Samuels v. Fischer (168 F. Supp. 3d 625, 2016)

OPINION & ORDER

KENNETH M. KARAS, District Judge:

Plaintiff Kenneth Samuels (“Plaintiff’) brings this action against defendants Brian Fischer (“Fischer”), Albert Prack (“Prack”), Philip Heath (“Heath”), William Keyser (“Keyser”), Michael Barnes (“Barnes”), Corey Gamble (“Gamble”), Ronald Brereton (“Brereton”), Kenneth White (‘White”), Brian Schrader (“Schrader”), LaToya Gould (“Gould”), Timothy Bellinger (“Bellinger”), Ronald Woody (“Woody”), Calvin Dowtin (“Dowtin”), Jonathan Freeman (“Freeman”), and Steven Luciano (“Luciano”) alleging violations of his constitutional and statutory rights pursuant to 42 U.S.C. § 1983. Fischer, Prack, Heath, Keyser, Barnes, Gamble, White, Schrader, Freeman, and Luciano (collectively, “Defendants”) have moved to dismiss the Amended Complaint. For the reasons stated herein, the Motion is granted in part, and denied in part.

I. Background

A. Factual Background

The following facts are taken from the Amended Complaint and are accepted as true for purposes of this Motion. At the time of the events described herein, Plaintiff was an inmate at Sing Sing Correctional Facility (“Sing Sing”). (Am. Compl. 2 (Dkt. No. 25).)

1. The Alleged Assault

On November 16, 2010, Plaintiff entered the B-block housing unit, from which he took his shower gear, and went to the Q-Gallery to wait in line for the “bathhouse run.” (Am. Compl. ¶ 15.) By the time that Plaintiff had been waiting in line for at least 20 minutes, he asked Woody what the hold-up was. (Id. ¶ 16.) Woody told him that A-Block was running prisoners to the auditorium for movies. (Id.) Plaintiff then asked Woody if he could return to his cell, skipping the bathhouse, and go to the yard when the bathhouse returned. (Id.) Woody said no, telling Plaintiff that because he put down for the bathhouse, he had to go to it. (Id.)

Ten minutes later, an- announcement was made instructing all prisoners waiting for the bathhouse run to return all cigarettes to their cells. (See id.) Plaintiff and several other prisoners went to the back of the Q-Gallery, where Plaintiff showed Bel-linger his cigarettes. (Id. ¶ 17.) Bellinger waved Plaintiff and other inmates through. (Id.) Plaintiff then returned the cigarettes to his cell on W-Gallery. (Id.) Upon returning, Plaintiff heard Dawtin call down to Bellinger, instructing him to stop the inmate coming off of R-Gallery, apparently in reference to Plaintiff. (See id.) Bellinger told Dawtin that Plaintiff had just returned cigarettes to his cell on W-Gallery, but Dawtin replied that he did not call W-Gallery, telling Bellinger to send Plaintiff back. (Id.) Plaintiff attempted to explain to Dawtin that he had been in the Q-Gallery waiting for the bathhouse run prior to the announcement. (Id.) Dawtin cut Plaintiff off, saying that he did not call W-Gallery, instructing Plaintiff to “take it back and lock it in.” (Id.)

Plaintiff then proceeded back down the gallery to his cell while speaking to Bel-linger, during which time Woody sarcastically told Plaintiff that he should not have put down for the bathhouse anyway. (Id. ¶ 18.) Plaintiff responded, saying, “no one[’]s talking to you[;] mind your fucking business.” (Id.) While Plaintiff was waiting for Gould to open his cell, Plaintiff saw Woody, Dawtin, and Bellinger approaching. (Id. ¶ 19.) Plaintiff then put his hands on the fenced gate, but Woody said that it was “to[o] late for that” and began pushing Plaintiff back in the direction from which he had come. (Id.) Gould stood in the middle of the W-Gallery while Plaintiff was being pushed and shoved down the gallery. (Id.) At that time, Woody, Dawtin, and Bellinger began punching Plaintiff and striking him on the back of the head. (Id.) Plaintiff turned around and said that all of this was unnecessary. (Id.) Woody, Dawtin, and Bellinger continued throwing punches, striking Plaintiff around the face. (Id.) Plaintiff then tried to flee, but Woody grabbed him by the collar of his shirt as Bellinger and Dawtin drew their batons. (See id.) Plaintiff, fearing for his life, attempted to break Woody’s hold on his collar but could- not. (Id.) Plaintiff, fearing further assault, attempted to defend himself successfully blocking with his arm a blow from Bellinger’s baton, which Belling-er swung toward Plaintiff’s head. (Id.) Dawtin them rammed his baton into Plaintiffs forehead, causing Plaintiffs head to snap back and Plaintiffs shirt to rip. (See id.) As Plaintiff stumbled back, Woody struck Plaintiff on the head with his baton, causing Plaintiff to fall to the ground. (Id.) As Plaintiff tried to get up, he was repeatedly struck on the head and arms. (Id.)

The attack continued until Barnes, who repeatedly ordered Woody, Dawtin, and Bellinger to stop, said, “that’s enough; that’s enough.” (See id. ¶ 20.) During that time, Gould watched, doing nothing to stop the assault. (Id.) Plaintiff was then handcuffed, shoved down a flight of stairs, and pushed up against a wall. (Id.) Gamble shouted, “[W]hy is he still standing[?] [W]hy is he still breathing?” (Id.) Plaintiff was then made to stand in the back of the shower, bleeding and in agonizing pain for 20 minutes before being taken to medical staff. (Id.)

Plaintiff was then examined by C. Nu-gent (“Nugent”), a medical staff nurse, who told Plaintiff that he would be taken to an outside hospital. (Id. ¶ 21.) Schran-der, Freeman, and Luciano then shackled Plaintiff and placed him in a van, where Plaintiff sat at a Sing Sing check point for several hours, during which time Plaintiff was bleeding and in excruciating pain before being taken to the Mount Vernon Emergency Room. (Id.) Once there, Plaintiff was treated and received seven sutures to close the wounds to his head. (Id.) As a result of the assault, Plaintiff alleges that he suffered contusions as well as bleeding lacerations and abrasions on his head with swelling and abrasions to his arms and neck. (Id. at unnumbered 11.) As a result of the injuries to his head, Plaintiff was still receiving pain medication at the time of the Amended Complaint. (Id.)

2. Proceedings Brought By And Against Plaintiff

On November 17, 2010, in what Plaintiff alleges to have been an “effort to shield the unwarranted, unprovoked assault,” Plaintiff was issued two “Misbehavior Reports” dated November 16, 2010, alleging that he violated various rules of inmate behavior and charging him with two counts of violent conduct (Rule 104.11), two counts of creating a disturbance (Rule 104.13), two counts of assault on staff (Rule 100.11), “[interference with [ejmployee,” two counts of refusing direct orders (Rule 106.10), “[o]ut of [pjlace” (Rule 109.10), and a movement regulation violation (Rule 109.12). (Id. ¶22.) Lieutenant Pickens reviewed the misbehavior reports “allegedly written by [Defendants Woody[] [and] Bellinger,” and ordered Plaintiff confined to the special housing unit (“SHU”). (Id. ¶ 23.)

Heath designated Brereton to serve as the hearing officer, (id.), and, on November 21, 2010, Brereton commenced the “Tier III” hearing, in which Plaintiff entered a plea of not guilty to each of the charges. (Id. ¶ 24.) Plaintiff asked for help obtaining documents and locating and interviewing witnesses; accordingly, Brere-ton assigned White to assist Plaintiff. (Id.) On November 23, 2010, Brereton concluded the hearing and found Plaintiff guilty of violent conduct (Rule 104.11), creating a disturbance (Rule 104.13), two counts of assault on staff (Rule 100.11), two counts of refusing a direct order (Rule 106.10), movement regulation (Rule 109.12), and interference with employee (Rule 107.10). (Id.) Accordingly, Brereton imposed as penalties 30 months’ confinement in the SHU, 30 months’ loss of packages, commissary, and phones, as well as twelve months’ recommended loss of “[g]ood time.” (Id.)

Shortly thereafter, Plaintiff sought discretionary review from Heath. (Id. ¶ 25.) “[S]uch review was passed along and subsequently denied.” (Id.) On January 20, 2011, Plaintiff filed an administrative appeal, which Fischer designated Prack to review. (Id.) By notice dated February 14, 2011, Prack, “acting on behalf of Fischer,” notified Plaintiff that the November 23, 2010 superintendent’s hearing had been affirmed. (Id.)

On June 9, 2011, Plaintiff commenced an Article 78 proceeding, challenging the denial of his administrative appeal. (Id. ¶ 26.) Later, on November 9, 2011, those proceedings were transferred to the Third Department of the New York Supreme Court’s Appellate Division, and Plaintiff filed his brief on January 12, 2012, which raised the same grounds as his Article 78 proceedings. (See id. ¶¶ 26-27.) By the time that the relief that Plaintiff had sought was granted, he had served 22 months of his 30-month penalty, and Plaintiff remained in “segregative confinement” until August 28, 2012. (Id. ¶ 27.)

According to Plaintiff, Brereton and White “deliberately[,] intentionally[,] and knowingly deprived [P]laintiff ’ of his constitutional due process rights in the context of a disciplinary proceeding by “failing to conduct a fair hearing by a neutral arbitrator,” by “denying Plaintiff the right to call witnesses in support of his defense,” and also by “adequate [sic] assistance^] as well as [an] erroneously written Misbehavior Report.” (Id. ¶28.) Likewise, Plaintiff alleges that Heath, Keyser, Fischer, and Prack, “upon learning of the violations!,] did allow[,] permit, approve, assist, sanction! ][,] conspire[ ][,] or act[] in concert with [Defendant Brereton.” (Id. ¶ 29.)

3. Allegations Concerning Particular Prison Officials’ Knowledge

Plaintiff makes a few allegations related to certain Defendants’ knowledge about conditions at Sing Sing. For example, Plaintiff alleges that Fischer, Heath, Key-ser, Gamble, and Barnes were all aware of the high volume of use of force incidents at Sing Sing, in which officers used excessive, unnecessary force on prisoners. (Id. ¶ 9). These Defendants, Plaintiff alleges, “failed to properly supervise and adequately train their officials] or subordinates in the use of force as there [are] ... systemic, gross inadequacies in training and supervision of officials under their control.” (Id.)

With respect only to Fischer, Heath, and Keyser, Plaintiff alleges that these three “failed to ensure that their subordinates were properly and adequately trained and periodically [updated] on the proper usage of force.” (Id. ¶ 13.) Their failure to “properly screen area supervisors and officers in conducting stress test[s] created and condone[d] the unlawful!,] unconstitutional, [and] customary practices of excessive use of force.” (Id.)

Finally, Plaintiff makes certain allegations relating to Fischer and Keyser alone. For example, Plaintiff alleges that Fischer was “grossly negligent in supervising his subordinates who were entrusted with the duty of ensuring their subordinates were properly or adequately trained in the use of force.” (Id. ¶ 12.) Plaintiff alleges that Fischer “had knowledge of a high volume of excessive use of force incidents at Sing Sing, through numerous complaints,” but nevertheless “allowed the unlawful customary unconstitutional practices of excessive use [of] force to continue by failing to act.” (Id.) Additionally, Plaintiff alleges that “Fischerf ] created a policy and/or custom that allowed unnecessary excessive use of force in Sing Sing to exist by failing [to] supervise or punish officials who failed to properly conduct fair and impartial investigations and who themselves committed or condoned the unlawful, unconstitutional violations.” (Id. ¶ 14.) Keyser, Plaintiff alleges, was “grossly negligent in supervising subordinates who brutally, maliciously assaulted Plaintiff without provocation” and “had knowledge of the high volume of excessive use of force incidents occurring at Sing Sing,” but nevertheless “failed to correct or remedy the wrongful unconstitutional acts committed by his subordinates,” which incidents, Plaintiff alleges, were reported to Keyser. (Id. ¶ 10.)

B. Procedural Background

On November 19, 2013, Plaintiff brought suit against Barnes, Bellinger, Brereton, Dowtin, Fischer, Gamble, Gould, Heath, Keyser, Prack, White, Woody, and certain John Doe defendants. (See Dkt. No. 2.) Afterwards, the Court issued an Order of Service, (Dkt. No. 5), and Plaintiff, on March 14, 2014, filed his Amended Complaint, naming each of the currently-named defendants “jointly, severally[,] and individually and in his/her individual and not in [his or her] official capacity.” (Am. Compl. at unnumbered 14.) Another Order of Service was issued on October 7, 2014. (Dkt. No. 45.) On December 12, 2014, Defendants submitted a premotion letter in advance of their anticipated Motion to Dismiss. (Dkt. No. 51.) On February 25, 2015, the Court held a Pre-Motion Conference and adopted a briefing schedule for the instant Motion. (Dkt. No. 56.) Defendants filed their Motion and accompanying papers on April 22, 2015, (Dkt. Nos. 59-63), to which Plaintiff filed his Opposition on July 13, 2015, (Dkt. No. 72), and in support of which Defendants filed their reply on August 3, 2015, (Dkt. No. 75). In addition, the nonmoving defendants filed their Answer on May 7, 2015, (Dkt. No. 66), to which Plaintiff filed an “Opposition” on July 13, 2015, (Dkt. No. 71). Plaintiff requested discovery from Defendants on August 5, 2015, (Dkt. No. 80); however, in response to a letter motion from the defendants, (Dkt. No. 81), the Court stayed discovery until after resolution of the pending Motion, (Dkt. No. 82), a decision which Plaintiff asked the Court to reconsider, (Dkt. No. 83), but which the Court stood by, (Dkt. No. 84).

II. Discussion

A. Standard of Review

Defendants move to dismiss Plaintiffs Amended Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. “While 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.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations, internal quotation marks, and alterations omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.,” Id. (internal quotation marks and alterations omitted). Instead, a complaint’s “[fjactual allegations must be enough to raise a right to relief above the speculative level .... ” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Although “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint,” id. at 563, 127 S.Ct. 1955, and, although a plaintiff need only allege “enough facts to state a claim to relief that is plausible on its face,” id. at 570, 127 S.Ct. 1955, if a plaintiff has not “nudged [his or her] claim[] across the line from conceivable to plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (“Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.’ ” (citation omitted) (second alteration in original) (quoting Fed. R. Civ. P. 8(a)(2))); id. at 678-79, 129 S.Ct. 1937 (“Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”).

“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007); see also Graham v. Macy’s Inc., No. 14-CV-3192, 2015 WL 1413643, at *1 n. 1 (S.D.N.Y. Mar. 23, 2015) (“For the purpose of resolving the motion to dismiss, the [c]ourt assumes all well-pled facts to be true .... ”). Further, “[f|or the purpose of resolving [a] motion to dismiss, the [c]ourt ... draw[s] all reasonable inferences in favor of the plaintiff.” Daniel v. T&M Prot. Res., Inc., 992 F.Supp.2d 302, 304 n. 1 (S.D.N.Y.2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir.2012)). Additionally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999) (internal quotation marks omitted); see also Hendrix v. City of N.Y., No. 12-CV-5011, 2013 WL 6835168, at *2 (E.D.N.Y. Dec. 20, 2013) (same).

Lastly, because Plaintiff is proceeding pro se, the Court must construe his pleadings liberally and “interpret them to raise the strongest arguments that they suggest.” Maisonet v. Metro. Hosp. & Health Hosp. Corp., 640 F.Supp.2d 345, 347 (S.D.N.Y.2009) (internal quotation marks omitted); see also Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir.2006) (same). This admonition “applies with particular force when a plaintiffs civil rights are at issue.” Maisonet, 640 F.Supp.2d at 348; see also McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.2004). However, the liberal treatment afforded to pro se litigants does not excuse a pro se party “from compliance with relevant rules of procedural and substantive law.” Maisonet, 640 F.Supp.2d at 348 (internal quotation marks omitted).

B, Analysis

1. Fischer, Heath, and Keyser’s Personal Involvement

To begin, Defendants move to dismiss the claims against Fischer, Heath, and Keyser for lack of personal involvement. “It is well settled that, in order to establish a defendant’s individual liability-in a suit brought under § 1983, a plaintiff must show ... the defendant’s personal involvement in the alleged constitutional deprivation.” Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir.2013) (italics omitted); see also Farrell v. Burke, 449 F.3d 470, 484 (2d Cir.2006) (“[Pjersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” (internal quotation marks omitted)); Davila v. Johnson, No. 15-CV-2665, 2015 WL 8968357, at *4 (S.D.N.Y. Dec. 15, 2015) (“It is well settled in this Circuit that ‘personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.’ ”) (some internal quotation marks omitted) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994)); Lovick v. Schriro, No. 12-CV-7419, 2014 WL 3778184, at *3 (S.D.N.Y. July 25, 2014) (dismissing § 1983 claims where the complaint contained “no allegations whatsoever indicating that [the defendants] were personally involved in the purported violations” of the plaintiff’s constitutional rights). Relatedly, “[i]n an action under 42 U.S.C. § 1983, defendants cannot be held liable under a theory of respondeat superior,” Quezada v. Roy, No. 14-CV-4056, 2015 WL 5547277, at *7 (S.D.N.Y. Sept. 18, 2015) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)); in other words, “[b]ecause vicarious liability is inapplicable to ... § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the [law],” Iqbal, 556 U.S. at 676, 129 S.Ct. 1937; see also Fortunato v. Bernstein, No. 12-CV-1630, 2015 WL 5813376, at *6 (S.D.N.Y. Sept. 1, 2015) (“Supervisory status, without more, is not sufficient to subject a defendant to [§ ] 1983 liability.” (internal quotation marks omitted)).

“Before Iqbal, the most important case in this Circuit regarding the evidence required to establish the personal involvement of a supervisory official was Colon v. Coughlin, 58 F.3d 865 (2d Cir.1995).” Haynes v. Mattingly, No. 06-CV-1383, 2014 WL 4792241, at *7 (S.D.N.Y. Sept. 24, 2014), aff'd, (2d Cir. Oct. 27, 2015). Under the framework set forth in that case, courts find personal involvement of a supervisory defendant where the plaintiff shows that

(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.

Grullon, 720 F.3d at 139 (alteration in original) (italics omitted) (quoting Colon, 58 F.3d at 873); Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir.2014) (quoting Colon, 58 F.3d at 873) (same). Since then, the Second Circuit has recognized that the “[Iqbal] decision ... may have heightened the requirements for showing a supervisor’s personal involvement with respect to certain constitutional violations,” Grullon, 720 F.3d at 139; however, “[it] has thus far declined to resolve the question,” Golodner v. City of New London, No. 14-CV-173, 2015 WL 1471770, at *7 (D.Conn. Mar. 31, 2015); see also Fortunato, 2015 WL 5813376, at *6 (noting that “the continuing validity of the Colon factors has been called into question by the Supreme Court’s ruling in Iqbal”). The Court need not put its oar in the water concerning the continued vitality of Cohn, however, because Plaintiffs complaints founder even under Colon.

Before delving into Plaintiffs specific allusions to Fischer, Heath, and Keyser, it would likely be helpful to briefly touch upon who, exactly, these Defendants are. First, as Plaintiff observes, Fischer was the Commissioner of the New York Department of Corrections and Community Supervision (“DOCS”), (see Am. Compl. ¶2), and the former Superintendent of Sing Sing, (see Opp’n to Defs.’ Mot. for Summ. J. [sic] (“Pl.’s Opp’n”) 4 (Dkt. No. 72)). As has been noted in litigation, Fischer was appointed Acting Commissioner of DOCS on January 1, 2007, and was confirmed as Commissioner on March 12, 2007. See Rahman v. Fischer, No. 08-CV-4368, 2010 WL 1063835, at *2 n. 4 (S.D.N.Y. Mar. 22, 2010). Also, as Plaintiff alleges, Heath was at the time of the incident the Superintendent of Sing Sing. (Am. Compl. ¶ 3.) Finally, as Plaintiff alleges, Keyser was the Deputy Superintendent of Security at Sing Sing. (Id. If 4.)

a. Pure Legal Conclusions

To begin, many of Plaintiffs allegations either (1) posit without explanation that incidents of officers’ excessive use of force were known to Fischer, (id. ¶¶ 9, 12; PL’s Opp’n 4), Heath, (Am. Compl. ¶¶ 9, 11; PL’s Opp’n 4), or Keyser, (Am. Compl. ¶¶ 9, 10; PL’s Opp’n 4), or (2) attribute conduct to one or more of them that largely mirrors — or is at least very similar — -the wording of one of the Colon prongs without further factual development, (Am. Compl. ¶ 10) (Keyser/prong four); id. ¶ 11 (Heath/prong four); id. ¶ 12 (Fischer/prong four); id. ¶ 14 (Fischer/prong three); id. ¶ 29 (all three/prong two); PL’s Opp’n 4 (all three/prong two); id. at 7 (all three/prong two).

With regard to the former, as the Supreme Court has made clear, “eonclusory ... allegations” are “disentitle^] ... to the presumption of truth.” Iqbal, 556 U.S. 681, 129 S.Ct. 1937; see also Shepherd v. Fischer, No. 10-CV-1524, 2015 WL 1246049, at *13 (N.D.N.Y. Feb. 23, 2015) (rejecting as “appearing] to assert a non-cognizable constitutional claim or ... vague and eonclusory” certain claims against Fischer where the plaintiff alleged that he “[was] aware” of certain problems at a DOCS facility (internal quotation marks omitted)), adopted by 2015 WL 1275298 (N.D.N.Y. Mar. 18, 2015); Vann v. Fischer, No. 11-CV-1958, 2012 WL 2384428, at *6 (S.D.N.Y. June 21, 2012) (dismissing claims against DOCS Commissioner for lack of personal involvement where the plaintiff alleged that the Commissioner “ha[d] knowledge of actions taken” (first alteration in original) (internal quotation marks omitted)). Similarly, the latter is insufficient, as Second Circuit law has long taught that, even within the context of the Colon framework, “merely reciting] the legal elements of a successful § 1983 claim for supervisory liability ... does not meet the plausibility pleading standard.” Dotson v. Farrugia, No. 11-CV-1126, 2012 WL 996997, at *6 (S.D.N.Y. Mar. 26, 2012); see also Lindsey v. Butler, 43 F.Supp.3d 317, 329 (S.D.N.Y.2014) (“Conclusory accusations regarding a defendant’s personal involvement in the alleged violation, standing alone, are not sufficient .... ” (internal quotation marks omitted)), reconsideration granted in part on other grounds, No. 11-CV-9102, 2014 WL 5757448 (S.D.N.Y. Nov. 5, 2014), reconsideration denied, 2015 WL 1501625 (S.D.N.Y. Apr. 1, 2015); Vogelfang v. Capra, 889 F.Supp.2d 489, 502 (S.D.N.Y.2012) (“To the extent [the plaintiff] may argue that [two of the defendants] failed to properly supervise subordinates who were violating her rights, the mere fact that a defendant possesses supervisory authority is insufficient to demonstrate liability for failure to supervise under § 1983.” (internal quotation marks omitted)). Thus, to the extent that Plaintiffs allegations contravene these rules, they cannot make out a claim of personal involvement.

b. Receipt of Reports

Additionally, Plaintiff alleges that reports of excessive force — either from other inmates or DOCS’ reporting system — were made to Fischer, (Am. Compl. ¶ 12; Pl.’s Opp’n 3-4), Heath, (Am. Compl. ¶ 11; Pl.’s Opp’n 3-4), and Keyser, (Am. Compl. ¶ 10; Pl.’s Opp’n 3-4). Ample Second Circuit case law makes clear that a plaintiff does not state a claim where he alleges only that a supervisory official received reports of wrongdoing. See Pagan v. Westchester Cty., No. 12-CV-7669, 2014 WL 982876, at *22 (S.D.N.Y. Mar. 12, 2014) (noting in the context of a claim against the commissioner of Westchester County Department of Corrections that “[e]vidence of notification, via letters or complaints, of an unconstitutional condition is alone not sufficient to indicate that a defendant is personally involved in the unconstitutional conduct”), reconsideration granted on other grounds, 2015 WL 337403 (S.D.N.Y. Jan. 26, 2015); Hobson v. Fischer, No. 10-CV-5512, 2011 WL 891314, at *4-5 (S.D.N.Y. Mar. 14, 2011) (dismissing Fischer from lawsuit for lack of personal involvement where the plaintiff “[did] not allege that Fischer personally participated in the denial of [the plaintiffs] grievances” and “[did] not elaborate as to how Fischer knew about the alleged violations,” but “argue[d] that Fischer knew or sh[o]uld have known, of the alleged constitutional violations as the Commissioner of DOCS and the former Superintendent of Sing Sing”); Rahman, 2010 WL 1063835, at *5 (dismissing excessive force claims brought against two deputy DOCS commissioners for lack of personal involvement reasoning as to one that the allegation that he “received ‘several’ complaints of staff assaulting prisoners” is “insufficient allegation of notice of any policy or custom of assaults by corrections officers,” and noting, as to the other, that allegations against him rested, in part, “on complaints sent to his office” but that “[t]his is not a sufficient allegation of personal involvement”); Voorhees v. Goord, No. 05-CV-1407, 2006 WL 1888638, at *5-6 (S.D.N.Y. 2006) (finding alleged receipt of some 60 grievances relating to prison official by then-Commissioner Glenn Goord insufficient to establish Goord’s personal involvement); cf. Gillard v. Rovelli, No. 12-CV-83, 2014 WL 4060025, at *10 (N.D.N.Y. Aug. 14, 2014) (noting that the plaintiff “contended] that [the deputy superintendent for security] was advised of ... ongoing threats made by [a corrections officer],” but observing that “[the plaintiff] [did] not allege how and when [the deputy superintendent] was advised of such threats”). This is arguably consistent with the oft-repeated logic of the Second Circuit that “mere ‘linkage in the prison chain of command’ is insufficient to implicate a state commissioner of corrections or a prison superintendent in a § 1983 claim,” Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.2003) (quoting Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.1985)), and that “[t]he bare fact that [a defendant] occupies a high position in the New York prison hierarchy is insufficient to sustain [a plaintiffs] claim,” Colon, 58 F.3d at 874.

Of course, these cases should not be taken to state more than they do. While receiving reports of excessive force does not, without more, save a seat at the defense table for DOCS commissioners, prison superintendents, or a deputy superintendent for security, the receipt of such reports is certainly not inconsistent with personal involvement. Therefore, to the extent that Plaintiff can offer additional factual details concerning Fischer’s, Heath’s, or Keyser’s involvement in his alleged constitutional harms, he should do so in a Second Amended Complaint. See Pagan, 2014 WL 982876, at *22 (declining to dismiss claims against the Commissioner of the Westchester County Department of Corrections on the grounds that the “plaintiffs allege[d] more than mere notification through written correspondence,” further “elaimpng] that [the commissioner] had daily meetings with the senior members of his staff, during which he was made aware of these ongoing issues” and that, despite these meetings, the commissioner persisted in ignoring the violations); Rahman v. Fisher, 607 F.Supp.2d 580, 586 (S.D.N.Y. 2009) (“To the extent that [the] plaintiff is able to plead that a pattern of assaults by guards existed prior to [the date of the plaintiffs alleged assault] that did or should have put supervisory defendants on notice of a condition that left unaddressed could be reasonably expected to result in an assault on an inmate such as [the plaintiff], then he may be able to state a claim for supervisory liability against such defendants.”).

c. Failure To Train

Plaintiff also alleges that Fischer, Heath, Keyser, or some combination thereof failed to adequately train or supervise subordinates. (See Am. Compl. ¶¶ 2-4, 9-13). An allegation that a defendant failed to adequately train or supervise subordinates implicates the fourth Colon factor, i.e., that “the defendant was grossly negligent in supervising subordinates who committed the wrongful acts.” Colon, 58 F.3d at 873. However, to establish personal involvement on that basis

Plaintiff must show that [the defendant] “knew or should have known that there was a high degree of risk that his subordinates would behave inappropriately, but either deliberately or recklessly disregarded that risk by failing to take action that a reasonable supervisor would find necessary to prevent such a risk, and that failure caused a constitutional injury to Plaintiff.”

Frederick v. Sheahan, No. 10-CV-6527, 2014 WL 3748587, at *8 (W.D.N.Y. July 29, 2014) (alterations omitted) (quoting Poe v. Leonard, 282 F.3d 123, 142 (2d Cir.2002)); see also Kucera v. Tkac, No. 12-CV-264, 2013 WL 1414441, at *6 (D.Vt. Apr. 8, 2013) (noting an “alleged failure [to supervise or train] [would] satisfy the fourth Colon factor if [the officers] ’knew or should have known that there was a high degree of risk that subordinates would behave inappropriately but either deliberately or recklessly disregarded that risk by failing to take action that a reasonable officer would find necessary to prevent such a risk.’” (alterations omitted) (quoting Poe, 282 F.3d at 142)). A general allegation that Fischer, Heath, and/or Keyser failed to train subordinates, however, is insufficient to establish personal involvement, absent some factual connection between their failure to train and the harm that eventually befell Plaintiff. See, e.g., McRae v. Gentile, No. 14-CV-783, 2015 WL 7292875, at *5 (N.D.N.Y. Oct. 20, 2015) (finding no personal involvement by prison superintendent where the plaintiff alleged that the “[superintendent’s] negligent training and supervision of the [defendant Corrections [o]fficers caused the Plaintiffs injuries” but “provide[d] no facts to support [the superintendent’s] personal involvement in the alleged assault,” reasoning that “[v]ague and conclusory allegations that a supervisor negligently failed to train or supervise subordinate employees are not sufficient to establish personal involvement so as to give rise to personal liability.” (internal quotation marks omitted)), adopted by 2015 WL 7300540 (N.D.N.Y. Nov. 18, 2015); Shepherd, 2015 WL 1246049, at *13 (rejecting as too con-clusory or otherwise non-cognizable the assertion that Fischer and two superintendent defendants, “acting alone and/or in conjunction with each other[,] were aware of there being a systematic, gross inadequacies in training as well [as] supervision of subordinates in the use of force, and further failed to take corrective as well as preventative measures, which caused the violation of [the] plaintiffs rights.” (first alteration in original) (internal quotation marks omitted)); McKenna v. Wright, No. 01-CV-6571, 2004 WL 102752, at *5 (S.D.N.Y. Jan. 21, 2004) (concluding that the “plaintiffs position that [the DOCS commissioner] [was] personally hable for ’his failure to ensure’ [an associate commissioner’s sufficient resolution of the plaintiffs grievance], is merely an end-run around the legal standard and fails to establish [the commissioner’s] personal involvement,” and concluding that, “[b]ecause [the] plaintiff makes no further allegations as to [the commissioner’s] involvement, [the] plaintiffs claims against [the commissioner] are dismissed”); Pacheco v. Fischer, No. 09-CV-614, 2011 WL 831524, at *2 (N.D.N.Y. Jan. 19, 2011) (“[The] [plaintiffs conclusory allegations that defendant Fischer failed to properly train staff and supervise employees at one of the many facilities in his Department [are] not enough to establish his personal involvement in the violations alleged by [the] plaintiff’), adopted by, 2011 WL 830266 (N.D.N.Y. Mar. 3, 2011); cf. Pettus v. Morgenthau, 554 F.3d 293, 299-300 (2d Cir.2009) (concluding that, “[t]o the extent that the complaint attempts to assert a failure-to-supervise claim ..., it lacks any hint that [the DOCS commissioner] acted with deliberate indifference to the possibility that his subordinates would violate [the plaintiffs] constitutional rights” where the complaint alleged that the DOCS commissioner was responsible for “the hiring, practices, policies, customs, screening, training, supervising, controlling and disciplining” of DOCS employees). Here, Plaintiffs allegations that Fischer, Heath, and Keyser failed to adequately train their subordinates — at least as currently stated — are too conclusory to pass muster. To the extent that Plaintiff is able to make factual allegations connecting Fischer’s, Heath’s, and Keyser’s putative failure to adequately train and supervise their employees with the injuries Plaintiff sustained, he should do so in his Second Amended Complaint.

d. Statement During Orientation

In an interesting allegation, Plaintiff asserts that “Heath acknowledged the fact that his officer[ ]s were corrupt given his statement during orientation at Sing Sing,” which statement, Plaintiff says, was “an indication of [Heath’s] actual knowledge of pattern of unconstitutional practices at the facility.” (PL’s Opp’n 4.) Unlike many of the other allegations in the Amended Complaint, this is not wholly conclusory; to the contrary, it is a specific reference to a specific statement by a specific Defendant, which, Plaintiff seems to suggest, demonstrates that Heath knew unconstitutional practices were afoot. Nevertheless, it too comes up short, because, in its current form, there is nothing to suggest one way or the other that the allegedly “unconstitutional practices” of which Heath was aware were the same as those alleged in Plaintiffs Amended Complaint. Cf. Voorhees, 2006 WL 1888638, at *5-6 (finding no personal involvement by DOCS commissioner in lawsuit bringing excessive force claim where there were allegedly more than 60 grievances filed on a prison employee, reasoning that “[i]n-mates and staff could have complained to [the commissioner] about all manner of alleged shortcomings in [the employee’s] performance, including being rude, verbally abusive, irrational[,] or even engaging in minor acts of physical abuse such as shoving or pushing inmates”). To the extent that Plaintiff is able to allege facts demonstrating that Heath knew that unconstitutional practices like those alleged in this case were occurring, he should do so in a Second Amended Complaint.

e. Referral of Appeals

Plaintiff also alleges that he “sought discretionary review [of his Tier III hearing] from Heath,” which was “passed along and subsequently denied,” and that, “[o]n January 20, 2011, [P]laintiff filed his administrative appeal contesting the erroneous determination of Brereton raising a number of grounds for relief’ and that “Fischer[ ] designated Prack[ ] to review Plaintiffs administrative appeal.” (Am. Compl. ¶ 25.) These allegations, however, are not enough because ease law makes clear that a prison official’s personal involvement does not spring into being simply because an appeal, which he delegates to another, was originally directed to him. See Kasiem v. Rivera, No. 09-CV-9665, 2011 WL 166929, at *5 (S.D.N.Y. Jan. 18, 2011) (“To the extent that [the plaintiffs] claims rest on allegations that [two prison supervisors] referred his complaints/appeals to others for investigation and that they were the supervising officers for defendants who violated his rights, those claims must be dismissed for failure to allege personal involvement in the violation of the plaintiffs rights.”); cf. Koehl v. Bernstein, No. 10-CV-3808, 2011 WL 2436817, at *10 (S.D.N.Y. June 17, 2011) (noting that the second Colon category does not apply to prison official whose only opportunity to rectify due process violation in tier III proceedings was through appeal because “affirming the administrative denial of a prison inmate’s grievance by a high-level official is insufficient to establish personal involvement under [§ ] 1983.” (internal quotation marks omitted)), adopted by 2011 WL 4390007 (S.D.N.Y. Sept. 21, 2011); Foreman v. Goord, No. 02-CV-7089, 2004 WL 1886928, at *7 (S.D.N.Y. Aug. 23, 2004) (“The fact that [the superintendent] affirmed the denial of [the] plaintiffs grievances is insufficient to establish personal involvement.”). Here, because Plaintiff seems to allege that Heath and Fischer merely passed along their appeals for others to consider, he has not adequately alleged their personal involvement.

2. Failure to State a Claim

Additionally, Defendants move to dismiss the claims against them for failure to state a claim on various grounds. (See Mem. of Law in Supp. of Defs.’ Mot. To Dismiss (“Defs.’ Mem.”) 8-11 (Dkt. No. 62).)

a. Due Process Claims

Defendants move to dismiss Plaintiffs due process claims against Prack and White. (Id. 9.) “[T]o present a due process claim, a plaintiff must establish (1) that he possessed a liberty interest and (2) that the defendant(s) deprived him of that interest as a result of insufficient process.” Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir.2004) (alteration in original) (internal quotation marks omitted). The Supreme Court has held that inmates retain due process rights in prison disciplinary proceedings. See Wolff v. McDonnell, 418 U.S. 539, 568-72, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (describing the procedural protections that inmates are to receive when subject to significant disciplinary punishment). However, the Supreme Court has also held that “[p]rison discipline implicates a liberty interest [only] when it ‘imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’” Ortiz, 380 F.3d at 654 (quoting Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)); see also Vega v. Lantz, 596 F.3d 77, 83 (2d Cir.2010) (same). The Second Circuit has explained that “[t]he length of disciplinary confinement is one of the guiding factors in applying Sandin’s atypical and significant hardship test.” Hanrahan v. Doling, 331 F.3d 93, 97 (2d Cir.2003) (internal quotation marks omitted). The duration of confinement, however, is “not the only relevant factor,” as the Second Circuit has “explicitly avoided a bright line rule that a certain period of [Solitary Housing Unit (‘SHU’) ] confinement automatically fails to implicate due process rights.” Palmer v. Richards, 364 F.3d 60, 64 (2d Cir.2004) (internal quotation marks omitted). Indeed, “[t]he conditions of confinement are a distinct and equally important consideration in determining whether a confinement in SHU rises to the level of atypical and severe hardship,” and, therefore, courts should consider “the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions.” Id. (internal quotation marks omitted); see also Sealey v. Giltner, 197 F.3d 578, 586 (2d Cir.1999) (“Both the conditions and their - duration must be considered, since especially harsh conditions endured for a brief interval and somewhat harsh conditions endured for a prolonged interval might both be atypical.”). Nevertheless, “[a] confinement longer than an intermediate one [i.e., 101 and 305 days], and normal SHU conditions, is a sufficient departure from the ordinary incidents of prison life to require procedural due process protections under Sandin.” Palmer, 364 F.3d at 65 (internal quotation marks omitted); see also Gonzalez v. Hasty, 802 F.3d 212, 223 (2d Cir.2015) (“A period of confinement under typical SHU conditions lasting longer than 305 days ... triggers a protected liberty interest -”). Significantly, the Second Circuit has cautioned that “[i]n the absence of a detailed factual record, [it has] affirmed dismissal of due process claims only in cases where the period of time spent in SHU was exceedingly short — less than the 30 days that the Sandin plaintiff spent in SHU — and there was no indication that the plaintiff endured unusual SHU conditions.” Palmer, 364 F.3d at 65-66; see also Houston v. Cotter, 7 F.Supp.3d 283, 298 (E.D.N.Y.2014) (same).

Given Plaintiffs allegation that he was initially sentenced to 30 months in the SHU — which is, to risk stating the obvious, considerably longer than 30 days — this Court is not prepared to rule as a matter of law that he could not state a due process claim. See Palmer, 364 F.3d at 65-66. This is quite likely unsurprising, as Plaintiff alleges that it was Brereton who commenced the Tier III hearing, (Am. Compl. ¶ 24), but certain named defendants, including Brereton, do not seek dismissal because “Plaintiffs allegations seem to raise issues that cannot be resolved in a motion to dismiss,” (Defs.’ Mem. 1 n.2). The remaining questions, then, are (1) whether a prison official who affirms a disciplinary determination is sufficiently involved to make out a due process claim, and (2) whether an “employee assistant” can be held liable for a due process violation.

i. Appeals Claim (Prack and Keyser)

Interestingly, “[c]ourts within the Second Circuit are split over whether ... an allegation [that a defendant affirmed a disciplinary proceeding] is sufficient to establish personal liability for supervisory officials.” Scott v. Frederick, No. 13-CV-605, 2015 WL 127864, at *17 (N.D.N.Y. Jan. 8, 2015). On the one hand, some courts have concluded that merely affirming a disciplinary proceeding is not enough to create personal involvement, while others have determined that it is. Compare id. (“We subscribe to the affirmance-plus standard, which holds that the mere rubber-stamping of a disciplinary determination is insufficient to plausibly allege personal involvement.”); Hinton v. Prack, No. 12-CV-1844, 2014 WL 4627120, at *17 (N.D.N.Y. Sept. 11, 2014) (“Courts within the Second Circuit are split over whether the mere allegation that a supervisory official affirmed a disciplinary determination is sufficient to establish personal liability. We subscribe to the affirmance plus standard, which holds that the mere rubber-stamping of a disciplinary determination is insufficient to plausibly allege personal involvement.”); and Brown v. Brun, No. 10-CV-397, 2010 WL 5072125, at *2 (W.D.N.Y. Dec. 7, 2010) (noting that “there is an apparent split in the Circuit as to whether the affirmance of disciplinary hearing disposition is sufficient to establish personal involvement,” and concluding that “[t]he distinction ... appears to be that while personal involvement cannot be founded solely on supervision, liability can be found if the official proa[c]tively participated in reviewing the administrative appeals as opposed merely to rubber-stamping the results” (internal quotation marks omitted)) with Tolliver v. Lilley, No. 12-CV-971, 2014 WL 10447163, at *12 (S.D.N.Y. Oct. 24, 2014) (“Prack received [the plaintiffs] grievance, reviewed it and acted on it,' personally. Accordingly, the allegations against Prack are sufficient to state personal involvement and dismissing the claims against him based on this ground is not warranted .... ”), adopted sub nom. Tolliver v. Skinner, No. 12-CV-971, 2015 WL 5660440 (S.D.N.Y. Sept. 25, 2015); Murray v. Arquitt, No. 10-CV-1440, 2014 WL 4676569, at *12 (N.D.N.Y. Sept. 18, 2014) (“The affirmation of an allegedly unconstitutional disciplinary hearing appears to establish personal involvement.”); and Delgado v. Bezio, No. 09-CV-6899, 2011 WL 1842294, at *9 (S.D.N.Y. May 9, 2011) (“[I]t cannot be said that the Iqbal holding precludes liability where, as is alleged here, supervisory personnel affirmed a decision that they knew to have been imposed in violation of Plaintiff[’]s due process rights, thus continuing a deprivation of liberty without due process of law”).

The Court thinks the better view is that an affirmance of an unconstitutional disciplinary proceeding can be sufficient to find personal involvement. This is so for several reasons. First, on a simple conceptual level, it is difficult to imagirie how a prison official could be deemed uninvolved where that official considered the inmate’s objections and had the power to abrogate or preserve punishment, that, allegedly, was improperly imposed. Cf. Tolliver, 2014 WL 10447163, at *12 (finding personal involvement where a prison official “reviewed” and “acted on” an inmate’s griev-anee). Second, the Court does not think there is any tension between such a determination and Iqbal, the relevant teaching of which was that “each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.” Iqbal, 556 U.S. at 677, 129 S.Ct. 1937. Third, if Colon indeed survived Iqbal, the Court finds it telling that the Second Circuit held that personal involvement could be found where “the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong,” without further clarifying that “failing] to remedy the wrong,” is not enough where the defendant also affirmed the decision. See Colon, 58 F.3d at 873. Therefore, the Court declines to dismiss the claims against Praek and Keyser for failure to state a claim due to lack of personal involvement.

ii. Employee Assistant Claim (White)

Defendants argue that the claim against White should be dismissed because “[a]n employee assistant in a prison disciplinary hearing has been described as ’merely a surrogate for the inmate, not a legal adviser or advocate’ and a claim of inadequate assistance fails to state a constitutional claim.” (Defs.’ Mem. 9) (quoting Dawes v. Carpenter, 899 F.Supp. 892, 896 (N.D.N.Y. 1995)). Even if that job description is apt, the lesson Defendants draw from it is not.

The Second Circuit has recognized that “[p]rison authorities have a constitutional obligation to provide assistance to an inmate in marshaling evidence and presenting a defense when he is faced with disciplinary charges.” Eng v. Coughlin, 858 F.2d 889, 897 (2d Cir.1988); see also Silva v. Casey, 992 F.2d 20, 22 (2d Cir.1993) (“The Supreme Court has recognized institutional concerns that in general bar an inmate from obtaining counsel. We have held, however, that in certain circumstances an inmate will be unable to ‘marshal evidence and present a defense,’ without some assistance.” (citations omitted) (quoting Eng, 858 F.2d at 898) (citing Wolff, 418 U.S. at 570, 94 S.Ct. 2963)); Gonzalez v. Chalk, No. 13-CV-5486, 2014 WL 1316557, at *4 (S.D.N.Y. Apr. 1, 2014) (“[U]nder certain circumstances including the confinement of the inmate in the SHU, the inmate has a right to assistance in marshalling evidence and preparing a defense.” (citing Eng, 858 F.2d at 897-98)); Peralta v. Vasquez, No. 01-CV-3171, 2010 WL 391839, at *3 (S.D.N.Y. Feb. 4, 2010) (“While there is no right to counsel, prison officials have a constitutional obligation to provide assistance to an inmate ’in marshaling evidence and presenting a defense when he is faced with disciplinary charges.’” (quoting Eng, 858 F.2d at 897)), aff'd sub nom. Peralta v. Goord, 402 Fed. Appx. 594 (2d Cir.2010). Accordingly, New York’s regulations provide when an inmate is entitled to an employee assistant under certain circumstances, see N.Y. Comp. Codes R. & Regs. tit. 7, § 251-4.1, and describe the scope of that assistant’s obligations, see id. § 251-4.2; see also Moore v. Peters, 92 F.Supp.3d 109, 126 (W.D.N.Y.2015) (“New York’s regulations entitle a prisoner to an employee assistant to help him prepare for a disciplinary hearing.” (citing N.Y. Comp. Codes R. & Regs. tit. 7, §§ 251-4.1, 251-4.2)); see also LeBron v. Arbus, No. 06-CV-532, 2008 WL 111194, at *8 (W.D.N.Y. Jan. 9, 2008) (same). An employee assistant is “not obliged to go beyond the specific instructions of the inmate because if he did so he would then be acting as counsel in a prison disciplinary proceeding, assistance to which a prisoner is not entitled;” rather, the assistant is “to act as [the inmate’s] surrogate.” Silva, 992 F.2d at 22 (emphasis omitted). Additionally, “any violations of this qualified right [to employee assistance] are reviewed for ‘harmless error.’ ” Pilgrim v. Luther, 571 F.3d 201, 206 (2d Cir.2009).

In his Opposition to Defendants’ Motion, Plaintiff elaborates on White’s assistance, alleging that:

Plaintiff met with White in SHU and requested that he interview Gould, B[e]l-linger, Dowtinf,] Woody, Barnes and inmate[ ] witnesses located in B-Bloek on (W) Whiskey gallery and obtain photos and documents generated as a result of the incident i.e. Use of force; To-from; Unusual incident; Investigative reports; Logbook entries (from specific locations), photos of injuries or other[ ]wise .... White returned and read a document that reiterated what was written in the Misbehavior Reports and told [Pjlaintiff he could not have it, but gave Plaintiff a B-Block Logbook entry and showed him a witness list.

White[ ] failed to provide adequate assistance by failing to interview actual witnesses, provide requested documents and photos .... White provided no relevant documents and clearly failed to interview witnesses given the fact no notes were provided of an interview with inmates or officers and all prisoner[ ]s testified to being in the prison yard when Plaintiff was assaulted, except one inmate.

(PL’s Opp’n 8-9.) In response, Defendants argue that (1) despite Plaintiffs “elaboration” in his Opposition papers, he provides “no facts to support [his] allegations” concerning White, such that they are “essentially conelusory,” and (2) that “[P]laintiff does not claim that no assistance was given, but rather that the assistance was inadequate” and that “[s]uch a claim of inadequate assistance generally does not rise to a constitutional violation.” (Defs.’ Reply Mem. of Law in Supp. of their Mot. To Dismiss (“Defs.’ Reply”) 7 (Dkt. No. 75) (emphasis added).)

Plaintiff has alleged sufficient facts to state a claim against White. Read liberally, Plaintiffs opposition alleges that he asked White to obtain certain documents and to interview certain witnesses, but that White failed to do so without explanation. Although an inmate’s “right to assistance” may not always “translate to a wholesale right to receive all of the documentary evidence requested,” Scott, 2015 WL 127864, at *11, Plaintiffs specific allegations about White’s failures are nevertheless sufficient to state a claim against him, see Brooks v. Prack, 77 F.Supp.3d 301, 316 (W.D.N.Y.2014) (finding that the plaintiff stated a claim against his employee assistant where, inter alia, “[the] [p]laintiff ... identified specific documents that he requested [the employee assistant] deliver to him but that he never received”); Cepeda v. Urban, No. 12-CV-408, 2014 WL 2587746, at *7 (W.D.N.Y. June 10, 2014) (declining to dismiss claim against employee assistant where “[the] [p]laintiff allege[d] he was essentially denied an inmate assistant in connection with the disciplinary hearing because [the employee assistant], who was assigned to assist [the] [p]laintiff, failed to interview the witnesses identified by [the] [p]laintiff or to retrieve any of the documents [the] [p]laintiff had requested”); Friedland v. Otero, No. 11-CV-606, 2014 WL 1247992, at *7 (D.Conn. Mar. 25, 2014) (denying summary judgment on procedural due process claim where “there [was] conflicting evidence as to whether [the plaintiff] asked [his employee assistant] to secure witness testimony or statements to be submitted at the hearing and whether the lack of access to these statements or testimony deprived [the] [p]laintiff of the opportunity to marshal evidence and present a defense”). Therefore, Plaintiffs claims against White are not dismissed.

b. Eighth Amendment Claims

The Eighth Amendment to the Constitution proscribes “cruel and unusual punishments.” Plaintiff brings two distinct sets of Eighth Amendment claims against various Defendants, one against prison officials for their conduct during Plaintiffs alleged beating at the hands of other officers, and one relating to the delay in taking Plaintiff to the emergency room. {See Am. Compl. ¶¶ 20-21.) The Court will address each in turn.

i. Claims against Gamble and Barnes

Under the Eighth Amendment, prison officials must “take reasonable measures to guarantee the safety of inmates in their custody.” Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 620 (2d Cir.1996); see also McRae, 2015 WL 7292875, at *2 (same). Moreover, “[l]aw enforcement officials, including prison officials, can be held liable under § 1983 for failing to intervene in a situation where another official is violating an inmate’s constitutional rights, including the use of excessive force, in their presence.” McRae, 2015 WL 7292875, at *2 (citing, inter alia, Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d Cir.2001)); see also Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.1994) (“It is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.”); Rahman v. Acevedo, No. 08-CV-4368, 2011 WL 6028212, at *8 (S.D.N.Y. Dec. 5, 2011) (“A law enforcement officer ‘has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers.’” (quoting Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 129 (2d Cir.1997))); Tavares v. City of N.Y., No. 08-CV-3782, 2011 WL 5877550, at *7 (S.D.N.Y. Oct. 17, 2011) (“A law enforcement officer has an affirmative duty to intercede on behalf of a citizen whose constitutional rights are being violated in his presence by other officers.” (internal quotation marks omitted) (quoting O’Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir.1988))), adopted by, 2011 WL 5877548 (S.D.N.Y. Nov. 23, 2011). Specifically, “[a]n officer who fails to intercede is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know that excessive force is being used,” provided there was “a realistic opportunity to intervene to prevent the harm from occurring.” Rah-man, 2011 WL 6028212, at *8 (ellipses and internal quotation marks omitted) (quoting Anderson, 17 F.3d at 557); see also Curley, 268 F.3d at 72 (“Failure to intercede results in liability where an officer observes excessive force is being used or has reason to know that it will be.” (citing Anderson, 17 F.3d at 557)); Tavares, 2011 WL 5877550, at *7 (“An officer who fails to intercede is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know that excessive force is being used, or that any constitutional violation- has been committed by a law enforcement official.” (alterations and ellipses omitted) (quoting Anderson, 17 F.3d at 557)); Jean-Laurent v. Wilkerson, 438 F.Supp.2d 318, 327 (S.D.N.Y.2006) (“Liability will attach only when (1) the officer had a realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the officer’s position would know that the victim’s constitutional rights were being violated; and (3) the officer does not take reasonable steps to intervene.”), aff'd, 461 Fed.Appx. 18 (2d Cir.2012).

Here, Plaintiff alleges that, in the course of his assault, he was “handcuffed[,] ... shoved down a flight of stairs[,] and pushed up against a wall w[h]ere ... Gamble shouted [’]why is he still standing[?] [W]hy is he still breathing[?][’]” (Am. Compl. ¶20.) Defendants, however, argue that this fails to state a claim because “[e]ven vile and abusive language ...[,] no matter how abhorrent or reprehensible, cannot form the basis for a § 1983 claim.” (Defs.’ Mem. 10) (ellipses in original) (internal quotation marks omitted) (quoting Harris v. Fischer,- No. ll-CV-6260, 2014 U.S. Dist. LEXIS 107503, at *46, 2014 WL 3859242, at 28 (S.D.N.Y. Aug. 1, 2014).) True though this proposition may be, it of course cannot be stretched to insulate an officer from § 1983 liability that he would otherwise have faced had he instead stood silent during an assault by his coworkers. Perhaps recognizing the conceptual distinction between Gamble’s words judged by their content and the same words — to borrow a phrase from evidence law — as a verbal act, Defendants argue that, unlike the cases Plaintiff cites to show that an official who intends to incite unconstitutional conduct by his statements may be held liable for a constitutional violation, Gamble “made the statement after the alleged incident.” (Defs.’ Reply 8.) Such a distinction is, however, too flimsy for two reasons. First, it not completely clear from the Amended Complaint — particularly when read with an accommodating eye on Plaintiffs pro se status — that Plaintiff really does allege, as Defendants say, that Gamble made his statement after the assault concluded. See Triestman, 470 F.3d at 476. (See also Am. Compl. ¶ 20.) Second, the dispositive question is not when Gamble made his statement; rather, it is whether he had reason to know of the use of f