Perez v. Ponte (236 F. Supp. 3d 590, 2017)

REPORT AND RECOMMENDATION

A. KATHLEEN TOMLINSON, U.S. Magistrate Judge

I. Preliminary Statement

Pro se Plaintiff Jesswill Perez (“Plaintiff’) brings this civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of the Fourth, Sixth and Fourteenth Amendments of the United States Constitution arising from incidents which occurred while he was a pre-trial detainee. See generally Complaint (“Compl.”) [DE 1]. Defendants Joseph Ponte and Michael Sposato (collectively, “Defendants”) have moved to dismiss the Complaint, with prejudice, pursuant to Federal Rule Civil Procedure 12(b)(6). See Notice of Motion [DE 16, 20], Plaintiff opposes Defendants’ respective Motions to Dismiss and, in addition, has filed a Motion to Amend his pleading to assert additional facts and to name additional parties to support his claims. See generally Plaintiffs Motion to Amend [DE 33]. Judge Bianco referred Defendants’ Motions to Dismiss as well as Plaintiffs Motion to Amend to this Court for a Report and Recommendation as to whether any of the motions should be granted. See DE 37.

II. Background

A. The Complaint

The following factual allegations have been taken from Plaintiffs Complaint as well as the amplified statement of facts raised in Plaintiffs memorandum of law in opposition to the respective motions to dismiss. Because Plaintiff is proceeding pro se, the Court is obligated to construe his pleadings liberally to raise the strongest arguments that they suggest. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (per curiam) All facts alleged by the Plaintiff are assumed to be true for purposes of deciding the motions to dismiss and are construed in a light, most favorable to the Plaintiff as the non-moving party. See, e.g., LaFaro v. N.Y. Cardiothoracic Grp., 570 F.3d 471, 475 (2d Cir. 2009); Matthews v. City of N.Y., 889 F.Supp.2d 418, 425 (E.D.N.Y. 2012).

1. The July 16, 2015 Transfer to Nassau County Correction Center

On July 16, 2015, Plaintiff, a pre-trial detainee initially housed at Riker’s Island Prison (“Riker’s”), was transferred to Nassau County Correctional Center (“NCCC”). Compl. Section IV ¶ 1. The Court points out that Plaintiff does not specifically characterize himself as a pretrial detainee. However, in his Complaint, he states that he was awaiting trial with respect to his pending criminal case, which was scheduled to begin on January 25, 2016. Id.

Although Plaintiff asserts that the transfer to NCCC took place so that he could be alternatively housed, he alleges that the underlying reason for the transfer was never conveyed to him by officials from either facility. Id. In addition, he claims that (1) he was not provided with any documentation or a hearing in conjunction with or subsequent to the transfer, and (2) the transfer violated his due process rights. PL’s Opp’n at 2. Further, Plaintiff claims that while housed at NCCC, he was afforded access to the law library for only one hour per week (in contrast to two hours per day of access while at Rikers) and had no ability to telephone his attorney free of charge. Id. The transfer has resulted in geographical difficulties in gaining access to his attorney since he is unable to be transported to court to meet with his attorney. Likewise, Plaintiff maintains that it is “difficult for [his] attorney to travel to Nassau County.” Id.

2. The September 15, 2015 “Pat Frisk” Incident

On September 15, 2015, NCCC corrections officers conducted a random search of Plaintiff’s cell. Compl. Section IV ¶ 2. In preparation for the search, officers restrained Plaintiff using handcuffs and leg shackles, after which Plaintiff was removed from his cell. Id. Once Plaintiff was sufficiently restrained, Officer Foley conducted a “pat frisk” of Plaintiffs person. Id. Plaintiff asserts that while conducting the “pat frisk,” Officer Foley shook the waistband of his pants, touched him between his buttocks and then removed his fingers, smelled them and told Plaintiff that he “smell[edj sweet.” Id,; see PL’s Opp’n at 3. Plaintiff characterizes Officer Foley’s behavior as a “sexual assault” and states that although he complained to Internal Affairs, they never pursued the incident. Id.

3. The September 29, 2015 Physical Assault by Corrections Officers

On September 29, 2015, Plaintiff was directed to submit to a strip seárch and refused to do so — ostensibly because he would have -had to remove his clothing in front the same officer whom he alleges sexually assaulted him during a prior incident. Compl. Section IV ¶ 3. Although Plaintiff claims that he asked officials whether a different officer could oversee the search, his request was refused and he then “refused to strip.” Id, According to Plaintiff, when he refused to take off his clothing, he was “sprayed with chemicals,” “thrown on the floor,” “punched,” and then transported to the medical facility.- Id. Upon his arrival at the medical facility, his clothes were removed, after which he was transported back to the behavior management unit. Id. Plaintiff states that while at the medical facility, he was “naked in front of a lot of people” and was transported in the nude to the behavioral unit where he was directed to “squat in front of over 20 inmates” before he was directed to shower. Id.

4. The December 26, 2015 and January 6, 2016 Attacks by Fellow Inmates

Plaintiff states that he “was slashed and assaulted by an unknown inmate” on December 26, 2015 and that he reported the incident to Officer Trada. Compl. Section IV ¶'4. Following Plaintiffs report of the assault, he was transported to the medical facility and then taken to' a different housing area within NCCC.

On January 6, 2016, Plaintiff suffered another violent altercation while speaking with an officer in the recreation yard. Id. According to Plaintiff, an unidentified, inmate approached him from behind and slashed him fhom his ear down to his chin. Id. At the time, Plaintiff was assaulted, another- inmate was also under attack at the opposite side of the recreation yard. Id. Plaintiff maintains that the officer he was speaking .with told him to “stand still,” but when other inmates approached Plaintiff, the officer ran back to his office. Id.

5, The April 7, 2016 Transfer Back to Riker’s Island and Subsequent Segregation

Plaintiff was transferred back to Riker’s on April 7, 2016, and was immediately placed in isolation “from everyone in the housing area.” Pl,’s Opp’n at 8. While in isolation, Plaintiff was visited by Ms. King, Executive Director of the Board of Corrections, who inquired if Plaintiff-was receiving all his entitlements and asked whether he consented to remaining in isolation. Id. Plaintiff says he expressed to Ms. King that he “wanted to go back to general population to associate with people instead of being isolated all day.” Id. Several days later, Plaintiff claims that ■ Chief Turhan Gumusdere and Ms. King spoke with him about remaining in isolation. Plaintiff asserts that he told Chief Gumusdere that he did not “want to be in protective custody.” Id. According to Plaintiff, Chief Gumus-dere stated that “[I] heard you [were] giving my buddies] in [N]assau a hard time[.] [Y]ou act like an asshole you [are going to] get treated like one.” Id. Following this conversation, Plaintiff states that he was left in isolation until' he was subsequently transferred to another facility. Id.

6. The April 14, 2016 Transfer to Rockland County Jail

At some point following Plaintiff scon-versation with Ms. King and Chief Gumus-dere regarding his isolation, the Assistant Chief (Plaintiff does not identify this individual by name) visited with him and purportedly stated that prison officials would be “sending [Plaintiff] far away w[h]ere you [will not] be -able to complain.” Id. Thereafter, on April 14, 2016, Plaintiff'asserts that he was transferred to Rockland County Correctional Center (“Rockland”) without being given a reason for the transfer or any information concerning his right to appeal, the decision. Id. Plaintiff claims that similar to his earlier transfer to NCCC,his subsequent transfer-to Rock-land prevented him from. contacting his attorney. Id., Specifically, Plaintiff states that from May '23,. 2016 through May 27, 2016, he was unable to speak with his counsel because he was leaving Rockland at 6 a.m. to-attend court and did not get back until 1 a.m. Id. In'addition, Plaintiff claims that because he. could only*..make collect-calls, there was “no- way to- contact [his] attorney.” Id.

B. Claims of Supervisory Liability

According to Plaintiff, Defendant Ponte: (1) created and allowed the continuation of an unconstitutional transfer policy or custom that permitted inmates- to be transferred to facilities outside New York City without regard to the fact that facilities located outside of -New York City, had more ‘restrictive housing conditions; (2) was-grossly-negligent in.supervising subordinates; and (3) failed to address- Plaintiff s letters that he feared for his life while housed- outside of New York City. Pl.’s Opp’n at 5.

Plaintiff likewise asserts'that Defendant Sposato was responsible for: (1) the care, custody, confinement and control of NCCC and failed to ensure good order was maintained; (2) the actions of NCCC’s officers and employees such as in-situations constituting the use of .excessive force and sexual assault; and (3) the deliberate indifference of other prison officials in failing to protect plaintiff from harm at the hands of other prisoners.- Id. at 3.

C, Relevant Procedural History

Plaintiff filed the instant action on January 28, 2016. DE 1. In addition to filing his Complaint, Plaintiff submitted an application to proceed in forma pauperis on the same date. DE 2. On February 9, 2016, Judge Bianco granted Plaintiffs in forma pauperis application. DE 6. Thereafter, on February 17, 2016, summonses were issued to both Defendants. DE 7. Defendant Sposato executed the summons on March 21, 2016 while Defendant Ponte’s summons was executed and returned on March 28, 2016. DE 8, 9. Instead of filing Answers to Plaintiffs Complaint, both Defendants sought leave to -file motions to dismiss pursuant to Rule - 12(b)(6).- DE 10, 12. Judge Bianco waived the pre-motion conference requirement and granted both Defendants leave to file their motions to dismiss. DE 11,13.

Both Defendants 'filed their motions on May 16, 2016. DE 16, 20, Thereafter, on June -22, 2016, Plaintiff advised the Court that he had been transferred to a different correctional facility and requested that all documents (including those previously served) be sent to his current address since he had not received them. DE 25. Judge Bianco granted Plaintiff’s request on July 6, 2016 and provided Plaintiff additional time within which to respond to Defendants’ motions. Electronic Order dated July 6,2016.

On August 26, 2016, following submission of Defendants fully briefed motions to dismiss, Plaintiff filed a motion seeking leave to amend his complaint. DE 33. As part of his motion to amend, Plaintiff attached his opposition papers to Defendants’ motions to dismiss. See DE 33. Although the proposed Amended Complaint contains some additional facts, the primary thrust of Plaintiff’s motion is the addition of 13 named individuals and entities whom Plaintiff failed to name in his initial pleading. See DE 33-1 (Proposed Amended Complaint).

On October 6, 2016, Judge Bianco referred the Defendants’ respective motions to dismiss as well as Plaintiffs motion to amend to this Court for a Report and Recommendation whether any of the motions should be granted. DE 37. Having carefully reviewed the factual allegations in the Complaint and other submissions by the Plaintiff, the arguments advanced by the parties in their written submissions, and the applicable case law, the Court respectfully recommends to Judge Bianco that Defendants’ motion to dismiss- Plaintiffs Complaint be GRANTED and that Plaintiffs motion to amend his complaint be GRANTED, in part, and DENIED, in part, in accordance with this Report and Recommendation. Specifically, the Court recommends that Plaintiff be permitted to amend his Complaint to: (1) name Chief Turhan Gumusdere and Officers John Doe # 1 and John Doe # 2 as Defendants; and (2) assert constitutional deprivations of his Fourteenth Amendment Due Process rights based upon his transfer from Riker’s to Rockland and his failure-to-protect claim.

III. Standard of Review

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court must liberally construe the claims, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Aegis Ins. Servs., Inc. v. 7 World Trade Co., L.P., 737 F.3d 166, 176 (2d Cir. 2013) (quotations and citation omitted); Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013). The plaintiff must satisfy “a flexible ‘plausibility standard.’ ” Iqbal v. Hasty, 490 F.3d 143, 157 (2d Cir. 2007), rev’d on other grounds sub nom. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “[0]nce a claim has been stated adequately,-it may be supported by showing any set of facts consistent with the allegations in the complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 546, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Court, therefore, does not require “heightened fact pleading of specifics, but only enough facts to state a claim' to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955; see Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir. 2010) (holding that a complaint must set forth “a plausible set of facts sufficient' ‘to raise a right to relief above-the speculative level.’”)- (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).

The Supreme Court clarified the appropriate pleading standard in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), in which the court set forth a two-pronged approach to be utilized in analyzing a motion to dismiss. District courts are to first “identify [] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679, 129 S.Ct. 1937; see id. at 678, 129 S.Ct. 1937 (“A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements óf a cause of action will not do.’” (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955)). Though “legal conclusions can provide the framework of á complaint, they must be supported by factual allegations.” Id. Second, if a complaint contains “well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a [defendant has acted unlawfully.” Id. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556-57, 127 S.Ct. 1955) (internal citations omitted).

In adjudicating a Rule 12(b)(6) motion to dismiss, the Court must limit itself to facts alleged in the complaint, which are accepted as true; to documents attached to the complaint as exhibits or incorporated "in the complaint by reference; to matters of which judicial notice may be taken; or to documents whose terms and effect are relied heavily upon in the complaint and, thus, are rendered “integral” to the complaint. Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002); see also ASARCO LLC v. Goodwin, 756 F.3d 191, 198 (2d Cir. 2014).

In addition, where, as here, a plaintiff is proceeding pro se, the complaint must be considered under a more lenient standard than .that accorded “formal pleadings drafted by lawyers.” Bellamy v. Mt. Vernon Hosp., No. 07 Civ. 1801, 2009 WL 1835939, at *3 (S.D.N.Y. June 26, 2009) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). Therefore, a court must construe a pro se plaintiffs pleading broadly and interpret it to raise the strongest arguments that it suggests.- See Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Weixel v. Bd. of Educ. of the City of N.Y., 287 F.3d 138, 145-46 (2d Cir. 2002); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (holding that when a plaintiff proceeds pro se, the district court “is obliged to construe his pleadings liberally” and noting that “the dismissal of a pro se claim as insufficiently pleaded is appropriate only in the most unsustainable of cases.”). “However, mere conclusions of law or unwarranted deductions need not be accepted.” Alston v. Sebelius, No. 13-CV-4537, 2014 WL 4374644, at *5 (E.D.N.Y. Sept. 2, 2014) (internal quotation marks omitted).

Although “courts generally will not accept factual allegations raised for the first time in opposition to a motion to dismiss, some courts have construed the mandate to read a pro se plaintiffs papers liberally as allowing for consideration of such allegations.” Rolle v. Educ. Bus Transp., Inc., No. CV 13-1729, 2014 WL 4662256, at *9 (E.D.N.Y. Aug. 8, 2014), report and recommendation adopted, No. 13-CV-1729, 2014 WL 4662267 (E.D.N.Y. Sept. 17, 2014); Ibok v. Sector, No. 05-CV-6584, 2006 WL 302336, at * 1, n.1 (S.D.N.Y. Feb. 9, 2006) (“The Court may consider the factual allegations in plaintiffs Response to supplement those in his complaint because of the liberal standard afforded to the- pleadings of pro■ se litigants.” (citations omitted)). In the-instant case, because Plaintiff is proceeding in a pro se capacity, and in furtherance of its obligation to construe pro se pleadings liberally, the Court will consider the factual allegations set forth in Plaintiffs opposition papers to the extent such facts are related to and consistent with his Complaint. Rosario v. New York City, No. 12 Civ. 4795, 2013 WL 2099254, at *1-2 n. 1 .(S.D.N.Y. May 15,2013) (“[B]ecause [plaintiff] is proceeding pro se, the Court also considers factual allegations contained in [his] two submissions in opposition to defendants’ motion to-dismiss, to the extent consistent with the Complaint.”); Harris v. NYU Langone Med. Ctr., No. 12 CIV. 0454, 2013 WL 3487032, at *2 (S.D.N.Y. July 9, 2013), report and recommendation adopted as modified, No. 12 CIV. 0454, 2013 WL 5425336 (S.D.N.Y. Sept. 27, 2013) (“[B]ecause Harris is proceeding pro se, the Court may consider factual allegations contained in her submissions in - opposition to Defendants’ motions to dismiss, to the extent-they are consistent with'the [Complaint].”); Sommersett v. City of New York, 09-CV-5916, 2011 WL 2565301, at *3 (S.D.N.Y. 2011) (“where a pro se plaintiff has submitted other papers to the Court, such as legal memoranda, the Court may consider statements in such papers to supplement or clarify the plaintiffs pleaded allegations”); see also Malik v. City of New York, No. 11 Civ. 6062, 2012 WL 3345317, at *5 (S.D.N.Y. Aug. 15, 2012) (“The mandate to read a pro se plaintiffs papers liberally, however, makes it appropriate to consider factual allegations in Malik’s opposition papers, in addition to those in his Complaint, in resolving the motion to dismiss.”) (internal citations omitted); Aponte v. Buono, No. 11 Civ. 1077, 2011 WL 6812924, at; *3 (E.D.N.Y. Dec. 28, 2011); Cusamano v. Sobek, 604 F.Supp.2d 416, 461 (N.D.N.Y. 2009).

IV. Discussion .

A. Failure to Exhaust Administrative Remedies

1. Legal Standard Under the PLRA

Th.e PLRA. provides in relevant part: “No 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). “The PLRA exhaustion requirement ‘applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and - whether they- allege excessive force or- some other -wrong.’ Prisoners must utilize the state’s grievance procedures, regardless of whether the relief sought is offered through those procedures.” Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009) (quoting Porter v. Nussle, 534 U.S. 516, 519, 122 S.Ct., 983, 152 L.Ed.2d 12 (2002)). In- addition, in finding that , the PLRA applies -to all inmate actions concerning prison life, see Porter, 534 U.S. at 532, 122 S.Ct. '983, the Supreme Court “did not distinguish between pretrial and post-trial detainees.” United States v. Khan, 540 F.Supp.2d 344, 349 (E.D.N.Y. 2007); United States v. Al-Marri, 239 F.Supp.2d 366, 367, n.11 (S.D.N.Y. 2002); Baez v. Parks, No. 02 CIV.5821, 2004 WL 1052779, at"*6 (S.D.N.Y. May 11, 2004) (“[T]he PLRA’s strict exhaustion requirement does indeed apply in actions brought by pretrial detainees.”). As such, similar to a convicted prisoner, a pre-trial detainee is. generally required -to exhaust his administrative remedies prior to filing an action in federal court. See Baez v. Parks, No. 02 CIV. 5821, 2004 WL 1052779, at *5 (S.D.N.Y. May 11, 2004).

Despite the PLRA’s strict application, the Supreme Court has made clear that prisoners “are not required to specially plead or demonstrate exhaustion in their complaints.” Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Rather, “failure to exhaust is an affirmative defense under the PLRA” that must be raised and proven by defendants. Id, “Dismissal under Rule 12(b)(6) for failure to exhaust is thus appropriate only where nonexhaustion is apparent from the face of the complaint.” Roland v. Smith, 907 F.Supp.2d 385, 388 (S.D.N.Y. 2012) (citing McCoy v. Goord, 255 F.Supp.2d 233, 251 (S.D.N.Y. 2003)); see Jandres v. Armor Health Care Inc., No. 12-CV-3132, 2014 WL 1330655, at *4 (E.D.N.Y. Mar. 31, 2014);’ Barrett v. Armor Corr. Health, Inc., No. 13-CV-1063, 2014 WL 1220756, át *5 (E.D.N.Y. Mar. 20, 2014) (quoting Rivera v. Anna M. Kross Ctr., No. 10-CV-8696, 2012 WL 383941, at *2 (S.D.N.Y. Feb. 7, 2012)).

Even where a plaintiff does not formally exhaust his administrative remedies, exhaustion may be excused under certain circumstances. See Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004). In particular, exhaustion may, be excused if: (1) administrative remedies were not actually available to the prisoner; (2) defendants’ own actions inhibited exhaustion,- constituting a waiver of the defense; or (3) “special circumstances” justify non-exhaustion. Id.; see, e.g, Messa v. Goord, 652 F.3d 305, 309 (2d Cir. 2011); Ruggiero v. Cty. of Orange, 467 F.3d 170, 175 (2d Cir. 2006).

2. Application to the Facts

Defendant Sposato states that Plaintiffs Complaint must be dismissed -based upon a failure to exhaust his administrative remedies since he “failed to plead exhaustion of administrative remedies ... [and] having not pled compliance with any grievance procedures within the correctional center, Plaintiff has failed to -plead exhaustion of those procedures.” Memorandum of Law in Support of County Defendant’s Motion to Dismiss Pursuant to Rule 12(b)(6) of the Federal Rules of .Civil Procedure (“Def. Sposato’s Mem.”) [DE 18] at 7.

In opposition, Plaintiff states that he approached Internal Affairs on a number of occasions and drafted written statements concerning his grievances. PL’s Opp’n at 6. However, despite telling Plaintiff his complaints would be investigated, Internal Affairs never provided Plaintiff with a response. Id. Plaintiff also states that he spoke with an Assistant District Attorney as well as a detective from Nassau County regarding his claims involving excessive force and sexual assault by corrections officers and that he was told that they would conduct an investigation into these allegations. Id. According to Plaintiff, he filed “many grievances” concerning issues he encountered while housed at NCCC and the fact that he feared for his life. Id. Consequently, Plaintiff claims that he has “exhausted [his] remedies.” See Compl. Section II.

In reply, Defendant Sposato argues that “Plaintiffs generalized claims within his opposition that he exhausted his administrative remedies is contradicted by the more specific allegation within his complaint that he did not complaint [sic] to prison authorities” and that because Plaintiffs “statements are wholly inconsistent,” dismissal for failure to exhaust is appropriate. Defendant Sposato’s Reply Memorandum of Law in Further Support of County Defendant’s Motion to Dismiss Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Def. Sposato’s Reply”) [DE 32] at 4.

At the outset, the Court points out that Defendant’s argument that Plaintiffs failure to plead exhaustion should result in dismissal ignores the fact that Plaintiff is not required to plead specific facts in the Complaint setting forth exhaustion. Jones, 549 U.S. at 216, 127 S.Ct. 910; Roland v. Smith, 907 F.Supp.2d 385, 388 (S.D.N.Y. 2012) (“inmates are not required to specially plead or demonstrate exhaustion in their complaints.”). Rather, once again, failure to exhaust is an affirmative defense and, as such, “the defendants have the burden of proving that [Plaintiffs] [ ] claim[s] ha[ve] not been exhausted.” Key v. Toussaint, 660 F.Supp.2d 518, 523 (S.D.N.Y. 2009); Bennett v. James, 737 F.Supp.2d 219, 225 (S.D.N.Y. 2010), aff'd, 441 Fed.Appx. 816 (2d Cir. 2011); see, e.g., Land v. Kaufman, No. 07 Civ. 8070, 2009 WL 1106780, at *5 (S.D.N.Y. Apr. 23, 2009); Brown v. Austin, No. 05 Civ. 9443, 2009 WL 613316, at *5 (S.D.N.Y. Mar. 4, 2009).

Although Defendant Sposato appears to assert in his reply that Plaintiffs contradictory statements require dismissal for failure to exhaust, this argument misses the mark. Plaintiffs Complaint — which was made using a standardized 42 U.S.C. § 1983 complaint form — claims that: (1) a grievance procedure existed at NCCC; and (2) he presented factual allegations in accordance with the applicable grievance procedures. Compl. Section II. Thus, despite Defendant Sposato’s assertion that a contradiction exists between what Plaintiff states in the Complaint regarding contacting prison authorities about his grievances versus the statements he made in his opposition papers, the Court does not agree. The question on the form Complaint stated “[i]f there is no prison grievance procedure in the institution, did you complain to prison authorities?” Id. (emphasis added). Plaintiff answered “no” to this question, purportedly because he noted that a grievance procedure did exist. See id. In any event, the somewhat generalized assertions in Plaintiffs opposition, which he interposes to illustrate exhaustion, appear primarily to identify contact he had with outside agencies as opposed to prison authorities (i.e., Internal Affairs and District Attorney’s Office). Pl.’s Opp’n at 6. The Court finds no clear- contradiction in Plaintiffs statements concerning- exhaustion which would otherwise warrant dismissal on that basis.

Notwithstanding the above discussion, whether non-exhaustion is apparent from the face of the Complaint thereby warranting dismissal, presents a closer question. See Roland, 907 F.Supp.2d at 388 As noted, because prisoners áre not required to affirmatively plead exhaustion, courts in this Circuit have held “the fact that [the p]laintiff has provided only the first step of his grievance process does not necessarily mean that he did' not comply with the additional steps.” Jandres, 2014 WL 1330655, at *4; see Groenow v. Williams, No. 13 CIV. 3961, 2014 WL 941276, at *3 (S.D.N.Y. Mar. 11, 2014) (“[w]here a prisoner indicates that he has taken some steps toward exhaustion, district courts will not normally infer from his silence ás to any remaining steps that he has not fully exhausted”) (collecting cases). In particular, a court should not dismiss on exhaustion grounds where the allegations in the complaint indicate only that the plaintiff has “initiated” the grievance process but “ha[s] not received a response” from prison officials. Groenow, 2014 WL 941276, at *4 (holding that “[a]lthough ‘the complaint may lack specifics as to how the plaintiff grieved his claim, that is not a valid basis for dismissal under Jones”’) (quoting Johnson v. Westchester Cty. Dep’t of Corr. Med. Dep’t, No. 10 Civ. 6309, 2011 WL 2946168, at *2 (S.D.N.Y. July 19, 2011) (declining to dismiss prisoner’s complaint where he alleged only that he had “filed a complaint within the office of the warden”)),

In the instant case, the Complaint indicates that a grievance procedure was available to Plaintiff- while he was housed at NCCC and that Plaintiff presented factual allegations as part of the grievance process. Compl. Section II. Specifically, Plaintiff states that he “wrote several grievance[s] regarding [ ] being housed [at NCCC]” as well as grievances asserting that he feared for his life. Id. In addition, Plaintiff states that he was told by the grievance coordinator that “it was [a] non-grievable issue” and that he should contact Riker’s. Id. In his opposition, Plaintiff further claims that he provided statements concerning his grievances to Internal Affairs as well as the Nassau County District Attorney’s Office and reiterates that he “wrote many grievances.” PL’s Opp’n at 6. In light of these factual allegations, which the Court is obliged to accept as true at this stage of the proceedings, Plaintiff appears to have least initiated the grievance process. Indeed, a reasonable inference can be drawn that Plaintiff filed grievances concerning some of the incidents set forth in his Complaint and that these issues were either ignored or not acted upon and no response was ever received. See Compl. Section II. Moreover, it is not entirely clear from the face of the Complaint whether the grievance coordinator advised Plaintiff that (1) only his complaint regarding transfer to NCCC was not subject to the grievance procedures, or (2) that all his grievances concerning “being housed [at NCCC]” were not within the purview of these procedures. At this juncture, then, the Court cannot say that Plaintiff unequivocally failed to comply with any remaining grievance procedures necessary to exhaust his claims. See Groenow, 2014 WL 941276, at *3. Although the Complaint lacks a- degree of specificity concerning how Plaintiff complied with NCCC’s grievance procedures, that in itself is not a sufficient basis to dismiss Plaintiffs Complaint. See Johnson, 2011 WL 2946168, at *2; Parris v. N.Y. State Dep’t Corr. Servs., 947 F.Supp.2d 354, 361 (S.D.N.Y. 2013) (finding that “ambiguity [as to whether plaintiff fully grieved his claim] is not a valid basis for dismissal [of a complaint]”); Huggins v. Schriro, No. 14 CV 6468, 2015 WL 7345750, at *3 (S.D.N.Y. Nov. 19, 2015), report and recommendation adopted, No. 14 CV 06468, 2016 WL 680822 (S.D.N.Y. Feb. 18, 2016) (“Because prisoners are not required to plead compliance with prison grievance procedures in their complaints, courts in this Circuit have denied motions to dismiss based on exhaustion where ambiguity exists as to whether a plaintiff exhausted his administrative remedies. Where a prisoner indicates that he has taken some steps toward exhaustion, district courts will normally not infer from his silence that he failed to take the remaining steps that full éxhaustion would require.”) (emphasis in original)'.

In any event, several additional factors weigh against a finding of non-exhaustion at this early, stage of'the case. First, although Defendant Sposato refers generally to Plaintiffs obligation to fully exhaust his administrative remedies, Def. Sposato’s Mem. at 7, counsel “fail[s] to describe how an inmate whose grievance is simply ignored by the prison can appeal and thereby satisfy the exhaustion requirement.” Randolph v. N.Y.C. Dep’t of Corr., No. 05 Civ. 8820, 2007 WL 2660282, at *7 (S.D.N.Y. Sept. 7, 2007). Second, assuming such a procedure exists for unaddressed grievances, Plaintiff has not indicated that he is aware of that procedure and Defendant does not contend otherwise. See generally Groenow, 2014 WL 941276, at *4; but see Wade v. Fischer, No. 10 CV 5417, 2012 WL 1118206, at *2 (E.D.N.Y. Mar. 30, 2012) (“Plaintiff cannot deny, however, his awareness of § 701.8(g) DOCS Directive #4040, which he himself submits to the Court, setting forth in pertinent part: ‘If the superintendent fails to respond within the required twenty-five day time limit the grievant may appeal his/her grievance to CORC. This is done by filing a Notice of Decision to Appeal (Form #2133)- with-' -the inmate grievance clerk.’ ”). Third, and perhaps most importantly, at no point does Plaintiff affirmatively state, in. any of his submissions “that he failed to follow all. the required grievance procedures.” Randolph, 2007 WL 2660282, at *7. see, e.g., Groenow, 2014 WL 941276, at *4. “ ‘[A] pro se plaintiffs pleading references to various efforts that he has made to bring alleged prison violations to the attention of the prison authorities cannot be treated as tantamount to an admission that he had not exhausted his. remedies.’ ” Groenow, 2014 WL 941276, at *3 (quoting Wesley v. Muhammad, No. 05 Civ. 5833, 2008 WL 123812, at *3 (S.D.N.Y. Jan: 10, 2008), report, and recommendation adopted, 2008 WL 236974 (S.D.N.Y. Jan. 28, 2008)); Huggins, 2015 WL 7345750, at *3. Accordingly, the Court finds that, based on.Plaintiffs allegations at this gtage of the proceedings, it is unclear exactly what Plaintiff intends to assert concerning exhaustion “and therefore non-exhaustion is not apparent.” Ultimately, dismissal on such procedural grounds is inappropriate. Jandres, 2014 WL 1330655, at *4; see Groenow, 2014 WL 941276, at *4.

B. Plaintiff’s Claims Arising Under 42 U.S.C. § 1983

L Legal Standard Applicable to § 1983 Claims

Section 1983 provides as follows: ■ • -

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities se- ■ cured by the Constitution and laws, shall be liable to the party injured ...

42 U.S.C. § 1983. To state a claim under Section 1983, a plaintiff must “ ‘allege that (1) the challenged conduct was attributable at least in part to, a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States.’ ” Rae v. Cty. of Suffolk, 693 F.Supp.2d 217, 223 (E.D.N.Y. 2010) (quoting Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999)); see Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010). Section 1983 does not create any independent substantive rights but rather is a vehicle to “redress ... the deprivation of [federal] rights established elsewhere.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999).

In addition, 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.” Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (quoting Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006), (citation omitted)); see also Pettus v. Morgenthau, 554 F.3d 293, 300 (2d Cir. 2009). “In the context of a § 1983 action, personal involvement means ‘direct participation, or failure to remedy the alleged wrong after learning of it, or creation of a policy or custom under which unconstitutional practices occurred, or gross negligence in managing subordinates.’ ” Barrett, 2014 WL 1220756, at *5 (quoting Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996)). A. complaint asserting a § 1983 claim which does not allege facts establishing the personal involvement “fails as a matter of law,” Gaines v. Armor Health Care, Inc., No. 12-CV-5663, 2013 WL 6410311, at *3 (E.D.N.Y. Dec. 9, 2013) (citing Costello v. City of Burlington, 632 F.3d 41, 48-49 (2d Cir. 2011)).

Although some; courts have questioned the continuing applicability of these factors based upon the heightened pleading requirements set forth in Iqbal, see Bellamy v. Mount Vernon Hosp., No. 07 Civ. 1801, 2009 WL 1835939, at *6 (S.D.N.Y. June 26, 2009) (“Only the first and.part of the third Colon categories pass Iqbal’s muster — a supervisor is only.held liable if that supervisor participates directly in the alleged constitutional violation or if that supervisor creates a policy or custom under which unconstitutional practices occurred.”), aff'd 387 Fed.Appx., 55 (2d Cir. 2010)); Newton v. City of New York, 640 F.Supp.2d 426, 448 (S.D.N.Y. 2009) (“[P]assivé failure to train claims pursuant to section 1983 have not survived” post-Iqbal.), the Second Circuit has not yet ruled on the issue. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (noting that Iqbal “may have heightened the requirements for showing a supervisor’s personal involvement with respect to certain constitutional violations,” but declining to reach the issue).

. Notwithstanding the Second Circuit’s silence, the majority of courts considering the issue have determined that “even after the U.S. Supreme Court’s decision in Iqbal, these ‘categories supporting personal liability of supervisors still apply as long as they are consistent with the requirements applicable to the particular constitutional provision alleged to‘ have been violated.’ ” Hernandez v. Goord, No. 01 Civ. 9585, 2013 WL 2355448, at *7 (S.D.N.Y May 29, 2013 (quoting Qasem v. Toro, 737 F.Supp.2d 147, 152 (S.D.N.Y 2010)); see also Ramey v. Perez, No. 13 Civ. 00017, 2014 WL 407097, at *4 (S.D.N.Y. Jan. 31, 2014) (“Colon remains the standard in this Circuit for deciding whether personal involvement by supervisory officials is sufficiently alleged-in the context of the Eighth Amendment.”); Mercier v. Kelly, No. 10 Civ. 7951, 2013 WL 4452486, at *6 (S.D.N.Y. Aug. 19, 2013) (“[T]he majority-view is where ‘the constitutional claim does not require a showing of discriminatory intent ... the personal involvement analysis set forth in Colon v. Coughlin may still apply.’ ”) (quoting Shepherd v. Powers, No. 11 Civ. 6860, 2012 WL 4477241, at *10 (S.D.N.Y. Sept. 27, 2012)); Martinez v. Perilli, No. 09 Civ. 6470, 2012 WL 76249, at *4 (S.D.N.Y. Jan. 5, 2012) (“[T]he five Colon categories still apply after Iqbal.”); Morgan v. Comm’r Dzurenda, No. 3:14-CV-966, 2015 WL 6722723, at *7 (D. Conn. Sept. 29, 2016) (“Because it is unclear as to whether Iqbal overrules or limits Colon, the Court will continue to apply the categories for supervisory liability set forth by the Second Circuit.”)

Based upon the fact that alleging “personal involvement” (i.e., the individual(s) directly responsible for the deprivation of a plaintiff s, rights) serves as a condition precedent to any award of damages, the Court will first determine whether Plaintiff has pleaded facts which sufficiently allege the requisite personal involvement on the part of each Defendant before turning to the substantive merits of Plaintiffs claims. See Davis v. Cty. of Nassau, 365 F.Supp.2d 668, 675 (E.D.N.Y. 2005) (“Assuming without deciding that [plaintiff] has adequately alleged that his right to non-deliberately indifferent treatment of his serious medical, needs was violated by someone, the key question at this juncture is whether [plaintiffs] complaint also adequately indicates why the defendants should be liable for the violation.”).

2. Whether Defendants Were “Personally Involved” in the Alleged Constitutional Deprivations

In reviewing Plaintiffs form Complaint, the following three distinct references are made to Defendants Ponte and Sposato: (1) in the caption; (2) in the section asking Plaintiff to list the names and addresses of all defendants; and (3) in a statement in Section IV of the Complaint which precedes Plaintiffs description of his claims in which he states that his “due process rights [were] violated by both Joseph Ponte and Michael Sposato.” Compl. Section IV. Importantly, Plaintiff does not allege that either individual Defendant was directly involved in any of the incidents of which Plaintiff complains nor the scope of any such involvement. See generally Compl. Section IV. Likewise, Plaintiffs opposition papers are similarly silent as to whether a direct nexus exists between the allegations of wrongdoing and any direct involvement by Defendants. Put another way, Plaintiff has pleaded no facts (either in his Complaint or his opposition papers) showing that either Defendant directly participated in any of the alleged constitutional violations set forth in his Complaint.

Absent any recitation of facts setting forth the necessary direct involvement, Plaintiffs claims against Defendants Ponte and Sposato must fail unless he can plausibly state that either Defendant possessed the requisite supervisory liability. In order to do so, Plaintiff must allege that Defendants personally: (1) failed to remedy the wrong after being informed of it; (2) created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom; (3) was grossly negligent in supervising subordinates who committed the wrongful acts; or, (4) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating there were ongoing unconstitutional acts. See JCG, 2014 WL 1630815, at *20 (citing Colon, 58 F.3d at 873). It is important to point out that ’ “[supervisory officials cannot be held liable under section 1983 solely for the acts of their subordinates,” Morgan, 2015 WL 5722723, at *6 (citing Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)). Rather, liability may generally only be predicated upon “the official’s own individual actions.” Morgan, 2015 WL 5722723, at *6 (quoting Iqbal, 556 U.S. at 676, 129 S.Ct. 1937). Further, “plaintiff must demonstrate an affirmative causal link between the inaction of the supervisory official and his injury.” Morgan, 2015 WL 5722723, at *6 (citing Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002)). The Court must assess then the allegations in Plaintiffs Complaint as well as the statements in his opposition papers to determine whether he has plausibly alleged facts supporting supervisory liability based upon one of the above factors.

i. Joseph Ponte

In his opposition papers, Plaintiff attempts to allege that Defendant Ponte was personally involved in the alleged constitutional deprivations. Plaintiff maintains that the New York City Department of Corrections and its Commissioner, Defendant Ponte: (1) created and allowed the continuance of an unconstitutional inmate transfer policy which permitted transfer to county facilities outside New York City; (2) was grossly negligent in supervising subordinates; and. (3) failed to address Plaintiffs complaint that he feared for his life as a result of the alleged unconstitutional transfer policy. See PL’s Opp’n at 9, 11. Aside from these conclusory statements, Plaintiff does not provide the Court with any salient facts on which to analyze these conclusions. Therefore, although Plaintiff may be attempting to frame Defendant Ponte’s conduct within the rubric set forth in Colon, Plaintiffs conclusory assertions concerning Defendant Ponte’s alleged personal involvement are unavailing. Indeed, “although a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and [t]hreadbare recitals of the elements of a cause of action, supported- by mere conclusory statements, do not suffice.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (internal quotations and citation omitted). Even construing these statements liberally, as the Court is required to do when reviewing a Complaint filed by a pro se litigant, see Andino v. Fischer, 698 F.Supp.2d 362, 376 (S.D.N.Y. 2010), there are simply no factual allegations asserted which support a finding that Defendant Ponte was personally involved in any of the incidents at issue. See, e.g., Youngblood v. City of N.Y., No. 15 CIV 3541, 2016 WL 3919650, at *5'(S.D.N.Y. June 27, 2016) (pro se “Plaintiffs bare allegations of the existence of a custom and policy and his conclusory assertion that the policy was linked to his constitutional injuries are insufficient to state a Monell claim.”); Carpinone v. City of New York, No. 11 Civ. 2074, 2012 WL 760073, at *2 (S.D.N.Y. Mar. 9, 2012) (“Plaintiff offers no facts which would render plausible his allegations of a policy or custom within the New York City Police Department that was affirmatively linked to the purported constitutional violations he suffered.”); Martinez v. Queens Cty. Dist. Atty., No. 12-CV-06262, 2014 WL 1011054, at *15 (E.D.N.Y; Mar. 17, 2014), aff'd, 596 Fed.Appx. 10 (2d Cir. 2015), cert. denied sub nom. Martinez v. Brown, — U.S. -, 135 S.Ct. 1855, 191 L.Ed.2d 735 (2015) (pro se “Plaintiffs bald assertions that there was a conspiracy between state actors and Verizon N.Y. and T-Mobile to illegally wiretap him, without more, are insufficient to plausibly allege that these private defendants were acting under the color of state law.”). In -the instant case, Plaintiff “must do more than plead ‘[cjonclusory allegations or legal conclusions masquerading. as factual conclusions!)]’ ” Andino, 698 F.Supp.2d at 376 (quoting Gebhardt v. Allspect, Inc., 96 F.Supp.2d 331, 333 (S.D.N.Y. 2000)) (second alteration added). Since Plaintiff has failed to do so, the Complaint, as currently drafted, fails to allege personal involvement as to Defendant Ponte and “this is fatal to the viability of his [ ] Complaint.” Huggins, 2015 WL 7345750, at *5.

ii. Michael Sposato

Plaintiff fares no better in his attempts to allege personal involvement on the part of Defendant Sposato. Plaintiff maintains that Defendant Sposato was allegedly personally responsible for: (1) the care, custody, confinement and control of the NCCC facility and failed to ensure good order was-maintained; (2) the actions of NCCC’s officers and employees such as in situations constituting the use of excessive force and sexually assaulting inmates; and (3) the deliberate -indifference of other prison officials in failing to protect plaintiff from harm at the hands of other prisoners. Id. at 3'.’

Initially,.the Court reiterates that “[supervisory officials cannot be held liable under section 1983 solely for the acts of their subordinates,”: Morgan, 2015 WL 5722723, at *6 (citing Ayers, 780 F.2d at 210). Rather, liability may generally only be predicated.upon “the official’s own individual actions.” Morgan, 2015 WL 5722723, at *6 (quoting Iqbal, 556 U.S. at 676, 129 S.Ct. 1937). Further, “plaintiff must demonstrate an affirmative causal link between the inaction of the supervisory official and his injury.” Morgan, 2015 WL 5722723, at *6 (citing Poe, 282 F.3d at 140). However, other than interposing con-clusory assertions, Plaintiff has otherwise failed to set forth sufficient facts showing how Defendant Sposato was personally involved in carrying out the constitutional deprivations of which Plaintiff complains. Thus, in light of the fact that Plaintiffs mere conclusions fail to properly allege personal involvement by Defendant Sposa-to based upon any of the Colon factors, Plaintiffs constitutional claims against Defendant Sposato must fail. See Huggins, 2015 WL 7345750, at *5; Andino, 698 F.Supp.2d at 376; see also Alsaifullah v. Travis, 160 F.Supp.2d 417, 420 (E.D.N.Y. 2001) (“even a pro se complaint must contain specific facts supporting its conclusions.”) (internal citation omitted).

C, Qualified Immunity

Defendants also seek to dismiss Plaintiffs claims on the basis of their qualified immunity. See Memorandum of Law in Support of Defendant Ponte’s Motion to Dismiss the Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) (“Def. Ponte’s Mem.”) at 7-8; Def. Sposato’s Mem. at. 8-9. The Court has already determined that neither Plaintiffs Complaint, nor the facts alleged in Plaintiffs opposition papers adequately allege the requisite personal involvement of either named Defendant. As such, dismissal is warranted on that basis alone and the Court need not otherwise address Defendants’ alleged entitlement to the affirmative defense of qualified immunity with respect to these Defendants. McIntosh v. United States, No. 14-CV-7889, 2016 WL 1274585, at *20 (S.D.N.Y. Mar. 31, 2016) (finding “no need to address the qualified immunity argument” put forth by defendants where the court had already dismissed, plaintiffs claims “for failure to. allege personal involvement.”); see Kelsey v. Cty. of Schoharie, 567 F.3d 54, 62 (2d Cir. 2009) (“When the facts, viewed in light most favorable to the plaintiff, do not demonstrate that an officer’s conduct violated a constitutional right, the court need not further pursue the qualified immunity inquiry.”); see also Dawson v. City of N.Y., No. 13-CV-5956, 2014. WL 5020595, at *2 (S.D.N.Y. Oct. 8, 2014) (same); Cooper v. Marrero, No. 11-CV-9260, 2013 WL 2529723, at *5 (S.D.N.Y. June 11, 2013) (same).

D. Plaintiffs Substantive Claims

Although the Court finds that Plaintiffs Complaint should be dismissed as to Defendants Ponte and Sposato based upon a failure to adequately plead that either Defendant was personally involved in any of the constitutional deprivations of which he complains, in an abundance of caution, and to--determine whether Plaintiff should be afforded the opportunity to amend his Complaint, the Court will nevertheless address the underlying merits of each of Plaintiffs claims.

1. Unlawful Facility Transfers

Plaintiff alleges that on July 15, 2016, he was transferred to NCCC from Riker’s to be alternatively housed, but was not informed as to the reason for the transfer nor afforded procedural protections prior to being moved. Compl. Section IV ¶ 1. In addition, on April 14, 2016, Plaintiff states he was transferred from NCCC to Roek-land. It appears Plaintiff is claiming that these transfers were “intended as an unconstitutional punishment” and that they “deprived him of a liberty interest by subjecting [him] to more restrictive housing.” Pl.’s Opp’n at 5, 9. Specifically, Plaintiff complains that he was advised only that the transfer to NCCC was “for [his] own protection” and that he did not otherwise receive a further explanation or documentation to clarify the rationale behind the move. Id. at 5. In addition, with respect to his transfer from Riker’s to Rockland, Plaintiff states that the Assistant Chief of Riker’s told him that he would be sent “far away w[h]ere you won[’]t be able to complain” and within days of that conversation he was sent to RCCC. Id. at 8.

i. Whether the Transfers Violated Plaintiffs Due Process Rights Under the 14th Amendment

“The due process clause is not implicated when a pre-trial detainee is transferred from one facility to another.” Covino v. Vt. Dep’t of Corr., 933 F.2d 128, 129 (2d Cir. 1991) (per curiam); see Lipton v. Cty. of Orange, NY, 315 F.Supp.2d 434, 447-48 (S.D.N.Y. 2004); Corley v. City of N.Y., No. 1:14-CV-3202, 2015 WL 5729985, at *7 (S.D.N.Y. Sept. 30, 2015) (“[T]he mere transfer of a pretrial detainee within a prison population or between prisons does not give rise to a protected liberty interest under the Due Process Clause.”); Butler v. Westchester Cty., No. 94 Civ. 8216, 2000 WL 335539, at *4 (S.D.N.Y. Mar. 30, 2000) (“Due process is not implicated when a pretrial detainee is transferred from one facility to another.”). Likewise, the Second Circuit has held that the transfer of an inmate, including a pretrial detainee, “ ‘to less amenable and more restrictive quarters for nonpunitive reasons’ is not a right protected by the due process clause itself.” Covino, 933 F.2d at 129 (quoting Hewitt v. Helms, 459 U.S. 460, 468, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983)). Therefore, prison officials retain broad discretion to transfer pre-trial detainees, but “it is well settled that a transfer may not be made solely in retaliation for the exercise of constitutionally protected rights.” Butler, 2000 WL 335539, at *6; see also Davis v. Kelly, 160 F.3d 917, 920 (2d Cir. 1998) (“A prisoner has no liberty interest in remaining at a particular correctional facility, ... but prison authorities may not transfer an inmate in retaliation for the exercise of constitutionally protected rights.”) (internal citations omitted).

Notwithstanding the broad discretion enjoyed by prison officials in deciding whether transfer of a pre-trial detainee is warranted, the Supreme Court has held that “pretrial detainees ... have a due process right to be free from punishment prior to an adjudication of guilt for the incontestable reason that a pretrial detainee is presumed innocent and therefore not subjected to punishment.” Butler v. Westchester Cty., No. 94 Civ. 8216, 2000 WL 335539, at *3 (citing Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 1872, 60 L.Ed.2d 447 (1979)). Thus, conditions or restrictions placed upon a pre-trial detainee will generally be deemed' valid so long as they do-not amount to punishment or otherwise violate' the Constitution. Bell, 441 U.S. at 536-37, 99 S.Ct. at 1873. “[I]n determining whether particular restrictions and conditions accompanying pretrial detention amount to punishment ... [a] court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose.” Id. at 538, 99 S.Ct. at 1873. It follows that, ‘.‘[s]o long as ‘a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental. objective, it does not without more, amount to ‘punishment.’ ” Butler, 2000 WL 335539, at *3 (quoting Bell, 441 U.S. at 538, 99 S.Ct. at 1874). However, if the condition or restriction imposed “is not reasonably related to a legitimate governmental objective — if it is arbitrary or purposeless — a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainee qua detainee.” Id. at 539, 99 S-Ct. at 1874. Further, in Bell, the Court recognized that “in addition to ensuring the detainees’ presence at trial, the effective management of the detention facility once the individual is confined is a valid objective that may justify imposition of conditions and restrictions of pretrial detention and dispel any inference that such restrictions are intended as punishment.” Id. at 540, 99 S.Ct. at 1875.

The Court turns first to Plaintiffs transfer from Riker’s to NCCC on July 16, 2015. Although Plaintiff states in concluso-. ry fashion that the transfer was “intended as an unconstitutional punishment ... [that] depraived [sic] [him] of a liberty interest,” he fails to set forth any facts to support such an assertion. Pl.’s Opp’n at 5. In addition, the Complaint itself states that Plaintiff was transferred to be alternatively housed, but that he was not provided with an explicit reason for the transfer. Compl. Section IV ¶ 1. However, the mere fact that Plaintiff was not given a rationale for the transfer is not, without more, sufficient to show that there was a clear intent on the part of prison officials to punish him — a necessary condition to setting forth a plausible claim that his Due Process rights were violated because of the transfer itself. See Corley, 2015 WL 5729986, at *8 .(finding plaintiff’s allegations regarding his purported unconstitutional transfer insufficient where plaintiff pleaded only that “his transfer . was for ‘undisclosed reasons,’ and [where he] offered] only speculation that the transfers were implemented- as punitive retribution for his active participation in the jail’s grievance program.”); McFadden v. Solfaro, No. 95 CIV. 1148, 1998 WL 199923, at *10 (S.D.N.Y. Apr. 23, 1998) (“Despite Plaintiffs allegations, there is no factual evidence on the record to show that the transfer was in any way punitive and therefore violative of [plaintiffs] Due Process.”).

As to Plaintiffs transfer from Riker’s to Rockland on April 14, 2016, the opposition papers do provide some facts to' support Plaintiffs assertion that this transfer was made with “an intent to punish.” Pl.’s Opp’n at 9. Specifically, Plaintiff states that after being sent back to Riker’s on April 7, 2016, he was placed in isolation despite his requests to be transferred to the general population. Id. at 8. Plaintiff says he was visited by Chief Turhan Gu-musdere on April 9, 2016, who stated “[I] heard you was giving my buddys [sic] in [N]assau a hard .time you act like an asshole you gonna get treated like one.” Id. Thereafter, Plaintiff claims he was visited by the Assistant Chief who told Plaintiff he would be sent “far away w[h]ere you won[’]t be able to complain.” Id. Within a week after Gumusdere’s visit, Plaintiff was transferred to Rockland on April 14, 2016, without being provided any reason for the transfer. Id.

At this stage of the litigation,Plaintiff need’ only plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556-57, 127 S.Ct. 1965) (internal citations omitted). Here, taking all facts alleged as true, and drawing all reasonable inferences in Plaintiffs favor, the Court finds that Plaintiff has adequately stated a Due Process claim as against Chief Gumusdere based upon his transfer from Biker’s to Rockland. The facts alleged permit the- inference that Plaintiff was transferred from Riker’s to Rockland because he was “complaining” to prison officials, including Ms. King, the Executive Director, concerning his placement in isolation. The transfer action therefore could have been taken with the intent to punish. PL’s Opp’n. at 8. Shortly after speaking with Chief. Gumusdere and the Assistant Chief — both of whom made threatening statements to Plaintiff regarding his problematic behavior (La, that if he “acted like an a**hole” he would be treated like one and that- he would be sent “far away” due to his constant complaining) — Plaintiff was transferred to Rockland. Although somewhat of a close question, the temporal proximity of Gumusdere’s and the Assistant Chiefs statements to the actual transfer is sufficient to draw an inference in favor of the Plaintiff that a Due Process violation has been adequately stated, an-amely, that the transfer took place because of an intent to punish on the part of Chief Gumusdere. But see Butler v. N.Y. State Corr. Dep’t, No. 94 CIV. 5054, 1996 WL 438128, at *5 (S.D.N.Y. Aug. 2, 1996) (finding plaintiff failed to plead a Due Process violation based upon a transfer between correctional facilities where “[n]either the original complaint nor the proposed amended complaint alleges any punitive intent behind the transfer, nor does plaintiff allege any facts that would support an inference of such an intent.”). Although it is an open question whether Plaintiff may ultimately meet his- burden of proof at either the summary judgment phase or at trial, at this early stage of the proceedings, he has at least satisfied the flexible plausibility standard set forth in Iqbal by pleading facts from which an inference can be drawn that the transfer from Riker’s to Rockland was done in retaliation for his exercise of his constitutionally, protected rights (ie., filing grievances). As such, Plaintiff should be permitted the opportunity to come forward with sufficient evidence to support this due process claim.

ii. Whether the Transfers Violated Plaintiffs Right to. Counsel Under the 6th Amendment

Plaintiff asserts that his Sixth. Amendment right to counsel was infringed as a result of the facilities transfers. Compl. Section IV ¶ 1. Specifically, Plaintiff claims that h