaulted and battered by fellow prisoners while he was an inmate at the Chemung County Jail. He further alleges that the beating was arranged by one of the officers in charge of the block in which he was housed. (Am. Compl., at 7.*fn1 ) For a second cause of action, Plaintiff alleges that in February 2005, Dr. Farr and Dr. Brown, two maxillofacial surgeons,*fn2 added a metal plate to his jaw two months after it had been broken in the December assault, described in the first cause of action. As a result, Plaintiff states that he experienced substantial pain and that the metal plate caused further damage to his mouth because it was not properly set, leaving the bone in the bottom of his jaw unconnected, causing further 'outrageous pain and suffering.' (Am. Compl., at 9.)
Plaintiff further alleges that he was assaulted on February 20, 2005, at the Elmira Correctional Facility and that,
After my assault on 2-20-05 I wrote the commissioner to ask that I be held in protective custody to be protected from the inmates as well as staff and others wanting to do me harm in the Chemung County Jail. He never responded to the complaints that I formally made, and subsequently I was never protected by the man in charge being Commissioner Goard [sic]. So I have also included him in my 1983 claim for being aware of my assault on 2-20-05, but doing nothing to protect me from my future assault of 12-13-05 at the Chemung County Jail. (Am. Compl., at 9.)
Defendant Goord, the former Commissioner of the New York State Department of Correctional Services, moves for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, for judgment on the pleadings pursuant to Rule 12(c). He argues that:
In the matter before the Court Plaintiff merely alleges that she [sic] was injured during a fight with another inmate and that Plaintiff was transported to a hospital in the same van with the same inmate she [sic] had fought. Such bare allegations are not sufficient to warrant liability. (Goord Mem. of Law, at 3.) Moreover, he argues that:
Here, Plaintiff alleges only that he wrote a letter Commissioner Goord concerning the February 2005 assault at Elmira, a DOCS facility. According to Plaintiff, he was assaulted in December 2005 in Chemung, a Local Correctional Facility which is not under the control of the Department of Corrections. (Id., at 4.)
The two maxillofacial surgeons, Drs. Farr and Brown, argue that: Notably absent from Plaintiffs amended complaint are any allegations that either Dr. Farr or Dr. Brown acted with deliberate indifference to Plaintiffs serious medical needs, or that there was any violation of Plaintiffs Eighth Amendment right to freedom from cruel and unusual punishment (see, Estelle v. Gamble, 429 US 97, 106, 97 S.Ct. 285,292 ; Tomarkin v. Ward, 534 F. Supp. 1224, 1228-1229 [SDNY 19821; Arrovo v. Schaefer, 548 F. 2d 47,49 [2'* Cir. 19771). At most, Plaintiffs amended complaint may be fairly read as asserting a claim for medical/dental malpractice, which does not transform into a constitutional violation under section 1983 'merely because the victim is a prisoner' (Tomarkin v. Ward, supra, at 1229; Arrovo v. Schaefer, supra, citing Estelle v. Gamble, 429 US 97, 106, 97 S.Ct. 285, 292). (Surgeons' Mem. of Law, at 6.)
The Court's original briefing schedule did not provide for oral argument, since Plaintiff was incarcerated. However, Plaintiff contacted the Court by letter dated June 14, 2007, asking for oral argument, since he believed he would be released from incarceration by August 6, 2007. In response, the Court granted his request, and entered an Order on June 21, 2007, with the following language:
ORDER re  Motion Scheduling Order: the Court grants Plaintiff's request for oral argument. Oral argument is scheduled for August 16, 2007, at 3:30 p.m. before Hon. Charles J. Siragusa at U.S. Courthouse, 100 State Street, Rochester, New York 14614. Plaintiff is directed to notify the Court not later than August 13, 2007, if he will be unable to attend oral argument due to continued incarceration. Signed by Hon. Charles J. Siragusa on 6/20/2007.
A copy of the Order was sent to Plaintiff at the address in the docket: Darryl Gilliam, 01-A-1478, Westchester County Jail, P.O. Box 10, Valhalla, NY 10595 by ordinary mail on or about June 21, 2007. Plaintiff did not contact the Court,*fn3 and on the scheduled date for oral argument, August 16, 2007, at 3:30 p.m., ...