DOCHERTY v. CAPE MAY COUNTY et al

Filing 82

OPINION FILED. Signed by Judge Renee Marie Bumb on 8/15/17. (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NOT FOR PUBLICATION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, ESQ.
Law Offices of Surinder K. Aggarwal
P.O. Box 3370
Hoboken, NJ 07030
On behalf of Plaintiff Shartner
ROBERT A. MORLEY, ESQ.
Morley Law, L.L.C.
1405 Wickapecko Drive, Suite 2
Ocean, N.J. 07712
and
TIMOTHY McILWAIN, ESQ.
McIlwain, LLC
2020 New Road, Suite A
Linden, NJ 08221
On behalf of Plaintiffs
MARVIN L. FREEMAN
Deputy Attorney General
State of New Jersey
Office of the Attorney General

25 Market Street
P.O. BOX 112
Trenton, NJ 08625
On behalf of Defendant Lanigan
BUMB, United States District Judge
This matter comes before the Court upon Defendant Gary M.
Lanigan’s (“Lanigan”) Motion to Vacate Default and to Dismiss
the

Complaint

Pursuant

to

Federal

Rule

of

Civil

Procedure

12(b)(6). (“Lanigan’s Mot. to Dismiss,” ECF No. 48); Plaintiff
Schartner’s brief in opposition (“Pl. Schartner’s Brief”, ECF
No. 64); Plaintiffs’ brief in opposition (“Pls’ Brief,” ECF No.
66); and Lanigan’s reply brief (“Defs’ Reply”, ECF No. 67.) For
the

reasons

discussed

below,

the

Court

will

grant

Lanigan’s

motion to vacate default and dismiss the § 1983 and NJCRA claims
against him, pursuant to Fed. R. Civ. P. 12(b)(6).
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.
2 

Gary

M.

(Second Am. Compl.,

ECF No. 30.)

Schaffer, Lombardo and Lanigan were sued in their

official and individual capacities. (Id.)
Plaintiffs

allege

that

overcrowded

and

unsanitary

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

(Id., ¶¶23-47.)

On behalf of

female sentenced inmates and pretrial detainees, Plaintiff Emily
Docherty

alleges

inmates

are

not

provided

adequate

feminine

hygiene products or toilet paper, resulting in the inmates being
forced to wear dirty clothing until clean laundry is provided
(Count III).
On

(Second Am. Compl., ¶¶48-52.)

behalf

of

Muslim

sentenced

inmates

and

pretrial

detainees, Plaintiff Jermaine Mills alleges denial of the First
Amendment

right

religion

(Count

to

practice

IV),

and

the

denial

essential
of

the

elements

Fourteenth

of

their

Amendment

right to equal protection under the law (Count V). (Id., ¶¶5362.)
Plaintiffs allege violation of the right of access to the
courts (Count VI) due to the unavailability of the grievance
procedure in CMCCC. (Id., ¶¶80-85.) Specifically, if an inmate
cannot file a grievance, he or she is unable to challenge the
conditions

of

confinement

in

court

because

administrative remedies is required. (Id., ¶84.)

3 

exhaustion

of

On

behalf

of

similarly

situated

sentenced

prisoners

and

pretrial detainees, Plaintiff Schartner alleges violation of the
Americans

with

Disabilities

Act

Rehabilitation Act (Count VIII).

(Count

VII)

and

the

(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).

(Id.,

¶¶124-26.)

Plaintiff Jermaine Mills also alleges a violation of the New
Jersey

Law

Against

Discrimination

on

behalf

similarly situated persons (Count X).
relief,

Plaintiffs

seek

damages,

injunctive and equitable relief.

of

himself

(Id., ¶¶127-32.)

costs,

attorney’s

all
For

fees,

(Second Am. Compl., ECF No. 30

at 26-27.)
Service

was

executed

upon

Lanigan

on

October

19,

2016.

(Executed Summons, ECF No. 40.) Lanigan’s Answer was due on
November 9, 2016. (Defs’ Brief, ECF No. 48-1 at 8.) Plaintiffs
requested entry of default against Lanigan on November 11, 2016,
and the Clerk of the Court entered default on November 14, 2016.
(Default,

ECF

No.

44.)

Lanigan

filed

the

present

motion

to

vacate default and to dismiss the Complaint on December 1, 2016.
(Lanigan’s Mot. to Dismiss, ECF No. 48.)
On June 29, 2017, the Court granted in part and denied in
part

Defendants

Cape

May

County,

Cape

May

County

Sheriff’s

Dep’t, Sheriff Gary Schaffer, and Warden Donald J. Lombardo’s
4 

motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6). (ECF Nos. 72, 73.) The Court dismissed Counts VI, VII
and VIII as to all moving defendants with prejudice; dismissed
Count

III

and

the

coextensive

claims

in

Count

IX

without

prejudice as to all moving defendants; dismissed Counts IV, V, X
and the coextensive claims in Count IX, only as to Defendants
Schaffer

and

Lombardo,

without

remainder of the motion to dismiss.
II.

prejudice;

and

denied

the

(ECF No. 73.)

DISCUSSION
A.

Motion to Vacate Default
1.

Standard of Review

Federal Rule of Civil Procedure 55 provides, in pertinent
part:
(a) Entering a Default. When a party against
whom a judgment for affirmative relief is
sought has failed to plead or otherwise
defend, and that failure is shown by
affidavit or otherwise, the clerk must enter
the party's default.
. . .
(c) Setting Aside a Default or a Default
Judgment. The court may set aside an entry
of default for good cause . . .
In deciding whether to set aside a default, a district
court

must

consider

(1)

whether

the

plaintiff

will

be

prejudiced; (2) whether the defendant has a meritorious defense;
and (3) whether the default was the result of the defendant’s

5 

culpable conduct. United States v. $55,518.05 in U.S. Currency,
728 F.2d 192, 195 (3d Cir. 1984).
2.

Arguments

Lanigan asserts that the Plaintiffs will not be prejudiced
if the Court sets aside the default because this case is still
in its initial stage. (Def’s Brief, ECF No. 48-1 at 8.) Further,
Lanigan

claims

complaint
involvement

fails
in

he
to
any

has

a

allege

meritorious
facts

defense

because

establishing

his

violation.

(Id.

constitutional

the

personal
at

9.)

Finally, Lanigan contends the default was not the result of his
culpable conduct. (Id.)
Lanigan submits that the Office of the Attorney General of
the State of New Jersey provides legal representation to him as
the Commissioner of the New Jersey Department of Corrections
(“NJDOC”). (Decl. of Marvin L. Freeman, ECF No. 48-2, ¶3). After
service of the summons and complaint, the NJDOC’s Central Office
obtains documents related to the matter and forwards copies to
the

Office

of

the

Attorney

General.

(Id.

at

¶5.)

There

is

usually a preliminary investigation into the allegations of the
complaint before filing a responsive pleading. (Id. at ¶6.) The
Corrections and State Police Section, responsible for providing
legal

representation

for

the

Commissioner,

is

experiencing

a

serious backlog in cases. (Id. at ¶7.) Plaintiffs did not oppose

6 

the motion to vacate default.

(Pl. Schartner’s Brief, ECF No.

64 at 1, n.1; Pls’ Brief, ECF No. 66.)
3.
First,

Analysis
the

Court

finds

no

prejudice

to

Plaintiffs

by

setting aside default because the case has not proceeded beyond
the responsive pleading stage. See Dambach v. U.S., 211 F. App’x
105, 109 (3d Cir. 2006) (finding no prejudice to Plaintiffs
where defaults were entered not long after the filing of the
complaints, and Defendants moved to vacate the defaults shortly
after

entry.)

Second,

Lanigan

has

set

forth

a

potentially

meritorious defense of failure to plead his personal involvement
in the misconduct alleged in the Second Amended Complaint. See
Gross v. Stereo Component Systems, Inc., 700 F.2d 120, 123 (3d
Cir. 1983) (vacating default judgment where the defendant set
forth

a

conduct
deadline

potentially
of
is

filing
not

a

meritorious
responsive

culpable,

in

defense.)
pleading

light

of

Third,

Lanigan’s

two

days

after

his

counsel’s

the

heavy

caseload in providing legal representation to the Commissioner.
Therefore, pursuant to Fed. R. Civ. P. 55(c) and for good cause,
the Court sets aside the entry of default against Lanigan.
B.

Lanigan’s Motion to Dismiss
1.

NJCRA Claims

The NJCRA provides, in part:

7 

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 guaranteed by New Jersey's
Constitution
generally

and

laws.”)

interpreted

the

“[C]ourts
NJCRA

to

in
be

this

district

coextensive

with

have
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)).
8 

The parties have not distinguished any claims under the
NJCRA from their counterparts under § 1983 for the purpose of
this motion to dismiss. The Court will apply precedent regarding
§ 1983 claims to the parallel claims under the NJCRA.
2.
Lanigan
entitled

to

Eleventh Amendment Immunity
argues

that,

Eleventh

in

his

Amendment

official

immunity

for

capacity,
claims

he

is

under

42

U.S.C. § 1983 and the New Jersey Civil Rights Act (“NJCRA”).
(Def’s

Brief,

ECF

No.

48-1

at

11-13.)

Plaintiffs

oppose

Lanigan’s motion to dismiss his official capacity claims only
with respect to his claims for injunctive relief. (Pls’ Brief,
ECF No. 66 at 5.)
The Eleventh Amendment to the United States Constitution
provides: “the judicial power of the United States shall not be
construed to extend to any suit in law or equity commenced or
prosecuted against one of the United States by citizens of any
foreign state.” Furthermore, “a suit against a state official in
his or her official capacity is not a suit against the official
but rather is a suit against the official’s office.” Will v.
Michigan
Therefore,

Dept.
a

of

suit

State
against

Police,
a

state

491

U.S.

58,

official’s

71

office

(1989).
is

no

different from a suit against the state, and is barred by the
Eleventh Amendment, unless Congress abrogates sovereign immunity
or the state consents. See Kentucky v. Graham, 473 U.S. 159,
9 

169-70

(l985)

damages

(the

against

a

Eleventh
state

Amendment

official

in

prohibits
his

or

lawsuits
her

for

official

capacity).
Congress has not abrogated Eleventh Amendment immunity for
suits under § 1983. Quern v. Jordan, 440 U.S. 332, 338-29 (1979)
(citing Edelman v. Jordan, 415 U.S. 651 (1974)). The State of
New Jersey has not consented to be sued under 42 U.S.C. § 1983
or the NJCRA. Brown v. State, 442 N.J. Super. 406, 425-26 (App.
Div. Sept. 11, 2015). Thus, the Court dismisses the § 1983 and
NJCRA

claims

for

damages

against

Lanigan

in

his

official

capacity, based on Eleventh Amendment immunity.
The Supreme Court has held, “we often have found federal
jurisdiction over a suit against a state official when that suit
seeks only prospective injunctive relief in order to ‘end a
continuing violation of federal law.’” Seminole Tribe of Florida
v. Florida, 517 U.S. 44, 72 (1996) (quoting Green v. Mansour,
474 U.S. 64, 68 (1985)). “[W]here prospective relief is sought
against individual state officers in a federal forum based on a
federal right, the Eleventh Amendment, in most cases, is not a
bar.” Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 27677 (1997) (citing Willcox      v. Consolidated Gas Co. of New York,
212 U.S. 19, 40 (1909). Therefore, to the extent any § 1983 and
NJCRA

claims

dismiss,

the

against
Court

Lanigan
denies

survive

Lanigan’s
10 

the

12(b)(6)

motion

to

motion

dismiss

to
the

official capacity claims against him for prospective injunctive
relief.
3.

Failure to State a Claim under 42 U.S.C. § 1983
and the NJCRA

Lanigan contends that the § 1983 and NJCRA claims against
him

in

his

individual

capacity

should

be

dismissed

because

Plaintiffs have failed to allege his personal involvement in any
constitutional violation. (ECF No. 48-1 at 13-17.) Lanigan notes
that the only mention of him in the Second Amended Complaint1 is
in paragraph 12, which states:
Defendant,
Gary
M.
Lanigan,
serves
as
Commissioner of the New Jersey Department of
Corrections,
and
is
responsible
for
overseeing the management and operation of
all
state
prisons
and
county
jails,
including inspections of the Cape May County
Correctional
Center
and
establishing
restrictions
on
its
admission
of
new
inmates.
(Pl. Schartner’s Brief, ECF No. 64 at 16.)
Plaintiffs,
Complaint

however,

contains

maintain

sufficient

that

factual

the

Second

Amended

allegations

against

Lanigan to state a claim under § 1983. (Pl. Schartner’s Brief,
ECF No. 64; Pls’ Brief, ECF No. 66.) Plaintiffs rely on the
general allegations regarding the conditions of the CMCCC and on
Lanigan’s statutory duties as the Commissioner of the NJDOC,
pursuant to N.J.S.A. 30:1B-6; 30:1B-10; 30:8-57; 30:8-58; 10A31                                                            
1

(Second Am. Compl., ECF No. 30.)
11 

1 et seq. (Pl. Schartner’s Brief, ECF No. 64 at 3-12; Pls’
Brief, ECF No. 66 at 13.) Plaintiffs conclude:
Any argument that [Lanigan] is unaware of
the Cape May County Correctional Center’s
willful and continuous disregard of the
requisite minimum standards it must maintain
is undercut by the fact that Defendant is
required (1) to have personal contact with
the
facility
and
be
informed
of
the
condition and welfare of inmates, and (2)
visit and inspect the facility at least
semiannually. See N.J.S.A. 30:1B-7.
(Id. at 13.)
In

reply,

Lanigan

argues

that

his

personal

involvement

cannot be established by merely citing to his statutory duties.
(Def’s Reply, ECF No. 67 at 2.) Instead, Plaintiffs must plead
facts establishing that Lanigan had direct knowledge of facts
related to the alleged constitutional violations at CMCCC, or
that

he

established

a

policy

or

custom

that

caused

the

constitutional wrongs. (Id. at 2-3.)
a.

Rule 12(b)(6) 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

12 

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,

129

S.Ct.

1937

(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 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.

Palakovic, 854

F.3d at 220 (quoting Burtch v. Milberg Factors, Inc., 662 F.3d
212,

221

(3d

Cir.

2011)

(internal

quotation

marks

omitted)

(quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir.
2010)).

Third,

courts

should

assume

well-pleaded

factual

allegations are true and “then determine whether they plausibly
give rise to an entitlement for relief.’”
129 S.Ct at 1950.)
b.

Analysis

13 

Id. (quoting Iqbal,

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). Supervisors are not
liable for the unconstitutional conduct of their subordinates
under § 1983.

Iqbal, 556 U.S. at 676. Therefore, “a plaintiff

must plead that each Government-official defendant, through the
official's

own

individual

actions,

has

violated

the

Constitution.” Id.; Rode v. Dellarciprete, 845 F.2d 1195, 1207
(3d Cir. 1998) (explaining that “[a] defendant in a civil rights
action must have personal involvement in the alleged wrongs;
liability

cannot

be

predicated

solely

on

the

operation

respondeat superior”).
In the Third Circuit,
“[t]here are two theories of supervisory
liability,” one under which supervisors can
be
liable
if
they
“established
and
maintained a policy, practice or custom
which directly caused [the] constitutional
harm,” and another under which they can be
liable if they “participated in violating
plaintiff's
rights,
directed
others
to
violate them, or, as the person[s] in
charge, had knowledge of and acquiesced in
[their] subordinates' violations.” A.M. ex
rel. J.M.K. v. Luzerne Cnty. Juvenile Det.
Ctr., 372 F.3d 572, 586 (3d Cir. 2004)).
Santiago, 629 F.3d at 129, n.5.

14 

of

Plaintiff’s § 1983 claims and parallel NJCRA claims arise
under

the

First,2

Eighth3

and

Fourteenth4

Amendments

to

the

2

Plaintiffs allege Defendants violated their First Amendment
right to practice the essential elements of their religion.
(Second Am. Compl., Count IV.) “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 also allege Defendants violated their First Amendment
right to petition to redress grievances. (Second Am. Compl.,
Count VI.) “‘[T]he right of access to courts for redress of
wrongs is an aspect of the First Amendment right to petition the
government.’”
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 dismissal of a
complaint or the inability to file a complaint. Lewis v. Casey,
518 U.S. 348, 351, 354 (1996).

3

In Count II, Plaintiffs allege the overcrowded and unsanitary
conditions at CMCCC violate the Eighth Amendment rights of
sentenced inmates. (Second Am. Compl., Count II.) In Count III,
Plaintiffs allege the denial of adequate hygiene products,
toilet paper, and clothing to female sentenced inmates violates
the Eighth Amendment. (Id., Count III.) The Eighth Amendment
protects convicted and sentenced prisoners from cruel and
unusual punishment. Hubbard v. Taylor, (“Hubbard I”) 399 F.3d
150, 164 (3d Cir. 2005). To state an Eighth Amendment claim
based on conditions of confinement, the prisoner must allege
facts indicating “that prison officials 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
15 

Constitution. In the Second Amended Complaint, Plaintiffs allege
Lanigan

is

operation
CMCCC;

of

responsible
all

and

he

restrictions

on

state
must
its

for

overseeing

prisons
inspect

admission

and
the
of

the

county
facility

new

management
jails,
and

inmates.

and

including
establish

(Second

Am.

Compl., ECF No. 30, ¶12.) These allegations are insufficient to
establish the first theory of supervisory liability, a policy,

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. Wilson, 501 U.S. at 304.

    In Count I, Plaintiffs allege the overcrowded and unsanitary
conditions at CMCCC violate the Fourteenth Amendment rights of
pretrial detainees. (Second Am. Compl, ECF No 30.)
In Count
III, Plaintiffs allege pretrial detainees are not provided
adequate feminine hygiene products or toilet paper, resulting in
the inmates being forced to wear dirty clothing until clean
laundry is provided, in violation of the Fourteenth Amendment.
(Id.) The Due Process Clause of the Fourteenth Amendment
protects pretrial detainees against “punishment.” Hubbard I, 399
F.3d at 1558 (citing Bell v. Wolfish, 441 U.S. 520 (1979)). The
Court must 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). 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.
4

In Count V, Plaintiffs allege Defendants denied the Fourteenth
Amendment right to equal protection under the law of Muslim
inmates. (Id.) 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).
16 

practice
harm.

or

custom

which

directly

caused

the

constitutional

To state a claim under this theory, a plaintiff must

identify:
a specific supervisory practice or procedure
that [the supervisor] failed to employ and .
. . that (1) the existing custom and
practice without that specific practice or
procedure created an unreasonable risk of
[the constitutional violation alleged] (2)
[the
supervisor]
was
aware
that
this
unreasonable
risk
existed,
(3)
[the
supervisor] was indifferent to that risk,
and (4) [the subordinate's constitutional
tort]
resulted
from
[the
supervisor's]
failure to employ that supervisory practice
or procedure.
Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1999).
The Second Amended Complaint does not allege any specific
supervisory practice or procedure that Lanigan failed to employ
or

that

he

was

constitutional

aware

of

violation

an

based

unreasonable

on

the

risk

any

customs

existing

of

and

practices.
Under

the

second

theory

of

supervisory

liability,

Plaintiffs did not plead sufficient facts suggesting Lanigan had
knowledge
violations

of

or

acquiesced

alleged

under

in

the

any

of

First,

the

constitutional

Eighth

or

Fourteenth

Amendments. Plaintiffs have not alleged when Lanigan inspected
CMCCC

or

that

unconstitutional
Complaint.

any

of

conditions

Further,

his

alleged

Plaintiffs

have
17 

inspections
in
not

the

revealed
Second

alleged

that

the

Amended
Lanigan

received any reports about any of the conditions alleged in the
Second

Amended

Complaint.

Therefore,

Plaintiffs

have

not

alleged sufficient facts to state a supervisory liability claim
under § 1983 against Lanigan.
Dismissal should be without prejudice unless amendment is
inequitable or futile. Grayson v. Maview State Hosp., 293 F.3d
103,

113

(3d.

Cir.

2002).

Count

VI

of

the

Second

Amended

Complaint will be dismissed with prejudice as to Lanigan because
amendment is futile. Even if Plaintiffs could plead facts to
establish Lanigan’s supervisory liability, they cannot establish
actual injury to state a First Amendment access to courts claim.
See Lewis v. Casey, 518 U.S. 343, 351, 354 (1996) (an actual
injury, such as the dismissal of a complaint or the inability to
file a complaint, must be alleged to state a claim under the
First Amendment right of access to courts.) This is because
Plaintiffs are not precluded from filing a civil rights action,
pursuant to 42 U.S.C. § 1997e(a), if the prison’s grievance
procedure was unavailable to them, as alleged. See 42 U.S.C. §
1997e(a);

Ross

v.

Blake,

136

S.Ct.

1850,

1860

(2016)

(interference with an inmate's pursuit of relief renders the
administrative
Count

VI

is

process
futile,

unavailable).
and

Count

prejudice.

18 

VI

Therefore,
will

be

amendment
dismissed

of
with

III. CONCLUSION
For the reasons discussed above, the Court grants Lanigan’s
motion to dismiss5 and dismisses Counts I, II, III, IV, V and IX
without prejudice.

The Court dismisses Count VI with prejudice.

Plaintiffs’

for

claim

prospective

injunctive

relief

against

Lanigan is dismissed without prejudice because Plaintiffs have
not alleged a colorable § 1983 claim against him.
An appropriate Order follows.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

Dated: August 15, 2017

5

In his brief, Lanigan discussed only Plaintiffs’ failure to
state a claim under § 1983 and the parallel claims under the
NJCRA. (Def’s Brief, ECF No. 48-1.) Therefore, the Court does
not address Counts VII, VIII, and X, alleging violation of the
Americans with Disabilities Act, the Rehabilitation Act, and the
New Jersey Law Against Discrimination.
19