United States District Court, S.D. New York
OPINION & ORDER
S. ROMAN, UNITED STATES DISTRICT JUDGE
brings this action against Defendants,  all of whom are
associated with the Federal Bureau of Prisons and the
Otisville Federal Correctional Institution, for violations of
his Eighth Amendment rights. Defendants move to dismiss
(see ECF No. 38) on procedural grounds including
lack of subject matter jurisdiction, mootness of injunctive
relief claims, and failure to exhaust all of the
administrative remedies promulgated in 28 C.F.R. §
542.10 et seq. (2017). For the following reasons,
Defendants' motion to dismiss is GRANTED.
August 2012, while Plaintiff Anthony Lipscomb was
incarcerated at the Federal Correctional Institution
(“FCI Otisville”) in Otisville, New York, he
discovered that the ventilation system in his cell was not
working. (Am. Compl. ¶¶ 9-10, ECF No. 13.)
Plaintiff alleges that the unit secretary received complaints
about the ventilation system and filed a work order
application for its repair with the heating and ventilation
department. (Id. at ¶ 11.) Soon after, H.V.A.C.
staff members assessed the system and determined there was an
obstruction within the unit preventing airflow.
weeks later, Plaintiff verbally informed the warden,
Defendant Howard Hufford, of the low temperatures Plaintiff
experienced in his cell. (Id. at ¶ 12.)
Defendant Hufford informed Plaintiff that a piece of
equipment had been ordered, but, it would take a few months
to arrive. (Id.) Plaintiff and other inmates were
permitted to cover the windows in their cells with plastic to
prevent airflow into their cells. (Id. at ¶
13.) Plaintiff alleges that the coverings did little to
remedy the situation and continued to experience low
temperatures within his cell. (Id. at ¶¶
13-14.) He also alleges nearly a year passed without the
ventilation system being restored to working condition.
the fall of 2013, FCI Otisville experienced various
supervisory changes. First, Defendant Darren Compton was
assigned as the unit counselor of Plaintiff's housing
unit. (Id. at ¶ 14.) Then, Defendant Hufford
left his position as warden and Defendant Andrew Dachisen
assumed the role of acting warden until Defendant Monica
Recktenwald was appointed as warden. (Id. at
¶¶14-15.) Plaintiff contends that all three
defendants were aware of the defective ventilation system.
(Id.) Plaintiff personally notified Defendant
Recktenwald of the issue on several occasions because of the
“weather report of the coldest winter in the
nation.” (Id. at ¶ 15.)
Defendant Hufford had left the facility, Defendant Compton
ordered the removal of the plastic window coverings.
(Id. at ¶ 16; see also Id. at ¶
33 (“The institution's policy regarding security
regardless of the circumstances emboldened Compton to
eliminate the window plastic program”).) Plaintiff
informally appealed to Defendant Recktenwald, who ultimately
permitted coverings to be removed. (Id. at ¶
17.) Subsequently, routine room temperature checks were
instated and “room temperatures were below the legal
standard.” (Id. at ¶ 18.) Afterwards,
Defendant Phillip Diamond, the prison's H.V.A.C.
supervisor, explained to Plaintiff that there may be
something obstructing the airways, however, the airways were
never inspected. (Id. at ¶ 19.) Around February
2014, Plaintiff requested an administrative remedy
application from Defendant Compton, who advised the Plaintiff
to contact the H.V.A.C. department. (Id. at ¶
did not file an administrative remedy application nor any
type of formal complaint regarding the ventilation issue,
because, in the past, filing such applications did not remedy
the issue and often these applications went unanswered.
(Id. at ¶¶ 22-25 (noting an instance where
he was ignored in 2010 that when “coupled with the
severity of the winter season” led him to
“decide against filing the obtained BP-8”).)
Instead, Plaintiff sent a letter to a New York State senator,
who forwarded the letter to the Office of Congressional
Affairs. (Id. at ¶¶ 25-26.) Plaintiff
transferred housing units in May 2014, and at that time, the
ventilation system had still not been repaired. (Id.
at ¶ 28; see also Id. at ¶ 40
(“Though unconventional, the administrative process
from top to bottom via the plaintiff's complaint letter
to the senator had been exhausted”).)
commenced the instant action against Federal Bureau of
Prisons current and former employees Compton, Dachinsen,
Diamond, Hufford, and Recktenwald, in their official and
individual capacities, under the Eighth Amendment of the
United States Constitution. The Court construes pro
se Plaintiff's claims as falling under Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971).
ON A MOTION TO DISMISS
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.'”
Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 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, 566 U.S.
at 678. Although “a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff's 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.” Stan v.
Sony BMG Music Entm'l, 592 F.3d 314, 321 (2d Cir.
should accept non conclusory allegations in the complaint as
true and draw all reasonable inferences in the
plaintiff's favor. Ruotolo v. City of N.Y., 514
F.3d 184, 188 (2d Cir. 2008). “[T]he duty of a court
‘is merely to assess the legal feasibility of the
complaint, not to assay the weight of the evidence which
might be offered in support thereof.'” DiFolco
v. MSNBC Cable L.L.C., 622 F.3d 104, 113 (2d Cir. 2010)
(quoting Cooper v. Parsky, 140 F.3d 433, 440 (2d
se complaints are held to less stringent standards than
those drafted by lawyers, even following Twombly and
Iqbal.” Thomas v. Westchester, No. 12
Civ. 6718, 2013 WL 3357171, at *2 (S.D.N.Y. July 3, 2013);
see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir.
2009). The court should read pro se complaints
“to raise the strongest arguments that they
suggest.” Pabon v. Wright, 459 F.3d 241, 248
(2d Cir. 2006). Even so, “pro se plaintiffs .
. . cannot withstand a motion to dismiss unless their
pleadings contain factual allegations sufficient to raise a
right to relief above the speculative level.”
Jackson v. N.Y.S. Dep't of Labor, 709 F.Supp.2d
218, 224 (S.D.N.Y. 2010) (internal quotation marks omitted).
Dismissal is justified where “the complaint lacks an
allegation regarding an element necessary to obtain relief,
” and the “duty to liberally construe a
plaintiff's complaint [is not] the equivalent of a duty
to re-write it.” Geldzahler v. N.Y. Med.
Coll., 663 F.Supp.2d 379, 387 (S.D.N.Y. 2009) (internal
citations and alterations omitted).
Court does not address the merits of Plaintiff's
allegations regarding the substandard conditions he
experienced at FCI Otisville. Instead, his claims must be
dismissed on procedural grounds of mootness, sovereign
immunity, and exhaustion. Therefore, the Court expresses no
opinion on whether his allegations would sufficiently plead
violations of his Eighth Amendment rights cognizable as a
PLAINTIFF'S CLAIMS FOR INJUNCTIVE RELIEF ARE
plaintiff must establish standing to bring suit. “[T]he
‘irreducible constitutional minimum' of standing
consists of three elements[:] [t]he plaintiff must have (1)
suffered an injury in fact, (2) that is fairly traceable to
the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 136 S.Ct.
1540, 1547 (2016) (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560-61 (1992), and citing
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 180-81 (2000)). “[T]he
injury-in-fact requirement requires a plaintiff to allege an
injury that is both ‘concrete and
particularized.'” Id. at 1545 (quoting
Friends of the Earth, 528 U.S. at 180-81).
seeking injunctive relief, a plaintiff's standing
“depend[s] on whether [that plaintiff] [is] likely to
suffer future injury” based on the alleged conduct.
City of Los Angeles v. Lyons, 461 U.S. 95, 105
(1983). This “likelihood of future harm” must be
“real and immediate, ” though it need not be
certain. Shain v. Ellison, 356 F.3d 211, 215-16 (2d
Cir. 2004). Plaintiffs bear the burden of alleging facts in
their complaint sufficient to establish standing. Amnesty
Int'l USA v. Clapper, 667 F.3d 163, 176-77 (2d Cir.
2011) (citing Lujan, 504 U.S. at 569 n.4);
Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d
140, 145 (2d Cir. 2011); Spokeo, 136 S.Ct. at 1547
(quoting Warth v. Seldin, 422 U.S. 490, 518 (1975))
(“plaintiff must ‘clearly . . . allege facts
demonstrating' each element”).
is seeking both injunctive relief and damages for allegedly
suffering extreme discomfort from the broken ventilation
system at FCI Otisville. It is undisputed that his injury is
concrete and particularized as he alleges personally
experiencing extreme discomfort during his incarceration at
FCI Otisville. It is also undisputed that there is a
sufficient causal link between the Defendants' failure to
remedy the ventilation system and Plaintiff's injuries.
With regards to redressability, Plaintiff's claim for
damages is appropriate, as damages would compensate Plaintiff
for the extreme discomfort he allegedly suffered.
contest, however, Plaintiff's standing to bring suit for
injunctive relief because the Plaintiff has transferred
correctional facilities. (Defs. Mem. at 7-8.) It has been
established in this Circuit that transfer of correctional
facilities moots a plaintiff's claim for injunctive
relief. See Salahuddin v. Goord, 467 F.3d 263, 272
(2d Cir. 2006); see, e.g., Smith v. City of New
York, No. 14 Civ. 5927 (RWS), 2017 WL 2172318, at *9
(S.D.N.Y. May 16, 2017) (holding that a plaintiff's
“transfer from [the correctional center on Rikers
Island] to a facility outside of the New York City Department
of Correction system render[ed] his claims [for injunctive
relief] moot”); Harrison v. Terrell, No. 12
Civ. 6855 (RWS), 2013 WL 1290653, at *2 (S.D.N.Y. Mar. 29,
2013) (after the petitioner was transferred from FCI
Otisville to a federal medical center, his “claims [for
injunctive relief] [were] dismissed as moot because he [was]
no longer housed in the facility where the alleged
deprivations were taking place . . .”); see also
Johnson v. Killian, No. 07 Civ. 6641 (NRB), 2013 WL
103166, at *3 (S.D.N.Y. Jan. 9, 2013) (“request for
declaratory relief no longer present[ed] a live
controversy” because the plaintiff was transferred). In
short, Plaintiff's likelihood of suffering future harm
from the broken ventilation system is not real and immediate
since Plaintiff is no longer housed in the facility at issue.
See Shane, 356 F.3d at 215-16; cf. Ortiz v.
Westchester Med. Ctr. Health Care Corp., No. 15 Civ.
5432 (NSR), 2016 WL 6901314, at *9 (S.D.N.Y. Nov. 18, 2016)
(plaintiffs “failed to demonstrate the likelihood,
rather than mere possibility, of a future harm”).
claims do not fall within the exception to this rule, for
“challenged actions that are capable of repetition, yet
evading review, ” Lloyd v. City of New York,
43 F.Supp.3d 254, 269-70 (S.D.N.Y. 2014) (internal citations
omitted), because the actions challenged here have not been
plausibly alleged to be likely to repeat to his detriment,
nor would it have been impossible to litigate the issue
during his period of confinement. Plaintiff's complaint
stems from Defendants' failure, beginning in August 2012,
to remedy the ventilation system at FCI ...