The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge
This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Gary L. Sharpe, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Karo Brown alleges that Defendants Robert Outhouse (Cayuga County Sheriff), Correctional Officer Walborn of the Cayuga County Jail, and two or more unnamed officers violated his rights under the United States Constitution and New York state laws by assaulting him, denying him prompt medical care, and conducting a procedurally flawed disciplinary hearing*fn1. Currently pending before the Court is Defendants' motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 8.) For the reasons that follow, I recommend that Defendants' motion be granted in part.
A. Summary of Plaintiff's Complaint
Liberally construed, Plaintiff's complaint alleges as follows: In 2004, Plaintiff was detained at Cayuga County Jail pending trial on federal charges. (Dkt. No. 1 at ¶ 5.) On November 15, 2004, Plaintiff was removed from the general population and questioned about "possession of salt packets." (Dkt. No. 1 at ¶ 13.) After the questioning, Plaintiff was "assaulted by Correctional Officer Walborn and other unknown Correctional Officers," who shoved Plaintiff into a tray cart, knocked him to the floor, kicked him and beat him with "unknown objects." (Dkt. No. 1 at ¶¶ 12-13, 15.) Plaintiff suffered lacerations to his face and scalp and abrasions to his legs, torso, face, head and shoulders. (Dkt. No. 1 at ¶ 17.)
Plaintiff was then placed in solitary confinement. (Dkt. No. 1 at ¶ 12, 20.) Plaintiff "did not eat any food while he was in solitary confinement because he had requested for medical attention." (Dkt. No. 1 at ¶ 20.) Plaintiff did not receive any medical attention until two or three days later. (Dkt. No. 1 at ¶ 20.)
Sometime after the assault, Plaintiff was "required to appear at a disciplinary hearing without any prior notice of the disciplinary hearing." (Dkt. No. 1 at ¶ 14.) At the hearing, Plaintiff asked to call other prisoners to testify as eyewitnesses, but the hearing officer denied the request. (Dkt. No. 1 at ¶ 22-23.) Plaintiff was then "kept in solitary confinement status for a couple of months." (Dkt. No. 1 at ¶ 23.)
Plaintiff claims that Defendants' conduct violated his rights under the United States Constitution and New York state law. (Dkt. No. 1 at 1.) Plaintiff states that he still suffers great pain and stiffness and believes that he risks permanent disability in his left shoulder if he is not promptly provided with physical therapy. (Dkt. No. 1 at ¶¶ 27, 29.) He requests 10 million dollars in damages. (Dkt. No. 1 at 7.)
B. Summary of Grounds in Support of Defendants' Motion
Defendants move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6.). (Dkt. No. 8.) Defendants argue that (1) Plaintiff's New York state law claim for assault and battery is barred by the applicable statute of limitations; (2) Plaintiff's New York state law claim for negligence is barred by the applicable statute of limitations; and (3) Plaintiff's Eighth Amendment claim for denial of medical care fails to state a cause of action because it does not adequately allege that Defendants were personally involved*fn2. (Dkt. Nos. 8, 18.)
C. Summary of Plaintiff's Response to Defendants' Arguments
In response to the motion to dismiss, Plaintiff argues that he timely filed his complaint. (Dkt. No. 15.)
II. LEGAL STANDARD GOVERNING MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). It has long been understood that a defendant may base such a motion on either or both of two grounds: (1) a challenge to the "sufficiency of the pleading" under Federal Rule of ...