The opinion of the court was delivered by: David E. Peebles U.S. Magistrate Judge
REPORT AND RECOMMENDATION
Plaintiff Everton Bailey, a federal prison inmate who is proceeding pro se and in forma pauperis , has commenced this Bivens*fn1 action against a corrections officer stationed at the facility in which he was housed at the relevant times, alleging deprivation of his civil rights. In his complaint, Bailey alleges that the defendant failed to protect him from an assault by a cellmate despite prior complaints expressing fear for his safety. As relief, plaintiff's complaint seeks $1 million compensatory damages, as well as punitive damages in the additional sum of $50,000.
Currently pending before the court in connection with the action are two separate motions. In response to plaintiff's complaint defendant has moved for either dismissal of his claims for failure to state a cause of action or, alternatively, for summary judgment, arguing that they are procedurally barred based upon his failure to exhaust available administrative remedies. In addition to opposing that motion plaintiff has moved for leave to amend his complaint, seeking to add the prison facility itself as a named defendant in the case.
Having carefully considered defendant's motion, which has been treated as one for summary judgment, I recommend that it be denied based upon my finding that material issues of fact preclude resolution of the exhaustion defense at this procedural juncture. I also recommend that plaintiff's motion for leave to amend be denied as futile, since in his amendment plaintiff seeks to add as a defendant a party that is not amenable to suit.
Plaintiff is a federal prison inmate within the custody of the United States Bureau of Prisons ("BOP") as a result of a 2007 criminal conviction entered in the United States District Court for the Eastern District of Pennsylvania. See generally Plaintiff's Complaint (Dkt. No. 1); see also VanWeelden Decl. (Dkt. No. 4) ¶ 5. While he is presently housed in another BOP facility, at the times relevant to his claims Bailey was designated by the BOP to the Ray Brook Federal Correctional Institution ("FCI Ray Brook"), located in Ray Brook, New York. Id.
On the morning of February 23, 2009, while housed in a six person cell in the Mohawk Housing Unit at FCI Ray Brook, plaintiff was assaulted by one of his cellmates after being accused of stealing that inmate's prayer oil . Complaint (Dkt. No. 1) ¶¶ 8-9; see also VanWeelden Decl. (Dkt. No. 10-4) Exh. D. Plaintiff reported the incident to defendant Fortier, a corrections officer at the facility, and requested that he be moved to another cell. Complaint (Dkt. No. 1) ¶ at 10. The request was denied, and plaintiff was directed by Corrections Officer Fortier to return to his cell for inmate count. Id . at ¶ 11.
Following the inmate count, plaintiff again was accosted by the same inmate, who on this occasion threw hot oil from a ceramic mug onto plaintiff's face. Complaint (Dkt. No. 1) ¶ 13; VanWeelden Decl. (Dkt. No. 10-4) Exh. D. As a result of the incident plaintiff suffered second degree burns to his face, requiring hospitalization at an outside medical facility for extensive treatment. Complaint (Dkt. No. 1) ¶¶ 13-14. According to the plaintiff, there were no corrections officers present in his cell unit at the time of the assault. Id.
Plaintiff commenced this action on June 29, 2009. Dkt. No. 1. Plaintiff's complaint identifies Corrections Officer M. Fortier as the sole named defendant and asserts claims against her based upon the failure to protect him from known harm. Id .
On January 8, 2010, prior to answering, defendant moved to dismiss plaintiff's complaint for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or, alternatively, for summary judgment pursuant to Rule 56. Dkt. No. 10. The sole basis for defendant's motion is her contention that plaintiff is precluded from pursuit of his claim based upon his failure to exhaust available administrative remedies before commencing suit, as required under 42 U.S.C. § 1997(e)(a). Defendant's motion was met, on January 27, 2010, with a response in opposition from the plaintiff, as well as a separate motion for leave to amend his complaint to add FCI Ray Brook as a named defendant. Dkt. Nos. 11, 12. Defendant has since submitted papers opposing plaintiff's motion for leave to amend, Dkt. No. 13, and additionally has filed a reply in response to plaintiff's opposition to the original motion and in further support of that application. Dkt. No. 16.
The parties' motions, which are now fully briefed and ripe for determination, have been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, calls upon a court to gauge the facial sufficiency of that pleading, utilizing as a backdrop a pleading standard which, though unexacting in its requirements, "demands more than an unadorned, the-defendant-unlawfully-harmed me accusation" in order to withstand scrutiny. Ashcroft v. Iqbal , ___ U.S. ___, ___, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 1965 (2007)). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While modest in its requirement, that rule commands that a complaint contain more than mere legal conclusions; "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft, 129 S.Ct. at 1950.
To withstand a motion to dismiss, a complaint must plead sufficient facts which, when accepted as true, state a claim which is plausible on its face. Ruotolo v. City of New York , 514 F.3d 184, 188 (2d Cir. 2008) (citing Twombly , 550 U.S. at 570, 127 S.Ct. at 1974). As the Second Circuit has observed, "[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to 'nudge [plaintiffs'] claims across the line from conceivable to ...