Lipscomb v. The Bureau of Prisons General Counsel et al
| Anthony Lipscomb |
| The Bureau of Prisons General Counsel, The Northeast Regional Director, Former Otisville Correctional Institutions Warden Mr. Hubbard, Current Warden Ms. Rectenwald, Acting Warden John Doe, Counselor Mr. Darren Compton and HVAC Supervisor Mr. Diamond |
| 1:2014cv06562 |
| August 14, 2014 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| XX Out of State |
| Loretta A. Preska |
| Prison Condition |
| 42 U.S.C. ยง 1983 |
| None |
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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)
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Filing
48
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)
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