The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Victor Sowell, appearing pro se, commenced this action pursuant to 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS") alleges that his constitutional rights were violated in 2006 and 2007, while plaintiff was confined at Southport Correctional Facility. In general, all of plaintiff's claims in this action stem from an alleged assault against him by three correction officers on June 18, 2006.
Plaintiff has sued a number of defendants, most of whom were, at all relevant times, employees of DOCS. Three of the defendants, Deputy Superintendent Paul Chappius, Sergeant J. McKeon, and Correction Officer Jeffrey Robinson, have moved to dismiss the claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Another defendant, Mark Gibson, M.D., who has answered the amended complaint, has moved for judgment on the pleadings under Rule 12(c).*fn1 The remaining nine defendants, all of whom have answered the complaint, have not filed any dispositive motions at this time.
I. Motions to Dismiss: General Standards
The standards applied to a motion to dismiss under Rule 12(b)(6) motions and to a motion for judgment on the pleadings under Rule 12(c) are essentially the same. See Henry v. Lempke, ___ F.Supp.2d ___, 2010 WL 299496, at *1 (W.D.N.Y. 2010). Under either rule, the "court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994).
Nonetheless, "a plaintiff's obligation ... 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." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); accord Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009).
Thus, where a plaintiff "ha[s] not nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed." Id. at 570. A "plausible" entitlement to relief exists when the allegations in the complaint move the plaintiff's claims across the line separating the "conclusory" from the "factual," and the "factually neutral" from the "factually suggestive." Id. at 557 n. 5.
"[T]his plausibility standard governs claims brought even by pro se litigants." Robles v. Bleau, No. 9:07-CV-0464, 2008 WL 4693153, at *5 (N.D.N.Y. Oct. 22, 2008) (citing Jacobs v. Mostow, 271 Fed.Appx. 85, 87 (2d Cir. 2008), and Boykin v. KeyCorp, 521 F.3d 202, 215-16 (2d Cir. 2008)). At the same time, however, the Court is mindful that even after Twombly, 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. Nevertheless, all pleadings, pro se or otherwise, must contain enough factual allegations to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Id. (quoting Erickson v. Pardus, 551 U.S. 89 (2007)) (additional internal quotation marks omitted).
II. Application to this Case
In his third claim, plaintiff alleges that defendant Chappius, the Deputy Superintendent of Security at Southport during the period in question, "condoned" the alleged assault on June 18, 2006. Plaintiff bases that assertion on his allegation that he wrote to Chappius following the assault, complaining that the video security camera in the area where the assault occurred was placed in such a way that the officers who assaulted plaintiff had been able to use their bodies to block the camera's view of what was happening. Plaintiff also complained to Chappius that the video recording of the alleged assault was poor and marred by "tracking," which in plaintiff's opinion indicated that someone had tampered with the camera. Plaintiff alleges that Chappius did nothing in response to these complaints. Dkt. #77 ¶¶ 44-57.
These allegations fail to state a claim against Chappius. For one thing, there is no suggestion in the complaint that Chappius knew or should have known, before the alleged assault took place, that the placement of the video camera posed a threat to plaintiff's safety. At most, all that plaintiff's allegations show is that the officers who committed the alleged assault were aware of the presence of the camera, and that they purposely blocked the view of the camera when carrying out the assault. See Elder-Keep v. Aksamit, 460 F.3d '979, 987 (8th Cir. 2006) (plaintiff failed to show how city's policy, which allowed only officers trained in the use of recording equipment to operate it, "caused" officer's alleged assault on arrestee, since videotape of the incident "could not have prevented or caused the assault").
Chappius's failure to make any changes concerning the camera after the alleged assault also fails to provide a basis for a claim against him. Repositioning the camera after the alleged assault would not have remedied the violation of plaintiff's rights, and although plaintiff alleges that he "lived in fear" following the assault, in part because of his belief that the officers knew about the limitations of the video system, there ...