BUCKLEY v. KOWALSKI

Filing 25

OPINION. Signed by Judge Renee Marie Bumb on 1/14/2015. (TH, )

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
________________________________
:
:
: Civil Action No. 09-5460 (RMB)
Plaintiff,
:
:
v.
:
OPINION
:
MIKE KOWALSKI,
:
:
Defendant.
:
_______________________________________
:
TOM BUCKLEY,

BUMB, District Judge:
This matter comes before the Court upon Plaintiff’s letter
stating that there was a typo in the designation of his P.O. Box,
and that typo affected this more than five-year-long litigation.
See Docket Entry No. 24.

Granted the length of this proceeding

and taking note of Plaintiff’s position, this Court finds it
warranted to summarize the procedural history of this case.
On October 27, 2009, Plaintiff – then an in forma pauperis
litigant and an inmate held at the Atlantic County Justice
Facility, Mays Landing, New Jersey (“Facility”) – filed a pro se
civil complaint raising § 1983 challenges.
1.

See Docket Entry No.

One month later, on January 27, 2010, before his original

pleading was screened, Plaintiff filed an amended § 1983
complaint (“Complaint”) that superseded his original pleading.
See Docket Entry No. 6.

There, he asserted that, on an unspecified date, he was
punched by two Facility inmates, Smith and Feldman.1
at 4.

See id.

Plaintiff also alleged that said incident caused him

emotional distress and loss of weight.2

See id.

In addition,

Plaintiff stated that “[t]he Guard pronted [sic] a dangerous area
for [Plaintiff],” but his Complaint neither named any “Guard” as
a defendant nor clarified the meaning of his statement.3

Id.

Rather, the Complaint informed this Court that Plaintiff was
seeking $100,000 in compensatory damages and, in addition, an

1

Plaintiff’s original pleading suggested that the incident
occurred on September 2, 2009. See Docket Entry no. 1, at 4.
2

Furthermore, Plaintiff alleged that the incident caused
him “loss [of] profit[]” and “deformation.” Docket Entry No. 6,
at 4. While Plaintiff’s statements made in the Complaint suggest
that he suffered no physical injury and, hence, he meant to
allege “defamation” rather than “deformation,” the bases for
Plaintiff’s loss-of-profit and defamation claims are not
immediately apparent from the face of the Complaint. That said,
this ambiguity does not bar this Court’s analysis at the instant
juncture.
3

Although Plaintiff’s statement that “[t]he Guard created
a dangerous area for [Plaintiff]” read rather cryptic, this Court
attempted to distill the gist of Plaintiff’s claim by reflecting
on the statements he made in his original pleading. There, he
referred to a correctional officer Mike Kowalski (“Kowalski”) as
a “Guard” and alleged as follows: “Two Guards[.] 1st Guard called
me child mol[e]ster [and] 2[nd] called me names [and] refused
[to] give me shoes.” Docket Entry No. 1, at 4. Since the
Complaint did not make any references to the unidentified “2nd
Guard,” this Court concluded that Plaintiff’s cryptic statement
(that “[t]he Guard created a dangerous area for [Plaintiff]”)
reflected Plaintiff’s belief that Kovalski’s alleged “child
molester” reference prompted Smith and Feldman to punch
Plaintiff. Accord Docket Entry No. 6, at 4 (assertng that Smith
“hit [Plaintiff] because Guard Kowalski said [the phrase ‘]child
mol[e]ster[’]”).
2

unspecified amount in “trouble” damages, which this Court
presumed to be punitive damages.

See id.

On April 16, 2010, this Court entered an order and
accompanying opinion granting Plaintiff in forma pauperis status
and screening Plaintiff’s claims against Smith and Feldman.
Docket Entries Nos. 7 and 8.

See

The Court explained to Plaintiff

that his claims against Smith and Feldman were not cognizable
under Section 1983 since these inmates did not qualify as state
actors.

See Docket Entry No. 7, at 5.

Therefore, the Court

dismissed Plaintiff’s Complaint for failure to meet the color of
law requirement.

See id. at 5-6; see also Docket Entry No. 8.

However, the dismissal was without prejudice, and Plaintiff was
allowed an opportunity to elaborate on his claim, if any, against
Kowalski, provided that his re-amended pleading was filed within
forty-five days.4

See id.

This Court’s determination to that

effect was entered on April 16, 2010 (“April Decision”).

See id.

The forty-five-day period allowed by the April Decision
expired, but no re-amended pleading was filed.
Docket.

See, generally,

However, more than six months after the entry of the

April Decision, Plaintiff did make a filing: he filed another §

4

Since it was not immediately clear whether Plaintiff was
a pre-trial detainee or a convicted prisoner at the time of the
alleged incident, this Court – out of an abundance of caution –
assessed Plaintiff’s potential claim against Kowalski under the
Due Process clause of the Fourteenth Amendment rather than under
the Eighth Amendment ban on cruel and unusual punishment.
3

1983 civil complaint which the Clerk understandably construed as
a new and separate pleading and commenced Buckley v. Feldman
(“Buckley-II”), Civil Action No. 10-6181.
Entry No. 1.

See Buckley-II, Docket

The Buckley-II complaint, however, was effectively

a repeat of Plaintiff’s Complaint dismissed without prejudice by
this Court’s April Decision.

Compare id. to Instant Matter,

Docket Entries Nos. 1 and 6.

Therefore, upon conducting its

periodic review of the docket, this Court: (a) located BuckleyII; (b) detected the substantive similarity between the BuckleyII claims and the challenges Plaintiff raised here; and,
therefore, (c) construed the Buckley-II pleading as Plaintiff’s
second amended complaint submitted in the instant matter.
Instant Matter, Docket Entry No. 10.

See

With that, this Court

directed the Clerk to administratively terminate Buckley-II as
duplicative of the case at bar.

See id.

Taking notice of the fact that the Buckley-II pleading
named, as defendants, Feldman, the Facility and Kowalski, this
Court: (a) re-dismissed Plaintiff’s challenges against Feldman
for failure to meet the color of law requirement; and (b)
dismissed Plaintiff’s allegations against the Facility on the
grounds that the Facility was not a “person” within the meaning
of Section 1983.

See Docket Entry No. 12.

As to Kowalski, this

Court found that he was properly named as a defendant (in the
sense that he was a state actor and a person amenable to a § 1983

4

suit for damages) but reserved screening Plaintiff’s claim
against Kowalski.

See Docket Entry No. 12.

However, being

mindful of the two and a half years that had expired since the
alleged incident (that is, the incident when Plaintiff was
supposedly punched by Smith and Feldman), this Court directed the
Clerk to execute service on Kowalski so to apprise Kowalski of
this litigation.

See id.5

To add to the complexities of this matter, the abovedetailed dense procedural background took place against a
troubling backdrop of Plaintiff’s systemic failure to comply with
the District’s Local Rule requiring unrepresented parties to
promptly notify the Clerk of their changes in address.

This

Court summarized the pattern of Plaintiff’s litigation as
follows:
This civil matter . . . has been thickly peppered by
returns of this Court’s decisions (and the Clerk's
other mailings addressed to Plaintiff) on the grounds
of Plaintiff’s numerous changes in address and his
constant failures to apprise the Clerk of each new
address. Correspondingly, this matter has been
numerously terminated on the grounds of Plaintiff's
failure to comply with the Local Rule directing
“unrepresented parties to advise the Court of any
change in their address within seven days of being

5

The Clerk duly complied by issuing a summons in
Kowalski’s name, and the U.S. Marshal attempted service. See
Docket Entry No. 13. However, that summons was returned
unexecuted, and Plaintiff provided the Clerk and U.S. Marshal
with no assistance in locating Kowalski. See Docket Entry No.
17. Correspondingly, the summons issued by the Clerk expired,
and this matter reverted back to its screening point. See id.
5

apprised of such change by filing a notice of said
change.” Yet, upon each Plaintiff’s filing informing
the Clerk of Plaintiff’s new address, this Court,
mindful of Plaintiff’s pro se litigant status, was
directing the Clerk to reopen this matter so to address
the next step in this proceeding. The last such
measure was taken on June 2, 2014, when - after
abandoning this litigation for two years - Plaintiff
filed his May 20, 2014, letter stating that his address
changed to [a] P.O. Box [in] Hoboken . . . . However,
the Clerk’s mailing (informing Plaintiff that this
matter was reopened pursuant to this Court’s June 2,
2014, order) was returned as undeliverable, even though
it was sent to the Hoboken address he provided. Thus,
this matter has again become subject to termination
under Rule 10.1(a).
Docket Entry No. 23, at 1-2 (emphasis, ellipses and citations
omitted).
In response to the above-quoted observation, Plaintiff filed
the letter at bar: (a) stating that there was a typographical
error in the designation of the P.O. Box used by Plaintiff; and
(b) assuring this Court that Plaintiff has always been in due
receipt of all Clerk’s mailings.

See Docket Entry No. 24.

The nature of Plaintiff’s reference to the alleged
typographical error is not entirely clear to this Court since the
Clerk’s mailings returned to the Clerk were, indeed, addressed to
Plaintiff’s allegedly correct Hoboken address, i.e., to the
address without the alleged typographical error.

That said,

being satisfied with Plaintiff’s assurances that he is in due
receipt of all Clerk’s mailings, this Court find the errornot
warranting review and, with that, proceeds to screening

6

Plaintiff’s allegations against Kowalski to prompt a resolution
of this protracted matter.
Two concepts guide this Court’s analysis of Plaintiff’s
allegations against Kowalski: one is the pleading standard of
Rule 8 and another is the substantive test applicable to failureto-protect claims.

Under the pleading standard, if the plaintiff

establishes a only a possibility that he suffered a wrong, such
“possibility” cannot qualify as a viable claim.

“[A] complaint

must contain sufficient factual matter, [which,] accepted as
true, [does] ‘state a claim to relief that is plausible on its
face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), emphasis
supplied).

“The plausibility standard . . . asks for more than a

sheer possibility that a defendant has acted unlawfully.”
662 (emphasis supplied).

Id. at

This pleading standard was specifically

adopted to eliminate those claims that did not present “enough”
factual matter and asserted a mere “possibility.”
550 U.S. at 556.

See Twombly,

Simply put, where the plaintiff fails to nudge

his/her “claims across the line from conceivable [i.e., from
merely possible,] to plausible, [his/her] complaint must be
dismissed.”

Id. at 570.

The Court of Appeals’ Bistrian v. Levi decision aptly
demonstrated the importance of this possibility-plausibility

7

distinction for the purposes of a failure-to-protect claim.

See

696 F.3d 352, 367 (3d Cir. 2012).
The Bistrian Court built on the long-established substantive
test governing failure-to-protect claims.

The Eighth Amendment’s

prohibition against the infliction of cruel and unusual
punishment has been interpreted to impose upon prison officials a
duty to take reasonable measures “to protect prisoners from
violence at the hands of other prisoners.” Hamilton v. Leavy, 117
F.3d 742, 746 (3d Cir. 1997) (quoting Farmer v. Brennan, 511 U.S.
825, 833 (1994)) (internal citations omitted).6

However, not

“every injury suffered by one prisoner at the hands of another .
. . translates into constitutional liability for prison officials
responsible for the victim’s safety.”

Farmer, 511 U.S. at 834.

Indeed, the plaintiff must establish more than a mere fact of
having an incident with another inmate.

See Shelton v. Bledsoe,

2012 U.S. Dist. LEXIS 153059 (M.D. Pa. Oct. 24, 2012).

This is

so because negligent conduct by prison officers, even if it leads
to a serious injury of a prisoner in the hands of another

6

Since the Bistrian Court clarified that the Eighth
Amendment test set forth in Farmer applied to pre-trial detainees
whose challenges were governed by the Due Process Clause of the
Fourteenth Amendment, see Bistrian, 696 F.3d at 366-67 (under the
Constitution’s guarantees of due process, a pre-trial detainee is
entitled to no less protection from inmate violence than a
sentenced inmate is under the Eighth Amendment), the substantive
test set forth in Farmer and its progeny governs Plaintiff’s
claim against Kowakski.
8

prisoner, does not expose the officers to liability under § 1983.
See Davidson v. Cannon, 474 U.S. 344, 347-48 (1986); see also Cty
of Sacramento v. Lewis, 523 U.S. 833, 849 (1998).

Therefore, to

state a viable failure-to-protect claim, the plaintiff must
detail the facts showing that: “(1) he was incarcerated under
conditions posing a substantial risk of serious harm, (2) the
[defendant-officer] was deliberately indifferent to that
substantial risk . . . , and (3) the [defendant’s] deliberate
indifference caused [the plaintiff’s] harm.”

Bistrian v. Levi,

696 F.3d 352, 367 (3d Cir. 2012); see also Beers-Capitol v.
Whetzel, 256 F.3d 120, 133 (3d Cir. 2001).
Because deliberate indifference is a subjective standard,
“the prison official-defendant must actually have known or been
aware of the excessive risk to inmate safety.”
at 125.

Whetzel, 256 F.3d

Paramount here, a prison official’s awareness of overall

violence among the inmate or of violent propensities (or history
of violence) of particular inmates does not supply an inference
of deliberate indifference.

See, e.g., Bistrian, 696 F.3d at 371

(the “risk that an inmate with a history of violence might attack
another inmate” is too “speculative” to give rise to an inference
of deliberate indifference); cf. Schwartz v. Cty of Montgomery,
843 F. Supp. 962, 971 (E.D. Pa. 1994), aff’d, 37 F.3d 1488 (3d
Cir. 1994).

9

To illustrate this crucial distinction between: (a) a
“plausibility” scenario (ensuing from an officer’s actual
awareness of the excessive risk to the inmate’s safety); and (b)
a “mere possibility” scenario, the Court of Appeals in Bistrian
reflected on two different injuries suffered by the very same
plaintiff.
There, the inmate Peter Bistrian, being housed in a special
housing unit (“SHU”), was recruited by prison officials to assist
the prison’s Special Investigative Services (“SIS”) and FBI
agents.

Since Bistrian, being an orderly in the SHU, was asked

by other SHU inmates (who were known gang members investigated by
the FBI) to pass their notes from one another, the SIS/FBI
officers directed Bistrian to bring those notes first to the SIS
office (for photocopying and investigation) and then deliver the
notes to the intended addressees.
Unfortunately, the untidy SIS operations resulted in
numerous occasions when the photocopied notes (rather than the
original notes) were returned to Bistrian for delivery to the
addressees, which put the gang members on notice about Bistrian
being an informant.

When the gang-member inmates began expressly

threatening Bistrian that they would harm him as soon as they see
him in the recreation yard, Bistrian advised the prison officials
of those threats.

Yet, the very next month, Bistrian was placed

in a locked recreation yard pen with those gang members, and they
10

beat him unconscious and continued beating him after he passed
out, causing Bistrian a dislocated left shoulder, broken teeth,
and multiple contusions and lacerations to his head and face
(“First Scenario”).
Four months later, Bistrian was put in the recreation yard
with another inmate (who was not related to the gang-members that
injured Bistrian, but that inmate had a history of violence
because he was frequently – but randomly – attacking other
detainees, and the prison officers were aware of those attacks).
That inmate attacked Bistrian with a razor by slashing and
cutting Bistrian’s face, arms and legs (“Second Scenario”).
Bistrian sued, seeking damaged on the basis of these two
scenarios and claiming failure to protect in both instances.
Examining these two scenarios, the Court of Appeals
concluded that the First Scenario alleged a sufficiently
plausible failure-to-protect claim, while the Second Scenario
asserted an insufficient claim, since it was based on a mere
possibility of harm.

The Bistrian Court explained as follows:

[W]e conclude that keeping Bistrian in the SHU was
itself not unreasonable, but . . . we conclude that
Bistrian state[d] a plausible failure-to-protect claim
[in the First Scenario]. . . . [P]utting him in a
locked recreation area with [the gang members] posed a
substantial risk of serious harm because (a) [the gang
members] knew of Bistrian’s cooperation with prison
officials plus (b) [the gang members] had a violent
criminal past and had previously threatened to attack
Bistrian in the recreation yard because of that
cooperation. . . . [Prison] officials were deliberately
11

indifferent to the obvious risk posed because they made
no attempt to prevent his placement in the yard with
[the gang members] despite the fact that . . . Bistrian
. . . repeatedly advised the officials responsible for
the photocopying operation of the threats [that the
gang members] made. [Finally,] Bistrian [sufficiently]
ple[d] causation: [the gang members] violently attacked
him . . . in the recreation yard because he cooperated
with prison officials [in exposing their gangrelations]. . . . We acknowledge that when inmates
claim they are in danger, they confront prison
officials with an arduous task. Prisoners may feign
their fear of physical harm simply to manipulate a
transfer, in the hope, for example, of obtaining more
desirable living arrangements. But [in the First
Scenario], Bistrian sets out sufficient factual
allegations . . . radically different from an
out-of-the-blue and unadorned “I’m-in-trouble”
entreaty. . . . Given [the SIS/FBI’s] familiarity
with the [photocopying] scheme and the players
involved, [Bistrian’s facts show that it was] plausible
that they knew Bistrian’s cries for help were
legitimate and that he faced a substantial risk of
serious harm. After all, the genesis of the
[photocopying] operation was a desire to assist an FBI
investigation into violent criminal activity by [the
gang members] that included, among other things,
substantial witness intimidation. . . .
[In contrast,] Bistrian does not allege that [the
inmate who attacked him in the Second Scenario] had any
connection to [the gang members] or that [this inmate]
otherwise attacked [Bistrian] because he was an
informant. . . . Bistrian [merely] refers to [this
inmate’s] “history of violent assaults against other
inmates” . . . We cannot conclude on these allegations
that prison officials were deliberately indifferent to
such a speculative risk.
Bistrian, 696 F.3d at 368-71 (citations and internal quotation
marks omitted).7

7

Accord Shelton v. Bledsoe,
F.3d
, 2015 U.S. App.
LEXIS 253 (3d Cir. Pa. Jan. 7, 2015) (addressing another version
of a plausible scenario and reversing grant of summary judgment
12

Here, Plaintiff’s allegations against Kowalski fail to reach
even the level of the Second Scenario addressed in Bistrian; a
fortiori, these allegations cannot reach the benchmark set by the
First

Bistrian Scenario (or by the scenario addressed in

Shelton).

Here, Plaintiff: (a) merely asserts that Kowalski

referred to him as a “child molester”; and then (b) selfservingly speculates that Smith and Feldman must have construed
that reference as a statement reflecting on the charges Plaintiff
actually faced (rather than as a derogatory term) and must have
punched plaintiff simply because of their uncontrollable animus
to child molesters.
However, Plaintiff offers this Court no facts showing that
Smith and/or Feldman had an actual uncontrollable animus to child
molesters.

Analogously, Plaintiff offers this Court no facts

in favor of Special Management Unit (“SMU”) officers. There, an
inmate housed at the SMU stated facts showing that: (a) the SMU
“house[d] inmates who have been identified as having violent
tendencies or who have a history of gang involvement; (b) the
“SMU officials . . . responsible for assigning cellmates in a
manner that ensures the safety and security of the prison
[invariably] interviewed [all incoming inmates since the SMU
officials were obligated] to ensure that inmates who may be
hostile to each other [were] not housed in the same cell”; but
(c) the SMU officials intentionally “engaged in a pattern,
practice, or policy of improperly placing inmates who [were]
known to be hostile to each other in the same cell [and then
intentionally] fail[ed] to intervene when the predictable
inmate-on-inmate violence erupt[ed]”; and (d) to maximize the
amount of such inmate-on-inmate violence, the SMU officials
punished and intimidated those “inmates who refuse[d] cell
assignments with [those] inmates who [were] known to be hostile
to them”).
13

showing: (a) that Kowalski had a reason to know that Smith and/or
Feldman had such an animus and that they would construe
Kowalski’s references as a statement about the charges Plaintiff
faced (rather than a mere derogatory term); or (b) that Kowalski
was deliberately indifferent to the substantial risk of such
misconstruction and substantial risk of harm that his reference
would cause.8

In sum, all Plaintiff offers this Court is his

bold self-serving deducements.
This is exactly the mode of pleading against which the
Supreme Court warned by stressing that a complaint must be
dismissed if the plaintiff fails to nudge his “claims across the
line from conceivable to plausible,” Twombly, 550 U.S. at 570:
because “[t]he plausibility standard . . . asks for more than a
sheer possibility that a defendant has acted unlawfully.”
Iqbal, 556 U.S. at 678.

Correspondingly, at this juncture,

Plaintiff’s allegations against Kowalski are insufficient and
will be dismissed.
That said, mindful of Plaintiff’s pro se litigant status,
this Court finds it warranted to allow Plaintiff one final
opportunity to re-plead his claim against Kowalski by detailing

8

Indeed, even if this Court were to presume that Kowalski
actually made the alleged “child molester” reference, the
allegations provided thus far suggest that Kowalski used the
“child molester” reference as a derogatory term and was, at most,
negligent about the consequences of his utterance.
14

his facts, if any, making the requisite showing under the test
set forth in Farmer and elaborated upon in Bistrian.9
For the foregoing reasons, this matter will remain in
administrative termination subject to reopening in the event
Plaintiff timely submits his third amended complaint.

See

Papotto v. Hartford Life & Accident Ins. Co., 731 F.3d 265 (3d
Cir. 2013) (“administrative closings [are not final dismissals on
the merits; rather, they] are a practical tool used by courts to
prune overgrown dockets”).10

9

Since Plaintiff has been long released from confinement,
Plaintiff’s continuous suitability for in forma pauperis status
is uncertain at this juncture. Analogously, the fact that – more
than five years after the alleged incident – Kowalski has not
been served with Plaintiff’s pleading (and, thus, Kowalski is
still wholly unaware of Plaintiff’s claim, and might be greatly
disadvantaged by this lengthy passage of time) is a substantial
concern to this Court. Finally, the fact that the U.S. Marshal
was unable to locate Kowalski and execute service (and Plaintiff
failed to provide the Clerk and the U.S. Marshal with assistance
as to locating Kowalski for the purposes of service of process)
is an additional consideration since it suggests that this Court
might never obtain in personam jurisdiction over Kowalski. Yet,
these procedural and jurisdictional considerations need not be
reached at this juncture since the substantive deficiency of
Plaintiff’s allegations, unless cured, would render these
obstacles moot. Therefore, this Court’s determinations as to
these procedural and jurisdictional aspects will be reserved.
10

The Court strongly cautions Plaintiff against disguising
bold self-serving deducements as facts. As the Supreme Court
explained:
Rule 8 . . . demands more than
defendant-unlawfully-harmed-me
viable] complaint must contain
matter . . . to “state a claim
plausible on its face.”
15

an unadorned, theaccusation. . . . [A
sufficient factual
to relief that is

An appropriate Order follows.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: January 14, 2015

Iqbal, 556 U.S. at 678-79. “[A] plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Twombly, 550
U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286
(1986)); accord Iqbal, 556 U.S. at 678 (“Threadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements, do not suffice”). Hence, Plaintiff’s allegations
must be factual, i.e., a description of “the who, what, when,
where, and how: the first paragraph of any newspaper story.” In
re Advanta Corp. Sec. Litig., 180 F.3d 525, 534 (3d Cir. 1999).
16