The opinion of the court was delivered by: Siragusa, J.
Before the Court is the motion to dismiss by defendants Glenn S. Goord and Acting Superintendent L. McNamara (Docket No. 9) for failure to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). For the reasons stated below, the motion is granted.
In his complaint, Plaintiff claims that Defendants Goord and McNamara failed to protect him from harm at Southport Correctional Facility, where he was allegedly assaulted on July 5, 2005, by defendant Corrections Officers Augustine, Gilbert and Hable. He further claims that defendants Goord and McNamara knew of the history of violence by staff against inmates (Compl. ¶¶ 25-35) and that Southport is connected with illegal military training in support of the war in Iraq.
Federal Rule of Civil Procedure 12
Recently, the U.S. Supreme Court, in Bell Atl. Corp. v. Twombly, - U.S. -, 127 S.Ct. 1955 (May 21, 2007), clarified the standard to be applied to a 12(b)(6) motion:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a Plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
Id. at 1964-65 (citations and internal quotations omitted). See also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) ("To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'") (quoting Bell Atl. Corp. v. Twombly) (footnote omitted); Iqbal v. Hasty, 490 F.3d 143, 2007 W L 1717803 (2d Cir. Jun. 14, 2007) (Indicating that Bell Atl. Corp. v. Twombly adopted "a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible[,]" as opposed to merely conceivable.) When applying this standard, a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (1999), cert. denied, 531 U.S. 1052 (2000). On the other hand, "[c]onclusory allegations of the legal status of the defendants' acts need not be accepted as true for the purposes of ruling on a motion to dismiss." Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995)(citing In re American Express Co. Shareholder Litig., 39 F.3d 395, 400-01 n. 3 (2d Cir.1994)).
Establishing Liability under 42 U.S.C. § 1983
A plaintiff may not rely on the doctrine of respondeat superior to establish liability in a § 1983 action. Monell v. New York City Department of Social Services, 436 U.S. 658, 691-95 (1978). "The bare fact that [Defendants Goord and McNamara] occupie[d] a high position in the New York prison hierarchy is insufficient to sustain [Plaintiff's] claim." Colon v. Coughlin, 58 F.3d 865, 874 (2d Cir. 1995).
A prerequisite for liability under § 1983 is personal involvement by the defendants in the alleged constitutional deprivation. Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997); Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986). As the Second Circuit held Sealey v. Giltner, 116 F.3d 47 (2d Cir. 1997):
A supervisory official is liable for constitutional violations if he or she (1) directly participated in the violation; (2) failed to remedy the violation after learning of it through a report or appeal; (3) created a custom or policy fostering the violation or allowed the custom or policy to continue after learning of it; or (4) was grossly negligent in supervising subordinates who caused the violation.
Sealey, 116 F.3d at 51 (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)).
Defendants rely on the district court's decision in Warren v. Goord, 476 F. Supp. 2d 407 (S.D.N.Y. 2007). There, the district court summarized the applicable law in a Federal Rule of Civil Procedure 12(b)(6) motion pending in a case where the plaintiff was injured by another ...