COOPER v. ATLANTIC COUNTY JUSTICE FACILITY et al

Filing 4

OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 4/20/15. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MORRIS COOPER,

HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 15-575 (JBS/JS)

v.
ATLANTIC COUNTY JUSTICE
FACILITY et al.,

OPINION

Defendants.

APPEARANCES:
Morris Cooper, Plaintiff Pro Se
#228533
Atlantic County Justice Facility
5060 Atlantic Avenue
Mays Landing, NJ 08330
SIMANDLE, Chief Judge:
INTRODUCTION
Before the Court is Plaintiff Morris Cooper’s
(“Plaintiff”), submission of a civil rights complaint pursuant
to 42 U.S.C. § 1983.1 Plaintiff is a pretrial detainee currently
confined at Atlantic County Justice Facility (“ACJF”), Mays

1

Plaintiff claims that jurisdiction is proper under 28 U.S.C. §
1333 (granting the district courts original jurisdiction of
admiralty or maritime civil cases). The Court finds that
jurisdiction is proper under § 1983. Plaintiff’s complaint also
contains a “Petition for Removal” pursuant to 28 U.S.C. § 1455
(Docket Entry 1 at 14). Plaintiff has failed to meet the
requirements of 28 U.S.C. § 1455(a), therefore removal shall not
be permitted, and Plaintiff’s criminal action shall remain in
the state courts.

Landing, New Jersey.

By Order dated March 17, 2015, this Court

granted Plaintiff's application to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915(a) and ordered the Clerk to file
the Complaint. (Docket Entry 2). At this time, the Court must
review the complaint, pursuant to 28 U.S.C. §§ 1915(e)(2) 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 will be permitted
to go forward in part, and will be dismissed in part.2
I. BACKGROUND
Plaintiff brings this civil rights action against
Defendants ACJF, Freeholders of Atlantic County, Medical Staff
of Atlantic County Justice Facility, Atlantic County
Correctional Officers, CFG Health Systems, LLC, (“CFG”) and
Warden Geraldine Cohen.

The following factual allegations are

taken from the complaint and are accepted for purposes of this
screening only.

The Court has made no findings as to the

veracity of Plaintiff’s allegations.

2

Plaintiff also filed a Motion to Amend his complaint. (Docket
Entry 3). That motion shall be granted in part as set forth
herein.
2

Plaintiff alleges that he was beaten and sexually assaulted
by Officer Buonsante, Sgt. Gill, Sgt. Montoya, D.t. Geiger J.,
Ofc. Grey, and other John Doe ACJF officers.

According to the

complaint, Plaintiff was escorted to the medical area of ACJF.
While he was waiting, he began talking with some of the women in
the area. (Docket Entry 1 at 5). Officer Buonsante yelled at
Plaintiff to stop talking to them, and Plaintiff responded that
Officer Buonsante did not have to yell at him like a child.
(Docket Entry 1 at 5).

Officer Buonsante then left his post and

told Plaintiff he was “goin back.” (Docket Entry 1 at 5).
Thereafter, he pushed Plaintiff to the door and punched
Plaintiff in the face. (Docket Entry 1 at 5). Plaintiff began to
bleed from his lip and nose. (Docket Entry 1 at 5, 7). Officer
Buonsante called for the other officers, who began kicking and
punching Plaintiff. (Docket Entry 1 at 7). Plaintiff says that
as a result of the confrontation, his left hand pinky and ring
fingers were broken. (Docket Entry 1 at 7). The officers next
forcefully grabbed Plaintiff’s penis and testicles. (Docket
Entry 1 at 7). Plaintiff “started yelling I’m not resisting help
me.” (Docket Entry 1 at 7). The officer then handcuffed
Plaintiff, “put [his] face down and force[d] [him] to walk
backwards to medical.” (Docket Entry 1 at 7). As the result of
the alleged conduct by the officers, Plaintiff asserts he is
suffering “internal and external complications,” his “sex life
3

is tainted,” he feels “violated,” and he cannot “take showers
properly or do any normal activities with [his] hand” (Docket
Entry 1 at 7). He was thereafter taken to solitary confinement
(Docket Entry 1 at 7).
Plaintiff further claims he was provided improper medical
treatment by various, unnamed medical staff as well as ACJF’s
healthcare provider, CFG Health Systems, LLC.

After the

incident with the officers as described above, Plaintiff was
escorted to the medical facility where his right hand was xrayed instead of the left hand that was broken by the officers.
(Docket Entry 1 at 7).3

He states he “can’t feel [his] hand” and

has not been given any kind of antibiotics or pain medication.
(Docket Entry 1 at 8).

He also cites their failure to take him

to a hospital for treatment or stitch his lip. (Docket Entry 1
at 4).
Plaintiff has also named Warden Geraldine Cohen as a
defendant, stating he sent her a grievance regarding the actions
of the officers and medical staff. (Docket Entry 1 at 9).

He

also seeks relief against the Freeholders of Atlantic County as
the operators of ACJF and Warden Cohen’s “supervisor.” (Docket
Entry 1 at 6).

3

Plaintiff later states an x-ray was finally taken of his left
hand after thirty (30) days had elapsed. (Docket Entry 1 at 9).
4

Plaintiff seeks relief in the amount of “$500,000,000 or
between $2,000,000” (Docket Entry 1 at 11).
II. DISCUSSION
A. Standards for a Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub. L. No. 104-134,
§§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996)
(“PLRA”), district courts must review complaints in those civil
actions in which a prisoner is proceeding in forma pauperis, see
28 U.S.C. § 1915(e)(2)(B), seeks redress against a governmental
employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim
with respect to prison conditions, see 42 U.S.C. § 1997e.

The

PLRA directs district courts to sua sponte dismiss any claim
that is frivolous, is malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief.

This action is

subject to sua sponte screening for dismissal under 28 U.S.C. §§
1915(e)(2)(b) and 1915A because Plaintiff is a prisoner
proceeding in forma pauperis.
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).

5

According to the Supreme Court’s decision in Ashcroft v.
Iqbal, “a pleading that offers ‘labels or conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will
not do.’”

556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 555 (2007)).

To survive sua sponte

screening for failure to state a claim,4 the complaint must
allege “sufficient factual matter” to show that the claim is
facially plausible.

Fowler v. UPMS Shadyside, 578 F.3d 203, 210

(3d Cir. 2009) (citation omitted).

“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.”

Fair Wind

Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)
(quoting Iqbal, 556 U.S. at 678).

Moreover, while pro se

pleadings are liberally construed, “pro se litigants still must
allege sufficient facts in their complaints to support a claim.”
Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013)
(citation omitted) (emphasis added).

4

“The legal standard for dismissing a complaint for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the
same as that for dismissing a complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x
120, 122 (3d Cir. 2012) (citing Allah v. Seiverling, 229 F.3d
220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App’x 230,
232 (3d Cir. 2012) (discussing 28 U.S.C. § 1997e(c)(1));
Courteau v. United States, 287 F. App’x. 159, 162 (3d Cir. 2008)
(discussing 28 U.S.C. § 1915A(b)).
6

B. 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
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.

See West v. Atkins, 487 U.S. 42, 48

(1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011);
Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994).
III. ANALYSIS
Plaintiff names the ACJF as a defendant, however ACJF must
be dismissed from this action because a jail is not a “person”
amenable to suit under § 1983. See, e.g., Grabow v. Southern
State Corr. Facility, 726 F. Supp. 537, 538-39 (D.N.J. 1989)
(correctional facility is not a “person” under § 1983).
Accordingly, this Court will dismiss with prejudice all claims
asserted against ACJF.
7

A.

Excessive Force Claim
Plaintiff first asserts an excessive force claim against

several ACJF officers, including Officer A. Buonsante and
several unnamed officers, for their conduct on December 1, 2014.
As a pre-trial detainee at the time of the incident, Plaintiff
is protected by the Due Process Clause of the Fourteenth
Amendment. Fuentes v. Wagner, 206 F.3d 335, 341 (3d Cir. 2000).
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
accordance with due process of law.
441 U.S. at 535-36. The Court further explained that the
government has legitimate interests that stem from its need to
maintain security and order at the detention facility, and that
“[r]estraints 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

8

have experienced had he been released while awaiting trial.” Id.
at 540. Retribution and deterrence, however, are not legitimate
nonpunitive governmental objectives, id. at 539 n.20, 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
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).
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 Officer Buonsante and the
other officers as well as the manner and purpose for which the
force was applied.

For instance, Plaintiff alleges Officer
9

Buonsante and the other officers kicked him, broke two of his
fingers, violently grabbed his genitals, continued to use force
against him even after he was handcuffed, and sent him to
solitary confinement in order to “stay quiet”. (Docket Entry 1
at 5).

Therefore, the Court will allow Plaintiff’s Fourteenth

Amendment excessive force claim to proceed at this time against
Officer Buonsante, Sgt. Gill, Sgt. Montoya, D.t. Geiger J., Ofc.
Grey, and the John Doe officers.
B.

Denial of Adequate Medical Care
Plaintiff’s complaint further alleges he was denied

adequate medical care by the medical staff and CFG in violation
of his Fourteenth Amendment rights.

See City of Revere v.

Massachusetts General Hospital, 463 U.S. 239, 243-45 (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); see also Simmons v. City of
Philadelphia, 947 F.2d 1042, 1067 (3d Cir. 1991) (noting
Fourteenth Amendment provides at least the same level of medical
care for pretrial detainees as the Eighth Amendment does for
convicted prisoners).

In order to set forth a cognizable claim

for a violation of his right to adequate medical care, an inmate
must allege: (1) a serious medical need; and (2) behavior on the
part of prison officials that constitutes deliberate
10

indifference to that need. See Estelle v. Gamble, 429 U.S. 97,
106 (1976); Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575,
582 (3d Cir. 2003).
To satisfy the first prong of the Estelle inquiry, the
inmate must demonstrate that his medical needs are serious.

A

serious medical need is one “that has been diagnosed by a
physician as requiring treatment or one that is so obvious that
a lay person would easily recognize the necessity for a doctor's
attention.” Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834
F.2d 326, 347 (3d Cir. 1987) (citations omitted). “In addition,
where denial or delay causes an inmate to suffer a life-long
handicap or permanent loss, the medical need is considered
serious.” Ibid. Plaintiff alleges that as the result of the
excessive force used by the officers, two fingers on his left
hand were broken and in need of medical care. A lay person would
easily recognize that medical attention was necessary to treat
broken fingers. Furthermore, Plaintiff has asserted he still
cannot fully use his left hand. Plaintiff’s broken fingers are
therefore a serious medical need.
The second element of the Estelle test requires an inmate
to show that prison officials acted with deliberate indifference
to his serious medical need. See Natale, 318 F.3d at 582
(finding deliberate indifference requires proof that the
official knew of and disregarded an excessive risk to inmate
11

health or safety). “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. See Farmer v.
Brennan, 511 U.S. 825, 837–38 (1994). The Third Circuit has
found deliberate indifference where a prison official: (1) knows
of a prisoner's need for medical treatment but intentionally
refuses to provide it; (2) delays necessary medical treatment
for non-medical reasons; or (3) prevents a prisoner from
receiving needed or recommended treatment. See Rouse v.
Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Needless suffering
resulting from the denial of simple medical care, which does not
serve any penological purpose, violates the Eighth Amendment as
well. See Atkinson v. Taylor, 316 F.3d 257, 266 (2003); see also
Durmer v. O'Carroll, 991 F.2d 64 (3d Cir. 1993); White v.
Napoleon, 897 F.2d 103 (3d Cir. 1990); Monmouth Cnty. Corr., 834
F.2d at 346 (“deliberate indifference is demonstrated ‘[w]hen
... prison authorities 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”).
Plaintiff alleges the ACJF medical staff and CFG
purposefully x-rayed his non-injured right hand instead of his
injured left hand following his confrontation with the officers.
(Docket Entry 1 at 6-7).

He states his left hand was not x12

rayed until after 30 days had passed.

(Docket Entry 1 at 9).

He further asserts he has been denied the opportunity to consult
with psychiatric personnel, (Docket Entry 1 at 7), and has not
been given pain medication, (Docket Entry 1 at 8), but he has
provided no facts indicting deliberate indifference on the part
of the medical staff regarding those two assertions.

Therefore,

Plaintiff’s denial of medical care claim survives screening only
as to his claim regarding the x-ray of his hand.

The other

claims shall be dismissed without prejudice.
C.

Denial of Access to the Courts
Plaintiff also appears to allege that Defendants denied him

access to the courts by denying him video-tape footage taken by
Sgt. Montoya, purportedly because Internal Affairs did not
“think [Plaintiff] would know what to do with it” (Docket Entry
1 at 7).
The First and Fourteenth Amendments guarantee inmates a
right of access to the courts. See Monroe v. Beard, 536 F.3d
198, 205 (3d Cir. 2008) (per curiam) (citing Lewis v. Casey, 518
U.S. 343, 354-55 (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
13

346 (quoting Bounds v. Smith, 430 U.S. 817, 828 (1977)(internal
quotations omitted)). This right is not, however, unlimited.
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”). 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). 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.

14

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 the
instant excessive force and denial of medical care claims. He
alleges Sgt. Montoya’s body camera took footage of Plaintiff’s
treatment, or lack thereof, in the medical facility, (Docket
Entry 1 at 8), and that unnamed Internal Affairs officers denied
him access to the video because they did not “think [he] would
know what to do with it.” (Docket Entry 1 at 7).

Plaintiff has

not alleged any harm caused as the result of this alleged
withholding, and the fact that Plaintiff has succeeded in filing
the instant complaint tends to show there has been none at this
time.

Plaintiff’s denial of access to courts claim will

therefore be dismissed without prejudice to Plaintiff’s right to
seek any video evidence in discovery during the prosecution of
his remaining claims.
D.

Warden Cohen
Plaintiff states Warden Cohen is liable under a respondeat

superior liability as she is in charge of ACJF and its officers
(Docket Entry 1 at 9).

Plaintiff alleges he “wrote a grievance

to the Warden stating how Atlantic County Justice Facility
correctional officers phisically [sic] sexually assaulted me,
15

and how they denied me medical treatment.

While I was enduring

pain and suffering they used cruel and unusual punishment and
kept me in solitary confinement with no medical treatment for 30
days.” (Docket Entry 1 at 9).
“Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of
respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009). State actors are liable only for their own
unconstitutional conduct. Bistrian v. Levi, 696 F.3d 352, 366
(3d Cir. 2012). The Third Circuit has identified two general
ways in which a supervisor-defendant may be liable for
unconstitutional acts undertaken by subordinates: (1) “liability
may attach if they, with deliberate indifference to the
consequences, established and maintained a policy, practice or
custom which directly caused [the] constitutional harm”; or (2)
“a supervisor may be personally liable under § 1983 if he or she
participated in violating the plaintiffs rights, directed others
to violate them, or, as the person in charge, had knowledge of
and acquiesced in the subordinate's unconstitutional conduct.”
Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir.
2014) (internal citations omitted). “[U]nder Iqbal, the level of
intent necessary to establish supervisory liability will vary
with the underlying constitutional tort alleged.” Id. at 319.
In dicta, the Third Circuit suggested deliberate action was
16

required to substantiate an excessive force claim made against a
supervisor. Id. at 321 (citations omitted); see also Porro v.
Barnes, 624 F.3d 1322, 1327-28 (10th Cir. 2010).

Plaintiff has

alleged no deliberate, direct action by Warden Cohen, therefore
any excessive force claim against her must be dismissed for
failure to state a claim on which relief may be granted.

28

U.S.C. § 1915(e)(2)(B)(ii).
As for his claims of denial of medical care, Plaintiff must
set forth facts alleging Warden Cohen herself was deliberately
indifferent to Plaintiff’s medical needs.
319.

Barkes, 766 F.3d at

Deliberate indifference on the part of prison officials

“describes a state of mind more blameworthy than negligence[,]”
Farmer v. Brennan, 511 U.S. 825, 835 (1978), and must be more
than “ordinary lack of due care for the prisoner’s interests or
safety.” Ibid.

“[A] prison official cannot be found liable . .

. for denying an inmate humane conditions of confinement unless
the official knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts from
which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.”

Id.

at 837. Plaintiff’s allegations against Warden Cohen are
conclusory and limited to her receipt of a grievance, however
this is an insufficient basis of liability. See Rode v.
Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988); Stringer
17

v. Bureau of Prisons, Federal Agency, 145 F. App’x 751, 753 (3d
Cir. 2005) (alleged failure to process or respond to inmate’s
grievances did not violate his rights to due process and is not
actionable), and therefore his claims do not meet Iqbal’s
pleading standard.

The denial of medical adequate care claim

against Warden Cohen must be dismissed as well for failure to
state a claim on which relief may be granted.

28 U.S.C. §

1915(e)(2)(B)(ii).
In this case, however, because it is possible that
Plaintiff may be able to supplement his complaint with facts
sufficient to overcome the deficiencies noted herein, he shall
be given leave to amend his claims against Warden Cohen.

See

Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir.
2002).
E.

Freeholders of Atlantic County
Plaintiff also seeks relief against the Freeholders of

Atlantic County as the operators of ACJF and Warden Cohen’s
“supervisor” (Docket Entry 1 at 6).

He states:

They don’t have proper protocol pertaining to “A.R.T.”
procedures for having correctional officers that
aggressively assault inmates and allow cruel and unusual
punishment and ignore constitutional violations that are
going on in this facility when it is brought to their
attention and when addressed no relief was given. Plus
they allow our mail to be intercepted when we argue for
our constitutional rights are being violated.

18

(Docket Entry 1 at 6).

It is well-established that municipal

liability under § 1983 “may not be proven under the respondeat
superior doctrine, but must be founded upon evidence that the
government unit itself supported a violation of constitutional
rights.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)
(citing Monell v. New York City Dep't of Soc. Servs., 436 U.S.
658 (1978)). As a consequence, a municipality is liable under §
1983 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.” Monell, 436 U.S. at 694; Pembaur v. City of Cincinnati,
475 U.S. 469, 483 (1986) (plurality opinion) (“[M]unicipal
liability under § 1983 attaches where-and only where-a
deliberate choice to follow a course of action is made from
among various alternatives by the official or officials
responsible for establishing final policy with respect to the
subject matter in question.”).

Plaintiff’s “failure to train”

and “failure to supervise” claims are a subset of policy
liability.
The Third Circuit has defined “policy” and “custom” for the
purposes of municipal liability:
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.” Kneipp v. Tedder, 95 F.3d 1199, 1212
(3d Cir. 1996) (quoting Pembaur v. City of Cincinnati,
19

475 U.S. 469, 481 (1986) (plurality opinion)). 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 Commis of
Bryan County v. Brown, 520 U.S. 397, 404 (1997)].
Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 584 (3d
Cir. 2003). Both must be tied to the responsible municipality.
Whether a policy or a custom, “The plaintiff must also
demonstrate that, through its deliberate conduct, the
municipality was the ‘moving force’ behind the injury alleged.”
Bd. of Cnty. Commis, 520 U.S. at 404. Thus, for a plaintiff to
sufficiently allege municipal liability under § 1983, they must
present facts to support a finding that a specific policy or
custom caused the alleged harm.

A municipality cannot be found

liable under § 1983 simply because it employs wrongdoers. See
Natale, 318 F.3d at 583.
Plaintiff’s Complaint alleges failure to train the officers
in “A.R.T” procedures, however he does not assert facts showing
a “direct causal link between a municipal policy or custom and
the alleged constitutional deprivation,” Jiminez v. All American
Rathskeller, Inc., 503 F.3d 247, 249 (3d Cir. 2007) (quoting
City of Canton v. Harris, 489 U.S. 378, 385 (1989)).

Likewise,

he fails to plead specific facts regarding how the alleged
failure to supervise the officers caused his injuries.

Those

two claims against the Freeholders must therefore be dismissed
for failure to state a claim on which relief may be granted.
20

28

U.S.C. § 1915(e)(2)(B)(ii).

However, because it is possible

that Plaintiff may be able to supplement his complaint with
facts sufficient to overcome the deficiencies noted herein, he
shall be given leave to amend these claims.

See Grayson v.

Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
Plaintiff’s complaint also alleges the Freeholders “allow
our mail to be intercepted when we argue for our constitutional
rights are being violated” (Docket Entry 1 at 6).

The Court of

Appeals for the Third Circuit has held that a pattern and
practice of opening legal mail, including mail sent to and from
courts, outside a prisoner’s presence impinges upon an inmate’s
First Amendment right to freedom of speech, and that such
practices are valid only if they are “reasonably related to
legitimate penological interests.”

Jones v. Brown, 461 F.3d

353, 358-64 (3d Cir. 2006) (quoting Turner v. Safley, 482 U.S.
78, 89 (1997)), cert. denied, 127 S. Ct. 1822 (2007).

The

Supreme Court has held that “the Fourth Amendment proscription
against unreasonable searches does not apply within the confines
of the prison cell,” Hudson v. Palmer, 468 U.S. 517, 526 (1984),
and numerous lower courts have held that this applies as well to
searches of a prisoner’s incoming mail, see, e.g., Horacek v.
Grey, 2010 WL 914819 at *5 (W.D. Mich. Mar. 12, 2010); Thomas v.
Kramer, 2009 WL 937272 at *2 (E.D. Calif. Apr. 7, 2009); Hall v.
Chester, 2008 WL 4657279 at *6 (D. Kan. Oct. 20, 2008; Rix v.
21

Wells, 2008 WL 4279661 at *2 (M.D. Fla. Sept. 16, 2008).
Plaintiff does not challenge the mail-opening policy itself,
however, rather he claims the policy is retaliatory in nature
and only the mail of those inmates who have sought redress for
their complaint have had their mail opened.
“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 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).
To prevail on 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).
Plaintiff’s allegation fails on the second factor as he has
not alleged that his legal mail has been intercepted as
retaliation for petitioning for redress or provide specific
facts to make him blanket assertion sufficiently plausible. See
Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d
22

Cir. 2014)

This claim must therefore be dismissed for failure

state a claim upon which relief may be granted pursuant to 28
U.S.C. § 1915(e)(2)(B), however the Court will grant plaintiff
leave to amend the complaint.5
III.

CONCLUSION
For the reasons stated above, Plaintiff’s excessive force

claim against the officers and his denial of medical care claim
against CFG and the ACJF medical staff pertaining to his left hand
shall be permitted to proceed at this time. His claims against
ACJF are dismissed with prejudice. The remainder of Plaintiff’s
claims are dismissed without prejudice.

An appropriate order

follows.

April 20, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

5

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. The amended complaint may not adopt or repeat
claims that have been dismissed with prejudice by the Court.
23