12-1806-cv
Walker v. Schult


                        U NITED S TATES C OURT OF A PPEALS
                             FOR THE S ECOND C IRCUIT


                              August Term 2012

  (Argued:         January 30, 2013            Decided:      May 23, 2013)

                          Docket No. 12-1806-cv
                        ________________________

                                 E LLIS W ALKER ,

                                                    Plaintiff-Appellant,

                                       v.

D EBORAH G. S CHULT , Warden, FCI Ray Brook, R USSELL P ERDUE , Warden,
    FCI Ray Brook, D AVID S ALAMY , Unit Manager, FCI Ray Brook,
    S EPANEK , Counselor, FCI Ray Brook, D AVID P ORTER , Associate
Warden, FCI Ray Brook, A NNE M ARY C ARTER , Associate Warden, FCI
   Ray Brook, S TEVEN W AGNER , Associate Warden, FCI Ray Brook,
     J.L. N ORWOOD , Regional Director, H ARLEY L APPIN , Director,
                           Bureau of Prisons,

                                           Defendants-Appellees.
                        ________________________

Before:
                     W ESLEY and C HIN , Circuit Judges,
                     and L ARIMER , District Judge. *

            Appeal from a judgment of the United States

District Court for the Northern District of New York (Kahn,

      *
          The Honorable David G. Larimer, of the United States
District Court for the Western District of New York, sitting by
designation.
J.), entered on March 27, 2012, granting defendants-

appellees' motion to dismiss plaintiff -appellant's

complaint alleging that his conditions of confinement

amounted to cruel and unusual punishment in violation of

the Eighth Amendment.

          AFFIRMED IN PART, VACATED IN PART, and REMANDED.

                         J OHN D. C ASTIGLIONE (Kyle L. Wallace,
                         Noreen A. Kelly-Dynega, Natalie M.
                         Georges, on the brief), Latham &
                         Watkins LLP, New York, New York, for
                         Plaintiff-Appellant.

                         P AULA R YAN C ONAN , Assistant United
                         States Attorney (Charles E. Roberts,
                         Assistant United States Attorney, on
                         the brief), for Richard S.
                         Hartunian, United States Attorney
                         for the Northern District of New
                         York, Syracuse, New York, for
                         Defendants-Appellees.

C HIN , Circuit Judge:

          Plaintiff-appellant Ellis Walker brought this

action below pro se, alleging that the conditions of his

confinement in the Federal Correctional Institution in Ray

Brook, New York ("FCI Ray Brook") amounted to cruel and

unusual punishment in violation of the Eighth Amendment.

The United States District Court for the Northern District




                              -2-
of New York (Kahn, J.) granted defendants-appellees' motion

to dismiss for failure to state a claim, pursuant to

Federal Rule of Civil Procedure 12(b)(6).      Walker appeals.

         We conclude that Walker's complaint plausibly

alleged violations of his constitutional rights, except as

to two defendants.     We therefore affirm in part and vacate

in part and remand for further proceedings.

                           BACKGROUND

A.   Factual Allegations

         The following facts are drawn from Walker's pro se

complaint, and we assume them to be true for purposes of

this appeal.   On November 18, 2008, while Walker was an

inmate at FCI Ray Brook, he was placed in a six-man cell.

Compl. ¶ 1.    The cell was approximately 170 to 174 square

feet in size, providing each prisoner with 28 to 29 square

feet of total space, and "less than 6-square feet moving

space," which was not enough space "to even turn or move in

the 6-man cell."     Id. ¶ 4 & n.3.   In addition to the six

prisoners, the cell contained their bunk beds, their

belongings, two toilets, and two sinks.      Id. ¶¶ 4, 8, 19.

The prisoners were required to be in their cells each day


                               -3-
from approximately 9:15 p.m. to 7:00 a.m., and for 45 -

minute periods each mid-morning and mid-afternoon.           Id.

¶ 23.

           Walker, who is 6'4" tall and weighs 255 pounds,

was assigned to one of the top bunk beds for four months.

Id. ¶ 4 n.3.    The bed itself was only twenty-eight inches

wide -- four inches narrower than what guards told Walker

was the required width of beds -- which forced Walker "to

sleep on his side; rotating back and forth."        Id. ¶ 7 &

n.4.    There were no ladders to climb up to the top bunks ;

Walker had to climb onto a chair and then onto another

inmate's locker to reach his bed.      Id. ¶ 8.    Once, when

climbing up to his bed, Walker fell onto the chair, which

"broke [his] fall to the floor."      Id. ¶ 9.    If, when

climbing up to his bed, he knocked another inmate's

property off a locker, it "would lead to arguments and

possibly fights."    Id. ¶ 8.

           Walker's cellmates included gang members, non -gang

members, and men of different races.      Id. ¶¶ 5, 6, 11, 12.

Mixing inmates from different backgrounds caused

"insurmountable problems," including fights, friction, and


                                -4-
violence throughout the prison.           Id. ¶¶ 3, 5, 6, 11, 12.

The "overcrowding, gang activities, violence . . . [and]

fights" in the cell placed Walker "in a situation to kill

or be killed."        Id. ¶ 12.   Further, because the cell was so

crowded and noisy, the prison guards would not know when

prisoners were fighting unless another prisoner alerted

them.     Id. ¶ 13.

            Walker's five cellmates stayed up all night

watching television and playing games, which led to

"hollering, screaming and sometimes fights."            Id. ¶ 15.    In

addition, his cellmates "constantly" had other prisoners

running into the cell "using the toilet/sink and making

noise."     Id. ¶ 22.     Walker got "almost no sleep" and was

"tired most of the time," because "[t]he noise inside the

cell [was] constant and loud."           Id. ¶ 14.   Walker got so

little sleep that there was "no way [he] could work on a

job 8 hours/day without hurting himself or someone else. "

Id. ¶ 16.

            Walker's cell was also unsanitary, with so much

"urine . . . on the floor and sometimes . . . on the

toilet" that the toilet required cleaning "[a]t least 15 -20


                                   -5-
times per day."   Id. ¶¶ 19, 20.     Walker's cellmates warned

him that "urin[e] or defecat[ion] would splatter to the

floor."   Id. ¶ 19.   The inmates were not provided

sufficient cleaning supplies or equipment to keep the

toilet and surrounding area clean.       Id. ¶¶ 18, 20.    Thus,

Walker had to use his personal soap and dishwashing liquid

to clean the toilets and cell.       Id. ¶¶ 18-20 & n.5.

          Finally, Walker's cell was inadequately

ventilated, such that "during the winter the cell [was]

cold and [during the] summer months extremely hot and quite

difficult to breathe."    Id. ¶ 21. 1


    1
          In Walker's opposition to defendants' motion to
dismiss, he further alleged:

          The ventilation in the six man [cell] was
          the same as it was when the six man cell was
          a two man cell. The ventilation was so bad
          in the summer months [that] Schult[] would
          send out memo[]s to the units to have the
          food slot[] door[s] open so air could flow
          through the cells. In the winter the cell
          windows have ice two to four inch[e]s thick
          on the inside of the six man cell.
          Plaintiff had to make his bunk short because
          if not my feet would freeze from the ice
          that came out of the window frame and the
          bunk was maybe six inch[e]s from the
          windows. The cell stayed cold and everybody
          in the six man cell would go to bed with
          hats on or fully dressed in the winter
          months.


                               -6-
           Walker still resided in the six-man cell when he

filed his complaint on March 16, 2011 -- nearly twenty-

eight months after having been placed there on November 18,

2008. 2   For Walker, the experience of being in the six-man

cell was "horrifying."    Id. ¶ 23.

           According to Walker, defendants were aware of and

did nothing to remedy the conditions in his cell.      FCI Ray

Brook wardens Deborah G. Schult and Russell Perdue, 3

associate wardens David Porter, Anne Mary Carter, and

Steven Wagner, unit manager David Salamy, and counselor

Sepanek each "knew of the overcrowding, gang activities,

[and] violence in the cells" and the physical danger that



Pl.'s Opp. at 11, Walker v. Schult, No. 11 Civ. 0287 (N.D.N.Y.
Oct. 24, 2011), ECF No. 29. A district court deciding a motion
to dismiss may consider factual allegations made by a pro se
party in his papers opposing the motion. See, e.g., Gill v.
Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (considering a pro
se plaintiff's affidavit in opposition to a motion to dismiss in
addition to those in the complaint).
     2
          At some point after he filed the complaint, Walker was
transferred from FCI Ray Brook to another institution, Allenwood
Medium Federal Correctional Institution.
     3
          On appeal, Walker explains that he named both Schult
and Perdue in the complaint because the wardenship at FCI Ray
Brook changed while he was incarcerated there. On February 13,
2011, Schult left FCI Ray Brook and Perdue became the new
warden.



                              -7-
Walker faced. 4   Id. ¶ 12.   Walker informed Schult, Sepanek,

Salamy, Porter, and Carter that his bed was too narrow for

him, but he received no response.     Id. ¶ 7.     Further,

defendants were "fully aware that the noise in the unit

[was] so loud and constant," id. ¶ 13, and that the cell

was inadequately ventilated, id. ¶ 21.        Finally, Sepanek,

whose job it was to issue cleaning supplies, failed to do

so.   Id. ¶ 18 n.5.

          Walker pursued his administrative remedies, but

alleged that defendants interfered with and obstructed his

efforts to obtain relief.     Id. ¶¶ 24-27.

B.    Procedural History

          On March 16, 2011, Walker, proceeding pro se,

filed the instant action alleging that defendants violated




      4
          Although the complaint also named Bureau of Prisons
director Harley Lappin and regional director J.L. Norwood,
Walker does not appeal the dismissal of his claims against these
two defendants. We affirm the dismissal of his claims against
Lappin and Norwood because he did not assert that they were
personally involved in the alleged constitutional violations.
See Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010)
("[P]ersonal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under §
1983.").



                               -8-
his constitutional rights while he was imprisoned at FCI

Ray Brook. 5

          On August 25, 2011, defendants moved to dismiss

the complaint based on (1) Walker's failure to exhaust

administrative remedies; (2) Walker's failure to state a

claim upon which relief may be granted; (3) Walker's

failure to allege defendants' personal involvement in the

constitutional violations; and (4) qualified immunity.

          By report and recommendation filed on January 20,

2012, Magistrate Judge Randolph F. Treece recommended

dismissing Walker's complaint for failure to state a claim,

pursuant to Rule 12(b)(6).    The Magistrate Judge noted that

he was unable to properly assess whether Walker fully

exhausted his available administrative remedies or whether

defendants should be estopped from asserting failure to

exhaust as an affirmative defense.    With respect to


     5
          Although Walker used the forms associated with civil
actions under 42 U.S.C. § 1983 to file his complaint, the
district court properly construed his claims -- asserted against
federal officials -- pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See
Macias v. Zenk, 495 F.3d 37, 40 (2d Cir. 2007) (noting that
district court liberally construed plaintiff's § 1983 lawsuit as
a Bivens action).



                              -9-
Walker's allegation that his cell lacked a ladder to access

his top bunk bed, the Magistrate Judge recommended in the

alternative granting the motion to dismiss on qualifi ed

immunity grounds.   The Magistrate Judge also recommended

dismissing the claims against Sepanek and Lappin for

failure to serve them. 6




    6
          Walker received permission to proceed in forma
pauperis. Generally, a pro se litigant proceeding in forma
pauperis is entitled to rely on the U.S. Marshals Service to
effect service. See 28 U.S.C. § 1915(d) ("The officers of the
court shall issue and serve all process . . . in [in forma
pauperis] cases."); Fed. R. Civ. P. 4(c)(3); Wright v. Lewis, 76
F.3d 57, 59 (2d Cir. 1996) (a plaintiff's in forma pauperis
status "shift[s] the responsibility for serving the complaint
from [the plaintiff] to the court"). The failure of the U.S.
Marshals Service to properly effect service of process
constitutes "good cause" for failure to effect timely service,
within the meaning of Federal Rule of Civil Procedure 4(m). See
Romandette v. Weetabix Co., 807 F.2d 309, 311 (2d Cir. 1986)
(reversing dismissal where the U.S. Marshals Service failed to
effect timely personal service through no fault of the
plaintiff). Here, the Bureau of Prisons returned unsigned
requests for waivers of service on behalf of Sepanek and Lappin,
explaining that Sepanek was on "extended medical leave" and
Lappin had retired. Under these circumstances, it was error for
the district court to dismiss Walker's claims against Sepanek
and Lappin for failure to serve without considering whether
Walker attempted to effect personal service on them through the
U.S. Marshals Service and whether the Marshals' failure to serve
them constitutes "good cause" for failure to effect proper
service. See id. Walker does not contest the dismissal of his
claims against Lappin. On remand, the district court shall
consider whether Walker may be entitled to another opportunity
to serve Sepanek.



                              -10-
          Finally, the Magistrate Judge declined to address

defendants' argument that all of Walker's claims should be

dismissed for failure to allege that defendants were

personally involved in the constitutional violations.

          On March 27, 2012, the district court adopted the

report and recommendation in full and dismissed the case.

          This appeal followed.

                         DISCUSSION

A.   Applicable Law

     1.   Motions 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, 556 U.S. 662, 678 (2009) (citation and

internal quotation marks omitted).    A claim is plausible

"when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant

is liable for the misconduct alleged."    Id.   In exercising

this review, our "task is necessarily a limited one.     The

issue is not whether a plaintiff will ultimately prevail

but whether the claimant is entitled to offer evidence to


                               -11-
support the claims."   Scheuer v. Rhodes, 416 U.S. 232, 236

(1974), abrogated on other grounds by Harlow v. Fitzgerald ,

457 U.S. 800 (1982); accord DiFolco v. MSNBC Cable L.L.C.,

622 F.3d 104, 113 (2d Cir. 2010) ("In ruling on a motion

pursuant to Fed. R. Civ. P. 12(b)(6), the duty of a court

is merely to assess the legal feasibility of the complaint,

not to assay the weight of the evidence which might be

offered in support thereof." (citation and internal

quotation marks omitted)).

         Where, as here, the complaint was filed pro se, it

must be construed liberally "to raise the strongest

arguments [it] suggest[s]."    Pabon v. Wright, 459 F.3d 241,

248 (2d Cir. 2006) (quoting Burgos v. Hopkins, 14 F.3d 787,

790 (2d Cir. 1994)) (internal quotation marks omitted);

accord Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Nonetheless, a pro se complaint must state a plausible

claim for relief.   See Harris v. Mills, 572 F.3d 66, 73 (2d

Cir. 2009).

         We review de novo a district court's grant of a

motion to dismiss pursuant to Rule 12(b)(6), accepting all

factual allegations in the complaint as true and drawing


                              -12-
all inferences in the plaintiff's favor.   See Chambers v.

Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).

    2.   The Eighth Amendment

         The Eighth Amendment prohibits the infliction of

"cruel and unusual punishments."   U.S. Const. amend. VIII.

Although the Constitution does not require "comfortable"

prison conditions, the conditions of confinement may not

"involve the wanton and unnecessary infliction of pain."

Rhodes v. Chapman, 452 U.S. 337, 347, 349 (1981).

         To state an Eighth Amendment claim based on

conditions of confinement, an inmate must allege that: (1)

objectively, the deprivation the inmate suffered was

"sufficiently serious that he was denied the minimal

civilized measure of life's necessities," and (2)

subjectively, the defendant official acted with " a

sufficiently culpable state of mind . . . , such as

deliberate indifference to inmate health or safety."

Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001)

(quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994))

(internal quotation marks omitted).




                            -13-
         To meet the objective element, the inmate must

show that the conditions, either alone or in combination,

pose an unreasonable risk of serious damage to his health.

Rhodes, 452 U.S. at 347; Phelps v. Kapnolas, 308 F.3d 180,

185 (2d Cir. 2002) (per curiam).     Thus, prison officials

violate the Constitution when they deprive an inmate of his

"basic human needs" such as food, clothing, medical care,

and safe and sanitary living conditions.     Id. (citation and

internal quotation marks omitted).     "[T]here is no static

test to determine whether a deprivation is sufficiently

serious; the conditions themselves must be evaluated in

light of contemporary standards of decency."     Jabbar v.

Fischer, 683 F.3d 54, 57 (2d Cir. 2012) (citation and

internal quotation marks omitted).     Moreover, conditions of

confinement may be aggregated to rise to the level of a

constitutional violation, but "only when they have a

mutually enforcing effect that produces the deprivation of

a single, identifiable human need such as food, warmth, or

exercise."   Wilson v. Seiter, 501 U.S. 294, 304 (1991)

(noting that "low cell temperature at night combined with a




                            -14-
failure to issue blankets" may establish an Eighth

Amendment violation).

           To meet the subjective element, the plaintiff must

show that the defendant acted with "more than mere

negligence."   Farmer, 511 U.S. at 835.     To constitute

deliberate indifference, "[t]he prison official must know

of, and disregard, an excessive risk to inmate health or

safety."   Jabbar, 683 F.3d at 57.     Evidence that a risk was

"obvious or otherwise must have been known to a defendant"

may be sufficient for a fact finder to conclude that the

defendant was actually aware of the risk.      Brock v. Wright,

315 F.3d 158, 164 (2d Cir. 2003).

    3.     Qualified Immunity

           A federal official is entitled to qualified

immunity from suit for money damages unless the plaintiff

shows that the official violated a statutory or

constitutional right, and that the right was "clearly

established" at the time of the challenged conduct.

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).




                                -15-
            "A Government official's conduct violates clearly

established law when, at the time of the challenged

conduct, the contours of a right are sufficiently clear

that every reasonable official would have understood that

what he is doing violates that right."      Id. at 2083

(citation and internal quotation marks omitted).      Courts

"do not require a case directly on point, but existing

precedent must have placed the statutory or constitutional

question beyond debate."     Id.   If an official's conduct did

not violate a clearly established constitutional right, or

if the official reasonably believed that his conduct did

not violate such a right, then he is protected by qualified

immunity.     Sudler v. City of N.Y., 689 F.3d 159, 174 (2d

Cir. 2012).

            Although courts should resolve the question of

qualified immunity at the "earliest possible stage in

litigation," Saucier v. Katz, 533 U.S. 194, 201 (2001)

(citation and internal quotation marks omitted), abrogated

on other grounds by Pearson v. Callahan, 555 U.S. 223

(2009), "a defendant presenting an immunity defense on a

Rule 12(b)(6) motion instead of a motion for summary


                              -16-
judgment must accept the more stringent standard applicable

to this procedural route," McKenna v. Wright, 386 F.3d 432,

436 (2d Cir. 2004).

B.   Application

          We conclude that the district court erred by

dismissing Walker's complaint for failure to state a claim.

First, he plausibly alleged conditions that, perhaps alone

and certainly in combination, deprived him of a minimal

civilized measure of life's necessities.   Second, he

plausibly alleged that defendants were deliberately

indifferent to this deprivation.   Third, he plausibly

alleged violations of clearly established rights.     We

address each of these issues in turn.

     1.   The Conditions of Confinement

          Walker plausibly alleged that his conditions of

confinement at FCI Ray Brook deprived him of the minimal

civilized measure of life's necessities and subjected him

to unreasonable health and safety risks.   He alleged that

for approximately twenty-eight months, he was confined in a

cell with five other men, with inadequate space and

ventilation, stifling heat in the summer and freezing cold



                            -17-
in the winter, unsanitary conditions, including urine and

feces splattered on the floor, insufficient cleaning

supplies, a mattress too narrow for him to lie on flat, and

noisy, crowded conditions that made sleep difficult and

placed him at constant risk of violence and serious harm

from cellmates.   Based on these allegations, we conclude

that Walker has plausibly alleged cruel and unusual

punishment in violation of the Eighth Amendment.

         First, it is well settled that exposing prisoners

to extreme temperatures without adequate ventilation may

violate the Eighth Amendment.   See Gaston, 249 F.3d at 164

("We have held that an Eighth Amendment claim may be

established by proof that the inmate was subjected for a

prolonged period to bitter cold."); see also, e.g.,

Corselli v. Coughlin, 842 F.2d 23, 27 (2d Cir. 1988)

(claims that inmate was exposed to subfreezing temperatures

for three months with ice forming in toilet bowl were

sufficient to raise issues of fact for jury, even where

prison officials gave inmate extra blanket).

         Second, sleep is critical to human existence, and

conditions that prevent sleep have been held to violate the


                            -18-
Eighth Amendment.   See Tafari v. McCarthy, 714 F. Supp. 2d

317, 367 (N.D.N.Y. 2010) ("Courts have previously

recognized that sleep constitutes a basic human need and

conditions that prevent sleep violate an inmate's

constitutional rights.") (citing Harper v. Showers, 174

F.3d 716, 720 (5th Cir. 1999)); see also, e.g., Wright v.

McMann, 387 F.2d 519, 521-22, 526 (2d Cir. 1967) (inmate

stated Eighth Amendment claim by alleging he was "forced to

sleep completely nude on the cold rough concrete floor and

that the cell was so cold and uncomfortable that it was

impossible for him to sleep for more than an hour or two

without having to stand and move about in order to keep

warm"); Robinson v. Danberg, 729 F. Supp. 2d 666, 683 (D.

Del. 2010) (denying motion to dismiss Eighth Amendment

claims based on allegations that "defendants took spec ific

acts designed to deprive [plaintiff] of sleep"). 7    Further,

at least one court recently found that the condition of a

prisoner's mattress may be so inadequate as to constitute

    7
          Cf. Spivey v. Doria, No. 91 C 4169, 1994 U.S. Dist.
LEXIS 3527, at *32 (N.D. Ill. Mar. 24, 1994) (holding that pre-
trial detainee failed to allege constitutional violation where
he "alleged only that the lights and noise interfere[d] with
his sleep not that he [wa]s unable to sleep or that the sleep
deprivation ha[d] caused him any harm").


                              -19-
an unconstitutional deprivation.     See Bell v. Luna, 856 F.

Supp. 2d 388, 397-98 (D. Conn. 2012) (denying motion to

dismiss where inmate lived for seven months with mattress

that was torn, unstuffed, and smelled like mildew) .

         Third, we have long recognized that unsanitary

conditions in a prison cell can, in egregious

circumstances, rise to the level of cruel and unusual

punishment.   See Lareau v. Manson, 651 F.2d 96, 106 (2d

Cir. 1981) (noting that prisoners are entitled to, inter

alia, sanitation); LaReau v. MacDougall, 473 F.2d 974, 978

(2d Cir. 1972) ("Causing a man to live, eat and perhaps

sleep in close confines with his own human waste is too

debasing and degrading to be permitted.") ; Young v.

Quinlan, 960 F.2d 351, 365 (3d Cir. 1992) (noting that the

denial of "basic sanitation . . . is cruel and unusual

because, in the worst case, it can result in physical

torture, and, even in less serious cases, it can result in

pain without any penological purpose." (citation and

internal quotation marks omitted)). 8   Indeed, unsanitary


    8
          But see Jones v. Goord, 435 F. Supp. 2d 221, 237
(S.D.N.Y. 2006) (evidence that several inmates urinated on,
rather than in, the toilet reflected "isolated incidents of


                              -20-
conditions lasting for mere days may constitute an Eighth

Amendment violation.   See, e.g., Gaston, 249 F.3d at 165-66

(inmate stated an Eighth Amendment claim where the area in

front of his cell "was filled with human feces, urine, and

sewage water" for several consecutive days); Wright, 387

F.2d at 522, 526 (placement of prisoner for thirty-three

days in cell that was "fetid and reeking from the stench of

the bodily wastes of previous occupants which . . . covered

the floor, the sink, and the toilet," combined with other

conditions, would violate the Eighth Amendment).

         Further, the failure to provide prisoners with

toiletries and other hygienic materials may rise to the

level of a constitutional violation.     See Trammell v.

Keane, 338 F.3d 155, 165 (2d Cir. 2003) ("[T]his court and

other circuits have recognized that deprivation of

toiletries, and especially toilet paper, can rise to the

level of unconstitutional conditions of confinement

. . . ."); see also, e.g., Atkins v. Cnty. of Orange, 372

F. Supp. 2d 377, 406 (S.D.N.Y. 2005) ( "The failure to


misbehavior, or simple inaccuracy, [that] do not signify a
structural lack of proper hygiene as a result of double-
celling").


                              -21-
regularly provide prisoners with . . . toilet articles

including soap, razors, combs, toothpaste, toilet paper,

access to a mirror and sanitary napkins for female

prisoners constitutes a denial of personal hygiene and

sanitary living conditions." (internal quotations marks and

citations omitted)).   Availability of hygienic materials is

particularly important in the context of otherwise

unsanitary living conditions.   See, e.g., MacDougall, 473

F.2d at 978.

         Fourth, conditions that place a prisoner at a

"substantial risk of serious harm" from other inmates may

constitute cruel and unusual punishment.   Jones v. Goord,

435 F. Supp. 2d 221, 238 (S.D.N.Y. 2006); see also Farmer,

511 U.S. at 833 ("[P]rison officials have a duty to protect

prisoners from violence at the hands of other prisoners."

(citation, alteration, and internal quotation marks

omitted)); Ayers v. Coughlin, 780 F.2d 205, 209 (2d Cir.

1985) ("The failure of custodial officers to employ

reasonable measures to protect an inmate from violence by

other prison residents has been considered cruel and

unusual punishment."); see also, e.g., Villante v. Dep't of


                            -22-
Corr., 786 F.2d 516, 522-23 (2d Cir. 1986) (inmate could

prevail on constitutional claim based on conditions of

confinement if he could prove that "there was a pervasive

risk of harm to him from other prisoners and that prison

officials displayed deliberate indifference to the

danger").

            In dismissing Walker's complaint, the district

court improperly "assay[ed] the weight of the evidence,"

DiFolco, 622 F.3d at 113, and failed to draw all reasonable

inferences in Walker's favor.    For example, the district

court found that Walker's failure to indicate "the exact

extent or duration of [his] exposure to unsanitary

conditions" was fatal to his Eighth Amendment claim.

Similarly, the court held that Walker's allegations of

inadequate ventilation were insufficient because he did not

provide any details about the temperature s in his cell.

Such detailed allegations, however, are not required for a

pro se complaint to survive a motion to dismiss.     Moreover,

Walker alleged that he was placed in the six-man cell on

November 18, 2008 and was still there when he filed his

complaint on March 16, 2011.    He also alleged that it was


                              -23-
so hot during the summer that he had difficulty breathing,

and it was so cold during the winter that ice formed inside

the cell windows.    Drawing all reasonable inferences in

Walker's favor, these allegations plausibly alleged that

the conditions persisted for twenty-eight months and that

the temperatures were extreme enough to state an Eighth

Amendment claim.

         Further, the district court erred by dismissing

Walker's claims of overcrowding on the ground that "[t]he

twenty-nine square feet that Plaintiff complains about

having in his six-person cell is fundamentally the same

complaint confronted by the Supreme Court in Rhodes [v.

Chapman, 452 U.S. 337 (1981),] and by the Northern District

[of New York] in Chapdelaine [v. Keller, No. 95-CV-1126,

1998 U.S. Dist. LEXIS 23017 (N.D.N.Y. Apr. 16, 1998)]."

Rhodes and Chapdelaine are plainly distinguishable for

three reasons.     First, while the Supreme Court in Rhodes

found that the thirty-one square feet afforded each inmate

in that case did not violate the Eighth Amendment, see

Rhodes, 452 U.S. at 347, it did not hold that that amount

of living space was sufficient as a matter of law.    Rather,


                              -24-
housing multiple inmates together in one cell "can amount

to an Eighth Amendment violation if combined with other

adverse conditions."   Bolton v. Goord, 992 F. Supp. 604,

626 (S.D.N.Y. 1998) (quoting Nami v. Fauver, 82 F.3d 63, 67

(3d Cir. 1996)).   Here, Walker plausibly alleged that the

overcrowding and lack of living space in his cell were

exacerbated by the ventilation, noise, sanitation, and

safety issues, leading to deprivations of specific life

necessities.

          Second, in contrast to the six-man cell to which

Walker was assigned, the inmates in Rhodes and Chapdelaine

were housed in two-man and four-man cells, respectively.

See Rhodes, 452 U.S. at 343 (plaintiffs were assigned to

two-man cells of approximately 63 square feet in size);

Chapdelaine, 1998 U.S. Dist. LEXIS 23017, at *10, *15

(plaintiff was assigned to four-man cell at FCI Ray Brook

of less than 120 square feet in size).   While we do not

hold that a six-man cell can never be constitutional, it is

at least plausible that housing six men in one cell poses

additional, greater risks to the inmates' health and

safety.


                            -25-
         Third, Rhodes and Chapdelaine were decided after

development of the factual record.     See Rhodes, 452 U.S. at

340-41, 342-43 (noting that district court had made

"extensive findings of fact about [the prison] on the basis

of evidence presented at trial and the court's own

observations during an inspection that it conducted without

advance notice," which showed that the prison was

"unquestionably a top-flight, first-class facility"

(internal quotation marks omitted)); Chapdelaine, 1998 U.S.

Dist. LEXIS 23017, at *3-4, *13-15 (treating defendants'

motion to dismiss as one for summary judgment "[s]ince the

parties . . . submitted affidavits and exhibits").      Here,

in contrast, Walker has not had any opportunity to take

discovery or develop the record. 9   Whether or not the



    9
          Further, the principal cases cited by defendants on
appeal were decided after development of the facts on motions
for summary judgment or after trial. See, e.g., Trammel v.
Keane, 338 F.3d 155, 165 (2d Cir. 2003) (finding "no factual
dispute regarding whether the temperature in [plaintiff's] cell
posed a threat to his 'health or safety'" and affirming district
court's award of summary judgment); Gaston v. Coughlin, 249 F.3d
156, 164-66 (2d Cir. 2001) (reversing district court's award of
summary judgment); LaReau v. MacDougall, 473 F.2d 974, 976 (2d
Cir. 1972) (district court made findings of fact and conclusions
of law after trial); Hubbard v. Taylor, 538 F.3d 229, 238 (3d
Cir. 2008) (affirming district court's award of summary judgment
dismissing Eighth Amendment claim "based on the totality of the


                              -26-
factual record, when developed more fully, will ultimately

show that the Eighth Amendment was violated, the facts

asserted in Walker's complaint plausibly alleged

unconstitutional conditions of confinement.

         Accordingly, the district court erred by

concluding as a matter of law that Walker failed to allege

objectively serious conditions that denied him the minimal

civilized measure of life's necessities.

    2.   Deliberate Indifference

         Liberally construed, Walker's complaint adequately

alleged that defendants knew of and disregarded the

excessive risks to his health and safety to which he was

exposed at FCI Ray Brook.    Specifically, Walker alleged

that "Defendants Schult, Perdue, Salamy, Sepanek, Porter,

Carter, [and] Wagner" each "knew of the overcrowding" in

his cell, Compl. ¶ 12, and that he "spoke[] with Defendant

Schult four times about the unconstitutional 6-man cells,"




circumstances presented on this factual record"); Chandler v.
Crosby, 379 F.3d 1278, 1283, 1297-98 (11th Cir. 2004) (affirming
judgment following a bench trial); Green v. Walker, 398 F. App'x
166, 169 (7th Cir. 2010) (non-precedential order) (affirming
district court's award of summary judgment).



                              -27-
id. ¶ 2. 10   He alleged that "[a]ll of the Defendants are

fully aware that the noise in the unit is so loud and

constant" and that "Defendants are aware of the inadequate

ventilation [and that] during the winter the cell is cold

and summer months extremely hot and quite difficult to

breathe."     Id. ¶¶ 13, 21.     Walker also alleged that he

informed Sepanek, Schult, Salamy, Porter, and Carter that

his bed was too narrow.        Id. ¶ 7.     Finally, Walker alleged

that Sepanek, whose job it was to issue cleaning supplies,

failed to do so.     Id. ¶ 18 n.5.        Yet, despite these

complaints and defendants' knowledge, the conditions in

Walker's cell did not change.

            Because Walker set forth sufficient allegations of

defendants' deliberate indifference, the district court

erred by dismissing his complaint.           See Gaston, 249 F.3d at

166 (asserting that defendant prison guards "made daily

rounds of SHU" was sufficient to allege that defendants had

actual knowledge of obvious inhumane conditions); Phelps,

308 F.3d at 186-87 (noting that a plaintiff's ability to


     10
          As noted, Walker does not challenge the dismissal of
his claims against Norwood and Lappin.



                                 -28-
prove facts such as subjective intent is an issue for

summary judgment).

         In so holding, we reaffirm that each prisoner

complaint alleging a constitutional violation must be

carefully analyzed in light of the particular facts

contained therein.   Here, the specific facts in Walker's

complaint plausibly alleged a violation of the Eighth

Amendment.   But each complaint is different, and courts

have the power and duty to dismiss complaints that contain

only conclusory, frivolous, or implausible allegations.

    3.   Qualified Immunity

         Although the district court's discussion of

qualified immunity was limited in scope, defendants assert

on appeal that they are entitled to qualified immunity on

all of Walker's claims because any constitutional rights

they may have violated were not "clearly established."

         Although federal officials' claims of qualified

immunity should be decided as early as possible in a case,

see Saucier, 533 U.S. at 201, it would be premature to

dismiss the case now on this basis.   Rather, as we have

noted previously, qualified immunity is often best decided



                              -29-
on a motion for summary judgment when the details of the

alleged deprivations are more fully developed.   See Castro

v. United States, 34 F.3d 106, 112 (2d Cir. 1994)

("Although a defense of qualified immunity should

ordinarily be decided at the earliest possible stage in

litigation, and it is a defense that often can and should

be decided on a motion for summary judgment, some limited

and carefully tailored discovery may b e needed before

summary judgment will be appropriate." (internal citations

and quotation marks omitted)); Warren v. Dwyer, 906 F.2d

70, 76 (2d Cir. 1990) ("The better rule, we believe, is for

the court to decide the issue of qualified immunity as a

matter of law, preferably on a pretrial motion for summary

judgment when possible . . . .").

         Because we hold that Walker's complaint plausibly

alleged conditions of confinement that could constitute

cruel and unusual punishment, and that defendants acted (or

failed to act) with deliberate indifference, further facts

are required to decide the question of qualified immunity.

In light of the specific allegations here, it would be

inappropriate to conclude as a matter of law at the


                            -30-
pleadings stage of the litigation that defendants did not

violate Walker's clearly established constitutional

rights. 11

                            CONCLUSION

             For the reasons stated above, the judgment of the

district court is affirmed as to defendants Norwood and

Lappin, and vacated as to defendants Schult, Perdue,

Salamy, Sepanek, Porter, Carter, and Wagner.     The case is

remanded to the district court for further proceedings

consistent with this opinion.




     11
          Insofar as the district court concluded that
defendants were entitled to qualified immunity as to Walker's
allegation that his cell lacked ladders to access the top bunk,
we conclude that, while the claim in and of itself does not rise
to the level of a constitutional violation, it must be
considered as part of the total circumstances of Walker's
confinement.



                               -31-
