United States District Court, S.D. New York
OPINION & ORDER
S. ROMAN, United States District Judge
Se Plaintiff Michael Lewis ("Plaintiff5) brought
this action in forma pauperis against Defendants
Commissioner Annucci ("Annucci"), Superintendent
Perez ("Perez"), Lt. Robert Oliver
("Oliver"), and Deputy Superintendent for Security
Cavaleri ("Cavaleri"), employees of the New York
State Department of Corrections and Community Supervision
("DOCCS") for alleged constitutional violations
pursuant to 42 U.S.C. § 1983, alleging violations of his
Eighth Amendment rights.
Annucci,  Perez, Oliver, and Cavaleri move to
dismiss the Amended Complaint as against them, pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure.
(See EFC No. 62, "Defendants'
Motion.") For the reasons stated below, Defendants'
motion is GRANTED.
following facts, which are taken from the Amended Complaint,
are construed in the light most favorable to Plaintiff, as he
is the non-moving party. See, Kleinman v. Elan Corp.,
706 F.3d 145, 152 (2d Cir. 2013); Gonzalez v. Hasty,
651 F.3d 318, 321 (2d Cir. 2011).
an inmate at Downstate Correctional Facility, states that, at
approximately 10:50 a.m. on November 30, 2015, Plaintiff was
involved in two separate incidents involving CO. Florio, CO.
Fuentes and CO. DiMaggio, in the presence of Lt. Limaye.
(See Am. Compl. at 1.) While Plaintiff was waiting
in the bathroom next to an inmate holding pen, CO. Florio and
CO. DiMaggio restrained Plaintiffs arms while CO. Fuentes,
who was behind Plaintiff, pulled down Plaintiffs pants and
undershorts. (Id.) CO. Fuentes then inserted what
Plaintiff felt to be a steal bar into his anus three times.
(Id.) While this was occurring, Plaintiff was also
repeatedly punched in his stomach and side by the correction
officers. (Id.) Furthermore, the correction officers
threatened Plaintiffs life if he was to tell anyone about the
incident. (Id.) The object that appeared to be a
steal bar was then again inserted into Plaintiffs anus two
additional times. (Id.) Plaintiff was then punched
in the back of his head. (Id.) Lt. Limaye was
present during both incidents and eventually told the
correction officers to stop. (Id.)
ON A MOTION TO DISMISS
Rule 12(b)(6) Motion to Dismiss, the Court must accept all
facts set forth in the complaint as true and draw all
reasonable inferences in Plaintiffs favor. See, e.g.,
Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122,
124 (2d Cir. 2008) (per curiam). A claim will survive a Rule
12(b)(6) motion, however, only if the plaintiff alleges facts
sufficient "to state a claim to relief that is plausible
on its face." Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007). A claim is facially plausible
"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. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). A plaintiff must show
"more than a sheer possibility that a defendant has
acted unlawfully." (Id.) Although "a
complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiffs
obligation to provide the grounds of his entitlement to
relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do." Starr v. Sony BMG Music
Entm't, 592 F.3d 314, 321 (2d Cir. 2010). A court
should accept non-conclusoiy allegations in the complaint as
true and draw all reasonable inferences in the plaintiffs
favor. Ruotolo v. City of N.Y., 514 F.3d 184, 188
(2d Cir. 2008). If the plaintiffs pleadings "have not
nudged [his or her] claims across the line from conceivable
to plausible, [the] complaint must be dismissed."
Twombly, 550 U.S. at 570.
se complaints are held to less stringent standards than
those drafted by lawyers, even following Twombly
andlgbal." Thomas v. Westchester, No. 12 CV 6718
(CS), 2013 WL 3357171, at *2 (S.D.N .Y. July 3,
2013). The court should interpret pro se
complaints "to raise the strongest arguments that they
suggest." Paboti v. Wright, 459 F.3d 241, 248
(2d Cir. 2006). Even so, "pro se plaintiffs . .
. cannot withstand a motion to dismiss unless their pleadings
contain factual allegations sufficient to raise a right to
relief above the speculative level." Jackson v. N.
Y.S. Dep't of Labor, 709 F.Supp.2d 218, 224
(S.D.N.Y.2010) (internal quotation marks omitted). Dismissal
is justified where "the complaint lacks an allegation
regarding an element necessary to obtain relief, " and
the "duty to liberally construe a plaintiffs complaint
[is not] the equivalent of a duty to re-write it."
Geldzahler v. N.Y. Med. Coll, 663 F.Supp.2d 379, 387
(S.D.N.Y. 2009) (internal citations and alterations omitted).
Complaint appears to allege a constitutional claim for
excessive force. Although Plaintiff has not specified a
statutory basis for his claim, the Court analyzes claims of
this type under 42 U.S.C. § 1983. To state a § 1983
claim, a plaintiff must allege (1) "that the defendants
have deprived him [or her] of a right secured by 'the
Constitution and laws' of the United States" and (2)
"that the defendants acted under 'color of state
law' in infringing his [or her] constitutionally
protected right." Stevens v. Dutchess County, N.
Y, 445 F.Supp. 89, 91 (S.D.N.Y. 1977) (quoting Van
Horn v. Lukhard, 392 F.Supp. 384, 386 (E.D. Va. 1975)).
Failure to State a Claim
defendants are liable for § 1983 violations only if they
were "personally involved" in the constitutional
deprivations. See Wright v. Smith,21 F.3d 496, 501
(2d Cir. 1994); Grullon v. City of New Haven, 720
F.3d 133, 138-39 (2d Cir. ...