SALESKY v. BALICKI et al

Filing 52

OPINION. Signed by Chief Judge Jerome B. Simandle on 6/21/2013. (dmr)(n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LEONARD SALESKY,
Plaintiff,
v.
KAREN BALICKI, et al.
Defendants.

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Civil No. 10-5158 (JBS)

OPINION

APPEARANCES:
Leonard Salesky
719571A 522644
South Woods State Prison
215 Burlington Road South
Bridgeton, NJ 08302
Plaintiff pro se
John J. Hoffman
Acting Attorney General of New Jersey
By: Susan M. Scott
Deputy Attorney General
Office of the NJ Attorney General
R.J. Hughes Justice Complex
P.O. Box 112
Trenton, NJ 08625
Counsel for Defendants
SIMANDLE, Chief Judge:
This matter comes before the Court on a Motion to Dismiss
[31] filed pursuant to Fed. R. Civ. P. 12(b)(6) by Defendants
Karen Balicki and South Woods State Prison.

The Court has

reviewed the relevant filings by the parties with regard to this
motion, and will grant the motion.

I.

Background
Plaintiff Leonard Salesky, a prisoner confined at South

Woods State Prison, initially filed a “Motion for an Emergent
Order To Prevent Untimely Death of Petitioner” in his 28 U.S.C. §
2254 case (Docket No. 10-4806).

By Order dated October 5, 2010

(docket entry no. 2), this Court severed that motion into this
separate 42 U.S.C. § 1983 matter.

Thereafter, Plaintiff filed an

Amended Complaint (docket entry no. 3) against Karen Balicki and
University of Medical and Dental of New Jersey regarding medical
treatment received by Plaintiff while in custody.

Later,

Plaintiff filed an amendment to the complaint (docket entry no.
18) at which time South Woods State Prison and University
Correctional Healthcare were added as defendants.
Defendants Balicki and South Woods State Prison now bring
this motion for an order to dismiss Plaintiff’s Complaint as
against them pursuant to Fed. R. Civ. P. 12(b)(6).
Plaintiff does not allege any facts against these defendants
in any of the filings made in this matter.
II.

Standard of Review
Under Fed. R. Civ. P. 12(b)(6), the court must “accept all

factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under any
reasonable reading of the complaint, the plaintiff may be
entitled to relief.”

Fleisher v. Standard Ins. Co., 679 F.3d

2

116, 120 (3d Cir. 2012).

The 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) (internal quotation marks omitted).

“A claim has facial

plausibility 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.

Allegations that are no more than legal conclusions are not
entitled to the same assumption of truth.
F.3d 352, 365 (3d Cir. 2012).

Bistrian v. Levi, 696

To determine if a complaint meets

the pleading standard, the Court must strip away conclusory
statements and “look for well-pled factual allegations, assume
their veracity, and then determine whether they plausibly give
rise to an entitlement of relief.”

Id. (internal quotation marks

omitted).
III. Analysis
1.

Defendant South Woods State Prison

Plaintiff names the South Woods State Prison (SWSP) as a
defendant.

However, SWSP must be dismissed from this action

pursuant to the Eleventh Amendment.

The Eleventh Amendment to

the United States Constitution provides that, “The Judicial power
of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the
United States by citizens of another State, or by Citizens or

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Subjects of any Foreign State.”

As a general proposition, a suit

by private parties seeking to impose a liability which must be
paid from public funds in a state treasury is barred from federal
court by the Eleventh Amendment, unless Eleventh Amendment
immunity is waived by the state itself or by federal statute.
See, e.g., Edelman v. Jordan, 415 U.S. 651, 663 (1974).

The

Eleventh Amendment protects states and their agencies and
departments from suit in federal court regardless of the type of
relief sought.

See Pennhurst State School and Hospital v.

Halderman, 465 U.S. 89, 100 (1984).

Similarly, absent consent by

a state, the Eleventh Amendment bars federal court suits for
money damages against state officers in their official
capacities.

See Kentucky v. Graham, 473 U.S. 159, 169 (1985).

Section 1983 does not override a state’s Eleventh Amendment
immunity.

See Quern v. Jordan, 440 U.S. 332 (1979).

Additionally, the SWSP must be dismissed from this lawsuit
because it is not a “person” subject to liability under § 1983.
See Grabow v. Southern State Correctional Facility, 726 F. Supp.
537, 538–39 (D.N.J. 1989) (correctional facility is not a person
under § 1983).

Therefore, all claims against the SWSP will be

dismissed with prejudice.
2.

Defendant Balicki

Further, it appears that Plaintiff is asserting a claim of
liability against defendant Balicki on the sole basis that she

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was the administrator of SWSP.

The complaint fails to allege any

facts in support of a claim based on supervisor liability.

In

his complaint, Plaintiff did not allege any facts whatsoever in
support of any claim of supervisory liability as against
defendant Balicki.

Accordingly, the complaint should be

dismissed as against defendant Balicki pursuant to Iqbal.
As a general rule, government officials may not be held
liable for the unconstitutional conduct of their subordinates
under a theory of respondeat superior.

See Iqbal, 129 S. Ct. at

1948; Monell v. New York City Dept. Of Social Servs., 436 U.S.
658, 691 (1978) (finding no vicarious liability for a municipal
“person” under 42 U.S.C. § 1983); Robertson v. Sichel, 127 U.S.
507, 515–16 (1888) (“A public officer or agent is not responsible
for the misfeasances or position wrongs, or for the nonfeasances,
or negligences, or omissions of duty, of subagents or servants or
other persons properly employed by or under him, in discharge of
his official duties”).

In Iqbal, the Supreme Court held that

“[b]ecause vicarious or supervisor liability is inapplicable to
Bivens1 and § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own
individual actions, has violated the Constitution.”
S.Ct. at 1948.

Iqbal, 129

Thus, each government official is liable only for

his or her own conduct.

The Supreme Court rejected the

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Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
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contention that supervisor liability can be imposed where the
official had only “knowledge” or “acquiesced” in their
subordinates conduct.

See id., 129 S. Ct. at 1949.

Here, there are no allegations of any wrongful conduct with
respect to defendant Balicki, other than identifying her as an
administrator.

Accordingly, any § 1983 claims must be dismissed

as against this defendant.
IV.

Conclusion
Based on the foregoing, the Motion to Dismiss [31] filed

pursuant to Fed. R. Civ. P. 12(b)(6) by Defendants Karen Balicki
and South Woods State Prison will be granted and the Complaint
against Defendants Karen Balicki and South Woods State Prison
shall be dismissed.

An appropriate order follows.

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
Dated:

June 21, 2013