GREEN v. BAYSIDE STATE PRISON et al
Filing
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OPINION. Signed by Judge Robert B. Kugler on 10/13/2011. (nz, )N.M.
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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Plaintiff,
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v.
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BAYSIDE STATE PRISON, et al., :
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Defendants.
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DAVID L. GREEN,
Civil Action No.:11-1833 (RBK)
O P I N I O N
APPEARANCES:
David L. Green, Pro Se
#398123C/666302
Southern State Correctional Facility
4295 Route 47
Delmont, NJ 08314
KUGLER, District Judge
Plaintiff, David L. Green, is currently confined at the
Southern State Correctional Facility, Delmont, New Jersey.
Plaintiff seeks to bring this action in forma pauperis, alleging
violations of his constitutional rights.
At this time, the Court
must review the complaint, pursuant to 28 U.S.C. §§ 1915(e)(2)
and 1915A, to determine whether it should be dismissed as
frivolous or malicious, for failure to state a claim upon which
relief may be granted, or because it seeks monetary relief from a
defendant who is immune from such relief.
For the following
reasons, the complaint will be dismissed, without prejudice.
BACKGROUND
Plaintiff alleges that on October 16, 2010, while housed at
Bayside State Prison, he got into a verbal altercation with a
female correctional officer, defendant Jane Doe, who accused him
of grabbing his private area while walking past her.
Her
partner, defendant Officer Pepper, had words with Plaintiff, and
then, in retaliation, kicked Plaintiff in the groin while
defendant officer John Doe held him.
Defendant Pepper asked
Plaintiff if he had anything to say to the female officer and
Plaintiff replied that he did not, and after more words,
defendant Pepper kicked Plaintiff a second time in the groin.
Plaintiff seeks to sue defendant Pepper for excessive force,
and the female correctional officer for failure to intervene, as
she allegedly watched defendant Pepper kick Plaintiff.
Plaintiff asks for monetary and other relief.
DISCUSSION
A.
Standards for Sua Sponte Dismissal
The Prison Litigation Reform Act (“PLRA”), Pub. L. No.
104–134, §§ 801–810, 110 Stat. 1321–66 to 1321–77 (April 26,
1996), requires a District Court to screen a complaint in a civil
action in which a plaintiff is proceeding in forma pauperis and
to sua sponte dismiss any claim if the Court determines that it
is frivolous, malicious, fails to state a claim on which relief
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may be granted, or seeks monetary relief from a defendant who is
immune from such relief.
See 28 U.S.C. § 1915(e)(2)(B).
The pleading standard under Rule 8 was refined by the United
States Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
In
Ashcroft, the Supreme Court hammered the “final
nail-in-the-coffin” for the “no set of facts” standard set forth
in Conley v. Gibson, 355 U.S. 41, 45–46 (1957),1 which was
previously applied to determine if a federal complaint stated a
claim.
See Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir.
2009).
The Supreme Court clarified as follows:
Two working principles underlie our decision in
Twombly. First, the tenet that a court must accept as
true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice .... Rule 8
marks a notable and generous departure from the
hyper-technical, code-pleading regime of a prior era,
but it does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.
Second, only a complaint that states a plausible claim
for relief survives a motion to dismiss. Determining
whether a complaint states a plausible claim for relief
will ... be a context-specific task that requires the
reviewing court to draw on its judicial experience and
common sense. But where the well-pleaded facts do not
permit the court to infer more than the mere
possibility of misconduct, the complaint has
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The Conley court held that a district court was permitted
to dismiss a complaint for failure to state a claim only if “it
appear[ed] beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.”
Conley, 355 U.S. at 45–46.
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alleged-but it has not “show[n]”-“that the pleader is
entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2).
In keeping with these principles a court
considering a motion to dismiss can choose to begin by
identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth. While legal conclusions can provide the
framework of a complaint, they must be supported by
factual allegations. When there are well-pleaded
factual allegations, a court should assume their
veracity and then determine whether they plausibly give
rise to an entitlement to relief.
Iqbal, 129 S. Ct. at 1949–1950 (citations omitted).
Since Iqbal, the Third Circuit has required district courts
to conduct, with regard to Rule 8 allegations, a three-part
analysis when reviewing a complaint for dismissal for failure to
state a claim:
To determine the sufficiency of a complaint under
the [Iqbal] pleading regime ..., a court must take
three steps: First, the court must “tak[e] note of the
elements a plaintiff must plead to state a claim.”
Iqbal, 129 S.Ct. at 1947. Second, the court should
identify allegations that, “because they are no more
than conclusions, are not entitled to the assumption of
truth.” Id. at 1950. Finally, “where there are
well-pleaded factual allegations, a court should assume
their veracity and then determine whether they
plausibly give rise to an entitlement for relief.” Id.
Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010)
(internal footnote omitted).
The Court is mindful that the sufficiency of this pro se
pleading must be construed liberally in favor of the plaintiff,
even after Iqbal.
See Erickson v. Pardus, 551 U.S. 89 (2007).
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B.
Section 1983 Actions
A plaintiff may have a cause of action under 42 U.S.C.
§ 1983 for certain violations of his or her constitutional
rights.
Section 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory ... subjects, or causes to be subjected,
any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress ... .
Thus, to establish a violation of 42 U.S.C. § 1983, a plaintiff
must demonstrate that the challenged conduct was committed by (1)
a person acting under color of state law and (2) that the conduct
deprived him of rights, privileges, or immunities secured by the
Constitution or laws of the United States.
See Parratt v.
Taylor, 451 U.S. 527, 535 (1981), overruled in part on other
grounds by Daniels v. Williams, 474 U.S. 327 (1986); Adickes v.
S.H. Kress & Co., 398 U.S. 144, 152 (1970); Piecknick v.
Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994).
C.
Plaintiff’s Complaint Must Be Dismissed.
First, this Court notes that Bayside State Prison is not a
proper defendant in this § 1983 action, and will be dismissed
from the action, with prejudice.
See Grabow v. Southern State
Correctional Facility, 726 F. Supp. 537, 538-39 (D.N.J.
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1989)(stating that New Jersey Department of Corrections and state
prison facilities not "persons" under § 1983).
Next, Plaintiff asserts a claim against defendant Pepper for
use of excessive force in violation of the Eighth Amendment.
See
Graham v. Connor, 490 U.S. 386, 392–394 (1989) (cases involving
the use of force against convicted individuals are examined under
the Eighth Amendment's proscription against cruel and unusual
punishment).
“The Eighth Amendment, in only three words, imposes the
constitutional limitation upon punishments: they cannot be ‘cruel
and unusual.’”
Rhodes v. Chapman, 452 U.S. 337, 345 (1981).
The
Eighth Amendment prohibits conditions which involve the
unnecessary and wanton infliction of pain or are grossly
disproportionate to the severity of the crime warranting
imprisonment.
See id. at 347.
To state a claim under the Eighth
Amendment, an inmate must satisfy an objective element and a
subjective element.
See Farmer v. Brennan, 511 U.S. 825, 834
(1994).
The objective element questions whether the deprivation of a
basic human need is sufficiently serious; the subjective
component asks whether the officials acted with a sufficiently
culpable state of mind.
(1991).
See Wilson v. Seiter, 501 U.S. 294, 298
The objective component is contextual and responsive to
“‘contemporary standards of decency.’”
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Hudson v. McMillian, 503
U.S. 1, 8 (1992).
The subjective component follows from the
principle that “‘only the unnecessary and wanton infliction of
pain implicates the Eighth Amendment.’”
See Farmer, 511 U.S. at
834 (quoting Wilson, 501 U.S. at 297 (internal quotation marks,
emphasis, and citations omitted)); Rhodes, 452 U.S. at 345.
What
is necessary to establish an unnecessary and wanton infliction of
pain varies also according to the nature of the alleged
constitutional violation.
See Hudson, 503 U.S. at 5.
In an excessive force claim, the core inquiry as to the
subjective component is that set out in Whitley v. Albers, 475
U.S. 312, 320–21 (1986) (citation omitted): “‘whether force was
applied in a good faith effort to maintain or restore discipline
or maliciously and sadistically for the very purpose of causing
harm.’” (quoted in Hudson, 503 U.S. at 6).
“When prison
officials maliciously and sadistically use force to cause harm,
contemporary standards of decency always are violated.”
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Id. at
In such cases, a prisoner may prevail on an Eighth Amendment
claim even in the absence of a serious injury (the objective
component), so long as there is some pain or injury and something
more than de minimis force is used.
See id. at 9–10 (finding
that blows which caused bruises, swelling, loosened teeth, and a
cracked dental plate were not de minimis for Eighth Amendment
purposes).
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To determine whether force was used in “good faith” or
“maliciously and sadistically,” courts have identified several
factors, including:
(1) “the need of the application of force”; (2) “the
relationship between the need and the amount of force
that was used”; (3) “the extent of injury inflicted”;
(4) “the extent of the threat to the safety of staff
and inmates, as reasonably perceived by responsible
officials on the basis of the facts known to them”; and
(5) “any efforts made to temper the severity of a
forceful response.”
Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting
Whitley, 475 U.S. at 321).
Thus, not all use of force is
“excessive” and will give rise to the level of a constitutional
violation.
See Hudson, 503 U.S. at 9 (it is clear that not
“every malevolent touch by a prison guard gives rise to a federal
cause of action”).
Therefore, “[n]ot every push or shove, even
if it may later seem unnecessary in the peace of a judge's
chambers, violates a prisoner's constitutional rights.”
Id. at
9–10.
Here, the allegations of the complaint, if true, may suggest
a claim that defendant Pepper acted in a malicious and excessive
manner.
However, Plaintiff fails to sufficiently allege what
injuries he sustained from the alleged force.
While he states
that he had blood in his urine and sharp jolts of pain in his
left testicle, and “mental pain,” (Complt., ¶ 7), Plaintiff does
not assert facts indicating the extent of these injuries, whether
they are related to the alleged kicks to his groin, or whether
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they are ongoing injuries or have resolved.
There are no
allegations of bruising, cuts, or swelling, that would support a
claim that Pepper used more than de minimis force.
Therefore,
this claim of excessive force in violation of the Eighth
Amendment will be dismissed without prejudice, for failure to
state a claim at this time.
To the extent that Plaintiff can
allege additional facts to cure the deficiencies noted herein, he
may seek leave to reopen this case and file an amended pleading.2
As to defendant Jane Doe, the female corrections officer,
Plaintiff alleges that she failed to intervene to stop the
assault.
A prison official's “failure to intervene in a beating
can be the basis of liability for an Eighth Amendment violation
under § 1983 if the corrections officer had a reasonable
opportunity to intervene and simply refused to do so.”
Mensinger, 293 F.3d 641, 650 (3d Cir. 2002).
Smith v.
Here, Plaintiff has
not made clear in his complaint that defendant Jane Doe officer
2
Should plaintiff so choose to amend his complaint to cure
the deficiencies noted herein, pursuant to Federal Rule of Civil
Procedure 15, Plaintiff should note that when an amended
complaint is filed, the original complaint no longer performs any
function in the case and “cannot be utilized to cure defects in
the amended [complaint], unless the relevant portion is
specifically incorporated in the new [complaint].” 6 Wright,
Miller & Kane, Federal Practice and Procedure § 1476 (2d ed.
1990) (footnotes omitted). An amended complaint may adopt some
or all of the allegations in the original complaint, but the
identification of the particular allegations to be adopted must
be clear and explicit. See id. To avoid confusion, the safer
course is to file an amended complaint that is complete in
itself. See id.
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had a reasonable opportunity to intervene to stop defendant
Pepper’s kicks to the groin.
Again, if Plaintiff chooses to file
an amended complaint, as outlined above, he may do so to allege
facts against the Jane Doe defendant indicating so.
CONCLUSION
Based on the foregoing, Plaintiff’s complaint will be
dismissed, without prejudice, for failure to state a claim, under
28 U.S.C. §§ 1915(e) and 1915A.
However, because Plaintiff may
cure the deficiencies of the complaint to assert facts stating a
claim, the dismissal is without prejudice.
Plaintiff may file a
motion to reopen and amend the complaint in accordance with the
attached Order.
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
Dated: October 13, 2011
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