The opinion of the court was delivered by: Richard J. Holwell, District Judge:
MEMORANDUM OPINION AND ORDER
James Rivera ("Rivera"), a former prisoner, now released, brought this action under 28 U.S.C. § 1983 while he was incarcerated at the Anna M. Kross Center ("AMKC"), a New York City Department of Correction facility on Rikers Island. Rivera's complaint alleges mistreatment by unidentified prison officials. Before the Court is AMKC's motion pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint. For the reasons that follow, the motion is granted.
Rivera was arrested for possession of crack cocaine on August 28, 2010. He was incarcerated at AMKC on Rikers Island. When Rivera arrived at AMKC, no permanent housing was available. In the interim, from August 29 through September 1, 2010, Rivera was housed in a facility known as the "bullpen."
Rivera alleges that various conditions in the bullpen violated his constitutional rights. Specifically, Rivera alleges that he was denied medication for his HIV and methadone treatment; given water in a cup used by 60 other prisoners; forced to sleep on a dirty floor with no blanket; prevented from bathing or washing; and given access only to a clogged toilet. Rivera further alleges that his current housing area lacks soap, razors, toothpaste, and other unspecified "hygiene supplies."
Rivera's complaint refers to a "grievance" regarding "all of this matters" [sic] that "f[e]ll on deaf ear[s]." Indeed, Rivera attaches a grievance form dated September 2, 2010 in which he describes the aforementioned conditions.
Rivera filed this action on November 8, 2010 alleging that these conditions violated his constitutional rights. On June 8, 2011, AMKC moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint on three grounds: (1) Rivera has failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e;(2) the New York City Charter bars suits against AMKC and the Department of Corrections; and (3) the complaint fails to state a claim for which relief can be granted. In responding to the motion, Rivera requested that the Court order AMKC to identify the officers working in the "bullpen" on the dates in question. On September 14, 2011, Rivera informed the Court that his address had changed and that he was now residing in an apartment in Brooklyn. In a letter to Chambers dated October 31, 2011, Rivera confirmed his new address and informed the Court that he had been released from jail.
"Courts ruling on motions to dismiss must accept as true all well-pleaded facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor." Dickerson v. Mut. of Am., 703 F. Supp. 2d 283, 290 (S.D.N.Y. 2010). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Rather, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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." Iqbal, 129 S. Ct. at 1949. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).
"A document filed pro se is 'to be liberally construed,' and a 'pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 94 (2007)(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Courts must "read such submissions 'to raise the strongest arguments they suggest.'" Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). "However, even pro se plaintiffs asserting civil right claims cannot withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise a 'right to relief above the speculative level.'" Bridgewater v. Taylor, 698 F. Supp. 2d 351, 357 (S.D.N.Y. 2010) (quoting Twombly, 550 U.S. at 555). See also Andino v. Fischer,698 F. Supp. 2d 362, 376(S.D.N.Y. 2010)("While held to a less stringent standard, the pro se plaintiff is not relieved of pleading requirements, and failure to plead the basic elements of a cause of action may result in dismissal."). Indeed, "pro se status does not relieve a plaintiff of the pleading standards otherwise prescribed by the Federal Rules of Civil Procedure." Pandozy v. Segan, 518 F. Supp. 2d 550, 554 (S.D.N.Y. 2007).
Where a motion is premised on the plaintiff's failure to exhaust his administrative remedies, the question is whether nonexhaustion is clear from the face of the complaint. That is because "failure to exhaust is an affirmative defense under the PLRA." Johnson v. Rowley, 569 F.3d 40, 45 (2d Cir. 2009) (citing Jones v. Bock, 549 U.S. 199, 216 (2007). If nonexhaustion is clear, a motion to dismiss should be granted. Shaw v. City of New York, No. 08-3997, 2009 WL 1110789, at *3 (S.D.N.Y. Apr. 21, 2009) (quoting McCoy v. Goord, 255 F. Supp. 2d 233, 251 (S.D.N.Y. 2003)).
Here, Rivera's complaint refers to a "grievance" regarding "all of this matters" [sic] that "f[e]ll on deaf ear[s]" and attaches a grievance form dated September 2, 2010. Accordingly, the exhaustion issue appears on the face of the complaint and there is no need to convert the motion.
The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e, requires that prisoners exhaust all available administrative remedies before pursuing a lawsuit in federal court. See 42 U.S.C. § 1997e(a) ("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."); Porter v. Nussle, 534 U.S. 516, 532 (2002) (exhaustion is required for "all inmate suits about prison life"); Booth v. Churner, 532 U.S. 731, 734 (2001) (exhaustion required before filing a Section 1983 claim for monetary damages even though monetary damages are unavailable as an administrative remedy). "There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court." ...