MAGISTRATE-JUDGE'S REPORT AND RECOMMENDATION

AIDA DELGADO-COLON, Magistrate Judge

Plaintiff, I.N.R., a minor and former pretrial detainee, along with his parents and sister, filed this cause of action pursuant to 42 U.S.C. § 1983, the Commonwealth of Puerto Rico Constitution and Laws of Puerto Rico against numerous and various personnel employed by the Puerto Rico Department of Corrections ( Docket No. 1). The defendants filed a motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) and plaintiffs opposed the same ( Docket Nos. 11, 13). The motions were referred to the undersigned Magistrate-Judge for a Report and Recommendation ( Docket No. 15).

I. The Complaint

The allegations in the complaint basically allude to unsafe conditions of confinement and a failure to protect I.N.R. from harm while housed at the Ponce Young Adults Institution, an institution under the purview of the Commonwealth Administration of Corrections. At the time of the filing of the complaint, I.N.R. was not confined in any jail, prison or other correctional facility.

Plaintiff I.N.R., a minor, was held in custody as a pretrial detainee at the Ponce Young Adults Institution. From April 2, 2003 to May 1, 2003, I.N.R. was held in the ward known as the "Psychiatric Correctional Hospital" and was receiving treatment for his mental health condition. He was transferred to the Ponce Young Adults Institution on May 1, 2003, and placed at Control 23 (Intermediate Unit) at Ponce 304. The Complaint alleges that Control 23 is intended for young adult inmates with psychiatric disorders or mental illness.

On May 11, 2003, at approximately 7:00 PM, I.N.R. was sexually assaulted by at least four other inmates who were also housed in Control 23. The incident lasted approximately one-half hour. The complaint alleges that at the time of the assault there was not a single custodial officer inside or in the immediacies of the living area and also that at no time did any officer intervene to stop the attack. I.N.R. subsequently received medical treatment as a result of the sexual assault.

The complaint further alleges that on the date of the incident only one officer was assigned to the housing unit, and that no officers were inside the housing unit nor did any officer patrol the walkway near the housing unit. The inmates who attacked I.N.R. were transferred to another institution the day following the assault. It is alleged that these inmates had been previously convicted of violent assaults and diagnosed with mental disorders.

The suit is filed against 19 Puerto Rico Department of Corrections employees ranging from the Administrator of Corrections, Miguel Pereira Castillo, down to unknown correctional officers responsible for the custody of inmates at the Ponce Young Adult institution. The complaint alleges that the defendants, in their individual capacity, while aware of serious lapses in security and of the unreasonable risks of having "inmate on inmate" assaults at Ponce Young Adults institution yet failed to provide adequate security to I.N.R. and failed to enforce acceptable correctional practices at the institution. The complaint further alleges that the defendants in gross dereliction of their official assigned duties, and in deliberate indifference to the risk of harm to I.N.R. failed to take any action to reasonably respond to and deter the risk of the inmate on inmate assault that existed at the institution.

I.N.R. claims he was deprived of his physical safety and security without due process of law, and subjected to cruel and unusual punishment in violation of the Fifth, Eighth and Fourteenth Amendments of the United States Constitution. He also claims violations of the Puerto Rico Constitution. All plaintiffs allege a negligence claim under 31 P.R. Laws Ann. § 5126.

II. Motion to Dismiss

The title of defendants' motion indicates that they move to dismiss the case pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6). Throughout the text of the motion to dismiss, defendants, however, submitted no argument or allegations to support a petition under 12(b)(1). Consequently, the undersigned finds any argument seeking dismissal pursuant to Rule 12(b)(1) waived. See Local Rule 7.1(a) (all matters submitted to the Court for consideration shall be presented by a written motion, incorporating a memorandum of law, including citations and supporting authorities). In their motion defendants also argue that the complaint fails: (a) to state a claim against the appearing defendants; (b) to allege an Eighth Amendment claim; (c) that there is no supervisory liability; and (d) that the plaintiffs failed to exhaust administrative remedies under the Prison Litigation Reform Act.

Plaintiffs oppose the motion arguing that the 12(b)(1) standard is inapplicable to the matter at bar; the complaint adequately states a claim against the appearing defendants; plaintiffs are not required to exhaust administrative remedies; I.N.R. does not claim an Eighth Amendment violation; and, the complaint adequately alleges the personal involvement of each of the defendants.

We now address defendants' claims.

B. Standard for Dismissal

Fed.R.Civ.P. 12(b)(6) establishes that "a complaint should be dismissed . . . 'only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Gorski v. New Hampshire Dep't of Corr., 290 F.3d 466, 473 (1st Cir. 2002) (quoting Hishon v. King Spalding, 467 U.S. 69, 73 (1984)). In evaluating a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court accepts the factual allegations in the complaint as true and draws all reasonable inferences from those alleged facts in favor of the pleader. Id. Accordingly, the Court limits its inquiry to the facts alleged in the complaint, incorporated into the complaint, or susceptible to judicial notice. See In re Colonial Mortgage Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003); Young v. Lepone, 305 F.3d 1, 11 (1st Cir. 2002) ("The fate of a motion to dismiss under Rule 12(b)(6) ordinarily depends on the allegations contained within the four corners of the plaintiff's complaint."); see also Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017-18 (5th Cir. 1996) (courts must limit inquiry to facts stated in complaint, documents either attached to or incorporated into the complaint, and matters of which the court may take judicial notice).

Additionally, there is no longer a heightened pleading standard in civil rights cases. Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61 (1st Cir. 2004). "[T]he [Supreme] Court has signaled its disapproval of all heightened pleading standards except those that emanate from either congressional or Rule-based authority." Educadores Puertorriqueños, 367 F.3d at 66. Hence, courts faced with the task of adjudicating motions to dismiss under Rule 12(b)(6) must apply the notice pleading requirements of Rule 8(a)(2). Id. Therefore, a complaint need only include "a short plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2), in order to "give the defendant fair notice of what the plaintiff''s claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957).

B. Failure to State a Claim

Defendants argue that plaintiffs have failed to state a claim that entitles them to relief pursuant to § 1983. They argue that the complaint fails to state a conduct or inaction that may have deprived plaintiffs of a protected right. Defendants further argue that the complaint fails to establish their personal involvement in any alleged misconduct. Encompassed in their failure to state a claim argument, defendants also argue that plaintiffs did not exhaust their administrative remedies under the Prison Litigation Reform Act. This issue is addressed below. Finally, the defendants argue that there is no cause of action under the Fifth, Eighth or Fourteenth Amendments. As with the exhaustion claim, the Eighth Amendment claim is addressed below.

The main thrust of this action is brought by I.N.R. pursuant to 42 U.S.C. § 1983. Section 1983 provides in relevant part as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .

As is well established, § 1983 creates no independent substantive rights, but rather provides a cause of action by which individuals may seek money damages for governmental violations of rights protected by federal law. See, e.g., Albright v. Oliver, 510 U.S. 266, 271 (1994). Therefore, to state a cause of action under 42 U.S.C. § 1983, I.N.R. must allege: (1) that the defendants acted under color of state law; and, 2) that their actions deprived him of a constitutional right. Parratt v. Taylor, 451 U.S. 527, 535 (1981).

Additionally, since there is no respondeat superior liability under section 1983, Kostka v. Hogg, 560 F.2d 37, 40 (1st Cir. 1977), liability in damages can only be imposed upon officials who were involved personally in the deprivation of constitutional rights. Pinto v. Nettleship, 737 F.2d 130, 132 (1^st Cir. 1984) (citations omitted). The requisite personal involvement of a prison official may be established by showing that the official knew of a prisoner's personal danger yet failed to provide protection. Id. Additionally, when a supervisory official is placed on actual notice of a prisoner's need for physical protection, "administrative negligence can rise to the level of deliberate indifference to or reckless disregard for that prisoner's safety." Layne v. Vinzant, 657 F.2d 468, 471 (1st Cir. 1981) (quoting West v. Rowe, 448 F.Supp. 58, 60 (N.D.Ill. 1978)). See also Farmer v. Brennen, 511 U.S. 825 (1994); Estelle v. Gamble, 429 U.S. 97, 104 (1976).

The Supreme Court has held that prison officials have a duty to protect prisoners from violence at the hands of other prisoners. Farmer v. Brennan, 511 U.S. 825 (1994). As is well known, in cases involving a failure to prevent harm, a constitutional violation occurs when the prisoner shows he is being held under conditions posing a substantial risk of serious harm and that prison officials displayed "deliberate indifference" to the prisoner's health or safety. Id. Prison officials violate the constitutionally required conditions of confinement when two elements are met. Id. at 834. In a failure to protect case, like the one at bar, the plaintiff must first show that the deprivation alleged is "objectively sufficiently serious." Id. (internal quotation marks omitted). The second prong requires that the defendants have a "sufficiently culpable state of mind." Id. This state of mind is "deliberate indifference" to an inmate's health or safety. Id. In order to meet the "deliberate indifference" standard, I.N.R. must show that the defendants knew he was exposed to a substantial risk of serious harm and disregarded that risk. Id. at 835-840. See also: Calderón-Ortiz v. Laboy-Alvarado, 300 F.3d 60, 64 (1^st Cir. 2002).

Plaintiffs' initial claim is addressed being aware that there is no longer a heightened pleading standard in civil rights cases. Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61 (1st Cir. 2004). Accordingly, all plaintiffs must submit is a "a short and plain statement of the facts showing that the pleader is entitled to relief in order to "give the defendant fair notice of what the plaintiffs' claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957); Fed.R.Civ.P. 8(a)(2). Having carefully examined the complaint ( Docket No. 1), it is considered that the complaint meets this standard.

The complaint alleges that I.N.R. was injured in violation of his constitutional rights, when the defendants failed to protect him. According to the allegations in the complaint, the claims asserted arise under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution. The complaint alleges the defendants' failure to protect was the result of an awareness and deliberate indifference by the defendants of the serious lapses in security within the juvenile institution and of the unreasonable risk of inmate on inmate assaults. The complaint also allege that the defendants were aware of the risk to which I.N.R. was subjected. Finally, the complaint contains specific allegations as to each defendant's alleged personal involvement. Accepting as true the allegations in the complaint and drawing all inferences in favor of I.N.R., the complaint adequately states a § 1983 claim.

Therefore, it is RECOMMENDED that the Motion to Dismiss on the basis that it fails to state a claim be DENIED.

C. Exhaustion of Administrative Remedies

Defendants argue that I.N.R. and his legal guardians were required to exhaust all administrative remedies before instituting this lawsuit. Plaintiffs respond that I.N.R. is not currently confined in any jail, prison or other correctional facility nor was he incarcerated when the complaint was filed. Actually, plaintiffs assert and point to the fact that the complaint was filed months after I.N.R. was released from custody. More so, plaintiffs correctly note that the exhaustion requirements do not apply to the legal guardians of I.N.R.

Although other Circuit Courts have spoken to the issue, the Court of Appeals for the First Circuit has yet to address the issue of whether a prisoner who is no longer held in a corrections facility must exhaust his administrative remedies. It is a well settled principle that the Prison Litigation Reform Act (hereafter " PLRA") prohibits prisoners from challenging prison conditions in federal courts until they have exhausted their available administrative remedies. 42 U.S.C. §§ 1997e(a). Section 1997e(a) provides, in pertinent part, that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. §§ 1997e(a). Notice is also taken of the fact that the statute defines a "prisoner" as "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 42 U.S.C. §§ 1997e(h). Before proceeding any further, it is noted that the language of the statute under §§ 19973(a) or 1997e(h) does not encompass the family members or legal guardians of a prisoner.

Nonetheless, the statute makes clear that exhaustion of administrative remedies by a prisoner under the PLRA is mandatory. See Booth v. Churner, 532 U.S. 731, 739 (2001). To fall within the definition of "prisoner," the individual in question must be currently detained as a result of accusation, conviction, or sentence for a criminal offense. See West v. Macht, 986 F.Supp. 1141, 1143 (W.D.Wis. 1997). Indeed, a plain reading of the statute makes clear that one must be detained in order to be considered a prisoner.

More so, the Second and Ninth Circuits have specifically addressed this issue and determined that § 1997e(a)'s exhaustion requirement does not apply to former prisoners. See Page v. Torrey, 201 F.3d 1136, 1139 (9th Cir. 2000) ("only individuals who, at the time they seek to file their civil actions, are detained as a result of being accused of, convicted of, or sentenced for criminal offenses are 'prisoners'"); Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999) ("litigants . . . who file prison condition actions after release from confinement are no longer 'prisoners' for purposes of § 1997e(a) and, therefore, need not satisfy the exhaustion requirements of this provision"). Additionally, several other courts of appeals have determined that other provisions of the PLRA do not apply to former prisoners. See e.g., Harris v. Garner, 216 F.3d 970, 979-80, (11th Cir. 2000) ("Because section 1997e(e) applies only to claims filed while an inmate is confined, it does not prevent a former prisoner from filing after release a monetary damages claim for mental and emotional injury suffered while confined, without a prior showing of physical injury."); Doe v. Washington County, 150 F.3d 920, 924 (8th Cir. 1998) (the PLRA is inapplicable to former prisoners in the context of §§ 1997e(d)'s limitation on attorney fees); Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998) (determining that § 1997e(e)'s physical injury requirement does not apply to a released prisoner).

There is no need to paint the lily. I.N.R. was not a prisoner as that term is defined by the PLRA at the time this lawsuit was filed. The undersigned follows the majority of courts to address the issue, and finds that § 1997e(a)'s exhaustion requirement does not apply to I.N.R., a former pretrial detainee, even though his particular cause of action arose during detention. More so, the plain language of the statute makes it clear that the PLRA does not apply to I.N.R.'s guardians and/or family members. It is therefore RECOMMENDED that the motion to dismiss premised jon plaintiffs' failure to exhaust administrative remedies be DENIED.

D. Eighth Amendment Claim

The complaint alleges that plaintiffs' cause of action arises under the Eighth and Fourteenth Amendments of the United States Constitution ( Docket No. 1, para. 1). It also alleges that the defendants' actions deprived I.N.R. of his physical safety and security without due process of law, and inflicted cruel and unusual punishment upon him, in violation of the Fifth, Eighth and Fourteenth Amendments of the United States Constitution. Id. at para. 39. Defendants move to dismiss the Complaint arguing that I.N.R. has no cause of action under the Eighth Amendment.

Plaintiffs appear to concede the point. They respond that I.N.R.'s claim is not that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment, but rather that to subject him to any form of punishment at all is an unconstitutional deprivation of his liberty, and thus a violation of his constitutional rights under the Fifth and Fourteenth Amendments of the United States Constitution.

The provisions of the Eighth Amendment do not extend to pretrial detainees. They are, however, protected under the Fourteenth Amendment Due Process Clause and given protections at least as great at the Eighth Amendment rights available to a convicted prisoner. Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983). Additionally, the legal standard to be applied while evaluating such a claim is the same as that used in Eighth Amendment cases. Burrell v. Hampshire Co., 307 F.3d 1, 7 (1^st Cir. 2004); see Bell v. Wolfish, 441 U.S. 520, 545 (1979) (the Due Process Clause protections are at least as great as those under the Eighth Amendment). Accordingly, a pretrial detainee is entitled to have reasonable measures to ensure his safety. See Upham v. Gallant, 230 F.3d 1347, 2000 WL 1425759 (1^st Cir. 2000) (citations omitted).

Defendants correctly argue that I.N.R., as a pretrial detainee, was not protected by the Eighth Amendment. Accordingly, it is RECOMMENDED that Defendants' motion to dismiss the Eighth Amendment claim be GRANTED.

E. Respondeat Superior

Defendants' last theory for dismissal is that they cannot be sued under a theory of respondeat superior. Defendants argue that none of the facts in the complaint affirmatively link the constitutional violations alleged by the plaintiffs to the correctional supervisors' actions or inaction. It is the defendants' stand that any claims asserting a failure to supervise, train and monitor the conduct of other defendants should be dismissed. Plaintiffs oppose said request and respond that the complaint sets forth each defendant's individual liability for each and every personal involvement in the violation of I.N.R.'s federally protected rights. Plaintiffs point to and highlight each paragraph which contains the specific acts and omission of which they complain.

There is no respondeat superior liability under section § 1983. Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir. 1994) (citing Monell v. Dep't of Social Servs., 436 U.S. 658, 691 (1978)); Pinto v. Nettleship, 737 F.2d 130, 132 (1st Cir. 1984); Caraballo-Cordero, 91 F.Supp.2d at 489. Notwithstanding, plaintiffs may hold defendants accountable for their own acts or omissions under a theory of supervisory liability. Pinto, 737 F.2d at 132; Caraballo Cordero, 91 F.Supp.2d at 489.

To find a supervisor liable under § 1983, a plaintiff must show that: (1) the supervisor's acts or omissions deprived the plaintiff of a constitutionally protected right; (2) his action or inaction amounted to a reckless disregard or callous indifference to the constitutional rights of others; (3) there was an affirmative link between the level of misconduct and the action or inaction of the supervisory official. Gutiérrez-Rodríguez v. Cartagena, 882 F.2d 553, 562 (1^st Cir. 1989); Adorno-Colón v. Toledo-Dávila, 137 F.Supp.2d 39, 42 (D.P.R. 2001); Caraballo-Cordero v. Banco Financiero de Puerto Rico, 91 F.Supp.2d 484, 490 (D.P.R. 2000). In turn, to demonstrate deliberate indifference, a plaintiff must show (1) a grave risk of harm; (2) the defendant's actual or constructive knowledge of that risk; and (3) his failure to take easily available measures to address the risk. Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir. 1998) (citing Manarite v. City of Springfield, 957 F.2d 953, 956 (1st Cir. 1992)); Febus-Rodríguez v. Betancourt-Lebrón, 14 F.3d 87, 91 (1^st Cir. 1994) (mere negligence is insufficient for a finding of supervisory liability).

There must be a causal connection however, between the supervisor's conduct and the subordinate's unconstitutional conduct. Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 582 (1^st Cir. 1994). A causal link may be found when the supervisor knows of, or tacitly approves of the conduct, or when he has actual or constructive notice of the ongoing violations but fails to take corrective measures such as better training and oversight. Id.

In reviewing the complaint it is evident that plaintiffs have sufficiently put defendants on notice of a supervisory liability claim. At paragraph 28 of the complaint it is clearly asserted that the defendants failed to adequately supervise inmates or to ensure that they were adequately supervised, failed to ensure sufficient assignment of personnel (correctional officers), failure to ensure that personnel assigned observed proper practices and procedures, failed to deploy officers to protect I.N.R. from harm and implemented or permitted other practices which endangered the life and bodily integrity of I.N.R. Additionally, the complaint alleges the defendants knew of the high risks of inmate on inmate assault and, notwithstanding, the defendants provided no security to prevent the occurrence of such events.

Construing the complaint in favor of I.N.R., as the Court must do, the undersigned finds that the complaint adequately alleges supervisory liability and not respondeat superior. Therefore, it is RECOMMENDED that the Motion to Dismiss on the basis of respondeat superior be DENIED.

III. Conclusion

For the reasons stated above, this Magistrate-Judge RECOMMENDS that the Motion to Dismiss ( Docket No. 11) be GRANTED in part and DENIED in part as follows:

· that the Motion to Dismiss the Eighth Amendment Claim be GRANTED; and

· that the remainder of the Motion to Dismiss, to the extent it asserts a failure to state a claim, supervisory liability and plaintiff's failure to exhaust administrative remedies be DENIED.

This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 72(a) of the Local Rules of Court. Any objections to the same must be specific and must be filed with the Clerk of Court within ten (10) days of notice. Rule 72(d), Local Rules of Court; Fed.R.Civ.P. 72(b). Failure to timely file specific objections to the Report and Recommendation waives the right to review by the District Court, and waives the right to appeal the District Court's order. United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980). The parties are advised that review of a Magistrate-Judge's Report and Recommendation by a District Judge does not necessarily confer entitlement as of right to a de novo hearing and does not permit consideration of issues not raised before the Magistrate-Judge. Paterson-Leitch v. Massachusetts Elec., 840 F.2d 985 (1st Cir. 1988).

SO RECOMMENDED.