The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
On November 5, 2009, Shamiyah Brummell commenced this action, pro se, under 42 U.S.C. § 1983, alleging that she was subjected to an unlawful strip search on October 28, 2009 at the Otis Bantum Correctional Center ("OBCC") at Rikers Island. The defendants named in the complaint are (1) Daniel Stewart ("Stewart"), identified as the Commissioner of the Department of Correction; (2) Juan Quinones ("Quinones"), the OBCC Warden; (3) an OBCC correction officer identified as "C.O. Jackson" ("Jackson"); and (4) the City of New York ("City").
On January 4, 2010, this Court referred the general pretrial matters and dispositive motions in the case to Magistrate Judge Frank Maas. (Dkt. 3.) Defendants have moved to dismiss Brummell's claims under Fed. R. Civ. P. 12(b)(6) for failure to state a legal claim. Brummell has not submitted any papers in opposition. On March 24, 2011, Magistrate Judge Maas issued a Report & Recommendation ("R&R") recommending that the Court dismiss Brummell's complaint. The R&R provided fourteen days for written objections, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). No objections have been filed. For the reasons that follow, the Court ADOPTS the R&R in full and DISMISSES Brummell's petition.
According to the complaint, on or about October 28, 2009, at approximately 11:00 a.m., Brummell and several other detainees were seated on their beds in the lower housing area of the OBCC. (Compl. 2-3). After Jackson entered, she and other officers directed the detainees to "stand up by [their] beds and strip naked." (Id. at 3). The detainees then were told to "walk to the dayroom, put on [their] clothes and face the wall." (Id.). As a result of this incident, Brummell claims to have suffered "mental anguish[, an] anxiety attack[,] embarrass[ment] [and] severe depression." (Id.).
Brummell filed a grievance at the OBCC, but her claim was rejected as nongrievable. (Id. at 3-4). She commenced this action a few days later, seeking injunctive relief and $1 million in compensatory and punitive damages. (Id. at 1, 5). On August 30, 2010, Quinones, Stewart, and the City moved to dismiss the complaint for failure to state a legal claim, (Dkt. 11), and on September 10, 2010, Stewart filed his own motion to dismiss. (Dkt. 13).
Magistrate Judge Maas issued his R&R on March 24, 2011, recommending that the Court dismiss the complaint for failure to state sufficient factual allegations.
A district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). "The district court may adopt those portions of the report to which no timely objection has been made, so long as there is no clear error on the face of the record." Feehan v. Feehan, No. 09 Civ. 7016 (DAB), 2011 WL 497776, at *1 (S.D.N.Y. Feb. 10, 2011).
II. Claims Against Stewart
"[I]t is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir. 2001) (internal quotations omitted). A plaintiff may establish the personal involvement of a supervisory defendant by showing that the defendant (1) participated directly in the alleged constitutional violation; (2) failed to remedy the wrong after being informed of it by a report or appeal; (3) created, or allowed the continuance of, a policy or custom under which unconstitutional practices occurred; (4) was grossly negligent in supervising the subordinates who committed the wrongful acts; or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. Colon v. Coughlin, 58 ...