The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.
Plaintiff Larry Fernandez, proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that, while incarnated at Rikers Island, he suffered a fractured jaw as a result of an assault by another inmate. Plaintiff claims that Defendants New York City Department of Correction ("DOC"), Warden Robert Shaw, Correction Captain "John Doe," and Correction Officer Thornton ("Defendants") failed to protect him from the assault, and failed to attend to his medical needs, in violation of the Eighth and Fourteenth Amendments.
Defendants DOC and Warden Shaw move to dismiss the complaint pursuant Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that: (1) Plaintiff fails to state a claim for deliberate indifference to his safety under § 1983; (2) Plaintiff fails to state a claim for deliberate indifference to his medical needs under § 1983; (3) Plaintiff's claims against Warden Shaw must be dismissed because he was not personally involved in the alleged deprivations; (4) Plaintiff's claims against DOC must be dismissed because DOC is not a suable entity; (5) to the extent Plaintiff's Complaint is construed to name the City of New York as a defendant, Plaintiff has failed to state a Monell claim for municipal liability; and finally (6) Plaintiff's claims must be dismissed, in any event, because he failed to exhaust administrative remedies as required by Section 1997e(a) of the Prison Litigation Reform Act ("PLRA").
For the reasons discussed below, the Court GRANTS Defendants' motion to dismiss. Specifically, the Court concludes that (1) Plaintiff fails to state a clam for deliberate indifference to his safety; (2) Plaintiff fails to state a claim for deliberate indifference to his medical needs; (3) Plaintiff's claims against Warden Shaw must also be dismissed for lack of personal involvement; and (4) Plaintiff fails to state a claim for municipal liability against either DOC or the City.*fn1 As set forth in greater detail below, the Court dismisses Plaintiff's claims without prejudice. If Plaintiff wishes to continue this action, Plaintiff shall file an amended complaint not later than May 26, 2010.
Plaintiff alleges that, on or about December 24, 2005, he was incarcerated at the Vernon C. Bain Correction Center ("VCBC") on Rikers Island. Plaintiff alleges that, at approximately 2:00 p.m., he was brushing his teeth in the bathroom of the "dorm" area, when another inmate, Simmon Elliot, "[c]rept up behi[n]d" him, and began punching him in the jaw with a closed fist.*fn2 (Compl. ¶ II.) Plaintiff alleges that, at the time of the assault, no officers were monitoring the dorm area (which the complaint refers to as station "B"). Plaintiff alleges that Correction Officer "Thornton" was at another station (station "A"), where she was "joking around with other officers." (Id.) Plaintiff alleges that when Officer Thornton saw the altercation between Plaintiff and inmate Simmons, she came to the dorm area, separated Plaintiff from inmate Simmons, and "after a couple of hours" removed inmate Simmons from the dorm area.*fn3 (Id.) Plaintiff alleges that, at around 8:15 p.m., he noticed that his face "had started to swell up," and that he then requested medical attention. Plaintiff alleges that the officer on duty called a captain, and that the captain sent Plaintiff to the medical clinic. The doctors at the clinic informed Plaintiff that his jawbone was fractured. (Id.)
Plaintiff alleges that he was taken to Bellevue hospital where he underwent surgery to repair his jaw. (Id.) Plaintiff alleges that, on or about December 28, 2005, Plaintiff was released from Bellevue hospital and taken back to Rikers Island. Plaintiff alleges that he was unable to eat for "a couple of days" because his "mouth was wired shut." (Id.) Plaintiff claims that, for the remainder of his stay at Rikers Island, he "never received medical treatment or medication," and that he was not transferred to a "medical facility to receive proper medical care." (Id.)
Finally, Plaintiff states that he never filed a grievance at the prison because he did not understand prison rules and "did not know about Grievance or law." (Id. ¶ IV, E, F.)
On May 7, 2008, Plaintiff brought this action pursuant to 42 U.S.C. § 1983, alleging a deprivation of his civil rights under the Eighth and Fourteenth Amendments. (Dkt. No. 2.) Plaintiff seeks an award, from each defendant, of $1500 per month for six years "for negligence of Plaintiff's safety." Plaintiff also seeks an award, from the DOC, of $8 million for pain and suffering. (Compl. ¶ V.)
On March 9, 2010, Plaintiff served his summons and complaint on DOC and Warden Shaw. By order dated April 7, 2009, Magistrate Judge Ellis granted defendants DOC and Warden Shaw an extension of time until June 1, 2009 to answer or otherwise respond to the complaint. (Dkt. No. 10.) Magistrate Judge Ellis subsequently extended the deadline until July 22, 2009.
On July 22, 2009, Defendants DOC and Warden Shaw timely filed this motion to dismiss. Plaintiff's opposition was due on August 21, 2009, and Defendants' reply, if any, was due September 4, 2009. Plaintiff did not submit anything in opposition, and on September 9, 2009, Defendants requested that the court deem the motion fully submitted.
On October 1, 2009, this case was transferred from Judge Lynch to the undersigned. By order dated December 1, 2009, this Court sua sponte extended the time for Plaintiff to file a response to January 15, 2010. Plaintiff did not submit anything in opposition or request an extension of time.*fn4 Thus, the Court's decision on Defendants' motion to dismiss follows.
For a complaint to survive a motion to dismiss pursuant to Rule 12(b)(6), the plaintiff must plead sufficient factual allegations "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). The Court must accept as true all well-pleaded factual allegations in the complaint, Twombly, 550 U.S. at 555, and "draw all inferences in the plaintiff's favor," Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). When considering a motion to dismiss a pro se complaint, courts must construe the complaint liberally, and interpret it to raise the strongest ...