Lipscomb v. The Bureau of Prisons General Counsel et al
OPINION & ORDER: For the foregoing reasons, Defendants' motion to dismiss is GRANTED, and Plaintiffs Amended Complaint is DISMISSED in accordance with this Opinion. Plaintiffs damages claims against Defendants in their official capacities are barred by sovereign immunity and DISMISSED with prejudice. Plaintiffs claims for injunctive relief against the Federal Bureau of Prisons, Howard Hufford, Monica Recktenwald, Andrew Dachisen, Darren Compton, and Phillip Diamond are moot due to Plain tiff's transfer from FCI Otisville, where his injury occurred, to FCI Berlin. Lacking any plausible allegations that he may be subjected to the conditions at FCI Otisville in the immediate future, his claims for injunctive relief are DISMISS ED without prejudice. Plaintiff's damages claims against Defendants in their individual capacities must be DISMISSED without prejudice because Plaintiff failed to exhaust his administrative remedies as required by the Prisoner Litigation Refor m Act, 42 U.S.C. § l 997e, or to plausibly allege the administrative remedies were unavailable- rather, he simply chose not to engage in the grievance process. Since the Court has granted Plaintiff leave to amend his complaint, such an amende d complaint must be filed on or before August 28, 2017 and not reassert causes of action that were dismissed with prejudice, i.e. the damages claims against the Defendants in their official capacities. Defendants are to respond to any amended compl aint, if one is filed, on or before September 29, 2017. The Clerk of the Court is directed to terminate the motion at ECF No. 38, and as further set forth in this order. (Amended Pleadings due by 8/28/2017.) (Signed by Judge Nelson Stephen Roman on 7/28/2017) Copies Mailed By Chambers. (ap)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-againstFEDERAL 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 I-IV AC SUPERVISOR MR.
DIAMOND in his individual and official capacity,
No. 14 Civ. 6562 (NSR)
OPINION & ORDER
NELSONS. ROMAN, United States District Judge
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.
Plaintiff misspells, according to defense counsel, Defendant Hufford as "Hubbard" and Defendant Recktenwald as
"Rectenwald" in his Amended Complaint. The case caption above reflects the co1Tect spelling of these Defendants'
names, and the Clerk of the Couit is respectfully directed to co1Tect the caption in this action, accordingly.
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Copies~ 1 /2)'/1-01 7
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