DOCHERTY v. CAPE MAY COUNTY et al

Filing 72

OPINION FILED. Signed by Judge Renee Marie Bumb on 6/29/17. (js)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
:
EMILY DOCHERTY, JOSEPH SMALL, :
JERMAINE MILLS, AND FREDERICK :
SCHARTNER individually and on :
behalf of all similarly
:
situated persons,
:
:
Plaintiffs,
: Civil Action No. 15-8785 (RMB)
:
v.
:
:
OPINION
CAPE MAY COUNTY, et al.,
:
:
Defendants.
:
:
APPEARANCES:
SURINDER K. AGGARWAL
Law Offices Of Surinder K. Aggarwal
P.O. BOX 3370
HOBOKEN, NJ 07030
On behalf of Plaintiffs
RICHARD GOLDSTEIN, Esq.
Marshall, Dennehey, Warner, Coleman & Goggin
Woodland Falls Corporate Park
200 Lake Drive East, Suite 300
Cherry Hill, NJ 08002
On behalf of Defendants Cape May County, Cape May
County Sheriff's Department, Sheriff Gary Schaffer, and Warden
Donald J. Lombardo
BUMB, United States District Judge

This matter comes before the Court upon the Defendants’
Motion to Dismiss Plaintiffs’ Second Amended Complaint1 (“Defs’
Mot. to Dismiss,” ECF No. 42); Plaintiffs’ brief in opposition
to Defendants’ motion to dismiss (“Pls’ Brief,” ECF No. 52);
Defendants’
Plaintiff
62.)

reply

brief

Schartner’s

(“Defs’

Reply”,

Sur-reply.

(“Pl’s

ECF

No.

54);

and

ECF

No.

Sur-reply,”

For the reasons discussed below, the Court will grant in

part, and deny in part, Defendants’ motion to dismiss.
I.

BACKGROUND
Plaintiff Emily Docherty was an inmate at Cape May County

Correctional

Center

(“CMCCC”)

at

the

time

she

filed

this

putative class action on December 21, 2015. (Compl., ECF No. 1,
¶2.)

On

October

7,

2016,

Plaintiffs

Emily

Docherty,

Joseph

Small, Jermaine Mills, and Frederick Schartner filed a Second
Amended Putative Class Action Complaint against Cape May County,
Cape May County Sheriff’s Dept., Cape May County Sheriff Gary
Schaffer,

Warden

Donald

J.

Lombardo,

Commissioner

Lanigan, and unknown Corrections Officers.

Gary

M.

(Second Am. Compl.,

ECF No. 30.)
Plaintiffs
conditions

at

alleged
Cape

May

that

overcrowded

County

Correctional

and
Center

unsanitary
(“CMCCC”)

1

In this Opinion, the Court will refer to Defendants Cape May
County and Cape May County Sheriff’s Dept. as the “County
Defendants,” and will refer to Defendants Sheriff Gary Schaffer
and Warden Donald J. Lombardo as the “Individual Defendants.”
2 

violate the Fourteenth Amendment rights of pretrial detainees
(Count I) and the Eighth Amendment rights of sentenced inmates
(Count II).
among

(Id., ¶¶23-47.)

others,

routinely

The alleged conditions include,

housing

over

300

inmates,

male

and

female, in a facility that was built to accommodate 188 inmates;
three inmates housed in a two-inmate cell, causing one inmate to
sleep on the floor next to the toilet; overflowing toilets and
inoperable drains in the showers; insect infestation; black mold
and bacteria exposure, causing illness; rainwater entering the
cells; and an unsanitary ventilation system, causing respiratory
problems.
On

(Id.)
behalf

detainees,
provided

of

female

Plaintiff

adequate

Emily

sentenced
Docherty

feminine

hygiene

inmates

alleges
products

and

pretrial

inmates
or

are

toilet

not

paper,

resulting in the inmates being forced to wear dirty clothing
until

clean

laundry

is

provided

(Count

III).

(Second

Am.

Compl., ¶¶48-52.)
On behalf of sentenced inmates and pretrial detainees who
are Muslims, Plaintiff Jermaine Mills alleges denial of their
First

Amendment

right

their

religion

(Count

to

practice

IV),

and

the

essential

denial

of

their

elements

of

Fourteenth

Amendment right to equal protection under the law (Count V).
(Id., ¶54.)
must

be

The Koran mandates that Jumu’ah, (Friday Prayer)

held

congregationally.
3 

(Id.,

¶54.)

Defendants

allegedly forced Muslim inmates to congregate during Jumu’ah in
an entrance to the yard near the dog cages.

(Id., ¶¶55-56.)

Inmates urinate and defecate in the dog cages when they are held
there during lockdowns or searches of their cells, and the area
is not cleaned.

(Id.)

Allegedly, no other religious groups are

forced to congregate in this area.

(Id., ¶58.)

There are

vacant rooms where Muslims could congregate for Jumu’ah.
¶59.)

Due

to

the

conditions

in

the

area

provided,

(Id.,
Muslim

inmates are unwilling to participate in Jumu’ah as a collective
group,

as

required

by

the

tenets

of

Islam.

(Id.,

¶60.)

Additionally, Plaintiffs allege, Defendants refuse to provide
Muslims with study time [Taleem], and no other religious groups
are prohibited from studying scripture.

(Id., ¶61.)

Plaintiffs allege violations of their right of access to
courts due to the unavailability of the grievance procedure in
CMCCC.

(Id., ¶¶80-85.)

If an inmate cannot file a grievance,

he or she is unable to challenge the conditions of confinement
in

court

because

required.
filing

exhaustion

(Id., ¶84.)

grievances

in

of

administrative

remedies

is

Inmates allegedly are prevented from

several

ways:

(1)

corrections

officers

refuse to honor requests for grievance forms; (2) corrections
officers

tell

confinement

inmates

cannot

be

that

issues

grieved;

and

discard request slips for grievances.
4 

related
(3)

to

conditions

corrections

(Id., ¶¶81-83.)

of

officers

Plaintiff Frank Schartner alleges a pattern of indifference
by

Defendants

disabilities.

toward

Plaintiffs’

(Id., ¶¶63-79.)

medical

issues

and

For example, Schartner is an

insulin-dependent diabetic, and a corrections officer refused to
allow him to see a medical professional for insulin treatment
when requested.

(Id., ¶¶64-66.)

Defendants refuse to allow

inmates with diabetes to test their blood sugar on a regular
basis; and they do not provide the diet prescribed by the prison
doctors.

(Id., ¶76.)

Long delays in seeing outside medical

specialists are common.
Plaintiff

(Id., ¶¶69-70.)

Schartner

is

vision-impaired.

(Id.,

¶74.)

Defendants allegedly do not document that written materials were
read aloud or otherwise communicated to vision-impaired inmates.
(Id., ¶77.)

also, Defendants do not provide a visible means for

corrections

officers

to

event of an emergency.

identify

the

(Id., ¶78.)

vision-impaired

in

the

On behalf of similarly

situated sentenced prisoners and pretrial detainees, Plaintiff
Schartner alleges violations of the Americans with Disabilities
Act (Count VII), and the Rehabilitation Act (Count VIII).

(Id.,

¶¶112-23.)
All Plaintiffs allege violations of the New Jersey State
Constitution and the New Jersey Civil Rights Act on behalf of
all

similarly

situated

inmates

(Count

IX),

allegations in the Second Amended Complaint.
5 

based

on

their

(Id., ¶¶124-26.)

Plaintiff

Jermaine

Mills

also

alleges

violations

of

the

New

Jersey Law Against Discrimination on behalf of himself and all
similarly situated persons (Count X).
relief,

Plaintiffs

seek

damages,

injunctive and equitable relief.

(Id., ¶¶127-32.)

costs,

attorney’s

For
fees,

(Second Am. Compl., ECF No. 30

at 26-27.)
II.

DISCUSSION
A.

Standard of Review

Under Federal Rule of Civil Procedure 12(b)(6), courts may
dismiss a complaint for failure to state a claim upon which
relief may be granted.

A plaintiff need only present a “short

and plain statement of the claim showing that the pleader is
entitled to relief.”

Fed. R. Civ. P. 8.

A complaint must

“ʽgive the defendant fair notice of what the . . . claim is and
the grounds upon which it rests.’”

Palakovic v. Wetzel, 854

F.3d 209, 219 (3d Cir. 2017)(quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)) (alteration in original)).
“ʽ[A]

complaint

must

contain

sufficient

factual

matter,

accepted as true, to state a claim to relief that is plausible
on its face.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)(citation and internal quotation marks omitted).

A claim

is facially plausible if the factual content “ʽallows the court
to draw the reasonable inference that the defendant is liable
6 

for

the

misconduct

alleged.’”

Id.

Courts

assessing

the

sufficiency of a complaint on a motion to dismiss under Fed. R.
Civ. P. 12(b)(6) should first determine the elements a plaintiff
must plead to state a claim, and second identify allegations
that are no more than conclusions, which are not entitled to the
assumption of truth.
v.

Milberg

Factors,

2011)(internal
Warminster

Palakovic, 854 F.3d at 220 (quoting Burtch
Inc.,

quotation

Twp.,

629

662

marks

F.3d

121,

F.3d

212,

221

omitted)(quoting
130

(3d

Cir.

(3d

Cir.

Santiago

2010)).

v.

Third,

courts should assume well-pleaded factual allegations are true
and

“then

determine

whether

entitlement for relief.’”
B.

plausibly

give

rise

to

an

Id.

Exhaustion of Administrative Remedies Pursuant to
42 U.S.C. § 1997e

Defendants
Amended

they

contend

Complaint

the

because

Court

the

must

Prison

dismiss

Litigation

the

Second

Reform

Act

(“PLRA”) requires Plaintiffs to exhaust any claims arising under
42 U.S.C. § 1983 before filing suit in federal court.

(Brief of

Defs. Cape May, Cape May County Sheriff’s Dept., Sheriff Gary
Schaffer, and Warden Donald J. Lombardo in Supp. of Mot. to
Dismiss Pl’s Second Am. Class Action Compl. (“Defs’ Brief”), ECF
No. 42-4 at 4-5.) Defendants assert “there are no references in
the Second Amended Complaint to show that exhaustion of the
administrative remedies afforded to pretrial detainees could not

7 

have been utilized or would have been an exercise in futility.”
(Id.

at

13.)

They

acknowledge

Plaintiffs

alleged

that

corrections officers hindered their efforts to file grievances,
but

they

contend

the

allegations

were

not

specific

enough.

(Id.)
In response, Plaintiffs argue exhaustion is an affirmative
defense, and they are not required to demonstrate exhaustion in
their complaint.
Plaintiffs

(Pls’ Brief, ECF No. 52 at 11.)

contend

they

pled

sufficient

facts

Nevertheless,
to

demonstrate

that no remedies were available for them to exhaust.

(Id. at

12.)
42 U.S.C. § 1997e(a) provides:
No action shall be brought with respect to
prison conditions under section 1983 of this
title, or any other Federal law, by a
prisoner confined in any jail, prison, or
other
correctional
facility
until
such
administrative remedies as are available are
exhausted.
“[F]ailure to exhaust is an affirmative defense under the
PLRA, and [] inmates are not required to specially plead or
demonstrate exhaustion in their complaints.”
U.S. 199, 216 (2007).
motion

to

dismiss

Jones v. Bock, 549

Therefore, the Court denies Defendants’
for

failure

to

plead

exhaustion

of

administrative remedies.
The

Court

will,

however,

hold

a

hearing

to

resolve

Defendants’ affirmative defense that Plaintiffs did not properly
8 

exhaust

administrative

1997e(a).
that

remedies

pursuant

to

42

U.S.C.

§

In Small v. Camden County, the Third Circuit held

judges

may

resolve

factual

disputes

regarding

exhaustion without the participation of a jury.
271 (3d Cir. 2013).

PLRA

728 F.3d 265,

The Court will set a hearing date for this

purpose once discovery as to this issue has been completed.
C.

Standing to Bring Eighth Amendment Claims

Defendants contend that Plaintiffs cannot state an Eighth
Amendment claim because the Eighth Amendment applies only to
convicted

prisoners,

detainees.

(Defs’

and

Brief,

inmates
ECF

No.

at

CMCCC

42-4

at

are

16.)

pretrial
Plaintiffs

respond that they have standing to sue regarding the conditions
of

confinement

Emily

Docherty

under
was

the

Eighth

sentenced

to

Amendment
Drug

because

Court

at

Plaintiff

the

time

she

entered this lawsuit on December 21, 2015, and Plaintiff Joseph
Small was sentenced and transferred to Bayside State Prison when
he entered this dispute on September 16, 2016.
13-14.)

(ECF No. 52 at

In reply, Defendants assert Plaintiffs Emily Docherty

and Joseph Small were pretrial detainees at the time of the
alleged

harm,

and

at

the

time

they

entered

this

dispute.

(Reply, ECF No. 54 at 5.)
“At the core of the standing doctrine is the requirement
that a plaintiff ‘allege personal injury fairly traceable to the
defendant's

allegedly

unlawful
9 

conduct

and

likely

to

be

redressed by the requested relief.’”

County of Riverside v.

McLaughlin, 500 U.S. 44, 51 (1991)(quoting Allen v. Wright, 468
U.S. 737, 751 (1984) (citing Valley Forge Christian College v.
Americans United for Separation of Church and State, Inc., 454
U.S. 464, 472 (1982)).

Thus, a plaintiff has standing if, at

the time she filed the complaint, her “injury was at that moment
capable of being redressed.”

Id.

The parties agree that the Eighth Amendment does not apply
to pretrial detainees.
Docherty

and

Small

They do not agree on whether Plaintiffs

were

sentenced

prisoners

while

they

were

confined in CMCCC, and at the time they entered this dispute.
The Second Amended Complaint does not identify whether Emily
Docherty

or

Joseph

Small

were

pretrial

detainees,

sentenced

prisoners or both while they were incarcerated at CMCCC.2
12(b)(6)

motion

to

dismiss,

disputed by the parties.

the

Court

cannot

decide

Upon a
facts

See Kost v. Kozakiewicz, 1 F.3d 176,

183 (3d Cir. 1993)(quoting Ransom v. Marrazzo, 848 F.3d 398, 401
(3d Cir. 1988)(on a 12(b)(6) motion to dismiss, the question “is
whether ‘the facts alleged in the complaint, even if true, fail

2

    “Plaintiff, Emily Docherty, is a former female inmate who has

been detained and/or housed in the Cape May County Correctional
Center on and off from December 21, 2013.” (Second Am. Compl.,
¶3.)    Plaintiff, Joseph Small, is a male inmate who was detained
and/or housed in the Cape May County Correctional Center. He was
transferred from the Cape May County Correctional Center to
Bayside State Prison, where he is presently incarcerated. (Id.,
¶4.)
10 

to

support

the

claim.’”)

Therefore,

because

the

lack

of

standing to bring an Eighth Amendment claim is not apparent on
the

face

of

the

Second

Amended

Complaint,

and

the

parties

dispute whether Docherty and Small were sentenced prisoners at
the relevant time, the Court denies the motion to dismiss the
Eighth Amendment Claims for lack of standing.
D.

Counts I and II:
Fourteenth and
Conditions of Confinement Claims
1.

Eighth

Amendment

Liability of the Individual Defendants

Throughout their brief, Defendants assert that Plaintiffs
have failed to allege sufficient facts to state a claim against
Sheriff Gary Schaffer (“Schaffer”) or Warden Donald J. Lombardo
(“Lombardo”).

(See

generally

Defs’

Brief,

ECF

No.

42-4.)

Plaintiffs counter that they have alleged Schaffer and Lombardo
are aware of the misconduct by corrections officers, and they
either participate in or are deliberately indifferent to it.
(See generally Pl’s Brief, ECF No. 52.) Plaintiffs also allege
that Defendants have failed to adopt policies, provide training,
and

the

officers

supervision
are

not

necessary

perpetuating

to

ensure

unlawful

that

corrections

behavior.

(Id.)

Finally, Plaintiffs allege that in a November 18, 2014 article
published by the Press of Atlantic City, Schaffer admitted that
the

jail

complex

was

“falling

apart”

(Second Am. Compl., ECF No. 30, ¶27.)

11 

and

was

“overcrowded”.

2.

Fourteenth Amendment Claims

42 U.S.C. § 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 . . . .
To state a claim for relief under § 1983, a plaintiff must
allege: (1) the violation of a right secured by the Constitution
or

laws

of

the

United

States;

and

(2)

the

deprivation

was

committed or caused by a person acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988).
The Due Process Clause of the Fourteenth Amendment protects
pretrial

detainees

against

“punishment.”

Hubbard

v.

Taylor

(“Hubbard I”), 399 F.3d 150, 157-58 (3d Cir. 2005)(citing Bell,
441 U.S. 520 (1979)).

In determining whether the complaint

fails to state a claim upon which relief may be granted, the
court

must

review

the

complaint

and

determine

whether

the

Defendants acted “‘for the purpose of punishment or whether it
is

but

an

incident

of

some

other

legitimate

governmental

purpose.’” Id. at 158 (quoting Bell, 441 U.S. at 538-39); see
also Stevenson v. Carroll, 495 F.3d 62, 67 (3d Cir. 2007)).

12 

Unless

there

is

an

expressed

intent

to

punish,

the

court

considers whether there is an alternative rational purpose and
whether the condition is excessive in relation to that purpose.
Id.
Plaintiffs do not allege that Schaffer and Lombardo created
or

maintained

punishment

to

the
the

overcrowded
pretrial

and

unsanitary

detainees.

conditions

Therefore,

the

considers alternative purposes for the conditions.

as

Court

There is a

legitimate governmental purpose in managing and maintaining an
overcrowded
II”),

538

detention
F.3d

229,

facility.
233

(3d

Hubbard
Cir.

v.

2008);

Taylor

Union

(“Hubbard

County

Jail

Inmates v. DiBuono, (“Union County”) 713 F.2d 984, 993 (3d Cir.
1983)(quoting Bell, 441 U.S. at 540).
The overcrowded and unsanitary conditions described in the
Second Amended Complaint, in their totality, are excessive to
the legitimate governmental purpose because the conditions pose
a risk to the health and safety of the inmates.

See Tillery v.

Owens, 907 F.2d 418, 427-28 (3d Cir. 1990)(affirming district
court finding that totality of conditions caused by overcrowding
violated
alleged

Eighth
by

Amendment.)

Plaintiffs,

By

Schaffer

virtue
and

of

their

Lombardo

are

duties,

as

personally

involved in the operating the facility in the overcrowded and
unsanitary conditions.

Therefore, the Court denies Defendants’

13 

motion to dismiss the Fourteenth Amendment claims of pretrial
detainees against the Individual Defendants.
3.
The

Eighth Amendment Claims

Eighth

Amendment

protects

convicted

prisoners from cruel and unusual punishment.
F.3d 150, 164 (3d Cir. 2005).
claim

based

allege

on

facts

conditions

indicating

and

sentenced

Hubbard I, 399

To state an Eighth Amendment

of

confinement,

“that

prison

the

prisoner

officials

must

acted

with

deliberate indifference that deprived him/her of ‘the minimal
civilized

measure

of

life's

necessities.’”

Id.

at

164-65

(quoting Wilson v. Seiter, 501 U.S. 294, 298-88 (1991)(quoting
Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).

Some conditions

of confinement may establish an Eighth Amendment violation “in
combination” when each would not do so alone, but only when they
have a mutually enforcing effect that produces the deprivation
of a single, identifiable human need such as food, warmth, or
exercise—for example, a low cell temperature at night combined
with a failure to issue blankets.
Indifference
prisoner’s
Estelle

v.

needs

may
or

Gamble,

be
by
429

Wilson, 501 U.S. at 304.

established
intentional
U.S.

by

the

response

deprivation

97,

104

of

(1976).

a

to

a

need.

“Use

of

‘deliberate,’ . . . arguably requires nothing more than an act
(or

omission)

of

indifference

to

a

serious

risk

that

is

voluntary, not accidental.” Farmer v. Brennan, 511 U.S. 825, 840
14 

(1994)(comparing

Estelle,

429

U.S.

at

105.)

“And

even

if

‘deliberate’ is better read as implying knowledge of a risk, the
concept of constructive knowledge is familiar enough that the
term

‘deliberate

indifference’

would

not,

of

its

own

force,

preclude a scheme that conclusively presumed awareness from a
risk's obviousness.”
The
deprive

Id. at 841.

conditions
inmates

alleged,

of

the

sanitation, and health.

in

basic

their
human

totality,

potentially

necessities

of

sleep,

Plaintiffs alleged that Schaffer, in

December 2014, was quoted in a newspaper saying the facility was
“overcrowded”
statement,

and

“falling

Plaintiffs

apart.”

alleged

CMCCC

Consistent
has

with

inoperable

this

plumbing,

showers that do not drain, bacteria and mold and inadequate
ventilation.

Plaintiffs allege these conditions existed long

after Schaffer allegedly made this statement to the newspaper,
creating a reasonable inference that Schaffer did nothing to
alleviate

the

conditions.

Therefore,

the

Court

denies

the

motion to dismiss the Eighth Amendment claim against Schaffer.
Additionally,

it

is

possible

to

establish

deliberate

indifference under the Eighth Amendment based on the obviousness
of a risk.

See Beers Capitol v. Whetzel, 256 F.3d 120, 133 (3d

Cir. 2001)(“subjective knowledge on the part of the official can
be proved by circumstantial evidence to the effect that the
excessive risk was so obvious that the official must have known
15 

of the risk”)(quoting Farmer, 511 U.S. at 842.

Accepting the

allegations regarding the condition of the facility as true, and
accepting the allegation that it is Warden Lombardo’s duty to
manage,

maintain

and

operate

the

CMCCC,

the

Second

Amended

Complaint creates a reasonable inference that Lombardo was aware
of the overcrowded and unsanitary conditions and did nothing to
alleviate them.

Thus, the Court denies the motion to dismiss

the Eighth Amendment Claim against Lombardo.
4.

Qualified Immunity for the Individual Defendants

Defendants assert that all claims of individual liability
of Schaffer and Lombardo must be dismissed because they are
protected by qualified immunity.
23.)

First,

Defendants

(Defs’ Brief, ECF No. 42-4 at

contend

Schaffer’s

and

Lombardo’s

actions in performing their duties are objectively reasonable.
(Id. at 26.)

Second, they contend Plaintiffs’ allegations offer

no basis to overcome qualified immunity.

(Id.)

Third, Defendants argue that Plaintiffs have not identified
specific

actions

of

Schaffer

constitutional rights.
Plaintiffs
protections

failed

to

afforded

official capacity.”3

or

(Id.)
plead
to

that

violate

their

Fourth, Defendants argue that
“how

public

(Id.)

Lombardo

their

claims

officials

overcome

working

in

the

their

Defendants conclude that Schaffer

3

The test for qualified immunity of prison officials sued in
their individual capacity is not dependent on whether the
16 

and

Lombardo

“were

objectively

reasonable

in

believing

that

their actions in enforcing the policies and maintaining the Cape
May County Correctional Center were under the umbrella of their
discretionary function and therefore is entitled to qualified
immunity.”

(Id.)

Plaintiffs
establish

assert
he

that

Defendants

here

Plaintiffs.

that

entitled

is

have

it

is

a

to

attempted

qualified

to

(ECF No. 52 at 29.)

defendant’s

shift

burden

immunity,

this

to
and

burden

to

Plaintiffs also argue the

Court should address qualified immunity only after the record is
fully developed.

(Id. at 30-31.)

In reply, Defendants assert that qualified immunity is an
immunity from suit that should be decided before trial.
No.

54

at

9.)

They

further

contend

that

“nothing

(ECF
about

plaintiffs’ allegations proves that the constitutional rights of
pretrial detainees were clearly established to overcome the twopart test set forth in Saucier v. Katz, 533 U.S. 194 (2001). .
.”

(Id.)
Qualified

immunity

protects

government

officials

“from

liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights

officials were acting within the scope of employment of their
official duties.
See Hafer v. Melo, 502 U.S. 21, 31
(1991)(“state officers [are not] absolutely immune from personal
liability under § 1983 solely by virtue of the ‘official’ nature
of their acts.”)
17 

of

which

a

reasonable

person

would

have

known.”

Pearson

v.

Callahan, 555 U.S. 223, 231 (2009)(quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). Qualified immunity is immunity from
suit, and should be resolved as early as possible.

Id. at 231-

32. It protects from suit “all but the plainly incompetent or
those who knowingly violate the law.”

Ashcroft v. al-Kidd, 563

U.S. 731, 743 (2011)(quoting Malley v. Briggs, 475 U.S. 335, 341
(1986)).
There
claims,

are

but

two

the

steps

steps

for

may

resolving

be

addressed

qualified
in

any

immunity
sequence.

Pearson, 555 U.S. at 232. In other words, courts need not first
determine whether the facts alleged by the plaintiff state a
violation of a constitutional right before addressing whether
such

a

right

was

clearly

established

defendant’s alleged misconduct.

at

the

time

of

the

Id. at 236.

A defendant has not violated a clearly established right
unless the contours of that right were “sufficiently definite
that any reasonable official in the defendant’s shoes would have
understood that he was violating [the right.]”

Plumhoff v.

Rickard, 134 S.Ct. 2012, 2023 (2014)(citing Ashcroft v. al-Kidd,
131 S.Ct. 2074, 2083-84 (2011)).
precedent

must

have

question’

confronted

placed
by

the

the

Stated another way, “̔existing
statutory

official

or

‘beyond

constitutional
debate.’”

Id.

Furthermore, courts should not define clearly established law
18 

“at a high level of generality” because to do so avoids the
question

of

whether

the

official

particular circumstances.
A

plaintiff

has

acted

reasonably

in

the

Id.

no

obligation

to

plead

a

violation

of

clearly established law in anticipation of a qualified immunity
defense.
2006).

Thomas v. Independence Tp., 463 F.3d 285, 293 (3d Cir.
However,

“when

a

plaintiff,

on

his

own

initiative,

pleads detailed factual allegations, the defendant is entitled
to dismissal before the commencement of discovery unless the
allegations state a claim of violation of clearly established
law.”

Id. (emphasis in original)(citing Mitchell v. Forsythe,

472 U.S. 511, 526 (1985)).
This Court has found that the allegations of the Second
Amended

Complaint

conditions

of

state

a

Fourteenth

confinement

claim

Amendment

and

an

Due

Eighth

Process
Amendment

conditions of confinement claim against Defendants Schaffer and
Lombardo.
pled

Thus, the Court must determine whether Plaintiffs

detailed

allegations

do

factual
not

allegations

state

a

claim

that
for

demonstrate

violation

of

their
clearly

established law.
Triple-celling alone does not violate clearly established
law.

Hubbard

II,

538

F.3d

at

234.

Courts,

however,

must

consider the totality of the circumstances of the conditions
alleged.

Here, Plaintiffs allege they were triple-celled, with
19 

one

person

conditions,

required
with

to

sleep

inoperable

poor ventilation.

on

the

plumbing,

floor,
insect

in

unsanitary

infestation

and

See Union County, 713 F.2d at 999 (“[t]he

totality of circumstances relevant to this inquiry comprises all
those

circumstances

that

bear

on

the

nature

of

the

shelter

afforded to sentenced inmates”)(citing Hoptowit v. Ray, 682 F.2d
1237, 1247 (9th Cir. 1982)).
The Second Circuit Court of Appeals has “long recognized
that unsanitary conditions in a prison cell can, in egregious
circumstances,

rise

to

punishment.”

Walker

v.

2013)(citing

Lareau

the

level

Schult,

717

v.

Manson,

of
F.3d

651

F.2d

cruel
119,
96,

and
127
106

unusual

(2nd

Cir.

(2d

Cir.

1981)(noting that prisoners are entitled to sanitation); LaReau
v. MacDougall, 473 F.2d 974, 978 (2d Cir. 1972)(“causing a man
to live, eat and perhaps sleep in close confines with his own
human waste is too debasing and degrading to be permitted”);
Gaston v. Coughlin, 249 F.3d 156, 166 (2nd Cir. 2001)(inmate
stated an Eighth Amendment claim where the area in front of his
cell “was filled with human feces, urine, and sewage water” for
several
that

“a

consecutive
state

ventilation,

days.”)

must

The

provide

sanitation,

Tenth
.

bedding,

.

Circuit
.

has

reasonably

hygienic

recognized
adequate

materials,

and

utilities (i.e., hot and cold water, light, heat, plumbing).”

20 

Ramos v. Lamm, 639 F.2d 559, 566 (10th Cir. 1980)(quoting Battle
v. Anderson, 564 F.2d 388, 394-95, 403 (10th Cir. 1977.))
Similarly, the Third Circuit has found that the denial of
“basic sanitation ... is cruel and unusual because, in the worst
case,

it

can

result

in

physical

torture,

and,

even

in

less

serious cases, it can result in pain without any penological
purpose.”

Young v. Quinlan, 960 F.2d 351, 365 (3d Cir. 1992).

Finally, it is clearly established by the Supreme Court that
prison conditions, which in combination, “deprive inmates of the
minimal civilized measure of life's necessities,” violate the
Eighth Amendment.
The
pretrial
convicted

Rhodes v. Chapman, 452 U.S. 337, 347 (1981).

Fourteenth

Amendment

detainees

than

prisoners

the

because

provides

greater

protection

to

Eighth

Amendment

provides

to

pretrial

detainees

may

be

not

subjected to punishment, whereas convicted prisoners may not be
subjected to cruel and unusual punishment.
at 166.

Hubbard I,  399 F.3d

The Court, again construing the allegations in favor of

the Plaintiffs, finds that the Second Amended Complaint does not
demonstrate that Plaintiffs will be unable to establish that
clearly established law supports violations of the Eighth and
Fourteenth Amendments.

The Court denies the motion to dismiss

Counts I and II based on the qualified immunity defense asserted
by Schaffer and Lombardo.

21 

E.

Count III:
Denial of Adequate Hygiene Products,
Toilet Paper, and Clothing to Female Sentenced Inmates
and Pretrial Detainees

Defendants argue that Count III, the denial of the right to
basic cleanliness on behalf of Emily Docherty and all similarly
situated

pretrial

Plaintiffs

fail

detainees,

to

provide

must

a

be

sufficient

substantiate the constitutional claims.
42-4 at 27.)

dismissed
factual

because
basis

to

(Defs’ Brief, ECF No.

Defendants contend allegations that the feminine

hygiene products and toilet paper were “insufficient” are too
vague to state a constitutional violation.
As

discussed

above,

the

first

(Id. at 28.)

step

in

analyzing

a

Fourteenth Amendment conditions of confinement claim is whether
there are allegations that the conditions were the result of an
intention to punish pretrial detainees.

Bell, 441 U.S. at 538

(1979); see e.g. Parkell v. Morgan, No. 15-2719, 2017 WL 955250,
at *2 (3d Cir. Mar. 10, 2017).

Here, Plaintiffs do not allege

the conditions were imposed as punishment.
Next,

the

Court

must

consider

purpose is served by the condition.
governmental

purpose

correctional facility.

in

managing

whether

Id.

any

legitimate

There is a legitimate

overcrowded

conditions

Hubbard II, 538 F.3d at 233.

in

a

The third

step is for the Court to determine whether the conditions “cause
[inmates] to endure [such] genuine privations and hardship over
an extended period of time, that the adverse conditions become
22 

excessive

in

relation

to

the

purposes

assigned

to

them.”

Hubbard I, 399 F.3d at 159-60 (quoting Union County, 713 F.2d at
992

(citing

Bell,

441

U.S.

at

542)(internal

quotation

marks

omitted).
The allegations do not establish that the hygiene products
provided to female pretrial detainees are so inadequate as to be
excessive to the purpose of operating CMCCC in its overcrowded
condition.

If hygiene products were inadequate for only a short

period of time, the lack of adequate hygiene products for female
pretrial

detainees

may

governmental purposes.

not

be

excessive

to

the

legitimate

See Brown v. Hamilton Police Dept., Civ.

Action No. 13–260(MAS), 2013 WL 3189040, at *3 (D.N.J. June 21,
2013)(denial of feminine hygiene products for a few hours fails
to state a claim).
On the other hand, if the lack of adequate hygiene products
for

female

pretrial

detainees

was

a

chronic

problem

that

deprived detainees of adequate hygiene for more than a short
period of time, the condition may be excessive to the legitimate
governmental purposes.

Therefore, the Court grants the motion

to dismiss the Fourteenth Amendment Claim in Count III as to all
defendants, and the Fourteenth Amendment Claim in Count III is
dismissed without prejudice.

The Court need not address the

qualified immunity defense to this claim.

23 

Plaintiffs also alleged the denial of sufficient hygiene
products

to

Amendment.

female

sentenced

inmates

violated

(Second Am. Compl., ¶¶95, 96.)

the

Eighth

For the same reasons

that Plaintiffs failed to state a claim that the deprivation
amounted to punishment under the Fourteenth Amendment, they have
also failed to state a claim that the deprivation constituted
cruel and unusual punishment.
dismiss

the

Eighth

The Court grants the motion to

Amendment

Claim

in

Count

III

as

to

all

defendants, dismissal is without prejudice.
F.

Count IV:

First Amendment Free Exercise Claims

Defendants argue Plaintiff Mills fails to state a First
Amendment Free Exercise claim.
17-18.)

(Defs’ Brief, ECF No. 42-4 at

They assert that the CMCCC has given Muslim detainees a

way to congregate and pray, but any further accommodations “will
be against the interest of order and security.”

(Id. at 17.)

Defendants have raised issues of fact which are not pled in
the Second Amended Complaint.

Defendants assert that:

According
to
the
Cape
May
County
Correctional Facility, the population of
Muslim pretrial detainees at any given point
is a small fraction as compared to other
religions. The number of Muslim pretrial
detainees is so few that an Imam, an Islamic
leader to conduct the Islamic services,
could not be called to the prison to hold
religious services. . . . Additionally, due
to the sparse Muslim detainee population,
the Cape May County Correctional Facility
has an overriding interest in preserving
internal order for other pretrial detainees
24 

and
to
maintain
facility.

the

security

of

the

(Id. at 17.) The Court must decide the motion to dismiss based
on the facts alleged in the Second Amended Complaint, and any
reasonable inferences drawn from those facts.

See Iqbal,  556

U.S.at 679 (“[when there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.”)
“The threshold question in any First Amendment . . . case
is

whether

the

prison's

challenged

policy

or

practice

has

substantially burdened the practice of the inmate-plaintiff's
religion.

See Robinson v. Superintendent Houtzdale SCI, ---F.

App’x---,

2017

WL

2627917,

at

*3

(3d

Cir.

2017)(per

curiam)(citing Washington v. Klem, 497 F.3d 272, 277-78 (3d Cir.
June

19,

2007)).

“ʽWhen

a

prison

regulation

impinges

on

inmates' constitutional rights, the regulation is valid if it is
reasonably

related

to

legitimate

penological

interests.’”

Garraway v. Lappin, 490 F. App’x 440, 445 (3d Cir. 2012)(quoting
Turner[v. Safely], 482 U.S. [78,] 89 [1987].
Plaintiffs

allege

that

the

CMCCC’s

policy

that

Muslim

inmates may only congregate for Jumu’ah near the dog cages at
the entrance to the yard substantially burdens a tenet of Islam.
(Second

Am.

congregation

Compl.,
for

ECF

Friday

No.

30,

prayer

25 

¶¶53-62.)

but

the

Islam

dirty,

requires

foul-smelling

conditions where they are allowed to congregate are so offensive
that inmates choose not to congregate.

(Id.)

They further

allege there are vacant rooms where Muslims could congregate.
(Id.)
Plaintiffs have met the threshold pleading requirement for
their First Amendment Free Exercise claim.

At the motion to

dismiss stage, the Court cannot consider facts not alleged in
the complaint in support of the defense that allowing Plaintiffs
to congregate only near the dog cages is reasonably related to
legitimate penological interests.
F.3d

212,

217

(3d

Cir.

Cf. Williams v. Morton, 343

2003)(affirming

district

court

order

granting summary judgment to prison officials based on findings
of

fact

that

prison

officials

had

a

legitimate

penological

interest that was rationally related to providing Muslim inmates
a vegetarian meal, rather than one with Halal meat.) Therefore,
the Court denies Defendants’ motion to dismiss Count IV against
the County Defendants.
Defendants also move to dismiss the First Amendment Free
Exercise
failure

claims
to

against

allege

Defendants

their

constitutional violation.

Schaffer

and

personal

involvement

in

Lombardo
the

for

alleged

(Defs’ Brief, ECF 42-4 at 28.)

“[A]

plaintiff must plead that each Government-official defendant,
through the official's own individual actions, has violated the
Constitution.”

Iqbal,

556

U.S.
26 

at

676.

Plaintiffs

do

not

allege who created, approved or enforced the policy that Muslims
may only congregate for Jumu’ah near the dog cages.

Plaintiffs’

conclusory claims that Schaffer and Lombardo were aware of the
alleged misconduct and failed to correct it are insufficient to
allege their personal involvement. See Santiago,  629 F.3d at 131
(reciting

elements

of

supervisory

insufficient to state a claim).

claim

under

§

1983

is

At a minimum, Plaintiffs must

allege how Schaffer and Lombardo became aware of the burden on
their religion or they must allege other facts concerning their
involvement

in

making

or

enforcing

the

policy

concerning

Jumu’ah.
Plaintiffs

have

also

alleged

“Defendants

have

failed

to

adopt policies or provide the training and oversight necessary
to insure that corrections officers are not perpetuating such
unlawful behavior.”

(Compl., ECF No. 30, ¶62.)

To state a §

1983

an

defendant,

claim

plaintiff

against
must

individual
that

allege 

supervisory

Defendants

“with

a

deliberate

indifference to the consequences, established and maintained a
policy,

practice

or

constitutional harm.”
F.3d

307,

316

(3d

custom

which

directly

caused

[the]

Barkes v. First Corr. Medical Inc., 766
Cir.

2014)(internal

quotations

omitted)

reversed on other grounds by Taylor v. Barkes, 135 S.Ct. 2042
(2015).

“‘Failure

to’

claims—failure

27 

to

train,

failure

to

discipline,

or

.

.

.

failure

to

supervise—are

generally

considered a subcategory of policy or practice liability.”

Id.

The plaintiff must identify a supervisory
policy or practice that the supervisor
failed to employ, and then prove that: (1)
the policy or procedures in effect at the
time of the alleged injury created an
unreasonable
risk
of
a
constitutional
violation; (2) the defendant-official was
aware
that
the
policy
created
an
unreasonable risk; (3) the defendant was
indifferent to that risk; and (4) the
constitutional injury was caused by the
failure
to
implement
the
supervisory
practice or procedure. Sample [v. Diecks],
885 F.2d [1099], 1118 [1989]; Brown v.
Muhlenberg Twp., 269 F.3d 205 (3d Cir.
2001).
Id. at 317.
Plaintiffs’ First Amendment Free Exercise claim against the
Individual Defendants fails because Plaintiffs did not identify
a particular policy, practice or training that the supervisors
failed to employ, nor did they plead that the injury was caused
by the failure to implement such policy, practice or training.
The Court grants Defendants’ motion to dismiss Count IV against
the

Individual

Defendants;

dismissal

is

without

prejudice.

Therefore, the Court need not address the qualified immunity
defense.
G.

Count V:

Defendants

Equal Protection Claims

contend

that

because

CMCCC

has

given

Muslim

detainees a way to congregate and pray, the Court should dismiss

28 

Plaintiff’s equal protection claims.
at 17.)

(Defs’ Brief, ECF No. 42-4

Plaintiffs counter that they have pled sufficient facts

to support an equal protection claim, including: (1) Defendants
force

Plaintiff

Mills

and

other

Muslim

inmates

to

conduct

congregational prayer near the dog cages where inmates routinely
urinate and defecate; (2) no other religious group is compelled
to worship in an area like this; (3) the library and law library
at CMCCC have vacant rooms where Muslims could congregate for
prayer;

(4)

Muslim

inmates

are

denied

time

to

study

their

scripture; and (5) no other religious groups are prohibited from
studying their scriptures. (Pls’ Brief, ECF No. 52 at 20-21.)
In reply, Defendants state, “[t]he Cape May County Correctional
Facility has given Muslim detainees a way to congregate and
pray, but providing further accommodations will be against the
interest of order and security.”

(Defs’ Reply, ECF No. 54 at

6.)
To state an equal protection claim, a plaintiff must allege
“that he was treated differently than other similarly situated
inmates, and that this different treatment was the result of
intentional

discrimination

based

on

his

membership

in

a

protected class, such as religious affiliation.”

Mack v. Warden

Loretto FCI, 839 F.3d 286, 305 (3d Cir. 2016).

By alleging no

other religious groups were compelled to worship in a dirty and
foul-smelling

area,

and

no

other
29 

religious

groups

were

prohibited from studying their scriptures, the allegations in
the Second Amended Complaint create a reasonable inference that
the

County

Defendants

intentionally

Plaintiffs because they are Muslim.
Defendants’

motion

to

dismiss

discriminated

against

Therefore, the Court denies

Count

V

against

the

County

Defendants.
Plaintiffs allege only conclusory allegations regarding the
personal

involvement

Protection Claims.

of

Schaffer

and

Lombardo

in

the

Equal

They do not allege how Schaffer or Lombardo

knew of and condoned the policy or practice of allowing Muslims
to congregate for Jumu’ah only near the dog cages.

Plaintiffs

do not identify a particular policy, practice or training that
the supervisors failed to employ that caused the injury.

The

Court grants Defendants’ motion to dismiss Count V against the
Individual

Defendants;

dismissal

is

without

prejudice.

The

Court need not address the qualified immunity defense.
H.

Count VI: First Amendment Right To Petition
to Redress Grievances

Defendants

argue

that

Plaintiffs

fail

to

state

a

First

Amendment claim for denial of access to the courts because they
have not alleged a direct injury.
29.)

(Defs’ Brief, ECF No. 42-4 at

Plaintiffs maintain that Defendants hindered their ability

to file grievances, which hinders their ability to access the
courts.

(Pls’ Brief, ECF No. 52 at 33-34.)

30 

“‘[T]he right of access to courts for redress of wrongs is
an

aspect

of

the

government.’”

First

Amendment

right

to

petition

the

Borough of Duryea, Pa. v. Guarnieri, 564 U.S.

379, 387 (2011) (quoting Sure–Tan, Inc. v. NLRB, 467 U.S. 883,
896–897 (1984)).

To establish a First Amendment violation based

on denial of the right to access the courts, a plaintiff must
have

suffered

an

actual

injury,

such

as

the

complaint or the inability to file a complaint.

dismissal

of

a

Lewis v. Casey,

518 U.S. 343, 351, 354 (1996).
Plaintiffs were not precluded from filing this action due
to their alleged inability to exhaust the remedies provided by
CMCCC

to

address

their

grievances.

The

failure

to

exhaust

remedies under 42 U.S.C. § 1997e(a) only results in dismissal of
the unexhausted claims if the remedies were available to the
prisoners.

See

Ross

v.

Blake,

136

S.Ct.

1850,

1860

(2016)(“appellate courts have addressed a variety of instances
in which officials misled or threatened individual inmates so as
to prevent their use of otherwise proper procedures. As all
those courts have recognized, such interference with an inmate's
pursuit

of

unavailable.”)

relief

renders

the

administrative

process

If Plaintiffs can establish that the remedies

were unavailable to them, they will have suffered no injury to
their right of access to the courts.

Therefore, Plaintiffs fail

to state a First Amendment claim that they were denied access to
31 

the courts.

The Court grants Defendants’ motion to dismiss

Count VI as to all defendants.
I.

Counts VII and VIII:

Defendants

contend

Dismissal is with prejudice.
ADA and RA Claims

that

neither

the

Americans

with

Disabilities Act (“ADA”), 42 U.S.C. § 12132, nor Section 504 of
the Rehabilitation Act, 42 U.S.C. § 794, creates a federal cause
of action for prisoners challenging the medical treatment they
are provided.

(Defs’ Brief, ECF No. 42-4 at 19, 22, 23.) In

response, Plaintiffs assert state prisons are public entities,
and diabetes qualifies as a disability under the ADA.
Brief,

ECF

No.

52

at

25-26.)

They

argue

that

(Pls’

Plaintiff

Schartner states a claim by alleging sufficient facts to show
discriminatory denial of access to medical treatment.
26.)

(Id. at

They allege insulin-dependent inmates can only see medical

personnel for insulin treatment at the discretion of corrections
officers.

(Id.)
Section 504 of the [Rehabilitation Act
(“RA”)]
provides
that
“[n]o
otherwise
qualified individual with a disability in
the United States ... shall, solely by
reason of her or his disability, be excluded
from the participation in, be denied the
benefits
of,
or
be
subjected
to
discrimination under any program or activity
receiving Federal financial assistance.”

Liberty Resources, Inc. v. Philadelphia Housing Authority, 528
F.Supp.2d 553, 564 (E.D. Pa. 2007)(quoting 29 U.S.C. § 794(a)).
“Title II [of the ADA] prohibits a ‘qualified individual with a
32 

disability’ from being ‘excluded from participation in or be
denied the benefits of the services, programs, or activities of
a public entity, or be subjected to discrimination by any such
entity’ because of the individual's disability.”

42 U.S.C. §

12132.

12131–12134,

“Title

II

of

the

ADA,

42

U.S.C.

§§

incorporates the ‘non-discrimination principles’ of section 504
of the Rehabilitation Act and extends them to state and local
governments.”

Helen L. v. DiDario, 46 F.3d 325, 331 (3d Cir.

1995).
Plaintiffs do not allege that Defendants exclude insulindependent inmates from receiving medical treatment.

Their claim

is that corrections officers determine when inmates can access
medical services.
officers

permit

without delay.

Plaintiffs have not alleged that corrections
other

inmates

to

access

medical

treatment

These facts do not support the conclusion that,

solely by reason of their disability, Defendants discriminate
against

insulin-dependent

inmates.

Furthermore,

no

cause

of

action exists under the ADA to challenge the medical treatment a
prisoner received.
(D. Del. 2006).

Hubbard v. Taylor, 452 F.Supp.2d 533, 544-45
Plaintiffs’ allegations do not state an ADA

claim under 42 U.S.C. § 12132 or an RA claim under 29 U.S.C. §
794(a).
The Second Amended Complaint also contains the following
allegations:
33 

Defendants are providing written materials,
such as the Prisoner’s Handbook, which
contains the Cape May County Correctional
Center’s rules and regulations, to vision
impaired inmates without documenting that
such materials were read aloud or otherwise
communicated to these inmates. Such action
discriminates against inmates with vision
impairment
inasmuch
as
Defendants
are
denying
them
access
to
the
grievance
procedure and of services, programs and/or
activities
of
the
Cape
May
County
Correctional Center that are provided to
other inmates.
Defendants
also
fail
to
reasonably
accommodate vision-impaired inmates by not
providing them with any type of vest or
other visible means by which corrections
officers
can
identify
them
as
visionimpaired in the event of an emergency.
(Second Am. Compl., ¶¶77-78.)
Plaintiffs have not alleged that CMCCC does not communicate
the

information

in

the

Prison

Handbook

to

vision-impaired

inmates who cannot read the handbook, only that they do not
document that they have done so.

These allegations do not state

a claim that such inmates are denied access to the services,
programs and activities described in the handbook.
Plaintiffs
visible

means

allege
for

that

they

corrections

are

not

officers

provided

to

vision-impaired in the event of an emergency.
are

insufficient

to

state

a

claim

that

with

identify

some

them

as

These allegations
Defendants

deprive

vision-impaired inmates from access to emergency services, as
other provisions may be made for vision-impaired inmates.
34 

The

Court will grant Defendants’ motion to dismiss Counts VII and
VIII against all defendants; dismissal is with prejudice.
J.

Count IX:

Defendants

do

NJCRA Claims
not

separately

address

the

sufficiency

of

Plaintiffs’ claims under the New Jersey Constitution and the
NJCRA.
The NJCRA provides, in part:
Any person who has been deprived of any
substantive due process or equal protection
rights, privileges or immunities secured by
the Constitution or laws of the United
States,
or
any
substantive
rights,
privileges or immunities secured by the
Constitution or laws of this State ... may
bring a civil action for damages and or
injunctive or other appropriate relief.
N.J. Stat. Ann. §10:6-2(c).
The New Jersey Civil Rights Act is analogous to 42 U.S.C. §
1983 in that it creates a private right of action for violation
of civil rights secured by the New Jersey Constitution, the laws
of the state of New Jersey, and the Constitution and laws of the
United States. See Gormley v. Wood-El, 218 N.J. 72, 97 (N.J.
2014)
(“Section 1983 applies only to deprivations of federal rights,
whereas N.J.S.A. 10:6–1 to 2 applies not only to federal rights
but

also

to

substantive

rights

Constitution and laws.”

35 

guaranteed

by

New

Jersey's

“[C]ourts in this district have generally interpreted the
NJCRA to be coextensive with its federal counterpart.” Estate of
Lydia Joy Perry ex rel. Kale v. Sloan, Civ. No. 10–4646 (AET),
2011 WL 2148813, at *2 (D.N.J. May 31, 2011)(citing Jefferson v.
Twp. of Medford, 2010 WL 5253296, at *13 (D.N.J. Dec.16, 2010);
Celestine

v.

Foley,

2010

WL

5186145,

at

*6

(D.N.J.

Dec.14,

2010); Chapman v. New Jersey, 2009 WL 2634888, at *3 (D.N.J.
Aug.25, 2009); Slinger v. New Jersey, 2008 WL 4126181, at *5
(D.N.J. Sept.4, 2008), rev'd in part on other grounds, 366 F.
App'x 357 (3d Cir. 2010)).

Therefore, the Court will grant

Defendants’ motion to dismiss dismiss the claims arising under
the New Jersey Constitution and the NJCRA that are coextensive
with their federal counterparts, which the Court has dismissed
for failure to state a claim.
K.

Count X:

Plaintiffs

New Jersey Law Against Discrimination Claim

allege

the

policy

that

Muslims

may

only

congregate for Jumu’ah in the yard near the dog cages violates
the New Jersey Law Against Discrimination.

Defendants contend

this claim should be dismissed because:
The actions taken by the Cape May County
Correctional
Facility
were
rationally
related
to
the
legitimate
penological
interests in security and staying within the
prison's resources. Here, there were not
enough Muslim pretrial detainees to allow
prayer in a larger facility, similar to
Christian
pretrial
detainees,
which

36 

outnumber Muslim detainees greatly in Cape
May.
(Defs’ Brief, ECF No. 42-4 at 18.)

The Court, however, cannot

consider facts asserted that were not pled in the Complaint,
such as the number of Muslim pretrial detainees or the costs of
accommodating the Plaintiffs’ religious practices.
The

New

Jersey

Law

Against

Discrimination

(“NJLAD”),

N.J.S.A 10:5-12 provides:
It
shall
be
discrimination:  

.

.

.

an

unlawful

. . . 

f. (1) For any owner, lessee, proprietor,
manager, superintendent, agent, or employee
of
any
place
of
public
accommodation
directly or indirectly
to refuse, withhold
from or deny to any person any of the
accommodations, advantages, facilities or
privileges
thereof,
or
to
discriminate
against any person in the furnishing thereof
. . .
Assuming without deciding that CMCCC is a place of public
accommodation
allegations

as
are

defined

in

sufficient

N.J.S.A.
to

state

10:5-5(l),
a

claim

discrimination in violation of N.J.S.A. 10:5-12.

Plaintiffs’

for

unlawful

Unlike § 1983

claims, employers can be vicariously liable under the NJLAD.
See e.g. Bouton v. BMW of North America, Inc., 29 F.3d 103, 110
(3d Cir. 1994)(for employer liability under the NLAD, “the New
Jersey Supreme Court held that . . . agency principles should be
applied for compensatory damages. . .” (citing Lehmann v. Toys
‘R’ Us, Inc., 132 N.J. 587, 626 A.2d 445 (1993).
37 

The Court

denies Defendants’ motion to dismiss the NJLAD claim against the
County Defendants.
Supervisors are not liable as an employer under the NJLAD.
Santiago v. City of Vineland, 107 F.Supp.2d 512, 543 (D.N.J.
2000)(citing Hurley v. Atlantic City Police Department, 174 F.3d
95

(3d

Cir.

1999),

cert.

denied,

528

U.S.

1074

(2000)).

Supervisors may, however, be liable under the NJLAD for aiding
and abetting a principal who violates the law.

Id. at 543-44

(citing Failla v. City of Passaic, 146 F.3d 149, 158 (3d Cir.
1998)).

Supervisors

are

liable

when

they

“knowingly

give[]

substantial assistance or encouragement to the unlawful conduct
of his employer.”
Plaintiffs
alleged

Id.

have

not

discriminatory

pled

who

policies

created
against

and

enforced

Muslim

the

inmates.

Therefore, they have not pled facts sufficient to state a claim
that Schaffer and Lombardo are liable as supervisors under the
NJLAD.

The Court will grant Defendants’ motion to dismiss the

NJLAD claims against Schaffer and Lombardo; dismissal is without
prejudice.
L.

Injunctive Relief

Defendants argue that because Plaintiffs Docherty and Small
are no longer confined at CMCCC, they no longer have standing to
assert a claim for injunctive and declaratory relief; therefore,
their claims for injunctive relief must be dismissed.
38 

(Defs’

Brief, ECF No. 42-4 at 30-32.)

In response, Plaintiffs Docherty

and Smalls rely on the transitory exception to standing for
injunctive relief.

(Pls’ Brief, ECF No. 52 at 35.)

In the

alternative, they submit that Plaintiffs’ Mills and Schartner
have

standing

to

pursue

injunctive

relief

because

they

were

pretrial detainees when they entered this dispute, and Mills
remains

a

pretrial

detainee.

(Id.)

In

reply,

Defendants

maintain that Plaintiffs Docherty, Smalls and Shartner are no
longer confined in CMCCC and cannot seek injunctive relief or a
declaratory judgment.

(Defs’ Reply, ECF No. 54 at 12-13.)

This argument is premature.
plaintiffs

brought

a

class

In County of Riverside, the

action

under

42

U.S.C.

§

1983,

challenging the manner in which the county provided probable
cause hearings to persons arrested without a warrant.
44, 47 (1991).

500 U.S.

The Supreme Court held that where the named

plaintiffs were eligible for the injunctive relief sought, a
prompt probable cause determination, at the time they filed the
second

amended

complaint,

they

retained

standing

to

seek

injunctive relief even after they had received probable cause
determinations

because

“the

termination

of

a

class

representative's claim does not moot the claims of the unnamed
members of the class.”

Id. at 51-52 (citing examples Gerstein

v. Pugh, 420 U.S. 103, 110–111, n. 11 (1975)(citing Sosna v.
Iowa, 419 U.S. 393 (1975); Schall v. Martin, 467 U.S. 253, 256,
39 

n. 3 (1984)).
after

the

The fact that the class was not certified until

named

plaintiffs'

claims

had

become

moot

did

not

deprive the court of jurisdiction because “‘[s]ome claims are so
inherently transitory that the trial court will not have even
enough time to rule on a motion for class certification before
the

proposed

representative's

individual

interest

expires.’”

Id. at 52 (quoting United States Parole Comm'n v. Geraghty, 445
U.S. 388, 399 (1980)).
As

in

County

of

Riverside,

a

pretrial

detainee’s

claim

relating to the conditions of pretrial detention is transitory
in nature, such that the court may not have time to rule on a
motion for class certification before the claim for injunctive
relief is moot as to the class representatives.

See Richardson

v. Bledsoe, 829 F.3d 273, 286 (3d Cir. 2016)(“this mootness
exception should apply only in situations where the mooting of
the individual claim ‘occurred at so early a point in litigation
that the named plaintiff could not have been expected to file a
class

certification

Collection

Recovery

motion.’”)(quoting
Inc.,

2013)(internal

quotation

Therefore,

Court

the

639

F.3d

marks

denies

Lucero
1239,

and

1249

citations

Defendants’

Plaintiffs’ claims for injunctive relief.

motion

Class Certification
40 

Bureau
(10th

of
Cir.

omitted)).
to

dismiss

Defendants may renew

this claim upon a motion for class certification.
M.

v.

Defendants contend that Plaintiffs will not be able to meet
the

commonality

certification

and

because

typicality
they

are

separate and distinct classes.
33-34.)

requirements

attempting

to

for

class

maintain

four

(Defs’ Brief, ECF No. 42-4 at

Furthermore, they assert Plaintiffs Emily Docherty and

Joseph Small, who are no longer detained at CMCCC, cannot be
adequate representatives for their respective classes, mooting
the presumption of class certification.

(Id. at 33.)

Plaintiff

Schartner, in his Sur-reply, asserts that Defendants’ motion to
dismiss the class allegations is premature because there are
valid reasons to obtain a ruling on the adequacy of the factual
allegations in the complaint before deciding whether the case
should proceed as a class action.

(ECF No. 62 at 1.)

“Generally courts do not consider whether a proposed class
meets

the

Fed.R.Civ.P.

23

class

requirements

plaintiffs move for class certification.”

until

after

6803 Blvd. East, LLC

v. DIRECTV, Inc., Civ. No. 12–cv–2657(WHW), 2012 WL 3133680, at
*2 (D.N.J. July 31, 2012).
complaint
maintaining

itself
a

“A rare exception exists ‘where the

demonstrates

class

action

that

cannot

be

the

requirements

met.’”

Id.

for

(quoting

Landsman & Funk PC v. Skinder–Strauss Associates, 640 F.3d 72,
93 n. 30 (3d Cir. 2011) (“ruling on whether the class could
potentially fit within Rule 23 determined on a motion to dismiss
was premature.”)
41 

Plaintiffs seek to bring a number of claims on behalf of
pretrial detainees and sentenced inmates at CMCCC.
Defendants
Amended

may

Complaint,

Plaintiffs
23(a).

ultimately

cannot

prevail

on

its

meet

the

Therefore,

the

face,

on

this

does

requirements

Court

denies

issue,

not
of

Although
the

Second

establish
Fed.

Defendants’

R.

that

Civ.

P.

motion

to

dismiss the class claims at this early stage.
III. CONCLUSION
For the reasons discussed above, the Court grants in part,
and denies in part, Defendants’ motion to dismiss.
An appropriate Order follows.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: June 29, 2017

42