MOLLEY v. CFG et al

Filing 5

OPINION. Signed by Judge Noel L. Hillman on 6/24/2014. (nz, )n.m.

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SHAR-RIK MOLLEY,

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Civil Action No. 13-3811(NLH)
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Plaintiff,
v.
CFG, et al.,
Defendants.

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OPINION

APPEARANCES:
Shar-Rik Molley
Atlantic County Justice Facility
5060 Atlantic Avenue
Mays Landing, NJ 08330
Plaintiff pro se

HILLMAN, District Judge
Plaintiff Shar-Rik Molley, a pre-trial detainee confined at
Atlantic County Justice Facility in Mays Landing, New Jersey,
seeks to bring this action in forma pauperis pursuant to 42
U.S.C. § 1983, alleging violations of his constitutional rights. 1

1

This Court previously entered its Opinion and Order [2, 3]
denying without prejudice Plaintiff’s deficient application for
leave to proceed in forma pauperis and administratively
terminating this matter. Plaintiff has since submitted a
complete Application [4] for leave to proceed in forma pauperis.
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 will order the Clerk of the
1

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.

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).
I.

BACKGROUND

The following factual allegations are taken from
Plaintiff’s Complaint and are accepted as true for purposes of
this review.
Plaintiff alleges that he arrived at Atlantic County
Justice Facility (“ACJF”) from the hospital where he had been
provided a sling and crutches for a sprain.

He alleges that

when he arrived at ACJF, Dr. Clemmons called him a “damn fool,”
and Dr. Cherly DeBoise took the sling and crutches from him and
removed him from the medical facility to general population.
Plaintiff alleges that in general population he was not
able to obtain ice for the swelling of his foot and that he was
not able to elevate the foot as recommended.

He also states

Court to re-open this action and file the Complaint.
2

that he has remained in pain and that he needs to see a foot
doctor as the hospital suggested.
Plaintiff names as Defendants CFG, presumably a contracted
medical provider for ACJF, Dr. Clemmons, and Dr. DeBoise. 2
Plaintiff seeks compensatory damages and further medical
treatment.
II.

STANDARDS FOR A SUA SPONTE DISMISSAL

Every 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.”

“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 ... . 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)

2

Plaintiff also adds “et al” to the caption of the Complaint.
In the text of the Complaint, he generally alleges that he has
been “treated badly” by other medical staff. These vague
allegations are not sufficient to state a claim against any
other persons, as explained more fully, below.
3

(citations omitted).

That is, a complaint must assert “enough

facts to state a claim to relief that is plausible on its face.”
Id. at 570.
“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.”

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

Twombly, 550 U.S. at 556).

Thus, a court is “not bound to

accept as true a legal conclusion couched as a factual
allegation,” and “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice.”

Ashcroft v. Iqbal, 556 U.S. at 678 (citations

omitted).
To determine whether a complaint meets the pleading
standard, our analysis unfolds in three steps. 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 v. Levi, 696 F.3d 352, 365 (3d Cir. 2012) (citations
omitted).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to accept its factual allegations as true,

4

see James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir.
2012), and to construe it liberally in favor of the plaintiff,
see Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United States
v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
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)), cited
in Thomaston v. Meyer, 519 F.App’x 118, 120 n.2 (3d Cir. 2013);
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 ... .
Thus, to state a claim for relief under § 1983, a plaintiff must
allege, first, the violation of a right secured by the
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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); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
IV.
A.

ANALYSIS

The Claim Against Dr. DeBoise
Plaintiff alleges that Dr. DeBoise took from him crutches

and a sling provided by the hospital where he had been treated
before his incarceration, and that she removed him from the
medical facility and returned him to general population.

He

alleges that these actions interrupted his treatment and
subjected him to continuing pain and injury.
Criminal pretrial detainees retain liberty interests firmly
grounded in the Due Process Clause of the Fourteenth Amendment.
See Hubbard v. Taylor, 399 F.3d 150 (3d Cir. 2005); Fuentes v.
Wagner, 206 F.3d 335, 341 (3d Cir. 2000).

Analysis of whether

such a detainee has been deprived of liberty without due process
is governed by the standards set out by the Supreme Court in
Bell v. Wolfish, 441 U.S. 520 (1979).

Hubbard, 399 F.3d at 157-

60, 164-67; Fuentes, 206 F.3d at 341-42.
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. ...

6

Not every disability imposed during pretrial detention
amounts to punishment in the constitutional sense,
however. …
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. ...
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

institutions 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.”

441 U.S. at 540. Retribution and deterrence, however,

are not legitimate nonpunitive governmental objectives, 441 U.S.
at 539 n.20, nor are grossly exaggerated responses to genuine

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security considerations.

Id. at 539 n.20, 561-62.

Moreover, the due process rights of a pretrial detainee, to
medical care, are “at least as great as the Eighth Amendment
protections available to a convicted prisoner.”

City of Revere

v. Massachusetts General Hosp., 463 U.S. 239, 244-45 (1983)
(citing, inter alia, Bell v. Wolfish).

The Eighth Amendment

proscription against cruel and unusual punishment is violated
when prison officials are deliberately indifferent 3 to a
prisoner’s serious medical needs. 4
97, 103-04 (1976).

Estelle v. Gamble, 429 U.S.

“Where prison authorities deny reasonable

requests for medical treatment, ... and such denial exposes the
inmate to undue suffering or the threat of tangible residual
injury, deliberate indifference is manifest. Similarly, where
‘knowledge of the need for medical care [is accompanied by the]
... intentional refusal to provide that care,’ the deliberate
indifference standard has been met. ... Finally, deliberate
indifference is demonstrated ‘[w]hen ... prison authorities

3

“Deliberate indifference” is more than mere malpractice or
negligence; it is a state of mind equivalent to reckless
disregard of a known risk of harm. Farmer v. Brennan, 511 U.S.
825, 837-38 (1994).
4

Serious medical needs include those that have been diagnosed by
a physician as requiring treatment or that are so obvious that a
lay person would recognize the necessity for a doctor’s
attention, and those conditions which, if untreated, would
result in lifelong handicap or permanent loss. Monmouth County
Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 347
(3d Cir. 1987), cert. denied, 486 U.S. 1006 (1988).
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prevent an inmate from receiving recommended treatment for
serious medical needs or deny access to a physician capable of
evaluating the need for such treatment.’”

Monmouth County Corr.

Inst. Inmates v. Lanzaro, 834 F.2d 326, 346-47 (3d Cir. 1987),
cert. denied, 486 U.S. 1006 (1988) (citations omitted).

“Short

of absolute denial, if necessary medical treatment [i]s ...
delayed for non-medical reasons, a case of deliberate
indifference has been made out.”

Id. (citations omitted).

“Deliberate indifference is also evident where prison officials
erect arbitrary and burdensome procedures that result[] in
interminable delays and outright denials of medical care to
suffering inmates.”

Id. at 347 (citation omitted).

A prisoner’s subjective dissatisfaction with his medical
care, however, does not in itself indicate deliberate
indifference.

Andrews v. Camden County, 95 F.Supp.2d 217, 228

(D.N.J. 2000); Peterson v. Davis, 551 F.Supp. 137, 145 (D. Md.
1982), aff’d, 729 F.2d 1453 (4th Cir. 1984).

Similarly, mere

disagreements over medical judgment do not state Eighth
Amendment claims.

White v. Napoleon, 897 F.2d 103, 110 (3d Cir.

1990).
Beyond these parameters, the Court of Appeals for the Third
Circuit has not delineated the standard applicable to claims
that denial or inadequacy of medical care violates a detainee’s
right to due process.

See, e.g., Carson v. Mulvihill, 488
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F.App’x 554, 561 (3d Cir. 2012) (“We need not resolve today
which standard [Bell or Estelle] applies.”); King v. County of
Gloucester, 302 F.App’x 92, 95 (3d Cir. 2008) (“In assessing the
denial of medical care to a pretrial detainee, … [the] inquiry
involves an indirect application of the Eighth Amendment
deliberate indifference standard.”).
Here, Plaintiff’s allegations that he had some kind of
sprain and that Dr. DeBoise took away crutches and a sling
provided to him at the hospital, while returning him to general
population where he could not “ice” or elevate his foot, and
while failing to provide any further treatment, subjecting him
to continuing pain and injury, are sufficient to survive
dismissal at this screening stage.

Cf. Hemmings v. Gorczyk, 134

F.3d 104 (2d Cir. 1998).
B.

The Claims Against Dr. Clemmons and Other Staff
The only allegation against Dr. Clemmons is that he called

Plaintiff a “fool.”

This allegation of name-calling is plainly

insufficient to state a claim for unconstitutional denial of
medical care or violation of any other constitutional right.
See, e.g., Brown v. Hamilton Police Dept., Civil No. 13-0260,
2013 WL 3189040, *2 (D.N.J. June 21, 2013) (verbal harassment)
(collecting cases); Barber v. Jones, Civil No. 12-2578, 2013 WL
211251, *4-*6 (D.N.J. Jan. 18, 2013) (verbal harassment)
(collecting cases).

Accordingly, this claim will be dismissed
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with prejudice.
In addition, Plaintiff makes a vague “et al,” designation
in the caption of the Complaint, failing to identify the
individuals to whom that characterization is intended to apply,
either by name or action.

The vague allegations regarding other

individuals contained in the text of the Complaint -- for
example, that Plaintiff has been treated unprofessionally by the
entire staff -- are plainly insufficient to raise above the
speculative level any claim that any particular person was
deliberately indifferent to Plaintiff’s serious medical needs or
otherwise violated any constitutional right.

Accordingly, all

claims against unnamed defendants will be dismissed without
prejudice.
C.

The Claim Against CFG
It is well established that local government units and

supervisors are not liable under § 1983 solely on a theory of
respondeat superior.

See City of Oklahoma City v. Tuttle, 471

U.S. 808, 824 n.8 (1985); Monell v. New York City Department of
Social Services, 436 U.S. 658, 690-91, 694 (1978) (municipal
liability attaches only “when execution of a government’s policy
or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy,
inflicts the injury” complained of); Natale v. Camden County
Correctional Facility, 318 F.3d 575, 583-84 (3d Cir. 2003).
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“A

defendant in a civil rights action must have personal
involvement in the alleged wrongs, liability cannot be
predicated solely on the operation of respondeat superior.
Personal involvement can be shown through allegations of
personal direction or of actual knowledge and acquiescence.”
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)
(citations omitted).

Accord Robinson v. City of Pittsburgh, 120

F.3d 1286, 1293-96 (3d Cir. 1997); Baker v. Monroe Twp., 50 F.3d
1186, 1190-91 (3d Cir. 1995).
To establish liability of a municipality or government
agency under § 1983, “a plaintiff must show that an official who
has the power to make policy is responsible for either the
affirmative proclamation of a policy or acquiescence in a wellsettled custom.”

Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d

Cir. 1990), quoted in Blanche Rd. Corp. v. Bensalem Twp., 57
F.3d 253, 269 n.16 (3d Cir.), cert. denied, 516 U.S. 915 (1995),
and quoted in Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d
118, 126 (3d Cir. 2000).

A plaintiff must demonstrate that,

through its deliberate conduct, the municipality was the moving
force behind the plaintiff’s injury.

Monell, 436 U.S. at 689.

A policy is made “when a decisionmaker possess[ing] final
authority to establish municipal policy with respect to the
action issues a final proclamation, policy or edict.”
Mulholland v. Government County of Berks, Pa., 706 F.3d 227, 237
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(3d Cir. 2013) (citations and internal quotation marks omitted).
A custom is an act “that has not been formally approved by an
appropriate decisionmaker,” but that is “so widespread as to
have the force of law.”

Bd. of County Comm’rs of Bryan County,

Oklahoma v. Brown, 520 U.S. 397, 404 (1997).
There are three situations where acts of a
government employee may be deemed to be the result of
a policy or custom of the governmental entity for whom
the employee works, thereby rendering the entity
liable under § 1983. The first is where “the
appropriate officer or entity promulgates a generally
applicable statement of policy and the subsequent act
complained of is simply an implementation of that
policy.” The second occurs where “no rule has been
announced as policy but federal law has been violated
by an act of the policymaker itself.” Finally, a
policy or custom may also exist where “the policymaker
has failed to act affirmatively at all, [though] the
need to take some action to control the agents of the
government ‘is so obvious, and the inadequacy of
existing practice so likely to result in the violation
of constitutional rights, that the policymaker can
reasonably be said to have been deliberately
indifferent to the need.’”
Natale, 318 F.3d at 584 (footnote and citations omitted).

The

same standard applies to claims against a private corporation
that is functioning as a “state actor.”

See Weigher v. Prison

Health Services, 402 F.App’x 668, 669-70 (3d Cir. 2010).
Here, to the extent CFG could be considered a “state
actor,” Plaintiff has alleged no facts suggesting that the
decisions to remove his crutches and sling and return him to the
general population were the result of an actionable policy or
practice on the part of CFG.

Accordingly, all claims against
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CFG will be dismissed without prejudice for failure to state a
claim.
V.

CONCLUSION

For the reasons set forth above, the Fourteenth Amendment
medical-care claim may proceed as against Dr. Deboise.

All

remaining claims will be dismissed, pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1) and 42 U.S.C. § 1997e(c),
for failure to state a claim.

However, because it is

conceivable that Plaintiff may be able to supplement his
pleading with facts sufficient to overcome the deficiencies
described above, the Court will grant Plaintiff leave to file an
application to re-open accompanied by a proposed amended
complaint. 5

An appropriate order follows.

At Camden, New Jersey

Dated:

s/Noel L. Hillman
Noel L. Hillman
United States District Judge

June 24, 2014

5

Plaintiff should note that when an amended complaint is filed,
it supersedes the original and renders it of no legal effect,
unless the amended complaint specifically refers to or adopts
the earlier pleading. See West Run Student Housing Associates,
LLC v. Huntington National Bank, 712 F.3d 165, 171 (3d Cir.
2013) (collecting cases). See also 6 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1476 (3d ed.
2008). To avoid confusion, the safer practice is to submit an
amended complaint that is complete in itself. Id.
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