DYLAN GIBBONS, Plaintiff, Pro Se, 02-A-2053, Romulus, New York.
GREGORY J. RODRIGUEZ, ESQ., Assistant Attorney General, HON. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, Albany, New York, Attorney for Defendant.
REPORT-RECOMMENDATION and ORDER
RANDOLPH F. TREECE, Magistrate Judge.
Pro se Plaintiff Dylan Gibbons brings this civil rights action, pursuant to 42 U.S.C. § 1983, claiming that Defendant Prindle violated his constitutional rights while Plaintiff was incarcerated at Eastern Correctional Facility. Dkt. No. 1, Compl. Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant Prindle moves for partial dismissal of the Complaint. Dkt. No. 13. Plaintiff opposes the Motion. Dkt. No. 17. For the reasons that follow, this Court recommends that Defendant's Motion be granted.
In accordance with the applicable standard of review, the following facts derived from the Complaint are taken as true. See infra Part II.A.
Plaintiff was at all times relevant to the Complaint incarcerated at Eastern Correctional Facility where Defendant Prindle was employed as a Corrections Officer. See Compl. at ¶¶ 1 & 2. On January 18, 2012, at approximately 8:42 a.m., Plaintiff was in the Eastern prison yard when he was stopped by Defendant Prindle and directed to put his hands on the wall for a pat frisk; Plaintiff complied. Id. at ¶¶ 4-6. During the pat frisk, Defendant Prindle rubbed his hands on Plaintiff's genitals. Id. at ¶ 8. Defendant Prindle then escorted Plaintiff to the armory where he used his baton to strike Plaintiff five times on his lower legs causing a deep gash, numerous bruises, and an abrasion. Id. at ¶¶ 10-12. Following the incident, Plaintiff was taken to the infirmary for treatment. Generally, Plaintiff asserts that Defendant Prindle violated his Eighth Amendment right to be free from cruel and unusual punishment and also violated New York State law barring sexual assault and battery.
A. Standard of Review
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) ( overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984)).
"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)).
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, 556 U.S. 662, 678 (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, 570 (2007); Ashcroft v. Iqbal, 556 U.S. at 697 (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, 556 U.S. at 678. 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. In this respect, to survive dismissal, a plaintiff "must provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level.'" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 440 U.S. at 555). 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. ...