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Lipscomb v. United States

United States District Court, S.D. New York

August 31, 2017

ANTHONY LIPSCOMB, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          OPINION & ORDER

          NELSON S. ROMAN, United States District Judge.

         In this action, Plaintiff brings similar claims to those dismissed in his previously filed related Bivens action (No. 14 Civ. 6562), but this time against the United States under the Federal Torts Claims Act, 28 U.S.C. §§ 1346(b), 2401(b), 2671-80 ("FTCA") for harm allegedly incurred while he was housed by the Federal Bureau of Prisons ("BOP") at the Federal Correctional Institution in Otisville, New York ("FCI Otisville"). (See Compl., ECF No. 1.) Defendant moves to dismiss (see ECF No. 24) on procedural and other grounds, including statute of limitations grounds. For the following reasons, Defendant's motion to dismiss is GRANTED.

         BACKGROUND[1]

         Familiarity with the underlying facts alleged in this action and with the Court's prior decision in the related case is assumed. See Lipscomb v. Hujfford, No. 14 Civ. 6562 (NSR), 2017 WL 3267732, at *l-2 (S.D.N.Y.July 28, 2017). As relevant here, Plaintiff Anthony Lipscomb was incarcerated at FCI Otisville starting in April 2007. (Compl. at 2.) Beginning in August 2012 until his institutional transfer in May 2014, Plaintiff alleges he was housed in a room where the heating system did not work. (Id. at 2.)[2] In his related action, Plaintiff explained that the windows were originally covered with industrial plastic to avoid loss of heat, but that sometime between fall 2013 and early February 2014 the officials at FCI Otisville ordered the plastic removed. (Am. Compl. at ¶¶ 15-22, ECF No. 13, No. 14 Civ. 6562.) As a result, he was “[f]orced to live in extremely cold, brick cells for several years, ” and experienced “sleep deprivation, extreme discomfort, mental distress due to the cold[, ] and threat of disciplinary action if the windows were recovered with plastic.” (Compl. at 3.) Plaintiff attaches to his complaint the BOP denial of his administrative claim (No. TRT-NER-2016-03496), which the BOP received on March 21, 2016. (Id. at 5.)

         STANDARD ON A MOTION TO DISMISS

         “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)). “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) (citations and alterations omitted).

         DISCUSSION

         In his related action, the Court dismissed Plaintiff's Bivens claims[3] against the BOP and officials at FCI Otisville in their official capacities as barred by the doctrine of sovereign immunity. See Lipscomb, 2017 WL 3267732, at *6. But in contrast to a Bivens claim, “the FTCA waives the sovereign immunity of the United States against claims for property damage or personal injury ‘caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.'” McGowan v. United States, 825 F.3d 118, 125 (2d Cir. 2016) (quoting 28 U.S.C. § 1346(b)(1)). Plaintiff explicitly disclaims any attempt to bring constitutional torts in this action (which the Court presumes were limited to the related action discussed above), and instead explains he is only asserting negligence and wrongful act claims as allowed by the FTCA. (Pl. Opp'n at 3-4, ECF No. 28); see also, e.g., Custard v. Balsick, No. 15 Civ. 2221 (REB) (CBS), 2017 WL 131799, at *21 (D. Colo. Jan. 13, 2017) (“allegations regarding the dangerous cell conditions appear to sound in negligence”).

         Nevertheless, claims brought under the FTCA are subject to a two year statute of limitations. United States v. Kwai Fun Wong, 135 S.Ct. 1625, 1629 (2015) (citing 28 U.S.C. § 2401(b)). This limitations period is non-jurisdictional, and it, therefore, may be equitably tolled upon a claimant's sufficient showing of entitlement to such tolling. Id. at 1638; see also Id. at 1629-30 (discussing circumstances that warranted applying equitable tolling, where plaintiff had exercised due diligence in pursuing her claim). But in this case, Plaintiff's FTCA claims were presented to the BOP after the two year period had run, and he presents no justification for the late presentment of these claims.

         Plaintiff presented his FTCA-based claims to the BOP on March 21, 2016. (See Compl. at 5.) Therefore, any claims accruing before March 21, 2014 are barred by the FTCA's statute of limitations. See Kwai Fun Wong, 135 S.Ct. at 1629 (quoting 28 U.S.C. § 2401(b)) (“a tort claim against the United States ‘shall be forever barred' unless it is presented to the ‘appropriate Federal agency within two years after such claim accrues'”). It is clear from the face of Plaintiff's two related complaints that the alleged conditions in the cell began sometime in 2012. Even construing the complaint liberally to assert a cause of action based on Plaintiff being forced to remove the industrial plastic from the cell's windows, (see Pl. Opp'n at 6), such a claim accrued no later than February 2014. Furthermore, neither Plaintiff's amended complaint in his related Bivens action, (see Am. Compl., ECF No. 13, No. 14 Civ. 6562), nor his complaint in this action (ECF No. 2), provide any explanation for why he was able to commence a federal lawsuit well within the limitations period-in August 2014 (see Compl., ECF No. 1, No. 14 Civ. 6562)-but was unable to timely present his claim against the BOP sometime between February 2014 and February 2016. Thus, he has failed to allege any circumstances justifying the application of equitable tolling to his late FTCA claims. Lacking any such explanation, Plaintiff's FTCA claims must be dismissed as untimely. See, e.g., Barbaro v. U.S. ex rel. Fed. Bureau of Prisons FCI Otisville, 521 F.Supp.2d 276, 279 (S.D.N.Y. 2007) (reconsideration of dismissal of claims rejected where, “[b]ased on the allegations in the Complaint, the Government [] show[ed] . . . entitle[ment] to a finding that the statute of limitations” barred FTCA claims).

         As indicated in this Court's related opinion dismissing Plaintiff's Bivens claims but granting leave to amend “to demonstrate why a Ross exception applie[d]” to his failure to exhaust under the Prisoner Litigation Reform Act, 42 U.S.C. § 1997e(a) (“PLRA”), see Lipscomb, 2017 WL 3267732, at *9, courts generally afford pro se litigants significant leniency with regard to amending their complaints. In re Sims, 534 F.3d 117, 133 (2d Cir. 2008). Accordingly, the Court will also allow Plaintiff to amend in this action to explain what circumstances, if any, justify his delay in presenting his FTCA claims to the BOP. In the interests of judicial economy, the Court also consolidates Plaintiff's two actions pursuant to Federal Rule of Civil Procedure 42 since they concern the same set of facts despite asserting different causes of action against different defendants. See Jacobs v. Castillo, 612 F.Supp.2d 369, 373 (S.D.N.Y. 2009) (“Cases may be consolidated even where certain defendants are named in only one of the complaints.”). Plaintiff's first action, No. 14 Civ. 6562, will take priority to this, his second, action. See Jandres v. Cty. of Nassau Cty., No. 12 Civ. 3132 (JS) (GRB), 2012 WL 5879532, at *1 (E.D.N.Y. Nov. 21, 2012) (“Where there are several competing lawsuits, the first suit should have priority”).

         CONCLUSION

         For the foregoing reasons, Defendant's motion to dismiss is GRANTED, and Plaintiff's Complaint is DISMISSED. Plaintiff's FTCA claims against Defendant must be DISMISSED without prejudice because Plaintiff failed to timely present such claims to the Federal Bureau of Prisons, and he has not plausibly alleged any facts to demonstrate that he is entitled to equitable tolling of the limitations period. The Court has consolidated this action with Plaintiffs related case (dkt. 14 Civ. 6562) and granted Plaintiff leave to amend his complaint. Such an amended complaint-combining the Bivens action and the FTC A action and naming all relevant Defendants including the United States-must be filed on or before September 29, 2017 and not reassert causes of action that were dismissed with prejudice, i.e. the Bivens damages claims against the Defendants in their official capacities.

         Recognizing his Rule 11(b) obligations, Plaintiff should provide the Court with whatever justifications are available, if any, to excuse his failure to exhaust pursuant to the PLRA and his failure to timely present his FTCA claims to the BOP. Defendants are to respond to any consolidated amended complaint, if one is filed, on or before October 27, ...


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