HOPKINS v. BONDISKEY et al
Filing
5
OPINION. Signed by Chief Judge Jerome B. Simandle on 3/18/2013. (bdk, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SHANE HOPKINS,
Plaintiff,
v.
JOSEPH BONDISKEY, et al.,
Defendants.
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Civil No. 12-5134 (JBS)
OPINION
APPEARANCES:
SHANE HOPKINS, Plaintiff pro se
#111365-C
New Jersey State Prison
P.O. Box 861
Trenton, New Jersey 08625
SIMANDLE, Chief Judge
Plaintiff, Shane Hopkins, a state inmate presently confined
at the New Jersey State Prison in Trenton, New Jersey at the time
he submitted this Complaint for filing, seeks to bring this
action in forma pauperis.
Based on his affidavit of indigence,
the Court will grant Plaintiff’s application to proceed in forma
pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (1998) and order
the Clerk of the Court to file the Complaint.
At this time, the Court must review the Complaint, pursuant
to 28 U.S.C. §§ 1915(e)(2)(B) 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 reasons set forth below, the Court concludes
that the Complaint should be dismissed without prejudice at this
time.
I.
BACKGROUND
Plaintiff, Shane Hopkins, filed this Complaint against the
following defendants: Joseph Bondiskey, Warden/Administrator at
the Atlantic County Justice Facility (“ACJF”); Correctional
Officer (“CO”) Scott Medio; and John Doe defendants 1-15,
including Sgt. Montoya, Sgt. Swartzentruber, Sgt. Almedia, CO
Rennie, CO Ivy, CO Prioli and CO McNally at the ACJF. (Complaint,
Caption, ¶¶ 8, 9.)
Plaintiff alleges that the incidents at issue
in this action took place while he was confined as a pretrial
detainee at the ACJF.
(Compl., ¶ 7.)
The following factual
allegations by Plaintiff are taken from the Complaint, and are
accepted for purposes of this screening only.1
Plaintiff alleges that, on or about January 14, 2011, he was
assaulted by Defendants, CO Medio, CO Rennie, CO Ivy and other
John Doe officers.
It is unclear from the incompletely submitted
Complaint what had precipitated the January 14, 2011 incident,
but the allegations at pg. 12 of the Complaint appear to allege
that Defendants were making derogatory comments to Plaintiff.
1
The Complaint as submitted by Plaintiff appears to be
missing several pages between paragraphs 17 and 54. These
“missing” pages were filled with Plaintiff’s letters regarding
his administrative grievances and appeals regarding the incidents
at issue in this case.
2
Plaintiff alleges that he did not respond to these taunts, and
that he stood calmly for ten minutes while the officers
restrained him with shackles, handcuffs and an attached “belly
chain” on Plaintiff’s waist.
(Compl., ¶¶ 53, 54.)
After
Plaintiff was restrained, Defendant Rennie yanked the shackles,
which pulled Plaintiff’s feet and caused him to fall hard to the
floor.
When Plaintiff was on the floor, he was “kicked and
forcibly stepped on” by the Defendants Medio and John Doe
officers.
(Compl., ¶¶ 55, 56.)
Defendants Medio, Rennie, Ivy
and John Does then lifted Plaintiff’s body in the air and rammed
his head and face into the cell wall, “breaking the Plaintiff’s
front tooth and causing large lumps on the Plaintiff’s scalp and
forehead.”
(Compl., ¶¶ 57, 58.)
A John Doe officer then pulled
Plaintiff’s shirt collar with such force that Plaintiff began to
lose consciousness.
Plaintiff was dropped to the floor where he
laid “dizzy, shaken and scared to move as these correctional
officers left the cell.”
(Compl., ¶¶ 59, 60.)
Plaintiff alleges
that all of the Defendants, except Warden Bondiskey, personally
participated in the assault or stood by and watched the attack
and did nothing to stop it.
(Id., ¶ 61.)
Plaintiff alleges that he was left in his cell for a while
until Sgt. Decicco came with a video camera and a nurse to look
at Plaintiff’s injuries.
Plaintiff further alleges that the
nurse did nothing to treat his injuries, although Sgt. Decicco
apparently video-recorded Plaintiff’s injuries and statements
3
concerning the incident.
(Compl., ¶¶ 62-69.)
Plaintiff alleges
that he believes Defendant Medio told the nurse to falsify
reports concerning Plaintiff’s statements and injuries.
(Compl.,
¶¶ 70, 71.)
Plaintiff next alleges that after several hours of being
shackled in the holding cell, he began to feel severe pain in his
stomach where he had been assaulted.
the bathroom but was ignored.
He repeatedly asked to use
Plaintiff lost control of his
bowels and defecated in his pants.
When Plaintiff called out for
help, the John Doe correctional officers laughed at him and
refused to allow Plaintiff to change his clothes or clean his
body from the feces until the following morning.
At that time,
Plaintiff complained to a nurse about abdominal pain and itchy
skin.
(Compl., ¶¶ 72-76.)
Plaintiff alleges that there are video tapes of the assault
incident which allegedly shows that Plaintiff did not punch
Defendant Medio in the face as charged.
On January 15, 2011,
Plaintiff had been issued several disciplinary charges concerning
the January 14, 2011 incident.
(Compl., ¶¶ 77-79, 81.)
On January 16, 2011, Plaintiff complained to a nurse about
three welts on his waist and back.
and took a culture.
The nurse called them “boils”
She also gave Plaintiff an antibiotic
medication “Cipro” for it.
Plaintiff alleges that the test
revealed that Plaintiff had a staph infection.
This staph
infection caused permanent scars on Plaintiff’s back.
4
Plaintiff
alleges that it is his belief that he had contracted
“Menthicillin Resistant Staphylococcus Aureus” or “MRSA” as a
direct result of being held in an unsanitary cell with feces and
urine for over 12 hours.
(Compl., ¶¶ 82-87.)
Plaintiff appeared before a disciplinary hearing officer on
January 18, 2011.
He alleges that the disciplinary hearing
officer refused to allow Plaintiff to call a witness to the
January 14, 2011 incident and also refused to investigate the
video tape evidence that purportedly existed, giving no
explanation for not allowing the witness and alleged video
evidence.
(Compl., ¶¶ 93-96.)
The hearing officer found
Plaintiff guilty of the disciplinary charges based on “staffs
reports and sergeants investigations,” without providing the name
of the investigating sergeant.
(Compl., ¶¶ 97, 98.)
was sanctioned with 30 days detention.
Plaintiff
(Id., ¶ 99.)
Plaintiff appealed the hearing officer’s decision on January
20, 2011.
Plaintiff alleges that he gave a sealed envelope with
his appeal to the detention unit officer.
Plaintiff alleges,
however, that he has not received any response to his appeal.
(Compl., ¶¶ 101-103.)
Plaintiff further alleges that he filed grievances
concerning the assault by defendant correctional officers, his
punitive restraint, the nurse’s refusal to treat Plaintiff’s
injuries from the assault, the denial of a bathroom that forced
Plaintiff to defecate in his clothes, and the unsanitary
5
conditions that allegedly contributed to his staph infection.
(Compl., ¶ 105.)
Internal Affairs Officer Lt. Joseph Conrad interviewed
Plaintiff on January 24, 2011, pursuant to an investigation of
Plaintiff’s grievances.
Plaintiff told Conrad that he wanted to
file criminal charges against the officers regarding the physical
assault.
Plaintiff alleges, on his own “information and belief,”
that Conrad discussed Plaintiff’s grievances and intention to
file criminal charges with the very same officers who assaulted
Plaintiff.
(Id., ¶¶ 107, 108.)
That very day, Plaintiff was
moved from cell #5 to cell #12 in detention.
The new cell was
“so cold that the Plaintiff could see his own breath when he
exhaled due to the fact that all of the caulking around the
window was removed, ... [and] Plaintiff was only provided with
one blanket, one sheet and one prison uniform.”
(Id., ¶¶ 109-
111.)
Plaintiff tried to seal the window with food, such as
oatmeal and mashed potatoes to keep out the cold.
On January 26,
2011, the nurse who changed Plaintiff’s bandages from his staph
infection noticed that Plaintiff’s skin was “off color” and that
Plaintiff was shivering.
The nurse took Plaintiff’s temperature
and told the escorting officer to give Plaintiff a t-shirt,
underwear and socks.
Plaintiff further alleges that twice each
day while he was in cell #12, he was told to strip naked and was
subjected to a visual body cavity search, even though he had
6
never left his cell.
During these searches the officers would
remove the oatmeal and mashed potatoes from the window and laugh
at Plaintiff.
(Id., ¶¶ 112-116.)
On January 28, 2011, Plaintiff was escorted to the receiving
department to sign criminal charges of aggravated assault filed
by defendant Medio against Plaintiff.
Medio alleged that
Plaintiff had struck Medio with an open hand.
(Compl., ¶ 117.)
Plaintiff complained to Internal Affairs officers that the
charges were retaliatory.
Sgt. Almedia was present and
repeatedly told Plaintiff to “shut up” to prevent Plaintiff from
explaining the situation to Internal Affairs.
Escorting
Plaintiff back to his cell, Sgt. Almedia further threatened
Plaintiff and allegedly said to him, “Do you really think that
you can have correctional officers brought up on charges and live
in this jail.
You will be labeled a snitch, there will be shit
in your food, you will be found dead in your cell, just let it
go.”
(Id., ¶¶ 118-120.)
Plaintiff alleges that the criminal
charges against him were facilitated by Conrad, who had been
assigned to investigate Plaintiff’s charges against Medio.
(Id.,
¶¶ 121-124.)
On February 1, 2011, Plaintiff alleges that Sgt. Almedia
came to Plaintiff’s cell, hit the door and yelled, “This is the
one writing stuff, [and] this guy dropping slips.”2
2
(Compl., ¶¶
Plaintiff alleges that “dropping slips” means snitching
on other inmates. (Compl., ¶ 126.)
7
125, 126.)
Sgt. Almedia allowed other inmates to stand at
Plaintiff’s cell door on several occasions thereafter to threaten
Plaintiff for “snitching on them.”
(Id., ¶ 127.)
Plaintiff filed a grievance regarding Sgt. Almedia’s threats
and CO Medio’s false criminal charges.
Plaintiff also sent a
letter to Warden Bondiskey on February 3, 2011, reminding the
Warden of his duty to protect Plaintiff from these alleged acts
of retaliation.
(Compl., ¶¶ 128, 129.)
Because of the retaliation and threats, Plaintiff refused to
eat food brought to him by correctional officers on the belief
that the food had been tampered with.
Plaintiff further alleges
that correctional officers would “violently kick the Plaintiff’s
cell door at all hours of the day and night and encourage other
inmates to taunt and threaten the Plaintiff creating an
atmosphere of fear.”
(Compl., ¶¶ 130, 131.)
Plaintiff was released from detention on February 16, 2011,
but still lived in fear of retaliation.
(Compl., ¶ 132.)
On April 23, 2011, Plaintiff again was interviewed by Lt.
Conrad from Internal Affairs concerning Plaintiff’s grievances
stemming from the January 14, 2011 incident.
Plaintiff alleges
that Conrad told him Defendants Medio, Swartzentruber, Montoya,
Rennie, Ivy, Prioli and McNally were found to be responsible for
assaulting Plaintiff on January 14, 2011.
Accordingly, Plaintiff
filed criminal charges against these defendants.
133, 134.)
8
(Compl., ¶¶
On May 5, 2011, Plaintiff was transferred to New Jersey
State Prison.
However, Plaintiff alleges that he was frequently
remanded to ACJF for court purposes and “was subjected to
multiple threats and acts of retaliation.”
136.)
(Compl., ¶¶ 135,
Plaintiff also alleges that he complained to Judge Bernard
E. Delury about these alleged acts of retaliation during the
court proceedings and asked not to be remanded to the ACJF
because Plaintiff had criminal charges pending against seven ACJF
correctional officers.
Despite Plaintiff’s complaints, he was
returned to the ACJF for court appearances.
Plaintiff was not
convicted of aggravated assault against CO Medio.
The seven ACJF
correctional officers (Medio, Montoya, Swartzentruber, Rennie,
Ivy, Prioli and McNally) also were not convicted of simple
assault against Plaintiff.
(Compl., ¶¶ 135-140.)
Plaintiff further alleges that a ceiling-mounted camera less
than ten feet away from the cell where the January 14, 2011
assault took place was purposefully withheld from the criminal
trial against the seven ACJF officers.
Plaintiff also alleges
that the video footage of his injuries taken by Sgt. Decicco
(referenced as V-115 in the investigation reports) was withheld
from the trial.
Plaintiff had filed grievances on January 19,
2011 and January 20, 2011, as well as a February 3, 2011 letter
sent to Warden Bondiskey asking that the video footage be
preserved for trial.
(Compl., ¶¶ 141-145.)
9
Plaintiff alleges that Lt. Conrad of Internal Affairs had
assured Plaintiff that video evidence would be preserved and was
the basis for the criminal charges against the seven ACJF
officers.
The only video footage turned over to the court for
trial was taken from a ceiling-mounted camera about 30 feet from
the cell where the alleged attack took place.
(Compl., ¶¶ 146-
148.)
Plaintiff seeks an unspecified award of compensatory and
punitive damages against Warden Bondiskey, CO Scott Medio, Sgt.
Montoya, Sgt. Swartzentruber, CO Rennie, CO Ivy, CO Prioli, CO
McNally, and other John Doe defendants (ACJF officers) for their
violations of Plaintiff’s constitutional rights.
Namely,
Plaintiff asserts claims of excessive force, cruel and unusual
punishment, deprivation of liberty/denial of due process,
retaliation, conspiracy, and denial of access to the courts.
(Compl., “Relief Requested” at pp. 24-25.)
II.
STANDARDS FOR A SUA SPONTE DISMISSAL
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 review a complaint in a civil action
in which a prisoner is proceeding in forma pauperis or seeks
redress against a governmental employee or entity.
The Court is
required to identify cognizable claims and to sua sponte dismiss
any claim that is frivolous, malicious, fails to state a claim
upon which relief may be granted, or seeks monetary relief from a
10
defendant who is immune from such relief.
1915(e)(2)(B) and 1915A.
28 U.S.C. §§
This action is subject to sua sponte
screening for dismissal under both 28 U.S.C. § 1915(e)(2)(B) and
§ 1915A.
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff.
See Erickson v. Pardus, 551 U.S. 89, 93–94 (2007)
(following Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
The Supreme Court refined the standard for summary dismissal
of a complaint that fails to state a claim in Ashcroft v. Iqbal,
556 U.S. 662 (2009).
The Court examined Rule 8(a)(2) of the
Federal Rules of Civil Procedure which provides that a complaint
must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2).
Citing its opinion in Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007) for the proposition that “[a] pleading that offers
‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do,’”
Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 555), the Supreme Court held
that, to prevent a summary dismissal, a civil complaint must now
allege “sufficient factual matter” to show that the claim is
facially plausible.
This then “allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”
Fowler v. UPMC Shadyside, 578 F.3d 203 (3d
11
Cir. 2009)(citing Iqbal, 556 U.S. at 676).
The Supreme Court’s
ruling in Iqbal emphasizes that a plaintiff must demonstrate that
the allegations of his complaint are plausible.
See id. at 678-
79; see also Twombly, 505 U.S. at 555, & n. 3; Warren Gen. Hosp.
v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011).
“A complaint must
do more than allege the plaintiff’s entitlement to relief.
A
complaint has to ‘show’ such an entitlement with its facts.”
Fowler, 578 F.3d at 211 (citing Phillips v. County of Allegheny,
515 F.3d 224, 234–35 (3d Cir. 2008).
See also Argueta v. U.S.
Immigration & Customs Enforcement, 643 F.3d 60, 73 (3d Cir.
2011); Bistrian v. Levi, 2012 WL 4335958, *8 (3d Cir. Sept. 24,
2012)(allegations that are no more than conclusions are not
entitled to the assumption of truth; a court should “look for
well-pled factual allegations, assume their veracity, and then
‘determine whether they plausibly give rise to an entitlement to
relief.’”)(quoting, Iqbal, 556 U.S. at 679).
III.
SECTION 1983 ACTIONS
Plaintiff brings this action pursuant to 42 U.S.C. § 1983.
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 ... .
12
Thus, to state a claim for relief under § 1983, a plaintiff must
allege, first, the violation of a right secured by the
Constitution or laws of the United States and, second, that the
alleged deprivation was committed or caused by a person acting
under color of state law.
West v. Atkins, 487 U.S. 42, 48
(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.
1994).
See also Malleus v. George, 641 F.3d 560, 563 (3d Cir.
2011).
IV.
A.
ANALYSIS
Excessive Force Claim
Plaintiff first asserts an excessive force claim against the
seven ACJF officers, CO Scott Medio, Sgt. Montoya, Sgt.
Swartzentruber, CO Rennie, CO Ivy, CO Prioli, CO McNally, and
other John Doe defendants (ACJF officers).
As a pre-trial
detainee at the time of the incident, Plaintiff was protected by
the Due Process Clause of the Fourteenth Amendment.
Wagner, 206 F.3d 335, 341 (3d Cir. 2000).
Fuentes v.
Analysis of whether a
detainee or un-sentenced prisoner has been deprived of liberty
without due process is governed by the standards set forth by the
Supreme Court in Bell v. Wolfish, 441 U.S. 520 (1979); Fuentes,
206 F.3d at 341-42.
In Bell, the Supreme Court stated:
In evaluating the constitutionality of conditions or
restrictions of pretrial detention that implicate only
the protection against deprivation of liberty without due
process of law, we think that the proper inquiry is
whether those conditions amount to punishment of the
detainee. For under the Due Process Clause, a detainee
may not be punished prior to an adjudication of guilt in
13
accordance with due process of law....
A court must decide whether the disability is imposed for
the purpose of punishment or whether it is but an
incident of some other legitimate governmental purpose.
Absent a showing of an expressed intent to punish on the
part of detention facility officials, that determination
generally will turn on “whether an alternative purpose to
which [the restriction] may rationally be connected is
assignable for it, and whether it appears excessive in
relation to the alternative purpose assigned [to it].”
Thus, if a particular condition or restriction of
pretrial detention is reasonably related to a legitimate
governmental objective, it does not, without more, amount
to “punishment.” Conversely, if a restriction or
condition is not reasonably related to a legitimate
goal-if it is arbitrary or purposeless-a court
permissibly may infer that the purpose of the
governmental action is punishment that may not
constitutionally be inflicted upon detainees qua
detainees....
Bell, 441 U.S. at 535-39 (citations omitted).
The Court further
explained that the government has legitimate interests that stem
from its need to maintain security and order at the detention
facility.
“Restraints that are reasonably related to the
institution’s interest in maintaining jail security do not,
without more, constitute unconstitutional punishment, even if
they are discomforting and are restrictions that the detainee
would not have experienced had he been released while awaiting
trial.”
Id. at 540.
Retribution and deterrence, however, are
not legitimate nonpunitive governmental objectives.
n. 20.
Id. at 539
Nor are grossly exaggerated responses to genuine security
considerations.
Id. at 539 n. 20, 561-62.
Thus, in order for Plaintiff to prove a claim for excessive
force, he must demonstrate that the force used amounted to a
14
wanton infliction of punishment, as opposed to restraint
rationally related to exercising control.
342; see also Bell, 441 U.S. at 535.
Fuentes, 206 F.3d at
Further, while correctional
officers may use force against an inmate to preserve order and
maintain the safety of other inmates and staff, they may not use
gratuitous force against an inmate who has been subdued.
See,
e.g., Giles v. Kearney, 571 F.3d 318, 326 (3d Cir. 2009); Bethune
v. Cnty. of Cape May, Civ. No. 08–5738, 2011 WL 2037627, *3
(D.N.J. May 20, 2011).
Construing all inferences in Plaintiff’s favor, as the Court
must do at this preliminary screening stage, this Court
preliminarily finds that Plaintiff has pled facts sufficient to
state a plausible claim for relief necessary to withstand summary
dismissal at this time.
In particular, the facts, as alleged by
Plaintiff in his Complaint, are sufficient to question the use of
force exercised by defendants and the manner and purpose for
which the force was applied.
For instance, Plaintiff alleges
that the defendant officers kicked him and slammed his head into
the wall after he was handcuffed and restrained with shackles.
Therefore, the Court will allow Plaintiff’s Fourteenth Amendment
excessive force claim to proceed at this time as against
Defendants, CO Scott Medio, Sgt. Montoya, Sgt. Swartzentruber, CO
Rennie, CO Ivy, CO Prioli, CO McNally, and other John Doe
defendants at ACJF.
15
B.
Conditions of Confinement Claim
Plaintiff next alleges that Defendants’ actions constituted
cruel and unusual punishment in violation of the Eighth
Amendment, or alternatively, a deprivation of liberty interests
and due process in violation of his Fourteenth Amendment rights.
Because Plaintiff was a pretrial detainee at the relevant time,
the Fourteenth Amendment’s Due Process Clause governs his claims
rather than the Eighth Amendment, which applies to convicted
prisoners.
Bell v. Wolfish, 441 U.S. 520, 535–37 (1979); Hubbard
v. Taylor, 399 F.3d 150, 164 (3d Cir. 2005)(“Hubbard I”); Natale
v. Camden Cnty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003).
As stated above, the Due Process Clause prohibits “punishment” of
a pretrial detainee prior to an adjudication of guilt in
accordance with due process of law.
Hubbard I, 399 F.3d at 164–65.
Bell, 441 U.S. at 535–37;
To determine whether conditions
of confinement amount to “punishment”, courts “ask, first,
whether any legitimate purposes are served by the[ ] conditions,
and second, whether the[ ] conditions are rationally related to
these purposes.”
Hubbard v. Taylor, 538 F.3d 229, 232 (3d Cir.
2008)(“Hubbard II”)(citing Union Cnty. Jail Inmates v. Di Buono,
713 F.2d 984, 992 (3d Cir. 1983)).
Examining Plaintiff’s claim under the second prong (whether
these conditions are rationally related to their purpose), the
Court must consider whether the conditions caused Plaintiff to
“endure such genuine privations and hardship over an extended
16
period of time,” that they became “excessive in relation to the
purposes assigned to them.”
Id. at 233 (citing Union Cnty., 713
F.2d at 992 (in turn quoting Bell, 441 U.S. at 542)(alterations &
quotations omitted). While courts ordinarily defer to the
expertise of corrections officials in operating jails in a
manageable fashion, such deference is not required where
substantial evidence in the record shows the conditions to be
excessive.
Bell, 441 U.S. at 540 n. 23 (citations omitted);
Hubbard II, 538 F.3d at 232.
The “excessiveness” analysis
requires courts to consider the totality of the circumstances,
including “the size of the detainee’s living space, the length of
confinement, the amount of time spent in the confined area each
day, and the opportunity for exercise.”
233.
Hubbard II, 538 F.3d at
The Third Circuit’s decision in Hubbard II is instructive.
There, the court held that requiring pretrial detainees to sleep
on mattresses on the floor in cells holding three inmates for
between three and seven months did not constitute punishment in
violation of the Fourteenth Amendment. 538 F.3d at 234–35.
The
court stressed that the inmates had access to large day rooms and
that the record did not substantiate the plaintiffs’ claims that
the use of floor mattresses caused disease or led to the
splashing of human waste on them.
Id.
The court concluded that
the conditions were not constitutionally excessive given the
totality of the circumstances.
Id.
17
In this case, Plaintiff’s conditions claim appears to
encompass two incidents: (1) the time he spent in the holding
cell on January 14, 2011, and (2) the time he spent in the
detention cell afterwards.
Considering the holding cell
conditions, Plaintiff alleges that Defendants kept him chained
and shackled in a holding cell for almost 12 hours despite
injuries, refused to let Plaintiff use the bathroom, and
thereafter allowed Plaintiff to defecate in his clothes in which
he remained throughout the night.
While this Court is certainly
sympathetic to Plaintiff’s humiliation in this regard, the
allegations simply do not rise to the level of a constitutional
deprivation as contemplated in Hubbard II.
Plaintiff was placed
in a holding cell for less than a day, and he alleges no other
hardship during this very short period of time.
Therefore, the
Court will dismiss this claim without prejudice at this time.
Similarly, Plaintiff was confined in the “cold” detention
cell from January 24, 2011 to February 16, 2011, for a total of
24 days.
Plaintiff complains that his cell was cold as the
caulking had been removed from the window.3
He also complains
that he was provided with only one blanket, one sheet and one
prison uniform.
However, on January 26, 2011, a nurse ensured
that Plaintiff was given a t-shirt and socks.
3
Plaintiff also
It is not clear from the Complaint whether the caulking
had been removed by inmates who had been housed there before
Plaintiff.
18
alleges that he was afraid to eat his food because he was afraid
the food was contaminated by the guards.
However, there are no
allegations that he was deprived of food and water during this
time.
Consequently, this Court finds that these allegations are
not sufficient at this time to give rise to a constitutional
violation.
Plaintiff makes only a singular allegation of
hardship (being placed in a cold cell), and the duration of his
detention for 24 days was far less than the time frame that the
Third Circuit found not to be excessive in Hubbard II.
Therefore, based on the totality of the circumstances as alleged
by Plaintiff for the time he spent in detention, this Court
concludes that the conditions were not constitutionally
excessive, and this claim will be dismissed accordingly for
failure to state a claim at this time.
Although confinement for 24 winter days in a poorly
insulated, colder cell may not rise to the level of a
constitutional claim, such conduct may serve as further evidence
of retaliation, discussed in subpart E, below.
C.
Denial of Medical Care Claim
Plaintiff also appears to assert a denial of medical care
claim concerning the ACJF nurse’s “refusal” to treat Plaintiff
for his injuries sustained on January 14, 2011.
Again, since
Plaintiff was a pretrial detainee at the time of the alleged
injury, the Fourteenth Amendment is applicable.
See City of
Revere v. Massachusetts General Hospital, 463 U.S. 239, 243-45
19
(1983)(holding that the Due Process Clause of the Fourteenth
Amendment, rather than the Eighth Amendment, controls the issue
of whether prison officials must provide medical care to those
confined in jail awaiting trial); Hubbard I, 399 F.3d at 158;
Fuentes, 206 F.3d at 341 n.9 ; Monmouth County
Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 346
n.31 (3d Cir. 1987), cert. denied, 486 U.S. 1006 (1988).
See
also Montgomery v. Ray, 145 Fed. Appx. 738, 740, 2005 WL 1995084
(3d Cir. 2005)(unpubl.)(“the proper standard for examining such
claims is the standard set forth in Bell v. Wolfish, ...; i.e.
whether the conditions of confinement (or here, inadequate
medical treatment) amounted to punishment prior to adjudication
of guilt....”)(citing Hubbard I, 399 F.3d at 158).
In Hubbard,
the Third Circuit clarified that the Eighth Amendment standard
only acts as a floor for due process inquiries into medical and
non-medical conditions of pretrial detainees.
399 F.3d at 165-
67.
In this action, Plaintiff alleges that a nurse came with
Sgt. Decicco, who videotaped Plaintiff’s injuries, to “look” at
his injuries, but otherwise provided no treatment to Plaintiff at
that time, while he was in the holding cell.
Plaintiff does not
allege that he was denied medical treatment at any other time,
and he admits that he was treated for his staph infection on
January 16, 2011.
Therefore, these allegations, without more, do
not show that Plaintiff was denied medical treatment sufficient
20
to state a Fourteenth Amendment violation.
Accordingly, this
claim will be dismissed without prejudice at this time as against
all named Defendants.
D.
Strip Search Claim
The Fourth Amendment to the United States Constitution, made
applicable to the states through the Due Process Clause of the
Fourteenth Amendment, provides that “The right of the people to
be secure in their persons ... against unreasonable searches and
seizures, shall not be violated.”
First addressing the
constitutionality of strip searches of pre-trial detainees in
Bell v. Wolfish, 441 U.S. 520 (1979), the Supreme Court upheld a
policy requiring pre-trial detainees in any correctional facility
run by the Federal Bureau of Prisons “to expose their body
cavities for visual inspection as a part of a strip search
conducted after every contact visit with a person from outside
the institution.”
441 U.S. at 558.
Recognizing that “deterring the possession of contraband
depends in part on the ability to conduct searches without
predictable exceptions,”
Florence v. Board of Chosen Freeholders
of the County of Burlington, 132 S.Ct. 1510, 1516 (2012), the
Supreme Court in Hudson v. Palmer, 468 U.S. 517 (1984), upheld
random searches of inmate lockers and cells even without reason
to suspect a particular individual of concealing a prohibited
item.
21
More recently, in Florence v. Board of Chosen Freeholders of
the County of Burlington, 132 S.Ct. 1510 (2012), the Supreme
Court considered the constitutionality of strip searches
conducted by county jails as part of the standard intake process,
even of persons arrested for minor offenses.
The searches at
issue required new detainees, who would be admitted to the
general population, to disrobe in front of correctional officers,
who would check for body markings and contraband, including a
visual inspection of body openings.
The searches did not involve
any touching by correctional officers.
Referring to the long-standing principle that a regulation
impinging on an inmate’s constitutional rights will be upheld
“‘if it is reasonably related to legitimate penological
interests,’” id. at 1515–16 (quoting Turner v. Safley, 482 U.S.
78, 89 (1987), the Court noted that “[m]aintaining safety and
order at these institutions requires the expertise of
correctional officials, who must have substantial discretion to
devise reasonable solutions to the problems they face.”
S.Ct. at 1515.
132
Thus, where institutional security is involved,
“deference must be given to the officials in charge of the jail
unless there is substantial evidence demonstrating their response
to the situation is exaggerated.”
Id. at 1518 (citation and
internal quotation marks omitted).
Here, however, Plaintiff alleges that two times each day
while he was in detention, he was strip searched, namely, he was
22
told to strip naked and was subjected to a visual body cavity
search.
Plaintiff further alleges that the officers would laugh
at Plaintiff during the strip search and that these searches were
conducted even though Plaintiff never left his detention cell and
thus had no opportunity to obtain contraband from others, let
alone to secrete it in his body.
These allegations, if true, may
suggest that Plaintiff was subjected to numerous strip searches
so outside the scope of any reasonable search policy that it
would rise to the level of a Fourth Amendment violation.
Accordingly, the Court will allow this limited claim to proceed
at this time.4
E.
Retaliation Claim
Next, Plaintiff alleges that Defendants have violated his
First Amendment right to seek redress for grievances by their
acts of retaliation against him.
“Retaliation for the exercise
of constitutionally protected rights is itself a violation of
rights secured by the Constitution ... .”
White v. Napoleon, 897
F.2d 103, 111-12 (3d Cir. 1990); see also Bistrian, 2012 WL
4335958 at *18; Mitchell v. Horn, 318 F.3d 523, 529-31 (3d Cir.
2003); Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001); Allah
v. Seiverling, 229 F.3d 220, 224-26 (3 Cir. 2000).
4
To prevail on
The Court notes that Plaintiff has not named the ACJF
correctional officers who conducted these strip searches,
however, he does add John Doe ACJF officers as defendants in this
action, who presumably were the officers who conducted these
searches. Plaintiff may amend his Complaint to name these
Defendants once he has discovered their identities.
23
a retaliation claim, Plaintiff must demonstrate that (1) he
engaged in constitutionally-protected activity; (2) he suffered,
at the hands of a state actor, adverse action “sufficient to
deter a person of ordinary firmness from exercising his
[constitutional] rights;” and (3) the protected activity was a
substantial or motivating factor in the state actor’s decision to
take adverse action.
Rauser, 241 F.3d at 333 (3d Cir.
2001)(quoting Allah, 229 F.3d at 225).
The plausibility of Plaintiff’s allegation as to the first
factor can not be disputed as Plaintiff has engaged in the filing
of grievances and criminal complaints against the ACJF officers
in state court, as well as this present action.
Moreover,
Plaintiff alleges facts that may be sufficient to create a
plausible inference that he has in fact been the subject of a
concerted retaliatory effort, namely, the threats of harm,
calling Plaintiff a snitch in front of other inmates, placement
in a cold cell, and constant strip searches.
Finally, the
proximity of these alleged retaliatory acts with Plaintiff’s
filing of grievances and criminal charges against the ACJF
officers may suggest that Plaintiff’s filing of grievances and
criminal charges was the “substantial or motivating factor” in
the Defendants’ decision to retaliate against Plaintiff.
Rauser,
241 F.3d at 333 (3d Cir. 2001)(quoting Allah, 229 F.3d at 225);
see also Bistrian, 2012 WL 4335958 at *19.
But see Dunbar v.
Barone, 487 Fed. Appx. 721, 723 (3d Cir. July 10, 2012).
24
Therefore, the Court will allow Plaintiff’s retaliation claim to
proceed at this time.
F.
Denial of Access to the Courts Claim
Plaintiff also appears to allege that Defendants denied him
access to the courts by withholding video-tape evidence from the
criminal trial against the Defendant ACJF officers for assault,
which resulted in the dismissal of the charges against these
officers.
The Constitution guarantees inmates a right of access to the
courts.
See Lewis v. Casey, 518 U.S. 343, 346 (1996).
The
Supreme Court has repeatedly recognized that “the fundamental
constitutional right of access to the courts requires prison
authorities to assist inmates in the preparation and filing of
meaningful legal papers by providing prisoners with adequate law
libraries or adequate assistance from persons trained in the
law.”
Lewis, 518 U.S. at 346 (quoting Bounds v. Smith, 430 U.S.
817, 828 (1977)(internal quotations omitted)).
not, however, unlimited.
This right is
Inmates may only proceed on
access-to-court claims with respect to (1) challenges to their
sentences (direct or collateral), (2) conditions-of-confinement
cases, and (3) pending criminal charges.
See Lewis, 518 U.S. at
354–55 (recognizing inmates’ right to access courts “to attack
their sentences, directly or collaterally, and in order to
challenge the conditions of their confinement”); Hargis v. Atl.
Cnty. Justice Facility, Civ. No. 10–1006, 2010 WL 1999303, *6
25
(D.N.J. May 18, 2010)(recognizing inmate’s additional right to
access courts “with respect to legal assistance and participation
in one’s own defense against pending criminal charges”)(citing
May v. Sheahan, 226 F.3d 876, 883–84 (7th Cir. 2000) and Caldwell
v. Hall, Civ. No. 97–8069, 2000 WL 343229 (E.D.Pa. Mar.31,
2000)).
Additionally, an inmate must show that the lack of
meaningful access to the courts caused him past or imminent
“actual injury”.
See Lewis, 518 U .S. at 350–52; Oliver v.
Fauver, 118 F.3d 175, 177–78 (3d Cir.1997); Hargis, 2010 WL
1999303, *6.
To do this, he must identify an “arguable,”
“nonfrivolous” underlying cause of action, either anticipated or
lost, and show that the prison’s deficient program frustrated his
efforts to litigate that action.
Lewis, at 351–53; Christopher
v. Harbury, 536 U.S. 403, 415 (2002)(citing Lewis, 518 U.S. at
353 & n. 3)).
To satisfy the “actual injury” requirement,
[An inmate] might show, for example, that a complaint he
prepared was dismissed for failure to satisfy some technical
requirement which, because of deficiencies in the prison’s
legal assistance facilities, he could not have known. Or
that he had suffered arguably actionable harm that he wished
to bring before the courts, but was so stymied by
inadequacies of the law library that he was unable to file
even a complaint.
Lewis, 518 U.S. at 351. Conclusory allegations that an inmate
suffered prejudice will not support an access-to-courts claim.
Arce v. Walker, 58 F. Supp.2d 39, 44 (W.D.N.Y. 1999)(internal
citations omitted).
Here, Plaintiff’s access to courts claim involves his
criminal charges against the ACJF officers.
26
Plaintiff is
alleging that the withholding of the video evidence resulted in
the dismissal of these criminal charges.5
However, as noted
above, Plaintiff’s constitutional claim under § 1983 for denial
of access to the courts may only proceed if the interference
relates to Plaintiff’s challenges to his criminal sentences
(direct or collateral), a conditions-of-confinement claim, and/or
pending criminal charges.
See Lewis, 518 U.S. at 354–55.
In
this case, Plaintiff is complaining that the video evidence was
5
The Third Circuit has held that a denial of access claim
is available where the state officials “wrongfully and
intentionally conceal information crucial to a person’s ability
to obtain redress through the courts, and do so for the purpose
of frustrating that right, and that concealment, and the delay
engendered by it substantially reduce the likelihood of one’s
obtaining the relief to which one is otherwise entitled.” Gibson
v. Superintendent of N.J. Dep’t of Law and Pub. Safety, 411 F.3d
427, 445 (3d Cir. 2005) overruled in part on other grounds as
noted in Dique v. N.J. State Police, 603 F.3d 181 (3d Cir. 2010)
(citing Estate of Smith v. Marasco, 318 F.3d 497, 511 (3d Cir.
2003))(quoting Swekel v. City of River Rouge, 119 F.3d 1259,
1262–63 (6th Cir. 1997)). In Gibson, the inmate plaintiff
alleged that state police officers and other government officials
had wrongfully and intentionally concealed exculpatory material
concerning racial profiling by the state police department, the
surfacing of which, led to the reversal of the plaintiff’s
conviction. Gibson, 411 F.3d at 445. Specifically, in Gibson
the plaintiff alleged that the actions of the attorney general
defendants “obfuscated the real extent of racial profiling” by
intentionally withholding and suppressing a racial profiling
report, which denied him the opportunity to obtain his release
for several years. Id. The Third Circuit held that although the
attorney general defendants’ actions had the unfortunate result
of perpetuating his incarceration for several years, the
plaintiff had alleged no facts to show that the actions of
attorney general defendants were directed at denying relief “to
people like the plaintiff”. Id. at 446–47. See also Burkett v.
Newman, 2012 WL 1038914, *3-4 (W.D.Pa. Feb. 21, 2012).
Nevertheless, as stated in the text above, because the evidence
Plaintiff claims was withheld did not involve either a habeas
proceeding, direct appeal, his own criminal proceeding, or a
conditions of confinement claim, this claim is not actionable.
27
withheld from the criminal trial of other individuals than
Plaintiff.
Moreover, even if Plaintiff is asserting that the
video evidence was withheld at his own criminal trial stemming
from the January 14, 2011 incident, Plaintiff admits that he was
acquitted of the charges.
Consequently, Plaintiff shows no actual injury, and has not
stated a cognizable claim for relief.
Therefore, this claim will
be dismissed without prejudice for failure to state a claim.
G.
Procedural Due Process Claim
Plaintiff’s next claim appears to assert that his procedural
due process rights were violated when the disciplinary hearing
officer did not permit him to call witnesses or use videotape
evidence at his disciplinary hearing.
A prisoner facing the loss
of a legally cognizable liberty interest following disciplinary
proceedings has a due process right to certain procedural
protections, including the opportunity to call witnesses and
present documentary evidence.
566–67 (1974).
Wolff v. McDonnell, 418 U.S. 539,
But this due process right is not triggered
unless the prison “imposes atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life.”
Sandin v. Conner, 515 U.S. 472, 484 (1995).
Petitioner was
placed in disciplinary custody for about 24 days only (he was
sanctioned with 30 days, but only remained in detention for about
24 days) a result of his alleged disciplinary conduct.
As this
Court discussed above, Petitioner does not present any evidence
28
that the conditions he faced in disciplinary custody amounted to
an “atypical and significant hardship” under Sandin, and the
United States Court of Appeals for the Third Circuit has held
that this type of confinement does not constitute an “atypical
and significant hardship.”
See Griffin v. Vaughn, 112 F.3d 703,
705–07 (3d Cir. 1997)(ruling that fifteen months in segregation
was not an atypical and significant hardship); Smith v.
Mensinger, 293 F.3d 641, 654 (3d Cir. 2002) (holding that seven
months in disciplinary confinement did not implicate a protected
liberty interest).
Because Petitioner fails to establish a
protected liberty interest, his due process claim necessarily
fails.
See Dunbar, 487 Fed. Appx. at 724-25.
Therefore, this purported disciplinary due process claim will be
dismissed for failure to state a claim.
H.
Conspiracy Claim
Plaintiff also asserts a general conspiracy claim ostensibly
under 42 U.S.C. §§ 1985(3).
The elements of a § 1985(3) claim
are “(1) a conspiracy; (2) for the purpose of depriving, either
directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and
immunities under the laws; and (3) an act in furtherance of the
conspiracy; (4) whereby a person is injured in his person or
property or deprived of any right or privilege of a citizen of
the United States.”
Farber v. City of Paterson, 440 F.3d 131,
134 (3d Cir. 2006)(internal quotations and citations omitted).
29
State law civil conspiracy has similar requirements.
LoBiondo v.
Schwartz, 970 A.2d 1007, 1029–30 (N.J. 2009)(noting that the
elements include an agreement between the parties to inflict a
wrong against or an injury upon another, and an overt act that
results in damage).
In this case, Plaintiff does not allege his conspiracy claim
with any specificity.
Rather, he makes only general, conclusory
and unsupported statements.
Plaintiff also does not provide any
factual support for a conspiracy under § 1985 as “the reach of
section 1985(3) is limited to private conspiracies predicated on
‘racial, or perhaps otherwise class based, invidiously
discriminatory animus.’”
Lake v. Arnold, 112 F.3d 682, 685 (3d
Cir. 1997)(quoting Griffin v. Breckenridge, 403 U.S. 88, 102
(1971)).
See also Reddish v. Burlington Tp. Police Dept., 2013
WL 144258, *3 (D.N.J. Jan. 11, 2013).
Here, because Plaintiff
fails to make anything other than conclusory allegations with
regard to his general § 1985 conspiracy claim, any such
conspiracy claim must be dismissed without prejudice at this
time.
I.
Supervisor Liability
Finally, Plaintiff brings this action against the ACJF
Warden Bondiskey asserting a claim that appears to be based on a
theory of supervisor liability.
As a general rule, government
officials may not be held liable for the unconstitutional conduct
of their subordinates under a theory of respondeat superior.
30
See
Iqbal, 556 U.S. at 676; 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 Bivens6 and § 1983 suits, a
plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the
Constitution.”
Iqbal, 556 U.S. at 676.
Thus, each government
official is liable only for his or her own conduct.
The Court
rejected the contention that supervisor liability can be imposed
where the official had only “knowledge” or “acquiesced” in their
subordinates conduct.
Id., 556 U.S. at 677.
Under pre-Iqbal Third Circuit precedent, “[t]here are two
theories of supervisory liability,” one under which supervisors
can be liable if they “established and maintained a policy,
practice or custom which directly caused [the] constitutional
harm,” and another under which they can be liable if they
“participated in violating plaintiff’s rights, directed others to
6
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971)
31
violate them, or, as the person[s] in charge, had knowledge of
and acquiesced in [their] subordinates’ violations.”
Santiago v.
Warminster Twp., 629 F.3d 121, 127 n. 5 (3d Cir. 2010)(internal
quotation marks omitted).
“Particularly after Iqbal, the
connection between the supervisor’s directions and the
constitutional deprivation must be sufficient to demonstrate a
plausible nexus or affirmative link between the directions and
the specific deprivation of constitutional rights at issue.”
Id.
at 130.
The Third Circuit has recognized the potential effect that
Iqbal might have in altering the standard for supervisory
liability in a § 1983 suit but, to date, has declined to decide
whether Iqbal requires narrowing of the scope of the test.
See
Santiago, 629 F.3d 130 n. 8; Bayer v. Monroe County Children and
Youth Servs., 577 F.3d 186, 190 n. 5 (3d Cir. 2009)(stating in
light of Iqbal, it is uncertain whether proof of personal
knowledge, with nothing more, provides sufficient basis to impose
liability upon supervisory official).
Hence, it appears that,
under a supervisory theory of liability, and even in light of
Iqbal, personal involvement by a defendant remains the touchstone
for establishing liability for the violation of a plaintiff’s
constitutional right.
Williams v. Lackawanna County Prison, 2010
WL 1491132, at *5 (M.D.Pa. Apr. 13, 2010).
Facts showing personal involvement of the defendant must be
asserted; such assertions may be made through allegations of
32
specific facts showing that a defendant expressly directed the
deprivation of a plaintiff’s constitutional rights or created
such policies where the subordinates had no discretion in
applying the policies in a fashion other than the one which
actually produced the alleged deprivation; e.g., supervisory
liability may attach if the plaintiff asserts facts showing that
the supervisor’s actions were “the moving force” behind the harm
suffered by the plaintiff.
See Sample v. Diecks, 885 F.2d 1099,
1117–18 (3d Cir. 1989); see also Iqbal, 556 U.S. at 676-686.
Here, Plaintiff provides no facts describing how the
supervisory defendant, Warden Bondiskey actively or affirmatively
violated his constitutional rights, i.e., he fails to allege
facts to show that Bondiskey expressly directed the deprivation
of his constitutional rights, or that Bondiskey created policies
which left subordinates with no discretion other than to apply
them in a fashion which actually produced the alleged
deprivation.
At best, it would appear that Plaintiff is alleging
that Bondiskey became aware of the January 14, 2011 incident and
later misconduct by the seven ACJF officers, CO Scott Medio, Sgt.
Montoya, Sgt. Swartzentruber, CO Rennie, CO Ivy, CO Prioli, CO
McNally, and other John Doe defendants (ACJF officers), via
Plaintiff’s grievance filings.
However, participation in the
after-the-fact review of a grievance or appeal is insufficient to
establish personal involvement on the part of those individuals
reviewing grievances.
See Rode v. Dellarciprete, 845 F.2d 1195,
33
1208 (3d Cir. 1988)(finding the receipt of a grievance
insufficient to show the actual knowledge necessary for personal
involvement); Brooks v. Beard, 167 Fed. Appx. 923, 925 (3d Cir.
2006)(per curiam)(allegations of inappropriate response to
grievances does not establish personal involvement required to
establish supervisory liability).
In sum then, Plaintiff has alleged no facts to support
personal involvement by Bondiskey, and simply relies on
recitations of legal conclusions such that Bondiskey failed to
supervise, oversee or correct the alleged misconduct by the named
ACJF correctional officer defendants after he allegedly received
Plaintiff’s grievances.
These bare allegations, “because they
are no more than conclusions, are not entitled to the assumption
of truth.”
Iqbal, 556 U.S. at 679.
Accordingly, this Court will
dismiss without prejudice the Complaint, in its entirety, as
against the Defendant Warden Bondiskey, because it is based on a
claim of supervisor liability, which is not cognizable in this §
1983 action, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1).
Nevertheless, if Plaintiff believes that he can assert facts
to show more than supervisor liability, that is, Warden
Bondiskey's personal knowledge and acquiescence in the
constitutional deprivations beyond simply learning of them in
34
Plaintiff's grievances, then he may move to file an amended
complaint accordingly.7
J.
Appointment of Counsel
On or about October 9, 2012, Plaintiff filed an application
for appointment of counsel in this matter.
(Docket entry no. 2).
Indigent persons raising civil rights claims have no absolute
constitutional right to counsel.
454, 456-57 (3d Cir. 1997).
Parham v. Johnson, 126 F.3d
In determining whether to appoint
counsel, a court should consider several factors:
As a preliminary matter, the plaintiff’s claim must
have some merit in fact and law. ... If the district
court determines that the plaintiff’s claim has some
merit, then the district court should consider the
following factors:
(1) the plaintiff’s ability to present his or her
own case;
(2) the complexity of the legal issues;
(3) the degree to which factual investigation will
be necessary and the ability of the plaintiff to pursue
such investigation;
(4) the amount a case is likely to turn on
credibility determinations;
(5) whether the case will require the testimony of
expert witnesses;
7
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. Id. To avoid confusion, the safer course is to file
an amended complaint that is complete in itself. Id.
35
(6) whether the plaintiff can attain and afford
counsel on his own behalf.
[Tabron v. Grace, 6 F.3d 147, 155-56, 157 n.5 (3d Cir.
1993), cert. denied, 510 U.S. 1196 (1994).] This list
of factors is not exhaustive, but instead should serve
as a guide post for the district courts.
Correspondingly, courts should exercise care in
appointing counsel because volunteer lawyer time is a
precious commodity and should not be wasted on
frivolous cases. Id. at 157.
Parham, 126 F.3d at 457-58.
Applying these factors to this case, the Court is not
inclined to allow appointment of counsel at this time.
Plaintiff’s claims in his Complaint do not involve complex issues
of law or fact, and it is unlikely that there will be a need for
extensive investigation and discovery for Plaintiff to prepare
and present his case for trial.
Plaintiff also appears to be
articulate and demonstrates an understanding of the legal issues
and ability to prepare documents and present his case coherently.
Finally, expert testimony is not essential to Plaintiff’s ability
to present his case.
It is too early to determine whether
Plaintiff's case will rest on determinations of credibility that
would support appointment of counsel.
Thus, the only factor
weighing in favor of appointment of counsel is Plaintiff’s
indigency.
Given the balance of factors against appointment of
counsel at this time, the Court will deny Plaintiff’s application
for appointment of counsel without prejudice to him renewing such
application at a later time if the circumstance in this case so
warrant.
36
V.
CONCLUSION
For the reasons set forth above, Plaintiff’s claims
asserting unconstitutional conditions of confinement, denial of
medical care, denial of access to the courts, denial of
procedural due process, and conspiracy, will be dismissed without
prejudice, in their entirety, as against all named Defendants,
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
Further, the Complaint shall be dismissed without prejudice, in
its entirety, against Defendant Warden Bondiskey, pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), because it is
impermissibly based on a claim of supervisor liability.
However,
Plaintiff’s remaining claims asserting use of excessive force,
unlawful strip searches and retaliation, may proceed at this time
as against the remaining Defendants, ACJF officers, CO Scott
Medio, Sgt. Montoya, Sgt. Swartzentruber, CO Rennie, CO Ivy, CO
Prioli, CO McNally, and other John Doe defendants (ACJF
officers).
Finally, Plaintiff’s application for appointment of
counsel (Docket entry no. 2) will be denied without prejudice at
this time.
An appropriate order follows.
s/ Jerome B. Simandle
JEROME B. SIMANDLE, Chief Judge
United States District Court
Dated:
March 18, 2013
37
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