The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
Pro se Plaintiff Cory Caldwell brought this civil rights action, pursuant to 42 U.S.C. §§ 1983 and 1985, claiming that Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment. Dkt. No. 1, Compl. Pending before the Court is Defendants' Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), Dkt. No. 17, which Plaintiff opposes, Dkt. No. 18. For the reasons that follow, it is recommended that Defendants' Motion to Dismiss be granted and the entire Complaint be dismissed.
In accordance with the standard used in assessing a motion to dismiss, see infra Part II.A, the following facts are derived from the Complaint and are taken as true.
On December 27, 2008, while incarcerated at Upstate Correctional Facility, Plaintiff was advised he had a visit, was placed in mechanical restraints, and was taken out of his cell. Compl. at ¶¶ 10-11. Defendant K. Crossett conducted a pat-frisk, during which he grabbed Plaintiff's testicles. Id. at ¶ 12. Plaintiff protested, to which Defendants Crossett and Dishaw reacted by throwing Plaintiff up against the wall. Id. After an exchange of words, Defendant Crossett resumed the pat-frisk and again grabbed Plaintiff's testicles. Id. at ¶ 13. Plaintiff reacted with a verbal expression of his anger. Id. Plaintiff was then escorted to a holding cell where he explained to Defendant Kelsh what had transpired. Id. at ¶ 14. Defendant Kelsh took photographs of Plaintiff and inquired whether he had sustained any serious injuries. Id. Plaintiff stated he had sharp pains in his groin area. Id. However, Plaintiff recanted this statement upon being informed that his visit could be terminated. Id. Despite this retraction, Defendant Dishaw cancelled the visit, claiming Plaintiff had enough excitement for one day. Id. at ¶ 15.*fn1
The next day, on December 28, 2008, Plaintiff was issued a misbehavior report, authored by Defendant Crossett, for violating rules 106.10, Direct Order, 115.10, Frisk Procedures, 107.10, Interference, and 104.13, Disturbance. Id. at ¶ 17. On January 9, 2009, Plaintiff attended a disciplinary hearing on the Crossett Misbehavior Report, to which he pled not guilty to all rule violations. Id. at ¶ 18. The presiding hearing officer, who is not named in the Complaint, found Plaintiff guilty of violating rules 107.10, Interference, and 106.10, Direct Order; he was found not guilty of all other rule violations. Id. at ¶ 19. At the conclusion of the hearing, Plaintiff received ninety (90) days in the special housing unit (SHU), with corresponding loss of privileges, and seven (7) days on a special diet loaf. Id. This disposition was thereafter affirmed on appeal. Id. at ¶¶ 20-21. Plaintiff also filed grievances against Defendants Crossett and Dishaw for sexual assault and failure to intervene. Id. at ¶ 22. These grievances were denied at every level, including the Cental Office Review Committee (CORC). Id. at ¶¶ 23-24. Other written complaints have also been sent to the Inspector General and the New York State Department of Correctional Services (DOCS) Commissioner. Id. at ¶¶ 25-28.
A. Motion to Dismiss Standard
On a motion to dismiss, the allegations of the complaint must be accepted as true. See Cruz v. Beto, 405 U.S. 319, 322 (1972). The trial court's function "is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
"Generally, in determining a 12(b)(6) motion, the court may only consider those matters alleged in the complaint, documents attached to the complaint, and matters to which the court may take judicial notice." Spence v. Senkowski, 1997 WL 394667, at *2 (N.D.N.Y. July 3, 1997) (citing Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991)). Moreover, "even if not attached or incorporated by reference, a document 'upon which [the complaint] solely relies and which is integral to the complaint' may be considered by the court in ruling on such a motion." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (emphasis added).
The court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. See Retail Clerks Intern. Ass'n, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 754 n. 6 (1963); see also Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008). Nevertheless, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009). Therefore, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Id. (citation omitted).
A motion to dismiss pursuant to Rule 12(b)(6) may not be granted so long as the plaintiff's complaint includes "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, __ U.S. __ 129 S.Ct. at 1960 (citing Twombly). "A claim has facial plausibility 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, __ U.S. __ 129 S.Ct. at 1949. This plausibility standard "is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. Thus, in spite of the deference the court is bound to give to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts [which he or she] has not alleged, or that the defendants have violated the . . . laws in ways that have not been alleged." Assoc. Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). The process of determining whether a plaintiff has "nudged [his] claims . .
. across the line from conceivable to plausible," entails a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." ...