The opinion of the court was delivered by: John Gleeson, United States District Judge
Plaintiff Stephen Lewis, currently incarcerated in the Arthur Kill Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, claiming that defendant Corrections Officer ("C.O.") T. Burroughs sexually assaulted him during a pat down, in violation of the Eighth Amendment's prohibition on cruel and unusual punishment. Lewis also alleges that C.O.s Bing, Powell and Smith witnessed C.O. Burroughs's sexually abusive conduct and failed to intervene to stop it. Lewis's complaint also names as defendants Brian Fischer ("Fischer"), the Commissioner of the N.Y. State Department of Corrections, Dennis Breslin ("Breslin"), the Superintendent of Arthur Kill Correctional Facility and the New York State Department of Corrections ("DOCS"). Lewis is seeking $5,000,000 in compensatory damages, $1,000,000 in damages for pain and suffering and $1,000,000 in damages for aggravation of a pre-existing condition. Defendants move to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).*fn1 For the reasons stated below, the motion is granted in part and denied in part.
The following facts, taken from the plaintiff's complaint, are assumed to be true for the purposes of this motion.
On November 8, 2007, at approximately 2:00 p.m., Lewis, an inmate at Arthur Kill Correctional Facility, approached the Administration desk to pick up a facility commissary sheet and to get a new ID card. Earlier that day Lewis had explained to his housing officer, C.O. Johnson, that he had lost his ID card. Johnson instructed Lewis to go to the Administration desk to get a new card and said he would call ahead to inform them of the situation. When Lewis arrived at the Administration desk, C.O.s Burroughs, Bing, Powell and Smith were present.*fn2
Burroughs asked Lewis for his name, the reason for his visit and to present his ID card. Lewis explained that he was the individual Johnson had called about who had lost his ID card. Burroughs proceeded to question Lewis in a hostile manner about where he lost his ID card and whether he had his program card instead. Lewis provided his program card to Burroughs and told him, "You shouldn't talk to people like that." Compl. 2. In response, C.O.s Powell and Bing each remarked, "That sounds like a threat to me." Id. Burroughs then ordered Lewis to put his hands on the wall. Lewis complied.
Burroughs performed an aggressive body search of Lewis. Burroughs patted down Lewis's left arm and leg and then placed his left hand on Lewis's back and used his right hand to pat down Lewis's right leg from the ankle to the groin. When Lewis asked Burroughs what he was doing, he was told to "Keep quiet and face the wall." Id. The pat down culminated with Burroughs putting his hand into Lewis's pants and fondling his penis and squeezing his testicles, which caused Lewis severe pain. Again Lewis asked Burroughs what he was doing. This time Smith responded, "Shut up and face the wall. I'm not going to tell you again." Id. Lewis then turned his head to the left and looked at his watch. He noted that Burroughs continued to abuse him for another 10 seconds. At no point did any of the other C.O.s who were present and observing intervene to stop Burroughs's conduct.
Lewis experienced great physical pain as well as humiliation and embarrassment as a result of Burroughs squeezing his testicles and fondling his penis. He claims that he continues to suffer from flashbacks of the incident and nightmares of officer gang rape. He remains afraid of walking down hallways and of being assaulted again. Lewis indicated that several other witnesses observed Burroughs touching him. His complaint includes the names of two inmates who made statements and alluded to one unnamed officer who witnessed the event but refused to make a statement because he feared retaliation.
Lewis exhausted his administrative remedies by first filing a grievance for sexual assault on November 14, 2007, which was denied, and then appealing that decision. On June 3, 2008, Lewis filed his complaint in the Southern District of New York. On July 23, 2008, the case was transferred to this district. Lewis's application to proceed in forma pauperis was granted on August 4, 2008. On January 22, 2009, the defendants moved to dismiss all claims pursuant to Fed. R. Civ. P. 12(b)(6). Oral argument on the motion took place on March 12, 2009, at which Lewis appeared via video-conference.
A. The Legal Standard for a Motion to Dismiss
Motions to dismiss pursuant to Rule 12(b)(6) test the legal, not the factual, sufficiency of a complaint. See, e.g., Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) ("At the Rule 12(b)(6) stage, '[t]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims.'" (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998))). Accordingly, I must accept the factual allegations in the complaint as true. Erickson v. Pardus, 551 U.S. 89, ----, 127 S.Ct. 2197, 2200 (2007). However, I do not give effect to "legal conclusions couched as factual allegations." Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, ----, 127 S.Ct. 1955, 1964-65 (2007)).
While generally "[s]pecific facts are not necessary" to state a claim so long as the statement gives the defendant "'fair notice of what the . . . claim is and the grounds upon which it rests,'" Erickson, 127 S.Ct. at 2200 (quoting Twombly, 127 S.Ct. at 1964), in at least some circumstances a plaintiff must plead specific facts in order to survive a motion to dismiss. Twombly, 127 S.Ct. at 1964-65. The Second Circuit has interpreted this principle as a "flexible 'plausibility standard'" under which a plaintiff must "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) (emphasis omitted) (interpreting Twombly). The Second Circuit's subsequent decision in Boykin v. KeyCorp, 521 F.3d 202, 213 (2d Cir. 2008), however, strongly suggests that Twombly does not significantly alter the lenient, notice-focused standard used to assess the complaint of a pro se litigant. Id. at 213-14. Boykin noted that after Twombly, the Supreme Court's decision in Erickson addressed the sufficiency of a pro se plaintiff's pleading under Federal Rule of Civil Procedure 8(a). Relying on Erickson, the Boykin court concluded that "departure from Rule 8(a)'s liberal pleading standard was particularly unwarranted" where the complaint was filed pro se: "'A document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Boykin, 521 F.3d at 214(quoting Erickson, 124 S.Ct. at 2200).
When considering a motion to dismiss, a court may examine (1) the factual allegations in the complaint, which are accepted as true; (2) documents attached to the complaint as an exhibit or incorporated in it by reference; (3) matters of which judicial notice may be taken; or (4) documents either in the plaintiff's possession or of which the plaintiff had knowledge and ...