Opinion
No. 00 Civ. 8799 (CBM)
February 8, 2002
MEMORANDUM OPINION AND ORDER
Defendants Molloy and Wrinkle have moved to dismiss the complaint in the above-captioned matter on a variety of grounds. For the reasons set forth below, defendants' motion is hereby GRANTED in part and DENIED in part.
Plaintiff did not serve defendant Richardson with process in advance of the strict January 30, 2002 deadline. Accordingly, it is hereby ORDERED that the complaint is DISMISSED without prejudice with respect to defendant Richardson.
Defendants first contend that plaintiff's complaint fails to state aBivens claim against them because it fails adequately to allege their personal involvement in the incident at issue. The Second Circuit has held that a plaintiff may establish the requisite personal involvement on the part of a supervisory official by demonstrating one of three things: (1) that the supervisory official learned of and failed to correct the wrong; (2) that the supervisory official created a policy or custom under which unconstitutional practices occurred; or (3) that the supervisory official was grossly negligent in managing the subordinate who caused the unconstitutional condition See, e.g., Spencer v. Doe. 139 F.3d 107, 112 (2d Cir. 1998). Here, plaintiff undoubtedly has stated a claim under the third Spencer prong because his complaint alleges that Molloy and Wrinkle "failed, in a grossly negligent manner, having been put on notice at least three years prior to the subject incident, to supervise and discipline [d]efendant Richardson." Cplt. ¶ 22. Defendants have submitted affidavits swearing that they were not responsible for supervising defendant Richardson at the time of the incident in question, but the court is obliged at the motion to dismiss stage to assume the truth of the allegations in plaintiff's complaint, and the court declines to entertain defendants' summary judgment motion at this time. Defendants will be given a frill opportunity to move for summary judgment at the conclusion of a brief discovery period. Accordingly, defendants' motion to dismiss with respect to supervisory liability is hereby DENIED.
Defendants next argue that plaintiff's claim under the Fourteenth Amendment must fail because they are federal, not state actors. Plaintiff concedes that he should have asserted a claim under the Fifth Amendment, not the Fourteenth Amendment. Because the elements of a Bivens claim against a federal actor are the same as the elements of a Bivens claim against a state actor, defendants have not been prejudiced by plaintiff's pleading error. Defendants certainly have been given sufficient notice of the nature of plaintiff's claim. Accordingly, the court will construe plaintiff's claim as arising under the Fifth Amendment, not the Fourteenth Amendment, and defendants' motion to dismiss with respect to this issue is hereby DENIED.
Finally, defendants move to dismiss the complaint to the extent that it asserts claims against them in their official capacities, arguing that the Government has not waived its sovereign immunity with respect to this lawsuit. Plaintiff's opposition brief is silent on this issue. Because defendants' position appears to have merit, and because this aspect of their motion is unopposed, the court hereby GRANTS defendants' motion to dismiss all claims asserted against them in their official capacities.
It is FURTHER ORDERED that the parties will abide by the following discovery schedule:
The parties are to meet on or before April 19, 2002, and exchange all documents, of any description, relevant to this case. Thereafter, on May 17, 2002, the parties are to meet and prepare a schedule of all depositions to be taken during the period May 31, 2002 to June 14, 2002. A copy of the deposition schedule shall be sent to the court. No interrogatories are to be served, except those seeking the location or identity of prospective witnesses or deponents. There will be no extensions of time granted as to this schedule, and sanctions will be imposed for failure to abide by this schedule. All discovery of any nature shall be concluded by June 21, 2002.
At the conclusion of the discovery period, each side will be given the opportunity to move for summary judgment. All motions for summary judgment must be filed and served on or before July 19, 2002.
The trial in this matter, if any, shall commence on September 10, 2002, at 10:00 am. in Courtroom 26-A of the United States Courthouse at 500 Pearl Street, New York, New York.
SO ORDERED.