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Westmoreland v. Conway

September 15, 2009


The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge


Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #13.

Currently before the Court is a motion to dismiss James Conway and Brian Fischer as defendants in this case due to their lack of personal involvement in the allegations set forth in the complaint. Dkt. #6. For the following reasons, defendants' motion is granted.


Plaintiff, proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983, claiming deliberate indifference to his mental health, gross negligence and intentional infliction of pain and suffering, in violation of the Fourth and Fourteenth Amendments to the United States Constitution, while in the custody of the New York State Department of Corrections ("DOCS"), at the Attica Correctional Facility ("Attica"). Dkt. #1. Specifically, plaintiff complains that beginning in August, 2006, he was denied adequate access to the Mental Health Unit and that defendant Dr. Rutigliano discontinued his psychotropic medication despite plaintiff's success on that medication for several years prior to his incarceration at Attica. Dkt. #1, ¶ ¶ 15, 17-18, 42 & 45. Following the discontinuation of that medication, plaintiff began to hear voices and relive traumatic events in his past. Dkt. #1, ¶¶ 51 & 62.

Although plaintiff acknowledges that the Inmate Grievance Review Committee ("IGRC"), dismissed his grievance and advised him to write to the Mental Health Unit Chief because mental health issues do not fall under the jurisdiction of the Inmate Grievance Procedure,*fn1 plaintiff complains that defendant James Conway, Superintendent of Attica, failed to respond to his appeal of the decision of the IGRC or to subsequent letters of complaint regarding his lack of mental health treatment. Dkt. #1, ¶¶ 19, 21 & 26-27. Plaintiff alleges that he wrote Superintendent Conway on several occasions "trying to get some re-consideration on his part so that plaintiff could be seen by the Mental Health Department of Attica," but never received any reply. Dkt. #1, ¶ ¶ 13-14 & 50.

Plaintiff also alleges that defendant Brian Fischer, DOCS Acting Commissioner, has failed to respond to his letters complaining about the denial of proper mental health treatment at Attica. Dkt. #1, ¶ 23.


Dismissal Standard

When ruling on a motion to dismiss, the court accepts the material facts alleged in the complaint as true and draws all reasonable inferences in favor of the plaintiff and against the defendants. See Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998); Cohen v. Koenig, 25 F.3d 1168, 1171-72 (2d Cir. 1994); Atlantic Mutual Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992). However, legal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness. Albany Welfare Rights Organization Day Care Center, Inc. v. Schreck, 463 F.2d 620 (2d Cir. 1972), cert. denied, 410 U.S. 944 (1973). The court is required to read the complaint broadly and with great latitude on a motion to dismiss. Yoder v. Orthomolecular Nutr. Inst., 751 F.2d 555, 558 (2d Cir.1985). The court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985).

The United States Supreme Court recently revisited the standard of review on a motion to dismiss and concluded that:

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 "entitle[ment] 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).

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555(2007) (internal citations omitted). In setting forth this standard, the Supreme Court disavowed an often quoted statement from its decision in Conley v. Gibson 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 561, quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The Supreme Court explained that

This "no set of facts" language can be read in isolation as saying that any statement revealing the theory of the claim will suffice unless its factual impossibility may be shown from the face of the pleadings; and the Court of Appeals [for the Second Circuit] appears to have read Conley in some ...

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