United States District Court, S.D. New York
OPINION & ORDER
S. ROMAN, United States District Judge.
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.
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.) 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.)
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)). “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).
related action, the Court dismissed Plaintiff's
Bivens claims 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
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.
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
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”).
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.
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, ...