WELCH v. CAPE MAY COUNTY CORRECTIONAL CENTER et al
Filing
8
OPINION FILED. Signed by Judge Renee Marie Bumb on 2/19/16. (js)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
Christopher Welch,
:
:
Plaintiff,
:
:
v.
:
:
Cape May County Correctional :
Center et al.,
:
:
Defendants.
:
_______________________________
CIV. ACTION NO. 15-8745 (RMB)
OPINION
RENÉE MARIE BUMB, U.S. District Judge
I.
BACKGROUND
Plaintiff is a pre-trial detainee in Cape May Correctional
Center in Cape May, New Jersey. He filed a civil rights complaint
seeking monetary damages and declaratory and injunctive relief for
alleged constitutional violations and state law claims. The Court
granted Plaintiff’s IFP application, and now reviews Plaintiff’s
Amended Complaint, as required by 28 U.S.C. § 1915(e)(2)(b) and §
1915A. The Court must dismiss any claims that are: (1) frivolous or
malicious; (2) fail to state a claim on which relief may be granted;
or (3) seek monetary relief against a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A.
II.
DISCUSSION
1
A.
The Amended Complaint
Plaintiff brings this civil action against Cape May County
Sheriff Correctional Officers at Cape May County Correctional
Facility (John and Jane Does), Warden Donald Lombardo, James
Arsenault (counsel for Cape May County), Captain Charles McGill,
Lieutenant Robert Campbell, Sheriff Gary Schaffer, Cape May County
Correctional Center’s contracted healthcare provider (entity) and
its employees, including the Health Services Administrator (John or
Jane Doe). (ECF No. 1 at 2, ¶¶4-15, ECF No. 6 at 1.) The individuals
are sued in their official1 and individual capacities.
The facts alleged in the Original Complaint (ECF No. 1),
incorporated by reference into the Amended Complaint (ECF No. 6),
are summarized as follows. Plaintiff was a pre-trial detainee at Cape
May County Correctional Facility on May 17, 2015, and remained in
detention when he filed this Complaint. In the months of May through
1
“There is no longer a need to bring official-capacity actions
against local government officials, for under Monell . . . local
government units can be sued directly for damages and injunctive or
declaratory relief.” Kentucky v. Graham, 473 U.S. 159, 167 n. 14
(1985). Therefore, simply to avoid confusion, the Court will dismiss
the claims against Defendants in their official capacities and will
instead address Plaintiff’s policy and custom claims against the
County of Cape May under Monell. See Crump v. Passaic County, Civ.
No. 14-cv-2365 (WHW) (CLW), 2015 WL 7761064 at *7 (noting the Third
Circuit has affirmed dismissals of official capacity local
government defendants to avoid redundancy, possible confusion, and
inefficiency) (citing Cuvo v. De Biasi, 169 F. App’x 688, 693 (3d
Cir. 2006)).
2
October 2015, Plaintiff requested formal grievance forms from
correctional officers and the warden. He was told Cape May County
Correctional Center does not give anyone such forms.
Plaintiff wrote to Inmate Services requesting to file a formal
grievance about overcrowding and lack of privacy during medical sick
calls. He received a response that nothing could be done, and he was
told these complaints were “not grievable.” Plaintiff also wrote to
staff and/or verbally complained about: (1) mold in the housing
units; (2) overcrowding (three in a cell designed for two) causing
inmates to sleep on the floor inches from urinals; (3) pretrial
detainees being housed with sentenced prisoners; (4) housing units
infested with insects; (5) toilets leaking water; (6) inoperable
toilets causing feces and urine to pile up for days; (7) insufficient
table space, causing inmates to eat their meals sitting on toilets,
and causing inmate fights over the available table seating; (8)
Plaintiff was housed with an inmate who had a known history of
violence; (9) Plaintiff was assigned to a top bunk, without a ladder
or step stool, and he fell and injured his foot and ankle; (10) on
August 6, 2015, Defendant Correctional Officers escorted through the
housing units an inmate who was screaming racial slurs, creating the
potential to incite a race riot; when the inmate was assaulted, all
medical personnel were called to assist; (11) during this incident,
3
Plaintiff had a grand mal seizure, and no medical personnel were
available to see him; (12) several days later Plaintiff fell from
his upper bunk, and his neck began to hurt; Plaintiff believed he
had a doctor’s order for a lower bunk due to his seizure disorder
but the nursing staff refused to provide the order to the security
officers; (13) Cape May County Correctional Center does not provide
forms to inmates to resolve disputes, and when inmates verbally
complain, they are retaliated against by losing privileges such as
the law library and recreation; (13) Plaintiff complained during his
entire incarceration about visibly dirty and nonfunctioning air
ducts but nothing was done; (14) the housing units contained bacteria
and mold, and the ventilation system contained visible dust and
bacteria; (15) on August 9, 2015, an inmate who had contagious MRSA
was escorted through the General Population Unit and housed in Unit
6 with non-infected inmates.
In the Amended Complaint, Plaintiff alleged further acts of
retaliation including the disappearance of Plaintiff’s personal
hygiene items; the disappearance of Plaintiff’s legal documents;
Plaintiff was transferred to the Special Housing Unit-Protective
Custody Segregation; and his request to attend a special church
service was denied. (ECF No. 6 at 2-7.)
B.
Standard of Review
4
A pleading must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). “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.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “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.”
Id. (quoting Twombly, 550 U.S. at 556.)
“[A] court must accept as true all of the allegations contained in
a complaint.” Id. A court need not accept legal conclusions as true.
Id. Legal conclusions, together with threadbare recitals of the
elements of a cause of action, do not suffice to state a claim. Id.
Thus, “a court considering a motion to dismiss can choose to begin
by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. at
679. “While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.” Id. If
a complaint can be remedied by an amendment, a district court may
not dismiss the complaint with prejudice, but must permit the
5
amendment. Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d
Cir. 2002).
C.
HIPAA Claim
Plaintiff
alleged
that
when
sick
calls
are
conducted
correctional officers stand inches away from the doctor and patient,
in
violation
of
patient
privacy
under
the
Health
Insurance
Portability and Accountability Act (“HIPAA”), 42 U.S. § 1320. (Id.
at 9, ¶56.) “The ability to bring an enforcement action to remedy
HIPAA violations, and ensure that a healthcare provider is HIPAA
compliant, lies within the exclusive province of the Secretary of
Health and Human Services, not the hands of private citizens.”
Polanco v. Omnicell, Inc., 988 F.Supp.2d 451, 469 (D.N.J. Dec. 26,
2013) (citing Acara v. Banks, 470 F.3d 569, 571 (5th Cir. 2006)).
Therefore, the Court will dismiss Plaintiff’s HIPAA claim with
prejudice.
D.
Claims Under 42 U.S.C. § 1983
42 U.S.C. § 1983 provides:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State ..., 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....
6
“To state a claim under § 1983, a plaintiff must allege a violation
of a right secured by the Constitution or laws of the United States
and, must show 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).
1. The “More-Specific Provision Rule”
“[I]f
a
constitutional
claim
is
covered
by
a
specific
constitutional provision, such as the Fourth or Eighth Amendment,
the claim must be analyzed under the standard appropriate to that
specific provision, not under the rubric of substantive due process.
U.S. v. Lanier, 520 U.S. 259, 272 n. 7 (1997) (citing Graham v. Connor,
490 U.S. 386, 394 (1989)); Betts v. New Castle Youth Development
Center, 621 F.3d 249, 261 n. 10 (3d Cir. 2010) (adopting more-specific
provision rule). Therefore, where Plaintiff generally alleges that
Defendants’ misconduct violated multiple provisions of the United
States Constitution, including the Due Process Clause of the
Fourteenth Amendment, this Court will apply the standard appropriate
to the more specific constitutional provision. (See Amended Compl.,
ECF No. 1 at 9-10, ¶¶51-55, and ECF No. 6 at 8, Counts 14-18.)
2.
No Constitutional Right to a Grievance Procedure
Plaintiff alleged:
7
[D]ue to the systematic failure, [from
overcrowding] . . . Cape May County Correctional
Center becomes overwhelmed with the verbal &
written complaints done by request to staff, and
that these complaints can not even get addressed
at all, conforming to the requirements
necessary by the United States and the New
Jersey Constitution(s). Plaintiff asserts that
in most cases, the complaints issues will just
be flat out ignored and not addressed at all,
due to the defendants being overwhelmed with
other administrative duties.
(ECF No. 1 at 8, ¶46.) There is no constitutional right to a grievance
procedure. Fears v. Beard, 532 F. App’x 78, 81 (3d Cir. 2013)
(dismissing
claims
against
defendants
based
solely
on
their
involvement in the administrative grievance process.) Plaintiff’s
constitutional claims regarding the unavailability of a grievance
procedure will be dismissed with prejudice. His underlying claims
regarding the conditions he complained of will be addressed.
3.
Eighth Amendment Claims
“The Eighth Amendment’s Cruel and Unusual Punishments Clause
does not apply until ‘after sentence and conviction.’” Hubbard v.
Taylor, 399 F.3d 150, 164 (3d Cir. 2005) (quoting Graham v. Connor,
490 U.S. 386, 392 n.6 (1989)). The Supreme Court, in Bell v. Wolfish,
441 U.S. 520 (1979), distinguished between pretrial detainees’
protection from “punishment” under the Fourteenth Amendment and the
convicted inmate’s protection from cruel and unusual punishment
under the Eighth Amendment. Hubbard, 399 F.3d at 164. Pretrial
8
restraints
on
liberty
that
are
reasonably
related
to
the
institution’s interest in maintaining jail security do not, without
more, constitute punishment in violation of the Due Process Clause.
Bell, 441 U.S. 520, 540 (1979).
“[I]n addition to ensuring the detainees' presence at trial,
the
effective
management
of
the
detention
facility
once
the
individual is confined is a valid objective that may justify
imposition of conditions and restrictions of pretrial detention and
dispel
any
inference
that
such
restrictions
are
intended
as
punishment.” Id. at 540. “[I]n the absence of an expressed intent
to punish, a pretrial detainee can nevertheless prevail by showing
that the actions are not ‘rationally related to a legitimate
nonpunitive governmental purpose” or that the actions ‘appear
excessive in relation to that purpose.’” Kingsley v. Hendrickson,
135 S.Ct. 2466, 2473 (2015) (quoting Bell, at 561.) “The Bell Court
applied this latter objective standard to evaluate a variety of
prison conditions. . .” Id. Therefore, Plaintiff’s Eighth Amendment
claims will be addressed under the Due Process Clause of the
Fourteenth Amendment.
4.
Conditions
of
Confinement
Claims
under
Fourteenth Amendment Due Process Clause
the
The Court will analyze whether each of Plaintiff’s Due Process
Claims shows that the actions of Defendants were either performed
9
with an express intent to punish, or if not, whether the actions were
rationally related to a legitimate nonpunitive governmental purpose
or whether the actions appear excessive in relation to that purpose.
Kingsley, 135 S.Ct. at 2473. The Court will also determine whether
Plaintiff sufficiently alleged an individual defendant’s personal
involvement in the unconstitutional conduct.
a. Overcrowding as a threat to inmate health
Plaintiff complains of conditions that relate to overcrowding
and pose a threat to inmates’ health including: (1) housing three
inmates to a cell built for two, forcing one inmate to sleep on the
floor near the urinal; (2) insufficient medical staff to provide care
to inmates; (3) insufficient tables for eating, forcing some inmates
to eat sitting on toilets; and (4) housing and/or allowing an inmate
with contagious MRSA in the general population. Plaintiff does not
allege that any of these conditions were created with the express
intent to punish him. On the face of the Amended Complaint, it cannot
be determined whether the actions or inaction creating these
conditions were rationally related to a legitimate nonpunitive
governmental purpose or whether the actions appear excessive in
relation to that purpose.
Plaintiff alleged Warden Donald Lombardo is liable, in his
individual capacity, because he “is legally responsible for the
10
operations of Cape May County Correctional Center,” (ECF No. 1 at
2, ¶8), and he was made aware of the conditions but failed to act.
(ECF No. 1 at 5, ¶26).2 “[A] supervisor may be personally liable under
§ 1983 if he or she participated in violating the plaintiff’s rights,
directed others to violate them, or, as the person in charge, had
knowledge of and acquiesced in his subordinates’ violations.”)) A.M.
v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004).
Plaintiff’s claims against Warden Lombardo will be allowed to proceed
because he alleged knowledge of and acquiescence in unconstitutional
conditions of confinement.
Plaintiff also seeks to hold liable “Defendant Health Services
Administrator Jane/John Doe” whom Plaintiff alleges is “in charge
of the medical department. She/He is legally responsible for the
operations of Cape May County Correctional Center and for the welfare
of all the Pre-Trial Detainees/Inmates in that facility receiving
treatment from the medical department within Cape May County
Correctional Facility.”
A government contractor may be liable where “no rule has been
announced as policy but federal law has been violated by an act of
the policymaker itself” or “̔the policymaker has failed to act
2
Plaintiff’s overcrowding claims are not properly brought against
any of the John and Jane Doe Sheriff Defendants because Plaintiff
has not alleged how these Defendants are personally involved in the
overcrowding conditions.
11
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 that need.’’” Natale v.
Camden County Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003)
(quoting Board of County Comn’rs of Bryan County, Okl. v. Brown, 520
U.S. 397, 417 (1997)) (quoting City of Canton, Ohio v. Harris, 489
U.S. 378, 390 (1989)). Plaintiff’s claims of insufficient medical
staff to provide care to inmates, and housing contagious inmates who
have MRSA with other inmates may proceed against the yet to be
identified
“Cape
May
County
Correctional
Center
Healthcare
Provider/Contractor.”
Plaintiff’s
conditions
of
confinement
claims
based
on
overcrowding posing a threat to inmate health may also proceed
against the County of Cape May based on Plaintiff’s allegation that
the overcrowding conditions have lasted for years. See Duran v.
Merline, 923 F.Supp.2d 702, 717 (D.N.J. Feb. 8, 2013) (“The Third
Circuit
has
confinement
recognized
constituted
that
a
such
city
long-standing
“custom
or
conditions
usage”
for
of
Monell
purposes”) (citing Anela v. City of Wildwood, 790 F.2d 1063, 1069
(3d Cir. 1988)).
12
b.
Sanitation Claims
Plaintiff also alleged that the following unsanitary conditions
violated the Fourteenth Amendment prohibition on punishment of
pre-trial detainees: mold, inoperable toilets, bacteria, dirty air
ducts, insect infestation, and sleeping on the floor near urinals.
Plaintiff alleged that he suffered respiratory problems from the mold
(ECF No. 1 at 5, ¶24) and bug bites from the infestation. (Id. at
¶25.)
Liberally
construing
these
claims,
the
Court
finds
that
Plaintiff has alleged a Fourteenth Amendment claim against Cape May
County, based on its policies and customs, and against Warden
Lombardo in his individual capacity. See Hubbard v. Taylor, 399 F.3d
150, 160 (“we must further inquire as to whether these conditions
‘cause [inmates] to endure [such] genuine privations and hardship
over an extended period of time, that the adverse conditions become
excessive in relation to the [legitimate] purposes assigned to
them.’” (quoting Union County Jail Inmates v. DiBuono, 713 F.3d 984,
992)).
The
question
of
whether
given
conditions
constitute
punishment must consider the totality of circumstances within an
institution. Id.
c. Safety Claims
13
Plaintiff alleges that the County’s policies and practices
result in conditions of confinement that place inmates’ safety at
risk. These conditions include housing violent and nonviolent
offenders together; having an insufficient number of tables for
inmates to eat, causing inmates to fight; subjecting inmates to risk
of a race riot; and assigning inmates to top bunks without providing
a ladder or step stool, which caused fights between inmates in the
upper and lower bunks, and caused injuries when inmates fell trying
to get onto the top bunk.
Like his sanitation claims, Plaintiff alleged these conditions
result from the execution of a policy of the County of Cape May and
the conditions were brought to the attention of Warden Lombardo but
he did nothing. Therefore, these claims may proceed against the
County of Cape May and Warden Lombardo in his personal capacity. See
Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007) (where pretrial
detainees alleged conditions of confinement claims under the Due
Process Clause, the District Court erred by granting motion to
dismiss where it could not make an objective inquiry into the severity
of the deprivations or a subjective inquiry into the mental state
of the officials.)
5.
Inadequate Medical Care under
Amendment Due Process Clause
14
the
Fourteenth
Plaintiff alleged the personal involvement of two defendants
in the failure to provide him with medical treatment, the sheriff
correctional officer whom he asked for medical attention after his
grand mal seizure on June 23, 2015, and the nurses who failed to
respond to his request for proof of a doctor-ordered bottom bunk.
Pretrial detainees’ claims of inadequate medical care are analyzed
under
the
Eighth
Amendment
standard
governing
such
claims.
Montgomery v. Aparatis Dist. Co., 607 F. App’x 184, 187 (3d Cir. 2015)
(citing Natale, 318 F.3d at 581). “Delay or denial of medical care
violates the Eighth Amendment where defendants are deliberately
indifferent to a prisoner’s serious medical need.” Id. (citing Rouse
v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)). Negligence by
governmental actors is insufficient to support a constitutional
claim. Id. (citing Daniels v. Williams, 474 U.S. 327, 333 (1986)).
A medical need is serious if it has been diagnosed by a physician
as requiring treatment or if it is so obvious that a lay person would
recognize the necessity for a doctor’s attention. Inmates of
Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)
(citing West v. Keve, 571 F.2d at 162). “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.” Conchewski
15
v. Camden County, Civ. Action No. 11-2781 (NLH), 2014 WL 1153779,
at *9 (D.N.J. March 21, 2014) (quoting Monmouth County Corr. Inst.
Inmates v. Lanzaro, 834 F.2d at 346 (citations omitted)). Deliberate
indifference is also demonstrated “̔when . . . 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.’” Id.
Accepting as true that Plaintiff had a grand mal seizure on June
23, 2015, Plaintiff adequately alleged that he had a serious medical
need, obvious to a lay person, which required medical evaluation.
Therefore, Plaintiff’s inadequate medical care claim will be allowed
to proceed against the yet to be identified sheriff correctional
officer whom Plaintiff asked for medical attention when he had a grand
mal seizure on June 23, 2015. The claim may also proceed against any
nurse whom Plaintiff can identify who denied his request to provide
evidence of his doctor’s order for a lower bunk, assuming that such
a doctor’s order exists.
6.
Retaliation in Violation of First Amendment Right to
Redress of Grievances
In support of his First Amendment retaliation claims, Plaintiff
alleged that since he arrived at Cape May County Correctional
Facility
he
continually
complained
about
the
conditions
of
confinement. He claims he was retaliated against by (1) denying him
16
recreation time; (2) denying use of the law library; (3) denying
proper medical treatment, (4) that his personal property, including
clippers and razors, disappeared; and (5) that his mail was tampered
with. (ECF No. 6 at 2.)
To state a cognizable retaliation claim under the First
Amendment a prisoner must show: (1) constitutionally protected
conduct; (2) an adverse action by prison officials sufficient to
deter
a
person
of
ordinary
firmness
from
the
exercise
of
constitutional rights and the adverse action; and (3) a causal link
between the exercise of a constitutional rights and the adverse
action. DeFranco v. Wolfe, 387 F. App’x 147, 154 (3d Cir. 2010).
The act of filing a prison grievance, which Plaintiff alleged
he repeatedly attempted to do, is constitutionally protected by the
First Amendment. Robinson v. Taylor, 204 F. App’x 155, 157 (3d Cir.
2010). However, the disappearance of Plaintiff’s nail clippers and
razor for several weeks are insufficient actions to deter a person
of ordinary firmness from the exercise of his constitutional rights.
Therefore, those claims will be dismissed with prejudice.
Plaintiff did not allege how his mail was tampered with, nor
did he describe any of the circumstances surrounding the denial of
recreation time, law library use or the denial of proper medical
treatment. On the face of the Amended Complaint, the Court cannot
17
determine whether these actions were sufficiently adverse to deter
a person of ordinary firmness from engaging in protected activity.
Furthermore, Plaintiff does not allege the personal involvement
of any defendant in these claims nor does he establish a causal
connection between the protected activity of filing grievances and
these particular retaliatory acts. See Lauren W. ex rel. Jean W. v.
DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (“To establish the
requisite causal connection a plaintiff usually must prove either
(1) an unusually suggestive temporal proximity between the protected
activity and the allegedly retaliatory actions, or (2) a pattern of
antagonism coupled with timing to establish a causal link.”)
Therefore, the retaliation claims based on mail tampering, denial
of recreation time, denial of law library time, and denial of proper
medical treatment will be dismissed without prejudice.
Plaintiff also alleged he was retaliated against by being moved
from general population housing to Special Housing Unit Protective
Custody Segregation (“PC”) from November 17, 2015 to November 26,
2015. (ECF No. 6 at 2.) When he was transferred, numerous of his legal
documents were missing. (Id.) On November 26, 2015, Plaintiff alleged
that the following incident occurred:
On 11/26/2015 plaintiff spoke with Captain
Mc’Gill, and requested verbally that he be
removed from ‘PC’. Mc’Gill’s response was “If
you knock off all this bullshit off with the
18
grievances, the faxes, the letters by U.S. Mail,
and by filing civil claims, then I’ll remove you
right now! Plus, I’m not the only one that has
something to do with this. You pissed off Cape
May County Counsel James Arsenault, Gary
Schaffer, and Warden Lombardo.” Plaintiff
responded, “Captain, I don’t need to be here!”
Captain responded, “I know that and so does
everyone else. We did it to humiliate you to
other Inmates/Pretrial Detainees. You just need
to knock the bullshit off! Hopefully, the bogus
misconduct I got my officer to give you will
prove to you I’m not the one to play games with.
Plaintiff alleged that twenty minutes after this incident, he was
moved back to the general population unit.
In Bistrian v. Levi, the Third Circuit noted that “whether
placement in the SHU was ‘sufficient to deter a person of ordinary
firmness from exercising his constitutional rights’ is an objective
inquiry and ultimately a question of fact.” 696 F.3d 352, 376 (3d
Cir. 2012) (quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)
and citing Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)).
In Allah and Bistrian, the Third Circuit found that administrative
segregation resulting in reduced access to phone calls, commissary,
recreation, cell confinement for all but five hours per week, no
access to rehabilitative programs, and inadequate access to legal
research materials were sufficient to deter a person of ordinary
firmness from exercising his First Amendment rights. Bistrian, 696
F.3d at 376 (quoting Allah, 229 F.3d at 225.)
19
Here, however, Plaintiff has not described the conditions he
was subject to in the segregated housing unit. Furthermore, in
Bistrian, the plaintiff was subject to indefinite confinement in
restrictive housing. Plaintiff alleged he was moved back to the
general population after nine days. The Court will deny Plaintiff’s
retaliation
claims
without
prejudice
because
he
has
alleged
insufficient facts to plausibly infer that his transfer to the
segregated housing unit for nine days would deter a person of ordinary
firmness from exercising his constitutional rights.
Plaintiff asserted yet another retaliation claim:
On 12/16/15 930 am Housing Unit 6 inspection
when plaintiff asked Lieutenant Campbell why he
was not allowed to the Catholic Church service
on 12/04/2015 the response was by Lieutenant
Campbell, “it was an administrative decision
that had to do with James Arsenault, Gary
Schaffer, Warden Lombardo, Captain Mc’Gill, and
Myself. If you stop pissing people off around
here, you’ll get what your entitled to, until
then your going to have a very ruff stay here!
(ECF No. 6 at 4.) Plaintiff alleged that Bishop Dennis Sullivan
intervened on his behalf on December 4, 2015, asking that Plaintiff
be allowed to attend the special service, but he was advised Plaintiff
could not attend because he was in segregation. (Id.) Plaintiff
alleges he was not in segregation that day. (Id.)
Whether denial of the opportunity to attend a church service
was an adverse action that would deter an ordinary person from
20
exercising his constitutional right to petition for redress of
grievances is a question of fact that the Court cannot decide at this
early stage of the proceeding. Accepting Plaintiff’s allegations as
true, the Court will allow this retaliation claim to proceed against
Lieutenant Campbell, James Arsenault, Sheriff Gary Schaffer, Warden
Lombardo and Captain McGill.
7.
First Amendment Access to Courts Claim
In the Amended Complaint, Plaintiff alleged that when he was
moved
from
general
population
housing
to
protective
custody
segregation, numerous of his legal documents, including declarations
from witnesses in this matter, witness’ addresses, and papers
relating to his criminal case were missing. Plaintiff does not allege
what he did to seek the return of these documents or whether the loss
of the documents caused him to miss any filing deadlines or any other
injury related to his court actions.
To bring a viable First Amendment Right of Access to Courts
claim, inmates must show direct injury to their access to courts.
Reynolds v. Wagner, 128 F.3d 166, 183 (3d Cir. 1999) (citing examples
including complaint dismissed for technical requirement or inability
to file a complaint in court). Plaintiff has not alleged sufficient
facts to meet this standard, and the Court will dismiss this claim
without prejudice.
21
8.
Supervisory Liability Claims
In support of his supervisory liability claims, Plaintiff
alleged:
It is the policy and/or custom of Cape May County
to
inadequately
Correctional
Center 3
supervise, train, and re-train its Correctional
staff, including the defendants in this
Original Complaint & Amended Complaint, against
a code of silence or “blue code” of Correctional
Officers refusing to intervene & taking part in
or providing untruthful information when
investigated against constitutional violations
& other unlawful misconduct, committed by there
fellow
Correctional
Officers
involving
Inmates/Pre-Trial Detainees, even when they are
formally investigated.
As a result of the above described policies
and/or
customs
or
the
lack
thereof,
Correctional
Officers,
Correctional
Administrators,
Correctional
Medical
Contractors,
and
Correctional
Medical
Contractors Staff, including the defendants in
this matter, believed their actions would not
be
properly
monitored
by
supervising
Correctional Officers & Correctional Medical
Officials, and that misconduct would not be
investigated or sanctioned but was encouraged,
and tolerated, as it has been over the past few
decades.
(ECF No. 6 at 7.) Plaintiff cited sixteen cases brought in the New
Jersey District Court between 1998 and 2014 against Cape May County
Correctional
Center
officials
and
3
staff
in
support
of
the
The Court assumes Plaintiff’s intent, in this paragraph, is to state
a Monell claim against the County of Cape May, whom he has substituted
for the Cape May County Correctional Center as the defendant in this
action.
22
“longstanding history” of cases alleging similar facts to those
alleged herein. (Id. at 5-7.)
“A municipality cannot be held liable for the unconstitutional
acts of its employees on a theory of respondeat superior.” Thomas
v. Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014) (citing Monell
v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)). For municipal
liability under § 1983, the plaintiff must demonstrate that that a
municipal policy or custom was the “moving force” behind the
constitutional tort of one of its employees. Id. at 222 (quoting
Colburn v. Upper Darby Twp., 946 F.2d 1017, 1027 (3d Cir. 1991)
(quoting Polk Cnty v. Dodson, 454 U.S. 312, 326 (1981)).
A plaintiff can establish the existence of a policy by showing
that a “decisionmaker possessing final authority to establish
municipal policy with respect to the action issue an official
statement of policy.” Jiminez v. All am. Rathsekller, 503 F.3d 247,
250 (3d Cir. 2007) (quoting Pembaur v. City of Cincinnati, 475 U.S.
469, 481 (1986). Alternatively, a plaintiff may establish that a
custom exists “when, though not authorized by law, ‘such practices
of [county] officials are so permanent and well settled; that they
operate as law.” Id. (quoting Monell, 436 U.S. at 690).
“Where the policy [or custom] ‘concerns a failure to train or
supervise municipal employees, liability under section 1983 requires
23
a showing that the failure amounts to ‘deliberate indifference’ to
the rights of persons with who those employees will come into
contact.” Id. (quoting Carter v. City of Phila., 181 F.3d 339, 257
(3d Cir. 1999) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378,
388 (1989)). Furthermore, “̔the deficiency in training [must have]
actually caused’ the constitutional violation.” Id. (quoting Canton,
489 U.S. at 391.)
Here, the alleged failure to train or supervise involves a “code
of silence” or “blue code” wherein employees of the correctional
facility and its contractors refuse to intervene or outright lie
about
investigations
of
constitutional
violations.
Plaintiff
alleged the “code of silence” encouraged the defendants in this
matter to violate his constitutional rights because they did not fear
repercussions. “[E]vidence which points to a ‘code of silence among
officers’
and
a
municipality’s
concomitant
refusal
to
take
disciplinary action, can be sufficient to establish a Monell claim.”
Hellyer v. County of Bucks, Civ. Action No. 10-2724, 2014 WL 413874,
(E.D. Pa. Jan. 31, 2014) (quoting Bailey v. Cnty of York, 768 F.2d
503, 507 (3d Cir. 1985)). Accepting Plaintiff’s allegations as true,
the Court will proceed this Monell claim against the County of Cape
May.
E.
New Jersey Constitutional Claims
24
The Court will allow Plaintiff’s New Jersey Constitutional
claims, parallel to his federal constitutional claims, to proceed.
See generally Garden State Equality v. Dow, 2012 WL 540608 (N.J.
Super. Ct. Law Div., Feb. 21, 2012) (“the ‘New Jersey Constitution
. . . ‘may be a source of individual liberties more expansive than
those conferred by the Federal Constitution’” (quoting Lewis v.
Harris, 188 N.J. 415, 465 (2006))
F.
State Tort Law Claims
Plaintiff generally alleges that the facts in the Amended
Complaint establish tort claims under New Jersey law for: (1)
Intentional Emotional Distress; (2) Reckless Endangerment; (3) Gross
Negligence; (3) and Causing or Risking Catastrophe (ECF No. 1 at 10,
Counts 10-13; ECF No. 6 at 22.) Plaintiff alleged that he filed a
timely Notice of Claim to Defendants, as required by the New Jersey
Tort Claims Act. (ECF No. 1 at 8, ¶48.)
The New Jersey Tort Claims Act, N.J.S.A. 59:8-8 provides in
relevant part:
A claim relating to a cause of action for death
or for injury or damage to person or to property
shall be presented as provided in this chapter
not later than the 90th day after accrual of the
cause of action. After the expiration of six
months from the date notice of claim is
received, the claimant may file suit in an
appropriate court of law.
25
“The notice of claim requirement applies to state law tort claims
brought in federal court where a plaintiff also alleges federal and
state constitutional violations.” Peteete v. Asbury Park Police
Dep’t, Civil Action No. 09-1220 (MLC), 2010 WL 5151238 at *12 (D.N.J.
Dec. 13, 2010) (citing Cnty Concrete Corp. v. Town of Roxbury, 442
F.3d 159, 174-75 (3d Cir. 2006)).
Many of the facts alleged in the Amended Complaint occurred less
than six months before Plaintiff filed this action on December 17,
2015. Therefore, it is not plausible that Plaintiff waited for
“expiration of six months from the date notice of claim is received”
to file suit. See Velez v. City of Jersey City, 180 N.J. 284, 290
(2004) (the purposes of the notice requirements include allowing the
public entity at least six months for administrative review with the
opportunity to settle meritorious claims prior to bringing suit)
(citing Beauchamp v. Amedio, 164 N.J. 111, 121-22 (2000)).
For this reason, the Court will dismiss Plaintiff’s state tort
law claims without prejudice, allowing Plaintiff to amend if he can
establish that he waited until the six-month period expired after
his Notice(s) of Claim was received before bringing the claims in
this suit.
III. CONCLUSION
26
For the reasons discussed above, in the accompanying Order filed
herewith, the Court will dismiss with prejudice Plaintiff’s: (1)
HIPAA claim; (2) claim that failure to provide a grievance procedure
violates the Constitution; and (3) First Amendment retaliation claim
based on disappearance of Plaintiff’s nail clippers and razor. The
Court
will
dismiss
without
prejudice
Plaintiff’s:
(1)
First
Amendment retaliation claims based on mail tampering, denial of
recreation time, denial of law library time, and denial of proper
medical treatment; (2) First Amendment retaliation claims based on
Plaintiff’s transfer to the segregated housing unit for nine days;
(3) First Amendment Right of Access to Courts claim; and (4) state
tort law claims. Plaintiff’s remaining claims will be allowed to
proceed.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: February 19, 2016
27
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