The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiff Abass Bangura ("Plaintiff") commenced this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights, as well as state law claims for assault and battery. Presently before the Court is a motion to dismiss by defendants County of Nassau ("the County"), Nassau County Correctional Center ("NCCC") and Edward Reilly, incorrectly sued herein as Edward Riley ("Reilly") (collectively "County Defendants") for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Also before the Court is a motion for judgment on the pleadings by Nurse Jane Doe ("Nurse Doe") and Dr. James Neil ("Dr. Neil"). In opposition to the motions, Plaintiff has advised the Court that he withdraws the claims against NCCC and Dr. James Neil and accordingly, the Court dismisses the claims against these defendants.*fn1 For the reasons set forth below, the motion by the County and Reilly is granted in part and denied in part and the motion by Nurse Doe is granted. Furthermore, Plaintiff is granted leave to file an amended complaint within 20 days of the date hereof.
The following allegations are taken from the complaint.*fn2 Prior to August 31, 2005, Plaintiff was housed at NCCC in "I" building, a juvenile facility, for a period of two weeks. During that two week period he reported to the officers on duty that he was being picked on by another juvenile inmate. The personnel at NCCC then transferred Plaintiff from the juvenile facility to the main jail, cellblock B4. Cellblock B4 is an adult facility. On September 1, 2005, one day after his transfer to the adult facility, Plaintiff was assaulted by John Does 1-8, while defendants John Does 9-12, the correction officers assigned to the tier, were allegedly patrolling the tier where Plaintiff was housed. After the assault Plaintiff was taken to Nurse Doe, who after a physical examination and x-rays, told Plaintiff that his jaw was not broken. Plaintiff was then returned to the same cell where the assault occurred and locked into his cell.
The following day, Plaintiff was released on bail. After his release Plaintiff was taken by family members to Nassau County Medical Center where it was determined that Plaintiff's jaw was broken in two places, necessitating wires being placed in his jaw for a period of seven weeks. Plaintiff also sustained a broken tooth, lacerations and contusions as a result of the September 1, 2005 assault; he remained at Nassau County Medical Center for three days.
Based on the foregoing, Plaintiff asserts eleven cause of action. Count One is a § 1983 claim against the County and Reilly and asserts that they deprived Plaintiff of his rights under the Fifth and Fourteenth Amendment because they "failed to instruct, supervise, control, and discipline on a continuing basis John Doe corrections offices to properly supervise inmates, regularly patrol the tiers and areas to which they are assigned." Count Two is a § 1983 due process claim asserted against all defendants and alleges that Defendants' "acts, omissions, policies and practices . . . are a substantial departure from accepted professional judgment, standards and practices, constitute punishment and reflect deliberate indifference to the known or obvious consequences to Plaintiff . . . thereby unlawfully burden[ing] Plaintiff's protected liberty interest . . . ." Count Three is a § 1983 claims against all defendants in their official capacity alleging a violation of the cruel and unusual punishment clause of Eighth Amendment. Count Four is a § 1983 claims against the John Doe defendants in their individual capacity alleging a violation of the cruel and unusual punishment clause of Eighth Amendment. Count Five and Six are §1983 claims asserted against all defendants in their official and individual capacities respectively claiming the Defendants' acts, omissions, policies and practices violated the Fourth Amendment. Count Seven is asserted against all defendants and is entitled "Violation of the Eighth and Fourteenth Amendments Totality of Condition Affecting Physical Health." Count Eight alleges a violation of the Eighth and Fourteenth Amendments in that Plaintiff was denied timely access to medical care. Count Nine and Ten assert causes of action for assault and battery respectively against John Does 1-8. Count Eleven asserts a claim for intentional infliction of emotional distress against all defendants.
Rule 8(a) provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The standard for a motion for judgment on the pleadings pursuant to Rule 12(c) is the same as the standard for a motion to dismiss pursuant to Rule 12(b)(6). See Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998). The Supreme Court recently clarified the pleading standard applicable in evaluating a motions to dismiss under Rule 12(b)(6). In Bell Atl. Corp. v. Twombly, 550 U.S.544, 127 S.Ct. 1955 (2007), the Court disavowed the well-known statement in Conley v. Gibson, 355 U.S. 41 (1957) that "a 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." Id. at 45-46. Instead, to survive a motion to dismiss under Twombly, a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." 127 S.Ct. at 1974.
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 quotation marks omitted).
The Second Circuit has stated that Twombly does not require a universally heightened standard of fact pleading, but "instead requir[es] 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." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007). In other words, Twombly "'require[s] enough facts to 'nudge [plaintiffs'] claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig.,502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly, 127 S.Ct. at 1974)). Although Twombly did not make clear whether the plausibility standard applies beyond the antitrust context, the Second Circuit has "declined to read Twombly's flexible 'plausibility standard' as relating only to antitrust cases." ATSI Commn's, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 n.2 (2d Cir. 2007). As always, the Court must "accept all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor." ATSI Commcn's, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court must look to the allegations on the face of the complaint, and may also consider "[d]ocuments that are attached to the complaint or incorporated in it by reference." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007); Gillingham v. GEICO Direct, 2008 WL 189671, at *2 (E.D.N.Y. Jan. 18, 2008) (noting that a court considering a motion to dismiss "must limit itself to the facts stated in the complaint, documents attached to the complaint as exhibits and documents incorporated by reference in the complaint") (internal quotation marks omitted).
II. The County Defendants' Motion
County Defendants move for judgment on the pleadings for the following reasons. First, the claims against the County should be dismissed because Plaintiff has failed to adequately plead the existence of a Nassau County policy or practice which led to a violation of his Constitutional rights. Second, the claims against Reilly should be dismissed because Plaintiff has not alleged the personal involvement of Reilly and the claims against Reilly in his official capacity are duplicative of his claims against the County. Finally, with respect to the state law claims, the Court should declineto exercise jurisdiction over the pendent state claims and Plaintiff failed to affirmatively plead compliance with the provisions of New York General Municipal Law §§ 50-e and 50-i. The Court shall address these arguments ad seriatem.
A. Claims Against the County
Section 1983 provides in pertinent part:
Every person, who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . .subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges or immunities secured by ...