GLAZEWSKI v. DAVIS et al

Filing 2

OPINION. Signed by Judge Renee Marie Bumb on 8/29/2012. (bdk, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
VINCENT W. GLAZEWSKI,
Plaintiff,
v.
EVELYN DAVIS,
Defendants.

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Civil No. 11-7160 (RMB)
OPINION

APPEARANCES:
VINCENT W. GLAZEWSKI, #216428, Plaintiff Pro Se
Mid-State Correctional Facility
P.O. Box 866
Wrightstown, NJ 08562
BUMB, District Judge:
Plaintiff, Vincent Glazewski, a prisoner incarcerated at
Mid-State Correctional Facility (“MSCF”), seeks to bring this
action in forma pauperis asserting violation of his rights under
42 U.S.C. § 1983.

This Court will grant Plaintiff’s application

to proceed in forma pauperis.

See 28 U.S.C. § 1915(b).

Having

reviewed Plaintiff’s submissions, as required by 28 U.S.C. §§
1915(e)(2)(B) and 1915A, this Court will dismiss the matter
without prejudice to the filing of an amended complaint.
I.

BACKGROUND

Vincent W. Glazewski brings this Complaint for violation of
his constitutional rights under 42 U.S.C. § 1983 against the
Administrator of MSCF, Assistant Administrators, Associate

Administrator, and several other officials at MSCF.

Plaintiff

filed a four-page typed document labeled “Temporary Restraining
Order” (Dkt. 1), a one-page cover letter addressed to Judge
Stanley Chesler (Dkt. 1-1), and approximately 58 pages of
exhibits.

In the document labeled “Temporary Restraining Order”

Plaintiff states that he seeks declaratory and injunctive relief;
he asserts that venue is proper in the District of New Jersey;
and he identifies himself as a New Jersey state prisoner
incarcerated at MSCF.

He further asserts:

5. Within this complaint/petition the Plaintiff will
rely on the attached affidavit, along with the
numerated facts provided within the complaint/petition
(petition from hereon through) and memorandum of law.
6. The Plaintiff requests the following: All the
named defendants and their subordinates and any other
associate, officer or anyone else acting in concert
with any of the above named defendants, to be made
accountable for all actions and/or non-actions. The
Plaintiff makes his application for an Emergent
Temporary Restraining Order to correct and/or address
actions and/or non-actions for the Violations of the
State Laws, Federal laws, Institutional Rules or
Regulations and the Violations of the Plaintiff’s
Constitutional Rights.
(Dkt. 1 at 3.)
Plaintiff seeks injunctive relief prohibiting his transfer
to another facility, and directing defendants to house him in a
single occupancy cell in general population at MSCF or any other
state prison “without further exposure to secondhand tobacco
smoke,” to repair smoke detectors, and to purchase a monthly food
package from a local supermarket.
2

(Dkt. 1.)

In the cover letter addressed to Judge Chesler, Plaintiff
further states:
Please find enclosed a request for a Temporary
Restraining Order, for a very serious matter of
secondhand smoking. I have also enclosed supporting
documentation which is attached to the TRO, which also
outlines the efforts taken by me to alleviate this very
serious problem.
The TRO is about a Leukemia patient consistently
breathing-in Secondhand Smoke (also called
Environmental Tobacco Smoke, ETS). The TRO outlines
the lack of concern by custody staff to try to control
the ETS but have enabled the other inmates who do smoke
by disabling the smoke detectors.
I also ask the court to be present at the hearing to
present oral argument and also to call witnesses to
testify. There are several Correctional Officers and
inmates I would like to call as witnesses to support my
version of the problem . . . .
(Dkt. 1-1.)
Attached to these documents are copies of various
Plaintiff’s medical records, general information concerning
leukemia, information concerning secondhand smoke from the
National Cancer Institute, American Lung Association, and the
Atlantic City Press, grievances, a letter from Plaintiff to
various entities, a response from Coordinator of Inmate
Correspondence Unit dated October 27, 2011, pages from the inmate
handbook and the New Jersey Administrative Code, and a memorandum
from then Commissioner of the NJDOC dated March 24, 1994,
concerning Smoking Policy for Department of Corrections effective
May 15, 1994.

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II.

STANDARD OF REVIEW

The Prison Litigation Reform Act (?PLRA”), Pub. L. No. 104134, §§ 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 or a
prisoner is seeking redress against a government employee or
entity, and to sua sponte dismiss any claim if the Court
determines that it is frivolous, malicious, fails to state a
claim on which relief 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), 1915A.
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009),
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.
203 (3d Cir. 2009).

See Fowler v. UPMC Shadyside, 578 F.3d

To survive dismissal under Iqbal, “a

complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim for relief that is plausible on its
face.’ A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable

1

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 v. Gibson, 355 U.S. at 45-46.
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inference that the defendant is liable for the misconduct
alleged.' ” Iqbal, 556 U.S. at 678 (citation omitted).

Officials

may not be held liable under § 1983 for the unconstitutional
misconduct of their subordinates.

Id. at 677.

Rather, the facts

set forth in the complaint must show that each defendant, through
the person’s own individual actions, has violated the plaintiff’s
constitutional rights.

Id.

This Court must disregard labels,

conclusions, legal arguments, and naked assertions.
81.

Id. at 678-

The plausibility standard “asks for more than a sheer

possibility that a defendant has acted unlawfully.

Where a

complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between
possibility and plausibility of entitlement to relief,” and will
be dismissed.

Id. at 678 (citations and internal quotation marks

omitted); see also Santiago v. Warminster Township, 629 F. 3d
121, 130 (3d Cir. 2010); Fowler v. UPMC Shadyside, 578 F.3d 203,
210-211 (3d Cir. 2009) (“a complaint must do more than allege the
plaintiff's entitlement to relief.

A complaint has to “show”

such an entitlement with its facts”) (emphasis supplied).

The

Court is mindful, however, 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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III.

DISCUSSION

A court’s initial task is to “tak[e] note of the elements
[Plaintiff] must plead” in order to state a claim of liability
under 42 U.S.C. § 1983.

See Iqbal, 129 S Ct. at 1947-48.

Section 1983 of Title 28 of the United States Code 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.
42 U.S.C. § 1983.
To recover under 42 U.S.C. § 1983, a plaintiff must show two
elements:

(1) a person deprived him or caused him to be deprived

of a right secured by the Constitution or laws of the United
States, and (2) the deprivation was done under color of state
law.

See West v. Atkins, 487 U.S. 42, 48 (1988).
To state a § 1983 claim based on involuntary exposure to

environmental tobacco smoke (“ETS”), Plaintiff must show (1) “he
himself is being exposed to unreasonably high levels of ETS,”
Helling v. McKinney, 509 U.S. 25, 35 (1993); (2) “the risk of
which he complains is not one that today’s society chooses to
tolerate,” id. at 36; and (3) defendant-official was deliberately

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indifferent to the serious risk to Plaintiff’s future health from
such exposure.

See Helling, 509 U.S. at 35-36; Ford v. Mercer

County Correctional Center, 171 Fed. App’x 416 (3d Cir. 2006);
Atkinson v. Taylor, 316 F. 3d 257, 262 (3d Cir. 2003).
Here, Plaintiff does not assert facts showing that “he
himself is being exposed to unreasonably high levels of ETS,”
which facts are required to satisfy the objective element of the
ETS claim.2

Helling, 509 U.S. at 35.

Nor does Plaintiff assert

facts substantiating that each defendant was deliberately
indifferent to a risk to Plaintiff’s health from his exposure to
ETS.

The Supreme Court has rejected a reading of the

Constitution that “would allow liability to be imposed on prison
officials solely because of the presence of objectively inhumane
prison conditions.”

Farmer, 511 U.S. at 838.

“[A] prison

official cannot be found liable . . . for denying an inmate
humane conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.”3

Atkinson, 316 F.3d at 262

2

Plaintiff refers in his TRO request to facts set forth in
an affidavit and memorandum of law, but aside from an affidavit
of indigence, the docket contains no documents other than the TRO
request and exhibits.
3

See Farmer, 511 U.S. at 835 (“an official's failure to
(continued...)
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(quoting Farmer at 837).

Plaintiff attached various grievances

to his pleading, but he asserts no facts concerning those
grievances in his pleading.

For example, Plaintiff alleges

nothing showing when each defendant became aware that Plaintiff
was being exposed to unreasonably high levels of ETS, and he has
not alleged facts showing that each defendant responded
unreasonably after becoming aware that he was being involuntarily
exposed to unreasonably high smoke levels.

See Farmer, 511 U.S.

at 843 (“[P]rison officials who actually knew of a substantial
risk to inmate health or safety may be found free from liability
if they responded reasonably to the risk, even if the harm
ultimately was not averted”).
Accordingly, this Court finds that the pleading does not
assert enough specific, non-conclusory, facts to substantiate the
conclusion that each, or any, defendant was deliberately
indifferent to the health risk to Plaintiff posed by exposure to
unreasonably high levels of ETS.

Because the Complaint fails to

“contain sufficient factual matter, accepted as true, to state a

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(...continued)
alleviate a significant risk that he should have perceived but
did not, while no cause for commendation, cannot under our cases
be condemned as the infliction of [unconstitutional]
punishment”); Davidson v. Cannon, 474 U.S. 344 (1986) (prison
official who “mistakenly believed that the situation was not
particularly serious” did not deprive inmate of a liberty
interest); Daniels v. Williams, 474 U.S. 327 (1986) (due process
is not implicated by a state official's negligent act causing
injury to an inmate).
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claim to relief that is plausible on its face,” Iqbal, 556 U.S.
at 678 (citation and internal quotation marks omitted), this
Court will dismiss the Complaint for failure to state a claim
upon which relief may be granted.
Normally, a court will not dismiss a complaint without
granting the plaintiff leave to amend.

See Phillips v. County of

Allegheny, 515 F.3d 224, 245-46 (3d Cir. 2008).

In this case, it

is conceivable that Plaintiff might be able to state a cognizable
claim under § 1983 by filing an amended complaint that contains
sufficient factual matter - on its face - to allow this Court to
draw the reasonable inference that each defendant named in the
amended complaint is liable.4
V.

CONCLUSION

Based on the foregoing, this Court will grant Plaintiff’s
application to proceed in forma pauperis and dismiss the
Complaint.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: August 29, 2012

4

If Plaintiff elects to file an amended complaint, it
should be complete on its face. However, it is not necessary for
Plaintiff to refile the exhibits attached to the original
Complaint, as the statement of facts in the amended complaint can
simply refer to specific exhibits filed with the original
Complaint.
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