The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
REPORT-RECOMMENDATION AND ORDER*fn1
Plaintiff pro se Johnathan Johnson ("Johnson"), an inmate in the custody of the New York State Department of Correctional and Community Services ("DOCCS"), brings this action pursuant to 42 U.S.C. §§ 1983 alleging that the DOCCS Commissioner, Deputy Commissioner, and two DOCCS employees violated his constitutional rights under the Eighth Amendment. Compl. (Dkt. No. 1). Presently pending is defendants' motion to dismiss. Dkt. No. 10. Johnson opposes the motion. Dkt. No. 12. For the reasons which follow, it is recommended that defendants' motion be granted in part and denied in part.
The facts are related herein in the light most favorable to Johnson as the non-moving party. See subsection II(A) infra.
Upon his arrival at Upstate Correctional Facility ("Upstate") in 2006, Johnson asserts that he informed defendants Fischer, LeClaire, and Knapp-David that he and his family had been threatened by enemy gang members, some of which were also housed at Upstate. Compl. ¶ 6(2). Johnson repeated these concerns to the above-named defendants throughout 2008. Id. Johnson also voiced his concerns to defendant Upstate counselor, Lynn-Caron, in 2008 and 2011, and was never transferred out of Upstate. Id. ¶ 6(5). On January 7, 2011, at 9:00 a.m., Johnson was "attack[ed] by a[n enemy] gang member . . . Jeremy." Id. ¶ 6(1); see also Dkt. No. 12, ¶ 2 (categorizing the January 7, 2011 incident as an assault).
As of April 4, 2011, Johnson still remained housed with these enemy gang members despite his requests to be transferred. Compl. ¶ 6(3). Johnson asserts that the specific danger he faces is the prison staff's refusal to place him in protective custody or another safe place given his reports of being targeted by enemy gang members. Dkt. No. 12, ¶ 10.
Prior to filing the present lawsuit, decisions in this district outlined Johnson's litigation history. Johnson v. Connolly, No. 07-CV-158 (LEK/GHL), 2008 WL 724167 (N.D.N.Y. Mar. 17, 2008) (Dkt. No. 10-2 at 13-26). As of 2008, Johnson had filed at least forty-six federal prisoner civil rights actions, which does not include filings for habeas corpus petitions, federal appeals, or state court actions and appeals. Id., 2008 WL 724167, at *2 & n.4. The Court unquestionably concluded that Johnson had at least three strikes. Id., 2008 WL 724167, at *7-*8. Johnson also indicates on his present complaint that he has had prior lawsuits impacted by the three-strikes provision discussed infra. Compl. ¶ 5(b)(i) &(v). Accordingly, the three strikes bar may be applicable.
Johnson contends that his Eighth Amendment rights were violated when defendants failed to protect him from enemy gang members during his incarceration. Defendants seek dismissal because (1) Johnson has failed to allege the personal involvement of defendants and (2) the three-strikes provision requires conditional dismissal until Johnson remits the filing fee for the present action.
Rule 12(b)(6) authorizes dismissal of a complaint that states no actionable claim. When considering a motion to dismiss, "a 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). However, this "tenet . . . is inapplicable to legal conclusions[; thus, t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (holding that "entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action . . . [as] courts are not bound to accept as true a legal conclusion couched as a factual allegation.")).
Accordingly, to defeat a motion to dismiss, a claim must include "facial plausibility . . . that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556 (explaining that the plausibility test "does not impose a probability requirement . . . it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal [conduct].")); see also Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009) (holding that, "[o]n a motion to dismiss, courts require enough facts to state a claim to relief that is plausible . . . .") (citations omitted). ...