The opinion of the court was delivered by: Andrew T. Baxter, United States Magistrate Judge
REPORT AND RECOMMENDATION
This matter has been referred to me for Report and Recommendation pursuant to 28 U.S.C. § 636(b) and LOCAL RULES N.D.N.Y. 72.3(c).*fn1
Plaintiff alleges that soon after arriving at the Watertown Correctional Facility ("Watertown"), he was in an orientation where he asked about the procedure for smoking cigarettes. (Compl. ¶ 18). Plaintiff had a disagreement with the corrections officer when plaintiff asked to go out for a cigarette, and plaintiff was ordered back to his cube. (Compl. ¶¶ 19, 20). Plaintiff alleges that soon after he returned to his cube, two other corrections officers threw plaintiff against the wall, handcuffed him, and escorted him to the Special Housing Unit ("SHU"). (Compl. ¶¶ 23--25).
Plaintiff alleges that while he was in the SHU, the corrections officers "slammed plaintiff face first into the walls" and "knee[d] plaintiff in his thigh with such force that it caused plaintiff excruciating pain and his leg to give out." (Compl. ¶ 27). Plaintiff alleges the assault continued after he had fallen to the floor, and he suffered "massive swelling, lacerations, bruises, and abrasions to his face[,] head, legs, thigh[,] arms, wrist, sides[,] torso, shoulders[,] and back." (Compl. ¶ 28). Afterward, plaintiff requested to see a doctor. (Compl. ¶ 32). Hours later, a nurse showed up and told plaintiff that she saw nothing wrong. (Compl. ¶ 33). Plaintiff explained to the nurse that he had been assaulted and asked her to file an injury report. (Compl. ¶ 36). Plaintiff told the nurse that he was unable to stand on his leg due to the pain, but received no treatment. (Compl. ¶ 36, 38).
The nurse later brought him eye drops and his inhaler, but plaintiff alleges he received nothing throughout the night for his injuries, despite continual requests to see a doctor. (Compl. ¶ 39). The following day, April 25, 2009, plaintiff received a misbehavior report, but no medication or treatment for his injuries. (Compl. ¶ 40--41). On April 26, 2009, plaintiff received two ibuprofen from a different nurse. (Compl. ¶ 42).
On April 27, 2009, a third nurse gave plaintiff two ibuprofen and informed him that he was on a "draft list and scheduled to be transferred any day." (Compl. ¶ 44). That same day, plaintiff was found guilty at a Tier II disciplinary hearing, where he claims that he did not mention the assault because a corrections officer told plaintiff that if he would "keep his [mouth] closed he may be transferred out of [Watertown] earlier than he thinks, if not[,] we may hold you here longer." (Compl. ¶ 45). Plaintiff claims that this made him fear for his safety. A corrections officer told plaintiff after the hearing that "it was a good thing [plaintiff] did not [say] anything stupit, [sic] . . . because he was being transferred." (Compl. ¶ 46).
Upon arrival at Gouverneur Correctional Facility ("Gouverneur") on April 27, 2009, plaintiff informed the intake nurse of the assault, who "gave plaintiff a hand full [sic] of ibuprofens [sic] and scheduled him to see the doctor. (Compl. ¶ 48). Plaintiff filed a grievance regarding the assault on April 28, 2009. (Compl. ¶ 49). Plaintiff went to emergency sick call on April 29, 2009, injury reports were made, pictures were taken of plaintiff's injuries, and plaintiff received a walking cane until he could see a doctor. (Compl. ¶¶ 50--53).
On April 30, 2009, plaintiff saw the facility doctor, who had plaintiff's leg x-rayed. (Compl. ¶ 54). Some "irregularities" with plaintiff's right femur were detected, and plaintiff was sent to Edward John Noble Hospital on May 8, 2009 for further tests. (Compl. ¶¶ 54, 58). The doctor discovered the plaintiff's femur had been fractured, and a sliver of bone was stuck in the muscle of his right thigh. (Compl. ¶ 58). Plaintiff saw an orthopedic doctor on May 13, 2009, who determined plaintiff would need therapy for his leg. (Compl. ¶ 61).
Plaintiff asserts that the corrections officers used excessive force when they assaulted plaintiff in the Watertown SHU; the staff at Watertown was deliberately indifferent to his serious medical needs at Watertown when they denied him medical care for his injuries; and plaintiff's due process rights were violated because his misbehavior report, disciplinary hearing, and grievances were all inadequately investigated. (Compl. ¶¶ 63--69).
II. Judgment on the Pleadings
After the pleadings are closed, a motion to dismiss for failure to state a claim is properly brought as a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). Maggette v. Dalsheim, 709 F.2d 800, 801 (2d Cir. 1983) (citations omitted). See Fed. R. Civ. P. 12(b), 12(c) and 12(h)(2). The motion for judgment on the pleadings is then treated according to the same standard as a motion to dismiss under Rule 12(b)(6). Id.
Defendants move to dismiss the complaint as to defendant Brian Fischer, arguing he was not personally involved in the alleged constitutional deprivations. (Dkt. No. 27). To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is "plausible on its face." Ashcroft v. Iqbal, U.S. , 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," do not suffice. Id. (citing Bell Atl. Corp., 550 U.S. at 555). Plaintiff's factual allegations must also be sufficient to give the defendant "'fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp., 550 U.S. at 555 (citation omitted).
When ruling on a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in the non-movant's favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 71 (2d Cir. 1995). The court must heed its particular obligation to treat pro se pleadings with liberality. Phillips ...