DOCHERTY v. CAPE MAY COUNTY et al
OPINION FILED. Signed by Judge Renee Marie Bumb on 8/15/17. (js)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
EMILY DOCHERTY, JOSEPH SMALL, :
JERMAINE MILLS, AND FREDERICK :
SCHARTNER individually and on :
behalf of all similarly
: Civil Action No. 15-8785 (RMB)
CAPE MAY COUNTY, et al.,
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
TIMOTHY McILWAIN, ESQ.
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
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
motion to vacate default and dismiss the § 1983 and NJCRA claims
against him, pursuant to Fed. R. Civ. P. 12(b)(6).
Plaintiff Emily Docherty was an inmate at Cape May County
putative class action on December 21, 2015. (Compl., ECF No. 1,
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
Lanigan, and unknown Corrections Officers.
(Second Am. Compl.,
ECF No. 30.)
Schaffer, Lombardo and Lanigan were sued in their
official and individual capacities. (Id.)
conditions at CMCCC violate the Fourteenth Amendment rights of
pretrial detainees (Count I) and the Eighth Amendment rights of
sentenced inmates (Count II).
On behalf of
female sentenced inmates and pretrial detainees, Plaintiff Emily
hygiene products or toilet paper, resulting in the inmates being
forced to wear dirty clothing until clean laundry is provided
(Second Am. Compl., ¶¶48-52.)
detainees, Plaintiff Jermaine Mills alleges denial of the First
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
administrative remedies is required. (Id., ¶84.)
pretrial detainees, Plaintiff Schartner alleges violation of the
Rehabilitation Act (Count VIII).
All Plaintiffs allege violations of the New Jersey State
Constitution and the New Jersey Civil Rights Act on behalf of
Plaintiff Jermaine Mills also alleges a violation of the New
similarly situated persons (Count X).
injunctive and equitable relief.
(Second Am. Compl., ECF No. 30
(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.
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
Dep’t, Sheriff Gary Schaffer, and Warden Donald J. Lombardo’s
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
prejudice as to all moving defendants; dismissed Counts IV, V, X
and the coextensive claims in Count IX, only as to Defendants
remainder of the motion to dismiss.
(ECF No. 73.)
Motion to Vacate Default
Standard of Review
Federal Rule of Civil Procedure 55 provides, in pertinent
(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
prejudiced; (2) whether the defendant has a meritorious defense;
and (3) whether the default was the result of the defendant’s
culpable conduct. United States v. $55,518.05 in U.S. Currency,
728 F.2d 192, 195 (3d Cir. 1984).
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,
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
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
serious backlog in cases. (Id. at ¶7.) Plaintiffs did not oppose
the motion to vacate default.
(Pl. Schartner’s Brief, ECF No.
64 at 1, n.1; Pls’ Brief, ECF No. 66.)
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
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
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.
Lanigan’s Motion to Dismiss
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
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
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)).
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.
Eleventh Amendment Immunity
U.S.C. § 1983 and the New Jersey Civil Rights Act (“NJCRA”).
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.
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,
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
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
official capacity claims against him for prospective injunctive
Failure to State a Claim under 42 U.S.C. § 1983
and the NJCRA
Lanigan contends that the § 1983 and NJCRA claims against
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:
Commissioner of the New Jersey Department of
overseeing the management and operation of
including inspections of the Cape May County
(Pl. Schartner’s Brief, ECF No. 64 at 16.)
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
(Second Am. Compl., ECF No. 30.)
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
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.)
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
constitutional wrongs. (Id. at 2-3.)
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
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)).
accepted as true, to state a claim to relief that is plausible
on its face.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662,
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
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.
F.3d at 220 (quoting Burtch v. Milberg Factors, Inc., 662 F.3d
(quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir.
allegations are true and “then determine whether they plausibly
give rise to an entitlement for relief.’”
129 S.Ct at 1950.)
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
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
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;
In the Third Circuit,
“[t]here are two theories of supervisory
liability,” one under which supervisors can
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
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.
Plaintiff’s § 1983 claims and parallel NJCRA claims arise
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 .
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
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).
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
Constitution. In the Second Amended Complaint, Plaintiffs allege
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.)
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.
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).
To state a claim under this theory, a plaintiff must
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)
supervisor] was indifferent to that risk,
and (4) [the subordinate's constitutional
failure to employ that supervisory practice
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
Plaintiffs did not plead sufficient facts suggesting Lanigan had
Amendments. Plaintiffs have not alleged when Lanigan inspected
received any reports about any of the conditions alleged in the
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
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. §
(interference with an inmate's pursuit of relief renders the
For the reasons discussed above, the Court grants Lanigan’s
motion to dismiss5 and dismisses Counts I, II, III, IV, V and IX
The Court dismisses Count VI with prejudice.
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
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.
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