NIX et al v. CAMDEN COUNTY DEPARTMENT OF CORRECTIONS et al
Filing
2
MEMORANDUM OPINION AND ORDER Plaintiffs application to proceed IFP is denied. ORDERED Clerk shall terminate this matter by making a new and separate entry on the docket reading, CIVIL CASE ADMINISTRATIVELY TERMINATED SUBJECT TO REOPENING UPON THE CLE RKS TIMELY RECEIPT OF PLAINTIFFS COMPLETE AND PROPERLY EXECUTED IN FORMA PAUPERIS APPLICATIONS AND THEIR AMENDED COMPLAINT. ORDERED Clerk shall serve this Memorandum Opinion and Order upon Plaintiffs. Each Plaintiff shall be served individually, and the Clerk shall enclose in each mailing a blank civil complaint form and blank IFP application. Signed by Judge Renee Marie Bumb on 11/21/2014. (bdk, )
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
________________________________
:
DONZEL NIX, et al.,
:
: Civil Action No. 14-6879 (RMB)
Plaintiffs,
:
:
v.
:
:
CAMDEN COUNTY DEPARTMENT
:
OF CORRECTIONS, et al.,
:
: MEMORANDUM OPINION AND ORDER
Defendants.
:
_______________________________________
:
BUMB, District Judge:
This matter comes before the Court upon the Clerk’s receipt
of Plaintiffs’ civil complaint (“Complaint”), see Docket Entry
No. 1, which arrived accompanied by an unsigned application
affidavit of poverty.
See Docket Entry No. 1-1.
In light of the deficiencies of Plaintiffs’ in forma
pauperis (“IFP”) application, this Court will deny them IFP
status without prejudice.
In the event Plaintiffs file proper
IFP applications, the Court will allow them an opportunity to
submit, for this Court’s screening, their amended pleading curing
the deficiencies of their instant Complaint.1
1
Plaintiffs are pre-trial detainees housed at the Camden
County Correctional Facility (“CCCF”). One Plaintiff, Daurice
Turner, provided his SBI Number indicating that he was convicted
and confined in connection with an offense unrelated to his
current confinement during the period from March 9, 2007, to June
11, 2012. See https://www6.state.nj.us/DOC_Inmate/details
?x=1372995&n=0. Other Plaintiffs provided only their jail
Naming the Department of Corrections, the State of New
Jersey, the CCCF’s warden and unidentified staff as Defendants in
this matter, Plaintiffs express their displeasure with their
conditions of confinement (alleging overcrowding and lack of
hygiene items, and noting their dissatisfaction with the quality
of meals because they deem those meals insufficiently nutritious
and prepared without the sanitary measures Plaintiffs deem
proper) and with the medical care available to the inmates
confined at the CCCF (expressing their displeasure with the speed
and quality of care available to the inmates).2
See Docket Entry
No. 1, at 4.
Each Plaintiff seeks $10 million in damages.
See id. at 6.
identification numbers. See Docket Entry No. 1, at 4. In light
of this information, this Court presumes, without making a
factual finding to that effect, that Plaintiffs are pre-trial
detainees, and therefore assesses their claims under the
Fourteenth rather than Eighth Amendment.
2
Plaintiffs extensively elaborate on their displeasure,
listing such matters as: (a) poor quality of air, which they
qualify as “recycled”; (b) lack of hot water in the cells, and
the need to access hot water in bathrooms and showers; (c) mice
infestation; (d) lack of lockers to storage the food purchased at
the commissary; (e) meals prepared out of the products exposed to
mice; (f) infested water backing up from the cell sink when the
cell toilet is flashed; (g) lack of mail delivery on daily basis;
(h) lack of daylight in the cells; (i) access to recreational
area on monthly basis; (j) delays in being called for a visit to
the medical staff after a request for medical care was filed; (k)
medical staff’s refusal to provide unspecified medications they
believe should be distributed; (l) mold on the walls of the
shower facilities being painted over rather than scraped off; (m)
lack of the doors in public bathrooms; (n) water from the showers
on the floors of public bathrooms; (o) lack of responses to
Plaintiffs’ grievances, etc. See Docket Entry No. 1, at 6-7.
2
The fee for a civil complaint is $400.00.3
The Clerk cannot
file a civil complaint unless the person seeking relief prepays
the entire fee or applies for and is granted IFP status under 28
U.S.C. § 1915.
See Local Civil R. 5.1(f).
The Prison Litigation
Reform Act of 1995, Pub. L. No. 104-135, 110 Stat. 1321 (April
26, 1996) (“PLRA”), which amended 28 U.S.C. § 1915, established
certain financial requirements for inmates who are attempting to
bring a civil action or file an appeal IFP.
Under the PLRA, an
inmate must submit his/her signed affidavit, stating all his/her
assets and verifying that (s)he is unable to pay the fee.
U.S.C. § 1915(a)(1).
See 28
The inmate must also submit a certified
copy of his/her trust fund account statement for the six-month
period immediately preceding the filing of his complaint.
U.S.C. § 1915(a)(2).
See 28
The inmate must obtain this certified
statement from the appropriate official of each prison at which
(s)he was confined during that period.
3
See id.
The entire $400 fee must be paid in advance. That fee
includes a filing fee of $350 plus an administrative fee of $50,
for a total of $400. A prisoner who is granted IFP status will,
instead, be assessed a filing fee of $350 and will not be
responsible for the $50 administrative fee. That $350 filing fee
would be assessed in accordance with 28 U.S.C. § 1915(b)(1),
i.e., in each month that the amount in the prisoner’s account
exceeds $10.00, until the $350.00 filing fee is paid, the agency
having custody of the prisoner shall assess, deduct from the
prisoner’s account, and forward to the Clerk of the Court,
payment equal to 20% of the preceding month's income credited to
the prisoner's account. See 28 U.S.C. § 1915(b)(2).
3
Here, this Court cannot grant Plaintiffs IFP status at this
juncture.
Each Plaintiff had to submit his own signed affidavit
of poverty and his own certified prison account statement for the
six months preceding submission of the Complaint, but they all
failed to do so.
Since Plaintiffs failed to submit the required
applications, they will be denied IFP status without prejudice.4
In the event Plaintiffs file proper IFP application,s they
should also submit their amended complaint stating cognizable
claims pled in accordance with requirements of Rule 8(a) of the
Federal Rules of Civil Procedure.
4
Plaintiffs shall take notice of Rule 20 of the Federal
Rules of Civil Procedure, which governs permissive joinder of
plaintiffs. Where more than one IFP inmate seeks to join in a
complaint against a government official or entity, each inmate
must seek and obtain IFP status, and the Court must direct $350
assessment against each inmate. See Hagan v. Rogers, 570 F.3d
146, 150 (3d Cir. 2009). Moreover, the Court is also obligated
to screen the complaint upon granting IFP status and dismiss any
claim that is frivolous, malicious or fails to state a claim upon
which relief may be granted, or seeks monetary relief from an
immune defendant. See 28 U.S.C. § 1915A. If an inmate has, on
three or more occasions while in confinement, brought an action
or appeal in a federal court that was dismissed on the aforesaid
grounds, the inmate may not bring another action IFP unless (s)he
is in imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g); see also Byrd v. Shannon, 709 F.3d 211 (3d Cir. Mar.
11, 2013). Thus, in the event Plaintiffs submit their properly
executed IFP applications, each Plaintiff would be assessed $350
filing fee and, if their amended complaint is dismissed, each
Plaintiff would accrue a strike for the purposes of 1915(g)’s
three-strikes rule. This Court, therefore, urges each Plaintiff
to pursue litigation only if they have a bona fide belief that
their constitutional rights were violated, and not for the
purposes of expressing their emotions or displeasures.
4
For instance, Plaintiffs shall not raise any claims against
the Department of Corrections since the Department is not a
“person” amenable to a § 1983 suit for damages.
See Grabow v.
Southern State Corr., 726 F. Supp. 537, 538-39 (D.N.J. 1989);
Fischer v. Cahill, 474 F.2d 991, 992 (3d Cir. 1973).
Also,
Plaintiffs shall not raise any claims against the State because
those claims are barred by the Eleventh Amendment.
See Estate of
Lagano v. Bergen Cty Prosecutor’s Office, 2014 U.S. App. LEXIS
19722, at *15-17 (3d Cir. Oct. 15, 2014).
To add, since Plaintiffs’ claims against the warden are
based solely on the theory of respondeat superior, see Docket
Entry No. 1, at 5 (“[The warden] is the administrator of the
[CCCF].
He dictates policies and procedures that both [the
inmates] and staff must follow”), these claims shall not be reraised in the amended complaint, if such is submitted.
See
Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009) (supervisors “may
not be held liable for unconstitutional conduct of their
subordinates under a theory of respondeat superior”).
Moreover, Plaintiffs’ claims based on the wrong suffered by
other inmates shall not be raised in their amended complaint, if
such is submitted, because Plaintiffs are without standing to
raise claims on behalf of other inmates.
See Whitmore v.
Arkansas, 495 U.S. 149, 154 (1990) (the jus tertii requirements);
see also Steel Co. v. Citizens for Better Environment, 523 U.S.
5
83, 103, n.5 (1998) (relying on Warth v. Seldin, 422 U.S. 490,
508 (1975)).
Furthermore, Plaintiffs cannot just name unspecified “staff”
as defendants: they must sufficiently identify each defendant and
allege facts showing each defendant’s personal involvement in a
particular alleged wrong.
See id.; see also Colburn v. Upper
Darby Twp., 946 F.2d 1017, 1027 (3d Cir. 1991).5
Toward that end, this Court notes that, analyzing a
conditions of confinement claim under the Fourteenth Amendment,
the Supreme Court explained that:
[i]n 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.
Bell v. Wolfish, 441 U.S. 520, 535 (1979) (footnotes omitted).
Thus, the central question is whether Plaintiffs
sufficiently alleged that their conditions of confinement
5
Also, Plaintiffs’ claims based on the alleged failure to
respond to their grievances shall not be raised in their amended
complaint, if such is submitted. It is well established that
“[p]risoners are not constitutionally entitled to a grievance
procedure and the state creation of such a procedure does not
create any federal constitutional rights,” Wilson v. Horn, 971 F.
Supp. 943, 947 (E.D. Pa. 1997), and a failure to respond to an
inmate’s grievances “does not violate his rights to due process
and is not actionable.” Stringer v. Bureau of Prisons, 145 F.
App’x 751, 753 (3d Cir. 2005) (citing Antonelli v. Sheahan, 81
F.3d 1422, 1430 (7th Cir. 1996)).
6
constituted punishment without due process.
See Southerland v.
Cty. of Hudson, 523 F. App’x 919, 921 (3d Cir. 2013).
Being housed in a cell with other inmates does not, per se,
qualify as such punishment.
The Court of Appeals expressly
pointed out that pretrial detainees do not have a right to be
free from being housed with other inmates.
See Hubbard v.
Taylor, 538 F.3d 229, 236 (3d Cir. 2008) (dismissing triplecelling challenges); see also North v. White, 152 F. App’x 111,
113 (3d Cir. 2005) (per curiam) (relying on Union Cty. Jail
Inmates v. DiBuono, 713 F.2d 984, 1000 (3d Cir. 1983)); Gibase v.
George W. Hill Corr. Facility, 2014 U.S. Dist. LEXIS 820862 (E.D.
Pa. June 16, 2014) (“housing multiple inmates in a cell does not
alone establish a constitutional violation”).
“Likewise, [there
is no] right of pretrial detainees to be free . . . from sleeping
on a mattress placed on the floor.”
6
Hubbard, 538 F.3d at 236.6
Moreover, Plaintiffs’ displeasure with the delays in
receiving medical attention and their inability to obtain the
medications of Plaintiffs’ choice, or their dissatisfaction with
the meals served to them, with the mold on the bathroom walls,
the need to purchase toiletries, etc., would not qualify as
challenges asserting a wrong of constitutional dimensions.
Analogously, one’s right to recreation cannot be affected by
limited access to the yard; rather, the inmate must assert facts
showing that the denial of recreation was such that it caused
injury to his ability to control his muscular functions or to
maintain his range of physical motions. See Cary v. Rose, 902
F.2d 37 (7th Cir. 1990) (where the inmates had room in their
cells and hallways to run in place/perform calisthenics, their
allegations could not amount to a constitutional claim); see also
Ellis v. Crowe, 2009 U.S. Dist. LEXIS 125154, at *36 (E.D. La.
Dec. 18, 2009) (denial of recreation claim should be dismissed
7
IT IS on this 21st day of November 2014,
ORDERED that Plaintiffs’ application to proceed in this
matter in forma pauperis is denied without prejudice; and it is
further
ORDERED that the Clerk shall terminate this matter by making
a new and separate entry on the docket reading, “CIVIL CASE
ADMINISTRATIVELY TERMINATED SUBJECT TO REOPENING UPON THE CLERK’S
TIMELY RECEIPT OF PLAINTIFFS’ COMPLETE AND PROPERLY EXECUTED IN
FORMA PAUPERIS APPLICATIONS AND THEIR AMENDED COMPLAINT.”
See
Papotto v. Hartford Life & Accident Ins. Co., 731 F.3d 265 (3d
Cir. 2013) (“administrative closings [are not final dismissals on
the merits; rather, they] are a practical tool used by courts to
prune overgrown dockets and are particularly useful in
circumstances in which a case, though not dead, is likely to
remain moribund”); and it is further
since the inmate did not allege that he suffered a physical
injury, such as muscle atrophy or loss of range of motion).
Analogously, while inmates have a right to legal and personal
mail, there is no such thing as a constitutional right to having
one’s mail delivered on daily basis. While this Court is not in
the position to screen each allegation Plaintiffs raised in their
Complaint for sua sponte dismissal until and unless Plaintiffs
obtain IFP status, see Izquierdo v. State, 2013 U.S. App. LEXIS
15533, at *2-3 and n.1 (3d Cir. July 25, 2013) (a court cannot
conclusively rule on the merits of a claim if the filing fee
issue was not resolved), the Court takes this opportunity to
repeat, once again, that Plaintiffs should pursue litigation only
if they have a bona fide belief that their constitutional rights
were violated, and not for the purposes of expressing Plaintiffs’
displeasures, emotions or dissatisfaction.
8
ORDERED that Plaintiffs may have this matter reopened in the
event they file, within thirty days from the date of entry of
this Memorandum Opinion and Order, their $400 filing fee or their
complete and properly executed in forma pauperis applications and
accompany the same by their amended complaint executed in
accordance with the guidance provided herein; and it is finally
ORDERED that the Clerk shall serve this Memorandum Opinion
and Order upon Plaintiffs by regular U.S. mail.
Each Plaintiff
shall be served individually, and the Clerk shall enclose in each
mailing a blank civil complaint form and blank in forma pauperis
application for incarcerated individuals seeking to commence a
civil proceeding.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
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