Lipscomb v. The Bureau of Prisons General Counsel et al

Filing 51

OPINION AND ORDER. 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 t imely 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 Plaintiff's rel ated case (dkt. 14 Civ. 6562) and granted Plaintiff leave to amend his complaint. Such an amended complaint-combining the Bivens action and the FTCA action and naming all relevant Defendants including the United States-must be filed on or before Sept ember 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 w hatever 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, 2017. These deadlines supersede the earlier deadlines imposed by the Court in the related action. The Clerk of the Court is directed to terminate the motions at ECF Nos. 22 & 24. The Clerk of the Court is further directed to consol idate the two cases under the first filed case, 14 Civ. 6562 (NSR) (PED), now the lead case, and the case with docket number 16 Civ. 7963 (NSR) (PED) will be considered a member case. A copy of this Opinion shall be filed on both dockets. No further filings should be made under the member case (16 Civ. 7963); instead, all filings shall be made under docket number 14 Civ. 6562. So ordered. re: (24 in 7:16-cv-07963-NSR) MOTION to Dismiss filed by United States of America, (22 in 7:16-cv-07963-NSR) MOTION filed by Anthony Lipscomb. (Amended Pleadings due by 9/29/2017.) (Signed by Judge Nelson Stephen Roman on 8/31/2017) Filed In Associated Cases: 7:14-cv-06562-NSR, 7:16-cv-07963-NSR. Copies Mailed By Chambers. (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANTHONY LIPSCOMB,
Plaintiff,

No. 16 Civ. 7963 (NSR)

-against-

OPINION & ORDER

UNITED STATES OF AMERICA,
Defendant.
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), 240l(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 Comp!., 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. Hufford, No. 14 Civ. 6562 (NSR), 2017
WL 3267732, at* 1-2 (S.D.N.Y. July 28, 2017). As relevant here, Plaintiff Anthony Lipscomb
was incarcerated at FCI Otisville starting in April 2007. (Comp!. at 2.) Beginning in August

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These facts arc taken from Plaintiffs complaint and his amended complaint in the related action, and assumed to
be true for the purposes of this motion.
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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

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To the extent Plaintiff is attempting to allege his assignment within the prison was based on a faulty “security
level” calculation, such allegations do not state an independently cognizable claim against the United States.
Plaintiff may be implying that his assignment to the room that lacked heat occurred based on the faulty calculation,
but ultimately the only actionable allegations are those premised on the lack of heat, since he only alleges injuries
based on that purported condition.

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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”).

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A Bivens claim refers to an implied cause of action for damages pursuant to the Constitution, as recognized by the
Supreme Court in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and
as limited by its progeny. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (“a Bivens remedy will not be
available if there are ‘special factors counselling hesitation in the absence of affirmative action by Congress’”).

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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,

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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

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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 FTCA 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, 2017. These deadlines
supersede the earlier deadlines imposed by the Court in the related action.
The Clerk of the Court is directed to terminate the motions at ECF Nos. 22 & 24. The
Clerk of the Comt is further directed to consolidate the two cases under the first filed case, 14
Civ. 6562 (NSR) (PED), now the lead case, and the case with docket number 16 Civ. 7963
(NSR) (PED) will be considered a member case. A copy of this Opinion shall be filed on both
dockets. No further filings should be made under the member case (16 Civ. 7963); instead, all
filings shall be made under docket number 14 Civ. 6562.

Dated:

SO ORDERED:

August.3.L 2017
White Plains, New York

NELS~

United States District Judge

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