SHEPPARD v. GLOUCESTER COUNTY SHERIFF et al
Filing
5
OPINION. Signed by Judge Noel L. Hillman on 6/19/2012. (dmr)(n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
AARON SHEPPARD,
Civil No. 11-2398 (NLH/KMW)
Plaintiff,
OPINION
v.
OFFICER JEFFREY ZAVIS, et al.,
Defendants.
APPEARANCES:
Aaron Sheppard #470464
East Jersey State Prison
Lock Bag R
Rahway, New Jersey 07065
Pro Se Plaintiff
Paola F. Kaczynski, Esquire
William J. Ferren & Associates
1500 Market Street Suite 2920
Philadelphia, Pennsylvania 19102
Attorney for Defendants Officer Jeffrey Zavis and
County of Gloucester
HILLMAN, District Judge
This matter comes before the Court by way of Defendants
Officer Jeffrey Zavis and the County of Gloucester’s motion [Doc.
No. 3] to dismiss Plaintiff’s amended complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6).
Plaintiff did not file
opposition to the motion, and the time for filing opposition has
expired.
The Court has considered Defendants’ motion and decides
this matter pursuant to Federal Rule of Civil Procedure 78.
For the reasons expressed below, Defendants’ motion is
granted in part, and denied in part.
I.
JURISDICTION
Plaintiff Aaron Sheppard, an inmate incarcerated at East
Jersey State Prison, brings this civil rights complaint against
Defendants Officer Jeffrey Zavis and the County of Gloucester
(“the County”), pursuant to 42 U.S.C. § 1983 and the New Jersey
Civil Rights Act, N.J. STAT . ANN . § 10:6-1 et. seq. (See Ex. A to
Notice of Removal, Pl.’s First Am. Compl. [Doc. No. 1]
(hereinafter, “Am. Compl.”), ¶ 1.)
The Court has jurisdiction
over Plaintiff’s federal claims under 28 U.S.C. § 1331, and may
exercise supplemental jurisdiction over any state law claims
pursuant to 28 U.S.C. § 1367.
II.
BACKGROUND
A.
Procedural History
Plaintiff filed the initial complaint in this action on
approximately August 23, 2010 in the Superior Court of New
Jersey, Law Division for Mercer County.
No. 1] ¶¶ 1-2.)
(Notice of Removal [Doc.
Subsequently, in January of 2011, Plaintiff
filed a motion to waive filing fees and costs, and to have the
Mercer County matter re-docketed in the Superior Court of New
Jersey, Law Division for Gloucester County.
(Id. ¶ 3.)
Plaintiff also filed an amended complaint in the Gloucester
County action.
(Id.)
It appears that Defendants were not served
with a copy of either the original complaint filed in Mercer
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County or the amended complaint filed in Gloucester County until
approximately April 11, 2011.
(Id. ¶¶ 5-6; see also Ex. D to
Notice of Removal, Letter from Plaintiff dated March 30, 2011
[Doc. No. 1] 1.)
Upon receiving service of the amended complaint, Defendants
learned that Plaintiff was asserting federal claims in this
action under Section 1983, and thereafter, Defendants removed the
action from the Superior Court of New Jersey to this Court
pursuant to 28 U.S.C. §§ 1331, 1441(a)-(b), 1446(b).
of Removal [Doc. No. 1] ¶¶ 9-12.)
(See Notice
After removal, the Court
screened Plaintiff’s amended complaint pursuant to 28 U.S.C §
1915A(b) and found that sua sponte dismissal of the amended
complaint was not warranted at that time.
2, May 3, 2011.)
(Order [Doc. No. 2] ¶
Plaintiff’s amended complaint originally named
the following Defendants: (1) the Sheriff of the Gloucester
County Jail; (2) Corrections Officer Jeffrey Zavis; (3) the
Medical Staff of the Gloucester County Jail; (4) Corrections
Officers John Doe A thru Z; and (5) Medical Staff members John
and Jane Doe 1 thru 2.
(Am. Compl. ¶ 4.)
By Order dated May 3, 2011, the Court dismissed the Sheriff
and the Medical Staff of the Gloucester County Jail without
prejudice as Defendants in this action.
May 3, 2011.)
(Order [Doc. No. 2] ¶ 2,
With respect to the Sheriff of the Gloucester
County Jail, the Court found that the amended complaint failed to
3
allege facts sufficient to “show that the Sheriff, through his or
her own actions, violated Plaintiff’s rights under 42 U.S.C. §
1983.”
(Id.)
As to the Medical Staff at the Gloucester County
Jail, the Court determined that the allegations of the amended
complaint did not demonstrate “that the Medical Staff [was]
deliberately indifferent to Plaintiff’s medical needs under 42
U.S.C. § 1983” because Plaintiff received medical care at
Underwood Memorial Hospital.
(Id. ¶ 4.)
The Court then added
the County as a Defendant in this action pursuant to the New
Jersey Tort Claims Act, N.J. STAT . ANN . § 59:1-1 et. seq.
(Id. ¶¶
2,5.)
B.
Plaintiff’s Allegations
In the amended complaint, Plaintiff asserts that he “was
remanded from” East Jersey State Prison to the Gloucester County
Jail on July 20, 2009 in order to appear on a motion for postconviction relief pending in the Superior Court of New Jersey,
Law Division for Gloucester County.
(Am. Compl. ¶ 5.)
Plaintiff
represents that upon arriving at the Gloucester County Jail, “he
was provided with minimal bedding, cosmetics and other items”
from jail officials.
(Id. ¶ 7.)
On the following day, July 21,
2009, Plaintiff appeared before the Law Division regarding the
motion for post-conviction relief.
(Id. ¶ 6.)
Plaintiff alleges that following his court appearance, he
“was escorted by various Gloucester County Jail officials[,]”
4
including Defendant Zavis, back to the Gloucester County Jail in
order to be “‘out-processed’ and returned to East Jersey State
Prison.”
(Id. ¶ 6.)
According to Plaintiff, he departed the
housing unit of the Gloucester County Jail and “began outprocessing at approximately 2:10 p.m.” at which time another
prisoner asked Plaintiff for a small pillow Plaintiff was going
to return to jail officials.
(Id. ¶ 7.)
Plaintiff represents
that while he was “under Defendant Zavis’ supervision[,]”
Plaintiff handed the pillow to the other prisoner and departed
the housing unit.
(Id. ¶ 8.)
Plaintiff was then allegedly
handcuffed and escorted to an elevator by Defendant Zavis and “at
least one other Correction officer[.]” (Id.)
Plaintiff alleges
that while being escorted to the elevator, Defendant “Zavis
stopped Plaintiff in the hallway, and absent any provocation,
threat or physical assault made by Plaintiff, [Defendant] Zavis
pushed Plaintiff against the wall and tackled him to the ground.”
(Id.)
Plaintiff contends that Defendant Zavis then began
“pummeling Plaintiff in the chest, shoulders, and face to the
point where Plaintiff was injured and stunned into
submissiveness.”1
(Id. ¶ 9.)
As alleged in the amended
complaint, Defendant Zavis then “grabbed” Plaintiff by the
1. Plaintiff asserts that he was “too dazed to recall whether”
the other corrections officer took part in the assault. (Am.
Compl. ¶ 9.)
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handcuffs around his wrists, “roughly pushed” Plaintiff onto the
elevator, and proceeded to take Plaintiff down to the “‘Strip
Search’ room” where Defendant Zavis and the corrections officer
were joined by at least two additional corrections officers.
(Id. ¶¶ 9-10.)
Plaintiff asserts that Defendant Zavis and the
unknown corrections officer Defendants2 then began “slapping and
punching Plaintiff” while he was still handcuffed, without “any
provocation, threat or physical assault” by Plaintiff.
10.)
(Id. ¶
Plaintiff contends that he was on the floor, in the fetal
position in an effort to protect his head during the assault
which lasted approximately five to seven minutes.
(Id. ¶ 11.)
After the “beating stopped,” Plaintiff saw a pool of blood on the
floor and realized the blood was originating from injuries to his
head.
(Id.)
According to Plaintiff, once Defendant Zavis and the other
corrections officer Defendants “realized the severity of
Plaintiff’s injuries, ... Defendants pulled back, quietly spoke
to each other, and rushed Plaintiff to the jail’s Medical
Department.”
(Id. ¶ 12.)
Plaintiff alleges that different
officers from the New Jersey Department of Corrections’ (“DOC”)
Central Transport Unit were present at the Gloucester County
Jail’s Medical Department and observed Plaintiff’s injuries,
2. Plaintiff refers to these Defendants as John Does A, B, and C
in the amended complaint. (Am. Compl. ¶ 10.)
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whereupon the Central Transport Unit officers “refused to accept
[Plaintiff] for transport back to East Jersey State Prison until
Plaintiff” received medical treatment.
(Id. ¶ 13.)
It appears
from the amended complaint that Plaintiff’s injuries could not be
treated at the Gloucester County Jail’s Medical Department, and
“due to the serious nature of Plaintiff’s injuries[,]” Plaintiff
was treated at Underwood Memorial Hospital.
(Id. ¶¶ 14-15.)
Plaintiff represents that a nurse at Underwood Memorial
Hospital’s Emergency Room “cleaned and sutured Plaintiff’s head
and other lacerations, ... wrapped his injuries, and released
Plaintiff to the Gloucester County [Jail] Corrections officers.”
(Id. ¶ 15.)
After being treated at Underwood Memorial Hospital,
Plaintiff asserts that he returned to the Gloucester County Jail
and was placed in a detention cell pending the issuance of
“disciplinary charges from Defendant Zavis.”
(Id. ¶ 16.)
Specifically, Plaintiff alleges that Defendant Zavis “filed false
charges against Plaintiff for fighting, threatening [Defendant]
Zavis, and refusing an order by [Defendant] Zavis.”
(Id. ¶ 18.)
Once these charges were issued, Plaintiff represents that he was
transferred to the Central Transport Unit and returned to East
Jersey State Prison.
(Id. ¶ 17.)
However, Plaintiff contends
that DOC Hearing Officer John Oszvart “adjudicated Plaintiff NOT
GUILTY of the false charges filed by” Defendant Zavis, just over
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one week later on July 29, 2009.
(Id. ¶ 19.)
Based on these facts, Plaintiff claims that Defendant Zavis
“violated Plaintiff’s constitutional rights by beating Plaintiff
without cause and by knowingly filing false disciplinary charges
against Plaintiff to cover up the attack.”
(Id. ¶ 24.)
Plaintiff also claims that the County3 and the John Doe
corrections officer Defendants “violated Plaintiff’s
constitutional rights by failing to protect Plaintiff from the
violent attack by Defendant Zavis, and by encouraging and
engaging in a cover-up of Zavis’ illegal acts.”
(Id. ¶ 25.)
Construing Plaintiff’s amended complaint liberally, he
appears to assert claims for excessive force and malicious
prosecution against Defendant Zavis, claims for excessive force
against the John Doe corrections officer Defendants, a claim for
failing to intervene against the John Doe corrections officer
Defendants, conspiracy claims pursuant to 42 U.S.C. § 1985
against the County and the John Doe corrections officer
Defendants, and a claim for failure to protect Plaintiff from
Defendant Zavis against the County and the John Doe corrections
officers Defendants. (Id. ¶¶ 24-26, 27(a)-(c).)
3. To the extent Plaintiff asserts claims against the Gloucester
County Jail, the Court notes that a jail is not considered a
“person” purposes of Section 1983, and therefore the Court
construes these claims as being made against the County. See
Street v. Atl. Cnty. Justice Facility, No. 09-6062, 2012 WL
273787, at *4 (D.N.J. Jan. 31, 2012).
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Based on these allegations Plaintiff seeks a “declaratory
judgment, finding that his constitutional right to be free from
cruel and unusual punishment as guaranteed by the Eighth
Amendment was violated by all Defendants[.]” (Id. ¶ 27.)
Plaintiff also seeks $100,000.00 in punitive damages from
Defendant Zavis for filing false disciplinary charges and
$10,000.00 in punitive damages from the County and the John Doe
Defendant corrections officers.
III. DISCUSSION
At this time, Defendants seek dismissal of Plaintiff’s
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
Although Plaintiff did not file opposition to the present motion,
“the Court must address unopposed motions to dismiss a complaint
on the merits.”
Estate of Casella v. Hartford Life Ins. Co., No.
09-2306, 2009 WL 2488054, at *2 (D.N.J. Aug. 11, 2009) (citing
Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991)).
Thus, in considering a motion to dismiss a complaint for failure
to state a claim upon which relief can be granted pursuant to
Rule 12(b)(6), a court must accept all well-pleaded allegations
in the complaint as true and view them in the light most
favorable to the plaintiff.
350 (3d Cir. 2005).
Evancho v. Fisher, 423 F.3d 347,
It is well settled that a pleading is
sufficient if it contains “a short and plain statement of the
9
claim showing that the pleader is entitled to relief.”
FED . R.
CIV. P. 8(a)(2).
A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims[.]’”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting
Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1953 (2009) (“Our decision in Twombly
expounded the pleading standard for ‘all civil actions[.]’”)
(citation omitted).
First, under the Twombly/Iqbal standard, a
district court “must accept all of the complaint’s well-pleaded
facts as true, but may disregard any legal conclusions.”
Fowler
v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing
Iqbal, 129 S. Ct. at 1949).
Second, a district court “must then determine whether the
facts alleged in the complaint are sufficient to show that the
plaintiff has a ‘plausible claim for relief.’”
at 211 (citing Iqbal, 129 S. Ct. at 1950).
Fowler, 578 F.3d
“[A] complaint must
do more than allege the plaintiff’s entitlement to relief.”
Fowler, 578 F.3d at 211; see also Phillips v. County of
Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (“The Supreme Court’s
Twombly formulation of the pleading standard can be summed up
thus: ‘stating ... a claim requires a complaint with enough
factual matter (taken as true) to suggest’ the required element.
10
This ‘does not impose a probability requirement at the pleading
stage,’ but instead ‘simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of’
the necessary element.”) (citing Twombly, 550 U.S. at 556).
“The
defendant bears the burden of showing that no claim has been
presented.”
Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005).
However, “if a complaint is subject to a Rule 12(b)(6)
dismissal, a district court must permit a curative amendment
unless such an amendment would be inequitable or futile.”
Phillips, 515 F.3d at 245; see also Burrell v. DFS Servs., LLC,
753 F. Supp. 2d 438, 444 (D.N.J. 2010) (“When a claim is
dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6),
leave to amend and reassert that claim is ordinarily granted. ...
A claim may be dismissed with prejudice, however, if amending the
complaint would be futile.”) (citation omitted).
IV.
ANALYSIS
In the present motion, Defendants assert that Plaintiff’s
complaint must be dismissed for failure to state a claim upon
which relief can be granted and rely on three main arguments.
Initially, Defendants assert that the amended complaint only
seeks punitive damages and declaratory relief, but fails to
allege a claim for compensatory or nominal damages.
(Mem. of Law
in Supp. of Mot. to Dismiss Pl.’s Am. Compl. [Doc. No. 4]
11
(hereinafter, “Defs.’ Mem.”), 3.)
Thus, Defendants argue that
Plaintiff’s amended complaint must be dismissed in its entirety
because under New Jersey law punitive damages cannot be awarded
in the absence of an award of compensatory damages, and because
punitive damages are not an appropriate form of relief in actions
seeking a declaratory judgment.
(Id.)
Additionally, Defendants contend that Plaintiff’s claims
against the County must be dismissed because a municipal entity
cannot be held liable under Section 1983 on a theory of
respondeat superior.
(Id. at 4.)
Defendants argue that
Plaintiff cannot establish liability on the part of the County
because “there is no allegation in the [amended] Complaint which
could suggest that Plaintiff’s rights were violated pursuant to
any act by a Gloucester County official, or that such act [was] a
custom or practice of the County[.]”
(Id.)
Finally, Defendants
assert that Plaintiff’s complaint must be dismissed because it
fails to indicate that Plaintiff exhausted his administrative
remedies pursuant to the Prison Litigation Reform Act of 1995.
(Id.)
Specifically, Defendants assert that while the amended
complaint references the filing of a Notice of Tort Claim under
New Jersey law and then a law suit, the amended complaint “makes
no mention of going through the administrative procedures at the
prison” and “must therefore be dismissed for failure to exhaust
administrative remedies.”
(Id. at 5.)
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A.
Sufficiency of Plaintiff’s Allegations on Damages
According to Defendants, because Plaintiff only requests
punitive damages and declaratory relief in the amended complaint
and fails to seek compensatory damages, dismissal of Plaintiff’s
Section 1983 claims is warranted.
(Id. at 3.)
In support of
this argument, Defendants assert that punitive damages cannot be
awarded in the absence of a compensatory damages award and also
are not an appropriate form of relief in a declaratory judgment
action.
(Id.)
As set forth below, the Court rejects Defendants’
argument and denies the motion to dismiss on that basis.
As a preliminary matter, federal common law, as opposed to
state law, governs the issue of damages in an action brought
under Section 1983.
See Basista v. Weir, 340 F.2d 74, 86-87 (3d
Cir. 1965) (recognizing that on a cause of action under Section
1983 “the federal common law of damages commands the issue”).
Thus, to the extent Defendants rely on Cooper Distributing Co. v.
Amana Refrigeration, Inc., 63 F.3d 262 (3d Cir. 1995) and Pitts
v. Newark Board of Education, 766 A.2d 1206 (N.J. Super. Ct. App.
Div. 2001), these cases are distinguishable from the case at bar.
Although Defendants correctly cite these cases for the
general proposition that New Jersey law prohibits the recovery of
punitive damages where an award of compensatory damages is
lacking, neither of these cases involved a claim for punitive
damages brought under Section 1983 for the alleged deprivation of
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federal constitutional rights.
See, e.g., Cooper Distrib. Co. v.
Amana Refrigeration, Inc., 63 F.3d 262, 274, 281-82 (3d Cir.
1995) (sitting in diversity, the Third Circuit applied New Jersey
law in reversing a $3 million punitive damage jury award on a
claim for tortious interference with prospective business
advantage where the jury failed to award any compensatory damages
on that claim); Pitts v. Newark Board of Education, 766 A.2d
1206, 1210 (N.J. Super. Ct. App. Div. 2001) (reversing s $10,000
punitive damage jury award on plaintiff’s defamation claim under
New Jersey law because the jury awarded no compensatory damages
on that claim).
Thus, these cases are not instructive on the
issue of permitting punitive damages under Section 1983 in the
absence of compensatory or nominal damages under federal law.
Despite Defendants’ argument to the contrary, these cases are not
binding on this Court and do not support dismissal of the amended
complaint.
Moreover, federal common law specifically permits the
recovery of punitive damages in cases brought under Section 1983
regardless of whether other damages have been awarded, and the
propriety of a such an award, even in the absence of an award of
compensatory or nominal damages, has previously been recognized
by the Third Circuit.
See Alexander v. Riga, 208 F.3d 419, 430
(3d Cir. 2000) (explaining it is “beyond a doubt, [that] punitive
damages can be awarded in a civil rights case where a jury finds
14
a constitutional violation, even when the jury has not awarded
compensatory or nominal damages”) (citing Basista v. Weir, 340
F.2d 74, 87 (3d Cir. 1965) for the proposition that “punitive
damages [are] appropriate in section 1983 case absent [an] award
of compensatory damages”).
Multiple federal circuit courts of
appeals similarly permit punitive damage awards under Section
1983 even without an award of compensatory or nominal damages.
See, e.g., Cortes-Reyes v. Salas-Quintana, 608 F.3d 41, 53 (1st
Cir. 2010) (“We have recently determined that in a section 1983
action, a jury may properly award punitive damages even if it
awards no nominal or compensatory damages.) (citation omitted);
Calhoun v. DeTella, 319 F.3d 936, 942 (7th Cir. 2003) (“nothing
prevents an award of punitive damages for constitutional
violations when compensatory damages are not available.”) (citing
Erwin v. Cnty. of Manitowoc, 872 F.2d 1292, 1299 (7th Cir.
1989)); Cush-Crawford v. Adchem Corp., 271 F.3d 352, 358 (2d Cir.
2001); Baltezore v. Concordia Parish Sheriff's Dep’t, 767 F.2d
202, 208 n.6 (5th Cir. 1985) (commenting that “it is settled that
punitive damages may be awarded in a section 1983 action even
without a showing of actual loss by the plaintiff if the
plaintiff's constitutional rights have been violated.”).
Accordingly, Defendants’ argument that Plaintiff’s amended
complaint must be dismissed because it only seeks punitive
15
damages and fails to alleged compensatory damages lacks merit.4
Further, the Court rejects Defendants’ narrow reading of the
amended complaint.
While the amended complaint does not
specifically use the term “compensatory” damages, the amended
complaint does clearly allege elsewhere that Plaintiff suffered
physical injuries from the incident involving Defendant Zavis and
the John Doe corrections officer Defendants which required
medical treatment.
(Am. Compl. ¶¶ 13-15, 26.)
Specifically,
4. Defendants also argue in passing that Plaintiff cannot seek
punitive damages in this action because he seeks a declaratory
judgment. (Mem. in Supp. 3.) As set forth below, Defendants’
argument fails here because Plaintiff is not actually seeking a
declaratory judgment.
A declaratory judgment is “[a] binding adjudication that
establishes the rights and other legal relations of the parties
without providing for or ordering enforcement. Declaratory
judgments are often sought, for example, by insurance companies
in determining whether a policy covers a given insured or peril.”
BLACK’S LAW DICTIONARY 859, (8th ed. 2004). Although Plaintiff’s
amended complaint couches his request for relief as one for a
“declaratory judgment”, this is a term of art, and an liberal
reading of Plaintiff’s pro se pleading demonstrates that
Plaintiff is not in fact seeking a declaratory judgment.
Plaintiff’s amended complaint alleges as follows: “Plaintiff
seeks declaratory judgment, finding that his constitutional right
to be free from cruel and unusual punishment as guaranteed by the
Eighth Amendment was violated by all Defendants[.]” (Am. Compl. ¶
27.) It appears to the Court that Plaintiff, appearing pro se
and untrained in the law, did not appreciate the meaning of the
term “declaratory judgment” — as he does not ask for a binding
adjudication of his legal rights in relation to those of
Defendants. Removing the term “declaratory judgment” from the
above allegation, it is clear that Plaintiff’s suit simply seeks
a legal determination that his constitutional rights were
violated, making his claims typical of those brought under
Section 1983. Accordingly, Defendant’s assertion that punitive
damages are not an appropriate form of relief in a declaratory
judgment action is not relevant in this instance.
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Plaintiff asserts that he “has permanent scar tissue on his face
and head, and has suffered from headaches and other medical and
psychological infirmities.”
(Id. ¶ 26.)
Construing Plaintiff’s
amended complaint liberally in light of his pro se status, the
Court concludes that Plaintiff’s allegations regarding his
injuries can reasonably be considered as Plaintiff’s attempt to
seek compensatory damages for actual losses he may have
sustained.
While the Court denies Defendants’ motion to dismiss
regarding the need for compensatory and nominal damages to
recover punitive damages, the Court will also grant Plaintiff
leave to file a second amended complaint to clarify his
allegations regarding damages.
To the extent Plaintiff may seek
compensatory damages in this action, he shall set forth that
request and the basis for that request in his second amended
complaint.5
B.
Failure to State a Claim for Monell Liability
Defendants also seek to dismiss Plaintiff’s claims against
5. Although the Court rejects Defendants’ argument seeking to
dismiss the amended complaint based on the sufficiency of
Plaintiff’s punitive damages allegation, the Court notes that
Plaintiff can only seek to recover punitive damages from the
individual Defendants in this case and not from the County. See
City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981)
(holding that “a municipality is immune from punitive damages
under 42 U.S.C. § 1983.”) Accordingly, to the extent Plaintiff
alleges a claim for punitive damages against the County, the
Court grants Defendant’s motion in part and this claim will be
dismissed with prejudice.
17
the County for failure to state a claim under Monell v. Dep’t of
Soc. Servs., 436 U.S. 658 (1978).
As Defendants contend here,
the County cannot be held liable for the alleged actions of
Defendant Zavis or the John Doe corrections officer Defendants
because, “a municipality cannot be held liable under § 1983 on a
respondeat superior theory.”
Marvel v. Cnty. of Delaware, 397 F.
App’x 785, 790 (3d Cir. 2010) (citing Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 690-91 (1978)).
Accordingly, “there are two ways that a plaintiff can
establish municipal liability under § 1983: [either] policy or
custom.”
2007).
Watson v. Abington Twp., 478 F.3d 144, 155 (3d Cir.
“Under Monell, a plaintiff shows that a policy existed
when a decisionmaker possess[ing] final authority to establish
municipal policy with respect to the action issues an official
proclamation, policy, or edict.”
Watson, 478 F.3d at 155
(citation and internal quotations omitted).
Alternatively, “[a]
plaintiff may establish a custom ... by showing that a given
course of conduct, although not specifically endorsed or
authorized by law, is so well-settled and permanent as virtually
to constitute law.
In other words, custom may be established by
proving knowledge of, and acquiescence to, a practice.”
155-56 (citation and internal quotations omitted).
Id. at
“In addition
to proving that an unlawful policy or custom existed, a plaintiff
also bears the burden of proving that such a policy or custom was
18
the proximate cause of the injuries suffered.”
Id. at 156.
With respect to the County, Plaintiff’s primary allegation
is that “Defendants Gloucester County ... and John Does (A to Z)
violated Plaintiff’s constitutional rights by failing to protect
Plaintiff from the violent attack by Defendant Zavis, and by
encouraging and engaging in a cover-up of Zavis’ illegal acts.”
(Am. Compl. ¶ 25.)
Based on this particular allegation, even
accepting Plaintiff’s factual assertions as true and viewing them
in the light most favorable to Plaintiff, the amended complaint,
as currently plead, fails to identify any policy or custom on the
part of the County that would support a Section 1983 claim for
liability under Monell.
Moreover, the amended complaint
similarly fails to demonstrate how any such policy or custom was
the proximate cause of Plaintiff’s alleged injuries.
Therefore,
the Court grants Defendants’ motion on this issue and will
dismiss Plaintiff’s claims against the County without prejudice
at this time.
However, it appears that the failure of the amended
complaint outlined above resulted from the manner in which
Plaintiff grouped together both the County and the John Doe
Defendants in making his allegations.
In light of Plaintiff’s
pro se status, the Court must construe the amended complaint
liberally.
In doing so, the potential exists that if Plaintiff
parsed out his claims against the County from those against the
19
John Doe corrections officer Defendants, Plaintiff may be able to
properly allege a policy or custom on the part of the County
regarding its failure to protect prisoners from attacks by
corrections officers or “encouraging” the cover-up of such
attacks.
Specifically, based on Plaintiff’s assertions that the
County failed to protect him and then conspired to cover up this
incident, it is not inconceivable that Plaintiff could, by way of
amendment, sufficiently allege that the County was on notice of
Defendants’ violent propensities and engaged in a cover up of a
pattern of constitutional violations by the individual
Defendants.
Such an allegation is not inconceivable and could
demonstrate that the County had knowledge of, and acquiescence
to, this pattern of conduct.
Accordingly, while Plaintiff’s claim against the County are
subject to dismissal without prejudice under Rule 12(b)(6) at
this time, the Court will permit Plaintiff the opportunity for a
curative amendment and grant Plaintiff thirty (30) days to file a
second amended complaint in this action.
For the reasons set
forth supra, the Court finds that amendment would not be
inequitable or futile here.
C.
See Phillips, 515 F.3d at 245.
Exhaustion of Administrative Remedies
Finally, Defendants argue that Plaintiff’s amended complaint
must be dismissed based on Plaintiff’s failure to exhaust
administrative remedies under the Prison Litigation Reform Act
20
because the amended complaint “makes no mention of going through
the administrative procedures at the prison.”
(Defs.’ Mem. 5.)
The Prison Litigation Reform Act (“PLRA”) provides in pertinent
part:
No action shall be brought with respect to
prison conditions under section 1983 of this
title, or any other Federal law, by a
prisoner confined in any jail, prison, or
other correctional facility until such
administrative remedies as are available are
exhausted.
42 U.S.C. § 1997e(a).
As recognized by the Third Circuit, “[u]nder the Prison[]
Litigation Reform Act, a prisoner must exhaust available
administrative remedies before bringing suit concerning prison
conditions.”
Daniels v. Rosenberger, 386 F. App’x 27, 29 (3d
Cir. 2010) (citing 42 U.S.C. § 1997e(a)).
“[T]he PLRA’s
exhaustion requirement applies to all inmate suits about prison
life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other
wrong.”
Porter v. Nussle, 534 U.S. 516, 532 (2002).
Moreover,
exhaustion of remedies under the PLRA is required, and a
prisoner’s failure to exhaust such remedies directs dismissal of
the claims.
Concepcion v. Morton, 306 F.3d 1347, 1352, 1355 (3d
Cir. 2002).
While the exhaustion of administrative remedies is a
mandatory prerequisite to the filing of a Section 1983 action by
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a prisoner, “failure to exhaust is an affirmative defense under
the PLRA, and ... inmates are not required to specially plead or
demonstrate exhaustion in their complaints.”
549 U.S. 199, 216 (2007).
Wallace v. Kato,
Rather, the burden of proving a
prisoner’s failure to exhaust administrative remedies is on the
defendants.
Accolla v. United States Gov’t, 369 F. App’x 408,
410 (3d Cir. 2010) (citing Ray v. Kertes, 285 F.3d 287, 295 (3d
Cir. 2002)); see also Mitchell v. Horn, 318 F.3d 523, 529 (3d
Cir. 2003) (“Failure to exhaust administrative remedies is an
affirmative defense for the defendant to plead.”)
“Although failure to exhaust administrative remedies is
generally an affirmative defense to be pleaded by the defendant,
... a district court has the inherent power to dismiss sua sponte
a complaint ... which facially violates a bar to suit.”
Pena-
Ruiz v. Solorzano, 281 F. App’x 110, 112 n.3 (3d Cir. 2008).
Importantly, however, “failure to exhaust ... is only an
appropriate grounds for 12(b)(6) dismissal if the defect is
apparent from the face of the complaint[.]”
Watson v. Sec’y
Pennsylvania Dep’t of Corr., No. 10–2918, 2011 WL 2678920, at *6
n.5 (3d Cir. July 8, 2011) (citing Rycoline Prods., Inc. v. C & W
Unlimited, 109 F.3d 883, 886 (3d Cir. 1997)).
“To put it another
way, a prisoner-plaintiff need not plead exhaustion in the
complaint, but if he has clearly not exhausted his administrative
remedies, a defendant may establish that fact on a motion to
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dismiss.”
Ross v. Monge, No. 07-2693, 2009 WL 1291814, at *3
(D.N.J. May 4, 2009).
In this case, a thorough review of Plaintiff’s amended
complaint makes clear that Plaintiff did not concede that he
failed to exhaust his administrative remedies on the face of the
complaint.
(See generally Am. Compl.)
Also, there are no facts
or allegations within the complaint which otherwise demonstrate
to the Court that Plaintiff did not exhaust his administrative
remedies prior to suit.
(Id.)
Therefore, sua sponte dismissal
for failure to exhaust is not appropriate in this instance
because Plaintiff’s amended complaint does not facially violate a
bar to suit.
2008).
See Pena-Ruiz, 281 F. App’x 110, 112 n.3 (3d Cir.
Under these circumstances, i.e., where a concession or
other facial evidence demonstrating a failure to exhaust is
lacking, the burden of proving Plaintiff’s failure lies entirely
with Defendants.
Defendants, though, have failed to satisfy that burden
because they rely solely on the argument that Plaintiff did not
affirmatively plead exhaustion in the amended complaint.
Defendants’ assertion -- that the amended complaint must be
dismissed for failure to exhaust because it “makes no mention” of
Plaintiff utilizing an administrative grievance procedure -reflects a fundamental misunderstanding of the nature of this
affirmative defense.
The Court rejects any attempt by Defendants
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to shift their burden to Plaintiff because Plaintiff was not
required to specifically plead or otherwise demonstrate that he
exhausted administrative remedies prior to filing the present
suit in the amended complaint.
See Wallace, 549 U.S. at 216
(recognizing that under the PLRA “inmates are not required to
specially plead or demonstrate exhaustion in their complaints.”).
Moreover, Defendants cannot satisfy their burden on this
issue because they have not presented the Court with any other
evidence even suggesting that Plaintiff actually failed to
exhaust in this case.
See Ross, 2009 WL 1291814, at *3 (finding
defendants could not prevail on affirmative defense of exhaustion
where defendants “criticize[d] Plaintiff for failing to plead
exhaustion” but did not provide information demonstrating
plaintiff’s failure beyond merely providing the prison's policies
for inmate requests and complaints).
Here, Defendants have not
provided the Court with any documentation or information
regarding the nature of the alleged prison grievance procedure at
issue, such as a prison inmate handbook or other policies and
procedures for handling prisoner’s complaints.
Therefore, at
this time the Court is unable to assess whether such a procedure
constitutes an administrative remedy which Plaintiff was required
to exhaust under the PLRA.
Nor have Defendants made an adequate
showing that any such procedures were properly made available to
Plaintiff.
Simply, the Court lacks sufficient evidence to
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evaluate the alleged administrative procedure, to ensure that it
was properly disclosed to Plaintiff, and to determine that it
satisfies the dictates of 42 U.S.C. § 1997e(a).
Defendants
proffer no evidence as to whether Plaintiff actually followed or
attempted to follow any prescribed procedures, and the Court
cannot properly make this determination without evidence setting
forth the prison’s specific grievance procedures.
Cf. Drippe v.
Tobelinski, 604 F.3d 778, 781 (3d Cir. 2010) (recognizing that
“the determination whether a prisoner properly exhausted a claim”
can only be “made by evaluating compliance with the prison's
specific grievance procedures.”)
Accordingly, because Defendants have not satisfied their
burden to demonstrate Plaintiff’s failure to exhaust, the present
motion to dismiss must be denied at this time.6
D.
Leave to Amend
For the reasons set forth supra, the Court grants Plaintiff
leave to file a second amended complaint in this action
addressing the deficiencies set forth in this Opinion within
thirty (30) days of the date of entry of this Opinion and its
accompanying Order.
However, the Court notes that Plaintiff did
6. To the extent Defendants have in their possession, or obtain
through discovery, evidence which they believe demonstrates that
Plaintiff failed to properly exhaust administrative remedies, the
denial of the motion to dismiss on this issue does not preclude
Defendants from moving for summary judgment on the same basis at
a later date.
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not oppose Defendants’ motion to dismiss, and the docket further
reflects that Plaintiff has not submitted any filings or
otherwise attempted to contact the Court since his case was
initially removed to this Court on April 27, 2011.
The Court
notes that Plaintiff has a responsibility to litigate this case.
Accordingly, Plaintiff is hereby on notice that if he fails to
timely file a second amended complaint within thirty days,
Plaintiff’s complaint will be dismissed for failure to prosecute.
V.
CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss
[Doc. No. 3] is granted in part, and denied in part.
Defendants’
motion is granted to the extent Plaintiff seeks to recover
punitive damages from the County, and any such claim by Plaintiff
is dismissed with prejudice.
The motion is also granted to the
extent Plaintiff seeks to impose Monell liability on the County,
and those claims against the County are dismissed without
prejudice.
Defendant’s motion is denied in all other respects.
Plaintiff is granted thirty (30) days leave to file a second
amended complaint addressing the deficiencies set forth in this
Opinion.
An Order consistent with this Opinion will be entered.
Dated: June 19, 2012
At Camden, New Jersey
/s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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