The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Plaintiff, a former inmate in the custody of the Schenectady County Jail brought the instant action pro se pursuant to 42 U.S.C. § 1983 alleging that: (1) he suffered cruel and unusual punishment; (2) he was denied due process; and (3) he was the victim of racial discrimination. Defendants, Jean Hughes (Hughes), Don Le Brake (LeBrake), and Harry Buffardi (Buffardi), filed this motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(5) and 12(b)(6) alleging that: (1) LeBrake and Buffardi were not served with the Complaint or summons; and (2) the Complaint fails to state a claim upon which relief may be granted. See Docket No. 13. Plaintiff, has failed to respond to Defendants' motion despite repeated requests to do so and after being advised that "his failure to respond to Defendants' motion may result in the termination of the case in favor of the Defendants." See Docket No. 14.
Plaintiff alleges that on September 16, 2008, Hughes, an officer at the county jail, violated Plaintiff's 8th Amendment rights, inflicting cruel and unusual punishment, in connection with Plaintiff's use of the restroom. Plaintiff contends that Hughes maintains a policy that does not allow inmates to use the restroom during prison lock-down. Plaintiff asserts that he has "physical ailments" and is on a medication which increases the frequency of his bathroom needs. Plaintiff alleges that he entered the restroom ten minutes before lock-down and came out five minutes into lock-down. Plaintiff was told to pack his things and was moved from medium security housing to maximum security housing for one day.
Plaintiff next alleges that on September 22, 2008 he was taken to a disciplinary hearing for the alleged bathroom violation before Sgt. LeBrake. Plaintiff alleges that he requested to call witnesses at this hearing but that LeBrake did not allow him to do so. Plaintiff was found guilty, sentenced to five days lock-down, moved back to maximum security housing, and given a ten dollar surcharge. Plaintiff filed an inmate disciplinary appeal form appealing LeBrake's disciplinary sanctions. His appeal was granted on September 30, 2008 and his $10.00 was refunded. See Docket No. 1.
Finally, Plaintiff alleges that another inmate, Frank Burns, was also brought to maximum security on September 16, 2008 but was never given a disciplinary hearing or sanctioned. It is not included in the complaint whether Burns, like Plaintiff, also committed a bathroom violation, or whether Burns was later given a disciplinary hearing or further sanctioned. Plaintiff asserts that the difference in treatment constitutes racial discrimination by LeBrake because Plaintiff is African American and Burns is Caucasian.
In their motion to dismiss, Defendants argue that the Complaint must be dismissed because: (1) Defendants LeBrake and Buffardi were not served within 120 days of Plaintiff's filing of the Complaint; and (2) Plaintiff failed to establish that the Defendants violated his constitutional rights.
To survive a motion to dismiss, 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.'" Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008)(citations omitted). Plaintiff's factual allegations must be sufficient to give the defendant "fair notice of what the claim is and the grounds upon which it rests." Camarillo, 518 F.3d at 156 (citing Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007)). When ruling on a motion to dismiss, "the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Burns v. Trombly, 624 F. Supp.2d 185, 196 (N.D.N.Y. 2008)(citing Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994).
In deciding a motion to dismiss, the Court may review documents integral to the Complaint upon which the plaintiff relied in drafting his pleadings, as well as any documents attached to the Complaint as exhibits and any statements or documents incorporated into the Complaint by reference. Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000)(citing Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989)). The Court must "read the pleadings of a pro se plaintiff liberally and interpret them 'to raise the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)(citing Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
Under N.D.N.Y.L.R. 7.1(b)(3) "[w]here a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure to file or serve any papers as required by this Rule shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause be shown." N.D.N.Y. L.R. 7.1(b)(3); see Tejada v. Mance, 07-CV-0830, 2008 WL 4384460, *5 (N.D.N.Y., Sept. 22, 2008). Here, because Plaintiff has failed to oppose Defendant's motion to dismiss and has failed to show good cause for his failure to oppose, Plaintiff has "consented" to Defendants' motion to dismiss. "The only remaining issue is whether Defendants have met their burden 'to demonstrate entitlement to the relief requested'" through their submission. Burns, 624 F. Supp. 2d at 197. Stated another way, where a movant has properly filed a motion and the non-movant has failed to respond to that motion, the only remaining issue is whether the legal arguments advanced in the movant's motion is facially meritorious. White v. Verizon, 06-CV-0617, 2009 WL 3335897, *3 (N.D.N.Y. 2009); see also Ciaprazi v. Goord, 02-CV0915, 2005 WL 3531464, at *8 (N.D.N.Y. Dec. 22, 2005) (Sharpe, J.; Peebles, M.J.)(characterizing defendants' threshold burden on a motion for summary judgment as "modest")(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-324 (1986)); accord, Saunders v. Ricks, 03-CV-0598, 2006 WL 3051792, at *9 & n. 60 (N.D.N.Y. Oct. 18, 2006) (Hurd, J., adopting Report-Recommendation of Lowe, M.J.); Smith v. Woods, 03-CV-0480, 2006 WL 1133247, at *17 & n. 109 (N.D.N.Y. Apr. 24, 2006) (Hurd, J., adopting Report-Recommendation of Lowe, M.J.); see also Race Safe Sys. v. Indy Racing League, 251 F.Supp.2d 1106, 1109-1110 (N.D.N.Y. 2003) (Munson, J.) (reviewing merely whether record contradicted defendant's arguments, and whether record supported plaintiff's claims, in deciding unopposed motion to dismiss, under Local Rule 7.1[b] ); Wilmer v. Torian, 980 F. Supp. 106, 106-07 (N.D.N.Y. 1997) (Hurd, M.J.) (applying prior version of Rule 7.1[b], but recommending dismissal because of plaintiff's failure to respond to motion to dismiss and the reasons set forth in defendants' motion papers).
a. Dismissal pursuant to 12(b)(5)
Defendants first allege that the Complaint must be dismissed as to LeBrake and Buffardi because of insufficiency of process. Pursuant to Rule 4(m) ...