RUIZ v. NEW JERSEY DEPARTMENT OF CORRECTIONS et al

Filing 19

OPINION. Signed by Judge Robert B. Kugler on 6/21/2016. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
MARIANITO RUIZ,
:
:
Plaintiff,
:
Civ. No. 15-3304 (RBK) (JS)
:
v.
:
:
NEW JERSEY DEPARTMENT OF
:
OPINION
CORRECTIONS, et al.,
:
:
Defendants.
:
_________________________________________ :
ROBERT B. KUGLER, U.S.D.J.
I.

INTRODUCTION

Plaintiff is a state prisoner proceeding through counsel with a civil rights compliant.
Presently pending before this Court is defendants’ motion to dismiss the complaint. For the
following reasons, defendants’ motion will be granted in part and denied in part.
II.

LEGAL STANDARD MOTION TO DISMISS COMPALINT PURAUNT TO
FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6)
In deciding a motion to dismiss under Rule 12(b)(6), the Court must “accept all factual

allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether under any reasonable reading of the complaint, the plaintiff may be entitled to
relief.” Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014) (quoting
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir.2008)). 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 a motion to dismiss for
failure to state a claim, a complaint must allege “sufficient factual matter” to show that its claims

are facially plausible. Fowler v. UPMC 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, 764 F.3d at 308 (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).
III.

BACKGROUND

Plaintiff alleges that in April, 2013, he was an inmate at the Bayside State Prison. On
April 12, 2013, he alleges Correctional Officer Stretch punched him without warning or justified
reason. Subsequently, other Correctional Officers, including Correctional Officer McCabe also
punched, kicked and struck plaintiff. As plaintiff lay on the ground, he was maced. The beating
lasted about five minutes. During this beating, plaintiff alleges that other officers were physically
present and were aware that McCabe, Stretch and the other Officers intended to use force on
plaintiff, but that they did nothing to stop the use of force of their fellow officers. Plaintiff
suffered several injuries as a result of this incident and seeks monetary relief.
In May, 2015, this matter was removed from state court to federal court. Plaintiff raises
several claims in his complaint; specifically: (1) excessive force; (2) conspiracy; (3) supervisory
liability; (4) failure to intervene; (5) federal civil rights violation; (6) state law assault; (7) state
law battery; and (8) state law intentional infliction of emotional distress.
On September 30, 2015, this Court received defendants the New Jersey Department of
Corrections (“DOC”), Bayside State Prison, McCabe and Stretch’s (collectively the “moving

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defendants”) motion to dismiss. Plaintiff filed a response in opposition to the motion to dismiss
and defendants filed a reply.
IV.

DISCUSSION

Defendants have raised several points in their motion to dismiss. Each will be considered
in turn.
A. Failure to Exhaust
Moving defendants first argue that the complaint should be dismissed because plaintiff
has failed to exhaust his administrative remedies. Failure to exhaust administrative remedies is
an affirmative defense under the Prisoner Litigation Reform Act and “inmates are not required to
specifically plead or demonstrate exhaustion in their complaints.” See Jones v. Block, 549 U.S.
199, 216 (2007). Nevertheless, district courts may dismiss a complaint when the failure to
exhaust administrative remedies is apparent from the face of the complaint. See Ray v. Kertes,
285 F.3d 287, 293 n.5 (3d Cir. 2002). It is not apparent from the face of the complaint whether or
not plaintiff has exhausted his administrative remedies. Therefore, this Court will not grant
moving defendants’ motion to dismiss on this failure to exhaust theory.
B. “Persons” Under § 1983
Moving defendants next argue that the DOC, the Bayside State Prison as well as Stretch
and McCabe in their official capacities, are entitled to have the federal claims against them
dismissed because they are not “persons” under 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 or the
District of Columbia, 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
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injured in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought against a
judicial officer for an act or omission taken in such officer's
judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was
unavailable.
The DOC is not a “person” subject to liability under Section 1983. See Tulli–Makowski v.
Community Educ. Ctrs., Inc., No. 12–6091, 2013 WL 1987219, at *3 (D.N.J. May 13, 2013)
(citing Grabow v. Southern State Corr. Facility, 726 F. Supp. 537, 538–39 (D.N.J. 1989)); see
also Nadal v. Christie, No. 13–5447, 2014 WL 2812164, at *4 (D.N.J. June 23, 2014).
Furthermore, the Bayside State Prison is also not considered a person. See Owens v. Armstrong,
No. 15-4911, 2016 WL 1117945, at *12 (D.N.J. Mar. 22, 2016) (citation omitted). Therefore,
plaintiff’s federal claims against the DOC and the Bayside State Prison will be dismissed with
prejudice.
McCabe and Stretch also argue that the federal claims against them in their official
capacities also should be dismissed because they are not considered “persons” as well under
Section 1983 in that context. A state official acting in his or her official capacity is not a
“person” amenable to suit under § 1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71,
(1989). A suit against a state official acting in his or her official capacity “is not a suit against the
official but rather is a suit against the official's office.” Id. Such a suit is no different than a suit
against the State itself, and § 1983 was not intended to override the well-established common
law immunity for states being sued without their consent. See Will, 491 U.S. at 71. Thus, to the
extent that the complaint is suing Stretch and McCabe under § 1983 in their official capacity,
these two defendants are entitled to dismissal of those claims against them as well.

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C. Supervisory Liability
Moving defendants next argument is that plaintiff’s claims against “the State” for
supervisory liability should be dismissed. Thus, moving defendants argue that Counts III
(Supervisory Liability) and V (Federal Civil Rights Violations) should be dismissed. As stated
above, the DOC and the Bayside State Prison are not considered a “person” subject to Section
1983 liability, so these federal claims against these two defendants have already been dismissed
with prejudice.
Plaintiff also raises a supervisory liability claim in his complaint against John Doe III,
Richard Roe (1-5) and Susan Roe (1-5). At the outset, this Court notes that plaintiff cannot rely
solely on a respondeat superior theory of liability against a defendant for Section 1983 liability.
See Alexander v. Gennarini, 144 F. App'x 924, 925 (3d Cir. 2005) (“Section 1983 liability
cannot be found solely on the basis of respondeat superior.”). Instead, a plaintiff must allege that
a supervisor had a personal involvement in the alleged wrongs. See Rode v. Dellaciprete, 845
F.2d 1195, 1207 (3d Cir. 1988). “Personal involvement can be shown through allegations of
personal direction or of actual knowledge and acquiescence.” Evancho v. Fisher, 423 F.3d 347,
353 (3d Cir. 2005) (citation omitted).
Plaintiff’s complaint does allege personal involvement against these yet unnamed
defendants. Indeed, he alleges these defendants’ personal involvement in his failure to intervene
claim. The Third Circuit has held “that a corrections officer's failure to intervene in a beating can
be the basis of liability for an Eighth Amendment violation under § 1983 if the corrections
officer had a reasonable opportunity to intervene and simply refused to do so.” Smith v.
Mensinger, 293 F.3d 641, 650 (3d Cir. 2002). “A corrections officer cannot escape liability by
relying upon his inferior or non-supervisory rank vis-vis the other officers.” Id. “However, an

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officer is only liable if there is a realistic and reasonable opportunity to intervene.” Id. at 651
(citation omitted). In this case, plaintiff alleges that these defendants were present and had the
opportunity to stop Stretch and McCabe’s use of force against him. Thus, this is not simply a
case where plaintiff is relying on respondent superior against these yet unnamed defendants.
Moving defendants also argue that plaintiff has failed to allege a claim against the warden
in his role as a supervisor. As this Court has explained;
the Third Circuit recognized two theories of “supervisory liability”
under § 1983. See Santiago v. Warminster Twp., 629 F.3d 121, 129
n. 5 (3d Cir.2010). First, “supervisors can be liable if they
‘established and maintained a policy, practice or custom which
directly caused [the] constitutional harm.’” Id. (quoting A .M. ex
rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586
(3d Cir.2004). Second, supervisors can be “liable if they
‘participated in violating plaintiff's rights, directed others to violate
them, or, as the person[s] in charge, had knowledge of and
acquiesced in [their] subordinates' violations.’” Id. (quoting A.M.
ex rel. J.M.K., 372 F.3d at 586).
Bullock v. Ancora Psychiatric Hosp., No. 10-1412, 2011 WL 3651352, at *3 (D.N.J. Aug. 18,
2011). Plaintiff attempts to argue that he has stated a claim against the unnamed warden under
the first of these two theories.
Under this regime, to hold a supervisor liable because his policies
or practices led to an Eighth Amendment violation, the plaintiff
must identify a specific policy or practice that the supervisor failed
to employ and show that: (1) the existing policy or practice created
an unreasonable risk of the Eighth Amendment injury; (2) the
supervisor was aware that the unreasonable risk was created; (3)
the supervisor was indifferent to that risk; and (4) the injury
resulted from the policy or practice . . .
[O]ne way—perhaps the easiest way—a plaintiff can make out a
supervisor liability claim is by showing that “the supervisory
official failed to respond appropriately in the face of an awareness
of a pattern of such injuries. But that is not the only way to make
out such a claim, as “there are situations in which the risk of
constitutionally cognizable harm is so great and so obvious that the
risk and the failure of supervisory officials to respond will alone

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support findings of the existence of an unreasonable risk, of
knowledge of that unreasonable risk, and of indifference to it.
Beers-Capitol v. Whetzel, 256 F.3d 120, 134 (3d Cir. 2001). The complaint alleges that the
warden has “permitted, encourages, tolerated, ratified and was deliberately indifferent to a
policy, pattern, practice and/or custom of unjustified, unreasonable and illegal use of force by
correctional officers at Bayside State Prison[.]” (Dkt. No. 1-2 at p.12) This Court finds plaintiff’s
allegations against the warden to be conclusory and do not satisfy the Iqbal standard to properly
state that the warden’s policies or practices led to the purported use of excessive force.
Therefore, plaintiff’s supervisor liability claim against the unnamed warden will be dismissed
without prejudice for failure to state a claim.
D. State Liability for State Law Torts
The DOC argues that it is entitled to dismissal of the state law tort claims against it
(assault, battery and intentional infliction of emotional distress). Plaintiff concedes in his
response to the motion that he is not seeking relief from DOC on these claims. Therefore, this
part of moving defendants’ motion to dismiss is denied as unnecessary.
E. Conspiracy
Moving defendants also argue that plaintiff’s conspiracy claims against them should be
dismissed. More specifically, they argue that plaintiff has failed to state a claim under 42 U.S.C.
§ 1985. The relevant portion of Section 1985 states as follows:
If two or more persons in any State or Territory conspire or go in
disguise on the highway or on the premises of another, 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; or for the purpose of
preventing or hindering the constituted authorities of any State or
Territory from giving or securing to all persons within such State
or Territory the equal protection of the laws; or if two or more
persons conspire to prevent by force, intimidation, or threat, any
citizen who is lawfully entitled to vote, from giving his support or
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advocacy in a legal manner, toward or in favor of the election of
any lawfully qualified person as an elector for President or Vice
President, or as a Member of Congress of the United States; or to
injure any citizen in person or property on account of such support
or advocacy; in any case of conspiracy set forth in this section, if
one or more persons engaged therein do, or cause to be done, any
act in furtherance of the object of such conspiracy, whereby
another is injured in his person or property, or deprived of having
and exercising any right or privilege of a citizen of the United
States, the party so injured or deprived may have an action for the
recovery of damages occasioned by such injury or deprivation,
against any one or more of the conspirators.
42 U.S.C. § 1985(3). To state a claim under section 1985(3), a plaintiff must allege, “(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 quotation marks and citations omitted).
With respect to the second element, “a claimant must allege some racial or perhaps otherwise
class-based, invidiously discriminatory animus behind the conspirators' action in order to state a
claim.” Id. at 135 (emphasis in original) (internal quotation marks and citation omitted).
According to moving defendants, plaintiff has failed to state a claim because he has not
alleged that the conspiracy was based on race or some other suspect class. However, as plaintiff
notes in his response, he is not pursuing a conspiracy claim under Section 1985. Therefore, to the
extent that moving defendants seek to dismiss the conspiracy claim on this ground, it will be
denied.
However, moving defendants also appear to argue that plaintiff has failed to state a
conspiracy claim generally. “In order to prevail on a conspiracy claim under § 1983, a plaintiff
must prove that persons acting under color of state law conspired to deprive him of a federally
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protected right....” Watson v. Sec'y Pennsylvania Dep't of Corr., 436 F. App'x 131, 137 (3d Cir.
2011) (citing Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 254 (3d Cir. 1999),
superseded by statute on other grounds as stated in P.P. v. West Chester Area Sch. Dist., 585
F.3d 727, 730 (3d Cir. 2009)). Furthermore, to state a claim for civil conspiracy in New Jersey,
“the plaintiff must allege that the defendant (1) entered into an agreement with at least one other
person, (2) for the purpose of committing an unlawful act; and (3) one of the conspirators then
took at least one overt act in furtherance of the agreement; and (4) plaintiff suffered some
damage as a result.” White v. Taylor, No. 10–5485, 2013 WL 4595885, at *6 (D.N.J. Aug. 28,
2013) (citing Banco Popular N. Am. v. Gandi, 184 N.J. 161, 876 A.2d 253, 263 (N.J. 2005)). In
this case, the Court finds that plaintiff has sufficiently alleged facts in his complaint so as to
permit his conspiracy claims to proceed at this early stage of the proceedings. See, e.g., Juan v.
Rafferty, 577 F. Supp. 774, 778 (D.N.J. 1984) (allegations of joint beating sufficient to satisfy
agreement pleading requirement for conspiracy). Thus, moving defendants are not entitled to
dismissal of plaintiff’s conspiracy claim.
F. State Law Claims
Finally, moving defendants argue that plaintiff’s state law claims should be dismissed
because plaintiff merely recited the legal standard for the claim which does not satisfy the
requirements of Federal Rule of Civil Procedure 8.
Under New Jersey law, “[a] person is subject to liability for the common law tort of
assault if: ‘(a) he acts intending to cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such a contact, and (b) the other is
thereby put in such imminent apprehension. The tort of battery rests upon a nonconsensual
touching.” Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 591, 969 A.2d 1097 (2009) (internal

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quotation marks and citations omitted). Furthermore, “[u]nder New Jersey law, a plaintiff must
allege four elements to state a claim for intentional infliction of emotional distress: (1) that the
defendant intended to cause emotional distress; (2) that the conduct was extreme and outrageous;
(3) that the actions proximately caused emotional distress; and (4) that the plaintiff's emotional
distress was severe .” Corominas v. Oshrin, No. 13-6067, 2014 WL 413554, at *2 (D.N.J. Feb. 4,
2014) (citing Bethea v. Roizman, 2012 U.S. Dist. LEXIS 139164 at *68–69, 2012 WL 4490759
(D .N.J. Sept. 27, 2012) (citing Buckley v. Trenton Saving Fund Soc., 111 N.J. 355, 544 A.2d
857, 863 (1988))). This Court finds that plaintiff’s allegations are sufficient to state a claim for
state law assault, battery and intentional infliction of emotions distress such that moving
defendants are not entitled to dismissal of these three state law claims.
V.

CONCLUSION

For the foregoing reasons, moving defendants’ motion to dismiss is granted in part.
Plaintiff’s federal claims against the DOC and the Bayside State Prison are dismissed with
prejudice as are plaintiff’s federal claims against McCabe and Stretch to the extent they are being
sued in their official capacities. Furthermore, plaintiff’s federal supervisor liability claim against
the unnamed warden of Bayside State Prison is dismissed without prejudice. Moving defendants’
motion to dismiss is denied in all other respects. An appropriate order will be entered.

DATED: June 21, 2016

s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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