12-1806-cv 

Walker v. Schult

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2012

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

Docket No. 12-1806-cv 

________________________

ELLIS WALKER,

Plaintiff-Appellant,

v.

DEBORAH G. SCHULT, Warden, FCI Ray Brook, RUSSELL PERDUE, Warden, 

FCI Ray Brook, DAVID SALAMY, Unit Manager, FCI Ray Brook,

SEPANEK, Counselor, FCI Ray Brook, DAVID PORTER, Associate 

Warden, FCI Ray Brook, ANNE MARY CARTER, Associate Warden, FCI 

Ray Brook, STEVEN WAGNER, Associate Warden, FCI Ray Brook,

J.L. NORWOOD, Regional Director, HARLEY LAPPIN, Director, 

Bureau of Prisons,

Defendants-Appellees.

________________________

Before:

WESLEY and CHIN, Circuit Judges,

and LARIMER, 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.
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J.), entered on March 27, 2012, granting defendantsappellees' 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.

JOHN D. CASTIGLIONE (Kyle L. Wallace, 

Noreen A. Kelly-Dynega, Natalie M. 

Georges, on the brief), Latham & 

Watkins LLP, New York, New York, for 

Plaintiff-Appellant.

PAULA RYAN CONAN, 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.

CHIN, 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 
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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 
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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 
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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 
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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.
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Walker still resided in the six-man cell when he 

filed his complaint on March 16, 2011 -- nearly twentyeight 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.
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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.").
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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).
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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 qualified 

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.
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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 
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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 
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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).
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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 
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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)). 
-16-

"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 
-17-

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 
-18-

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 
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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 specific 

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 pretrial 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").
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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 
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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 doublecelling"). 
-22-

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 
-23-

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 temperatures 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 
-24-

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, 
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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. 
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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 
-27-

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).
-28-

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. 
-29-

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 
-30-

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 be 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 
-31-

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.