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Lipscomb v. Hufford

United States District Court, S.D. New York

July 28, 2017

FEDERAL BUREAU OF PRISONS OTISVILLE FEDERAL CORRECTIONAL INSTITUTIONS FORMER WARDEN MR. HUFFORD in his individual and official capacity, CURRENT WARDEN MS. RECKTENWALD in her individual and official capacity, ASSOCIATE WARDEN ANDREW DACHISEN in his individual and official capacity, and HVAC SUPERVISOR MR. DIAMOND in his individual and official capacity, Defendants.

          OPINION & ORDER


         Plaintiff brings this action against Defendants, [1] 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.


         In 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. (Id.)

         A few 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.)[3] 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. (Id.)

         During 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.)

         After 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 ¶ 21.)

         Plaintiff 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”).)

         Plaintiff 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).[4]


         “To 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. 2010).

         A court 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 Cir. 1998)).

         “Pro 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).


         The 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 Bivens claim.[5]


         A 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).

         When 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”).

         Plaintiff 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.

         Defendants 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”).

         Plaintiff's 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.[7] Plaintiff's complaint stems from Defendants' failure, beginning in August 2012, to remedy the ventilation system at FCI ...

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