SMART v. COUNTY OF BURLINGTON et al

Filing 10

OPINION. Signed by Judge Robert B. Kugler on 8/26/2013. (nz, )n.m.

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SALAHUDDIN F. SMART,

:
:
Plaintiff,
:
:
v.
:
:
COUNTY OF BURLINGTON, et al., :
:
Defendants.
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Civil Action No. 13-0354 (RBK)
OPINION

APPEARANCES:
Plaintiff pro se
Salahuddin F. Smart
C.C.C.F.
P.O. Box 90431
Camden, NJ 08103
KUGLER, District Judge
Plaintiff Salahuddin F. Smart, a pre-trial detainee confined
at the Camden County Correctional Facility in Camden, New Jersey,
seeks to bring this action in forma pauperis pursuant to 42
U.S.C. § 1983, alleging violations of his constitutional rights.
Based on his affidavit of indigence and the absence of three
qualifying dismissals within 28 U.S.C. §1915(g), the Court will
grant Plaintiff’s application to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915(a) and order the Clerk of the Court
to file the Complaint.
At this time, the Court must review the Complaint 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.
I.

BACKGROUND

The following factual allegations are taken from Plaintiff’s
Complaint and are accepted as true for purposes of this review.
Plaintiff asserts that in July, 2011, he was arrested for a
“minor offense.”

He alleges that he was first confined at

Burlington County Jail and was then transferred, on a bus where
all inmates were shackled and escorted by correctional personnel,
to the Burlington County Minimum Correctional Facility in
Pemberton Township, New Jersey.

Plaintiff alleges that, when he

arrived at the Pembertown Township facility, he was subjected to
a “strip search,” pursuant to official policy to conduct such
searches on all detainees prior to their entry into full minimum,
even knowing that the nature of the charges was not serious.
Plaintiff alleges that the search was not based on a reasonable
suspicion that he was concealing contraband or weapons.
Plaintiff alleges that the search procedure required him to
disrobe and to expose his body cavities to visual inspection by
an officer of the same sex.
Plaintiff alleges that the search violated New Jersey
Administrative Code Section 10A:31-8.5, which sets forth the
conditions under which a prisoner may be strip searched in an

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adult county correctional facility.

Plaintiff also asserts that

this strip search violates the Fourth Amendment.

In addition,

Plaintiff asserts that the allegedly wrongful search resulted
from a failure to properly train and supervise correctional
officers.
Plaintiff names as defendants the County of Burlington, the
Burlington County Department of Corrections, Captain McDonnell,
John Doe Officer, and John Doe Warden.
II.

STANDARDS FOR A SUA SPONTE DISMISSAL

This Court must dismiss, at the earliest practicable time,
certain in forma pauperis and prisoner actions that are
frivolous, malicious, fail to state a claim, or seek monetary
relief from a defendant who is immune from such relief.

See 28

U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C.
§ 1915A (actions in which prisoner seeks redress from a
governmental defendant); 42 U.S.C. § 1997e (prisoner actions
brought with respect to prison conditions).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff.

Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United

States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).

The Court must

“accept as true all of the allegations in the complaint and all
reasonable inferences that can be drawn therefrom, and view them

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in the light most favorable to the plaintiff.”

Morse v. Lower

Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997).
In addition, any complaint must comply with the pleading
requirements of the Federal Rules of Civil Procedure.
Rule 8(a)(2) requires that a complaint contain “a short and
plain statement of the claim showing that the pleader is entitled
to relief.”

A complaint must plead facts sufficient at least to

“suggest” a basis for liability.
218, 236 n.12 (3d Cir. 2004).

Spruill v. Gillis, 372 F.3d

“Specific facts are not necessary;

the statement need only ‘give the defendant fair notice of what
the ... claim is and the grounds upon which it rests.’”
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).
While a complaint ... does not need detailed factual
allegations, a plaintiff’s obligation to provide the
“grounds” of his “entitle[ment] to relief” requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will
not do, see Papasan v. Allain, 478 U.S. 265, 286, 106
S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to
dismiss, courts “are not bound to accept as true a
legal conclusion couched as a factual allegation”).
Factual allegations must be enough to raise a right to
relief above the speculative level ... .
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations omitted).
The Court of Appeals for the Third Circuit has applied the
Twombly pleading standard to civil rights complaints.
Context matters in notice pleading. ... Put another
way, in light of Twombly, Rule 8(a)(2) requires a
“showing” rather than a blanket assertion of an
entitlement to relief. We caution that without some
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factual allegation in the complaint, a claimant cannot
satisfy the requirement that he or she provide not only
“fair notice,” but also the “grounds” on which the
claim rests.
Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008)
(citations omitted).
More recently, the Supreme Court has emphasized that, when
assessing the sufficiency of any civil complaint, a court must
distinguish factual contentions -- which allege behavior on the
part of the defendant that, if true, would satisfy one or more
elements of the claim asserted -- and “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
state a claim to 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 inference that the defendant is liable
for the misconduct alleged. The plausibility standard
is not akin to a probability requirement, but it 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.
Ashcroft, 556 U.S. at 678 (citations and quotation marks omitted)
(quoted in Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).
Taking this guidance into account, the Court of Appeals
instructs that the analysis, to determine whether a complaint
meets the pleading standard, unfolds in three steps.

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First, we outline the elements a plaintiff must plead
to state a claim for relief. Next, we peel away those
allegations that are no more than conclusions and thus
not entitled to the assumption of truth. Finally, we
look for well-pled factual allegations, assume their
veracity, and then “determine whether they plausibly
give rise to an entitlement to relief.” This last step
is “a context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.”
Bistrian, 696 F.3d at 365 (citations omitted).
Where a complaint can be remedied by an amendment, a
district court may not dismiss the complaint with prejudice, but
must permit the amendment.

Denton v. Hernandez, 504 U.S. 25, 34

(1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d
Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane
v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal
pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg
County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).
III.

SECTION 1983 ACTIONS

A plaintiff may have a cause of action under 42 U.S.C.
§ 1983 for certain violations of his constitutional rights.
Section 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory ... subjects, or causes to be subjected,
any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress ... .

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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).
IV.

ANALYSIS

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

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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.
This past year, 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
insterests,’” 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

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unless there is substantial evidence demonstrating their response
to the situation is exaggerated.”

Id. at 1518 (citation and

internal quotation marks omitted).
Here, Plaintiff has not alleged facts that the strip search
to which he was subjected was so outside the scope of reasonable
search policy that it would rise to the level of a Fourth
Amendment violation.

See Aruanno v. Allen, No. 12-2260, 2012 WL

4320446 (3d Cir. Sept. 21, 2012).
Moreover, even assuming that the search violated a state
correctional regulation, such a violation would not render the
search per se unreasonable under the Fourth Amendment.

See,

e.g., City of Ontario, Cal. v. Quon, 130 S.Ct. 2619, 2632 (2010);
California v. Greenwood, 486 U.S. 35, 43-44 (1988).
Finally, Plaintiff has failed to state a claim for failure
to train or supervise.

Where a need for “more or different

training ... is so obvious, and the inadequacy so likely to
result in constitutional violations, that the failure to train
... can fairly be said to represent official policy,” City of
Canton v. Harris, 489 U.S. 378, 390 (1989), and that failure to
train “actually causes injury,” a supervisor or municipality may
be held liable, Id.

Similarly, a supervisor or municipality may

be liable for failure to supervise, “only if it reflects a policy
of deliberate indifference to constitutional rights.”

Jewell v.

Ridley Twp., No. 11-4231, 2012 WL 4096259, *3 (3d Cir. Sept. 19,

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2012) (citing Montgomery v. DeSimone, 159 F.3d 120, 126-27 (3d
Cir. 1998)).

Here, however, Plaintiff fails to state a claim for

a constitutional injury; thus, he fails to state a claim for
failure to train or supervise.
V.

CONCLUSION

For the reasons set forth above, the Complaint will be
dismissed without prejudice, pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1) and 42 U.S.C. § 1997e, for
failure to state a claim.1

However, because it is conceivable

that Plaintiff may be able to supplement his pleading with facts
sufficient to overcome the deficiencies described herein, the
Court will grant Plaintiff leave to file an application to reopen accompanied by a proposed amended complaint.2

1

The Court notes that “‘[g]enerally, an order which
dismisses a complaint without prejudice is neither final nor
appealable because the deficiency may be corrected by the
plaintiff without affecting the cause of action.’ ... The
dispositive inquiry is whether the district court’s order finally
resolved the case.” Martin v. Brown, 63 F.3d 1252, 1257-58 (3d
Cir. 1995) (quoting Borelli v. City of Reading, 532 F.2d 950, 951
(3d Cir. 1976)) (other citations omitted). In this case, if
Plaintiff can correct the deficiencies of his Complaint, he may
file a motion to re-open these claims in accordance with the
court rules.
2

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
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An appropriate order follows.

S/Robert B. Kugler
Robert B. Kugler
United States District Judge
Dated: August 26, 2013

explicit. Id. To avoid confusion, the safer course is to file
an amended complaint that is complete in itself. Id.
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