BLACKWELL v. COHEN et al

Filing 7

OPINION FILED. Signed by Judge Jerome B. Simandle on 8/31/17. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

INSPIRATION BLACKWELL,
Plaintiff,

Civil Action
No. 16-5342 (JBS-AMD)

v.
WARDEN GERALDINE COHEN;
ATLANTIC COUNTY JUSTICE
FACILITY MEDICAL STAFF;
ATLANTIC COUNTY FREEHOLDERS;
DENNIS LEVISON; FRANK FORMICA;
CFG,

OPINION

Defendants.

APPEARANCES:
Inspiration Blackwell, Plaintiff Pro Se
#245280
Atlantic County Justice Facility
5060 Atlantic Avenue
Mays Landing, New Jersey 08330
SIMANDLE, District Judge:
INTRODUCTION
Before the Court is Plaintiff Inspiration Blackwell’s
(“Plaintiff”), submission of a civil rights complaint pursuant
to 42 U.S.C. § 1983. Complaint, Docket Entry 1. Plaintiff is
currently confined at Atlantic County Justice Facility (“ACJF”).
He also requests the appointment of pro bono counsel.
At this time, the Court must review the complaint pursuant
to 28 U.S.C. §§ 1915(e)(2) and 1915A to determine whether it

should be dismissed as frivolous or malicious, for failure to
state a claim upon which relief may be granted, or because it
seeks monetary relief from a defendant who is immune from such
relief. For the reasons set forth below, the Court concludes the
complaint may proceed in part.
II. BACKGROUND
Plaintiff filed this complaint against ACJF Warden
Geraldine Cohen, the ACJF Medical Staff, the Atlantic County
Freeholders, Atlantic County Executive Dennis Levison,
Freeholder Chairman Frank Formica, and CFG1 (collectively
“Defendants”). Complaint ¶ 3. The following factual allegations
are taken from the complaint and are accepted for purposes of
this screening only. The Court has made no findings as to the
truth of Plaintiff’s allegations.
Plaintiff alleges he broke his right hand on June 26, 2016
when he slammed it into a door. Id. ¶ 4. Medical staff examined
him approximately an hour later and transported him to a
hospital. Id. He was released from the hospital and taken back
to ACJF “where no compliance was with the hospital’s orders, I
complain, stay in pain . . . .” Id. He returned to the hospital

1

Plaintiff does not define this acronym, but the Court
understands it to refer to CFG Health Systems, a private
provider of correctional medical services. See CFG HEALTH
SYSTEMS, LLC, https://cfghealthsystems.com/ (last visited June
12, 2017).
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a few weeks later where his hand was rebroken “because proper
care had not been applied . . . .” Id. He was prescribed
“therapy,” but he never received it. He states he was placed in
solitary confinement for complaining. Id. Plaintiff further
states he wrote to the warden, spoke with officers, and tried to
speak with the director, but he was “thrown out of medical.” Id.
He also states the facility “stopped [his] communication.” Id.
Plaintiff alleges Defendants were negligent in treating his
hand and violated his constitutional rights. Id. He seeks
$500,000 in damages. Id. ¶ 5.
III. STANDARD OF REVIEW
A. Standards for a Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub. L. No. 104-134,
§§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996)
(“PLRA”), district courts must review complaints in those civil
actions in which a prisoner is proceeding in forma pauperis, see
28 U.S.C. § 1915(e)(2)(B), seeks redress against a governmental
employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim
with respect to prison conditions, see 42 U.S.C. § 1997e. The
PLRA directs district courts to sua sponte dismiss any claim
that is frivolous, is malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. This action is subject
to sua sponte screening for dismissal under 28 U.S.C. §§
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1915(e)(2)(b) and 1915A because Plaintiff is a prisoner
proceeding in forma pauperis and is seeking relief from
governmental employees, and under § 1997e because Plaintiff is
bringing claims regarding the conditions of his confinement.
According to the Supreme Court’s decision in Ashcroft v.
Iqbal, “a pleading that offers ‘labels or conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will
not do.’” 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). To survive sua sponte
screening for failure to state a claim,2 the complaint must
allege “sufficient factual matter” to show that the claim is
facially plausible. Fowler v. UPMS Shadyside, 578 F.3d 203, 210
(3d Cir. 2009) (citation omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Fair Wind
Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)
(quoting Iqbal, 556 U.S. at 678).

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“The legal standard for dismissing a complaint for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the
same as that for dismissing a complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x
120, 122 (3d Cir. 2012) (citing Allah v. Seiverling, 229 F.3d
220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App’x 230,
232 (3d Cir. 2012) (discussing 42 U.S.C. § 1997e(c)(1));
Courteau v. United States, 287 F. App’x 159, 162 (3d Cir. 2008)
(discussing 28 U.S.C. § 1915A(b)).
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In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93–94 (2007)
(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). However,
pro se litigants “still must allege sufficient facts in their
complaints to support a claim.” Mala v. Crown Bay Marina, Inc.,
704 F.3d 239, 245 (3d Cir. 2013) (citation omitted).
B. Section 1983 Actions
A plaintiff may have a cause of action under 42 U.S.C. §
1983 for certain violations of his constitutional rights.
Section 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 ....
§ 1983. Thus, to state a claim for relief under § 1983, a
plaintiff must allege, first, the violation of a right secured
by the Constitution or laws of the United States and, second,
that the alleged deprivation was committed or caused by a person
acting under color of state law. See West v. Atkins, 487 U.S.
42, 48 (1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir.
2011).
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IV. ANALYSIS
A. ACJF Medical Staff and Warden Cohen
The Eighth Amendment proscription against cruel and unusual
punishment requires that prison officials provide inmates with
adequate medical care.3 Estelle v. Gamble, 429 U.S. 97, 103–04
(1976). In order to set forth a cognizable claim for a violation
of his right to adequate medical care, an inmate must allege:
(1) a serious medical need; and (2) behavior on the part of
prison officials that constitutes deliberate indifference to
that need. Id. at 106.
Construing the complaint liberally and giving Plaintiff the
benefit of all reasonable inferences, the Court finds that he
has pled sufficient facts to state a claim for deliberate
indifference from the ACJF medical staff and Warden Cohen.
Specifically, Plaintiff alleges the medical staff failed to
provide him with the care prescribed by the hospital. See
Monmouth Cty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d
326, 347 (3d Cir. 1987) (noting deliberate indifference may be
found when “prison authorities prevent an inmate from receiving
recommended treatment for serious medical needs”). The Court

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It is not clear whether Plaintiff is a pretrial detainee or
convicted prisoner. As the Due Process Clause of the Fourteenth
Amendment is at least as protective as the Eighth Amendment when
considering denial of medical care claims, Edwards v.
Northampton Cty., 663 F. App'x 132, 136 (3d Cir. 2016), the
Court will refer to the Eighth Amendment standard.
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will also exercise supplemental jurisdiction over the state law
medical malpractice claims against the ACJF medical staff.
Plaintiff further alleges Warden Cohen ignored his
complaints about his treatment. Assuming the truth of
Plaintiff’s allegations for screening purposes only, the Court
will permit the Eighth Amendment claim to proceed against Warden
Cohen as well.
B. Policy-Maker Defendants
Plaintiff also alleges the Atlantic County Freeholders,
County Executive Dennis Levison, Freehold Chairman Formica, and
CFG are liable because they are responsible for the overall
running of the ACJF.
“Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of
respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009). They cannot be held liable under § 1983 solely because
other alleged wrongdoers are county employees. See Thomas v.
Cumberland Cnty., 749 F.3d 217, 222 (3d Cir. 2014); Hakim v.
Levinson, Civ. 08–4012, 2008 WL 4852612, at *3 (D.N.J. Nov. 3,
2008) (dismissing plaintiff's claims against the County
Executive and County Freeholders, among others, where the claims
appeared to be based solely on the theory of respondeat
superior). Plaintiff must be able to allege these defendants
“with deliberate indifference to the consequences, . . .
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established and maintained a policy, practice, or custom which
directly caused [the] constitutional harm.” A.M. ex rel. J.M.K.
v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir.
2004) (citing Stoneking v. Bradford Area Sch. Dist., 882 F.2d
720, 725 (3d Cir. 1989) (alteration in original)). There are no
facts in the complaint from which the Court could reasonably
make this determination.
To the extent Plaintiff bases liability on these
defendants’ failure to adequately supervise the ACJF, he “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.”
Barkes v. First Corr. Med., Inc., 766 F.3d 307, 317 (3d Cir.
2014) (citing Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir.
1989)), rev'd on other grounds sub nom. Taylor v. Barkes, 135 S.
Ct. 2042 (2015). Plaintiff has not sufficiently alleged these
defendants were aware of and were indifferent to the risk that
prisoners were receiving constitutionally-deficient medical

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care. The claims against these defendants are dismissed without
prejudice.
The Court declines to exercise supplemental jurisdiction
over any state negligence claims as the federal claims are being
dismissed. 28 U.S.C. § 1367(c)(3).
C. Other Claims
The complaint also asserts Plaintiffs was sent to solitary
confinement for “complaining” and that the facility stopped his
“communication.” Complaint ¶ 4. It is not clear to the Court
whether Plaintiff is attempting to raise claims based on these
actions. To the extent the complaint could be construed as
raising a retaliation claim, it will be dismissed without
prejudice.
“[R]etaliation for the exercise of constitutionally
protected rights . . . 'is itself a violation of rights secured
by the Constitution actionable under section 1983.’” Miller v.
Mitchell, 598 F.3d 139, 147 (3d Cir. 2010) (quoting White v.
Napoleon, 897 F.2d 103, 111–12 (3d Cir. 1990)). Plaintiff must
allege “(1) he engaged in constitutionally protected activity;
(2) he suffered, at the hands of a state actor, adverse action
sufficient to deter a person of ordinary firmness from
exercising his constitutional rights; and (3) the protected
activity was a substantial or motivating factor in the state
actor's decision to take adverse action.” Fantone v. Latini, 780
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F.3d 184, 191 (3d Cir. 2015), as amended (Mar. 24, 2015). Here,
it is not clear what Plaintiff meant by “complaining” or who
sent him to solitary. If Plaintiff wishes to pursue a
retaliation claim, he should include more facts about the
circumstances of his complaint and placement in solitary
confinement in an amended complaint.
It is also not clear if Plaintiff is attempting to raise a
claim based on the facility “stop[ping] [his] communication.”
Complaint ¶ 4. Plaintiff should provide the Court with more
information regarding what communications were “stopped”, who
stopped them, and any other relevant facts.
D. Pro Bono Counsel
Plaintiff requests the appointment of counsel. Indigent
persons raising civil rights claims have no absolute right to
counsel. See Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir.
1997). As a threshold matter, there must be some merit in fact
or law to the claims the plaintiff is attempting to assert. See
Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). As the Court is
permitting the complaint to proceed, it will analyze the
remaining Tabron factors.
In determining whether to appoint counsel, a court
considers the following: (1) the plaintiff’s ability to present
his or her own case; (2) the complexity of the legal issues; (3)
the degree to which factual investigation will be necessary and
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the ability of the plaintiff to pursue such investigation; (4)
the amount a case is likely to turn on credibility
determinations; (5) whether the case will require the testimony
of expert witnesses; and (6) whether the plaintiff can attain
and afford counsel on his own behalf. See id. at 155-56, 157
n.5; see also Cuevas v. United States, 422 F. App’x 142, 144-45
(3d Cir. 2011) (reiterating the Tabron factors).
Plaintiff argues the appointment of counsel is warranted
because he lacks the education necessary to pursue this
litigation. He states he has neither a high school diploma nor a
GED. However, Plaintiff has stated his case in a manner to
survive sua sponte screening. This factor weighs slightly
against the appointment of counsel.
Plaintiff is a prisoner proceeding pro se. Documents and
medical records from different sources may be needed to be
produced and examined in this case, and Plaintiff’s ability to
obtain these documents may be limited due to his incarceration.
This factor weighs in favor of appointment of counsel.
Based on the facts alleged in the complaint, the Court
determines the medical issues are not so complex so as to
warrant the appointment of counsel at this time. Plaintiff
alleges defendants were deliberately indifferent to the
hospital's orders to provide follow-up care for a broken hand, a
relatively straightforward claim. Furthermore, it would appear a
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lay person may be able to determine whether there was a
negligent failure to provide the hospital-ordered follow-up care
without the aid of expert testimony. Plaintiff’s medical records
from the hospital and ACJF could provide the relevant evidence
with respect to the claims, meaning the case would not be
“solely a swearing contest.” Parham, 126 F.3d at 460. These
three factors weigh against the appointment of counsel at this
time.
Finally, the sixth Tabron factor requires this Court to
analyze whether plaintiff is able to retain and afford counsel.
See 6 F.3d at 156. Plaintiff is proceeding in forma pauperis in
this case and there is no indication that plaintiff is able to
retain and afford counsel. Consequently, this factor weighs in
favor of appointing counsel.
On balance, the factors weigh against appointing counsel at
this early stage. Plaintiff may request the appointment of
counsel again at a later point in time by addressing the Tabron
factors.
V.

CONCLUSION
For the reasons stated above, the complaint shall proceed

against Warden Cohen and the ACJF medical staff. The claims
against the other defendants are dismissed without prejudice.
The request for the appointment of counsel is denied without
prejudice.
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An appropriate order follows.

August 31, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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