HAROLD v. MCCRAY
OPINION. Signed by Judge Noel L. Hillman on 1/8/18. (jbk, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 16-5648 (NLH)
South Woods State Prison
215 South Burlington Rd.
Bridgeton, NJ 08302
Plaintiff Pro se
HILLMAN, District Judge
Plaintiff Otis Harrold (“Plaintiff”), a prisoner at South
Woods State Prison in Bridgeton, New Jersey, seeks to bring a
civil rights complaint pursuant to 42 U.S.C. § 1983.
Based on his affidavit of indigence (ECF No. 1-2), the
Court will grant him leave to proceed in forma pauperis and
order the Clerk of the Court to file the Complaint.
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
For the reasons set forth below, the Court concludes
that the Complaint should be dismissed without prejudice.
Plaintiff brings this civil rights action, pursuant to 42
U.S.C. § 1983, against Defendant Keith McCray.
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 veracity of Plaintiff’s allegations.
On an unspecified date, Defendant McCray, who appears to be
an employee at Talbot Hall, a halfway house, required Plaintiff
to “drop his pants and underwear down to his ankles and to trun
[sic] around with his butt facing the staff which was McCray and
urine [sic] in the cup.”
$12,000,000 in damages.
(Compl. ¶ 6.)
Plaintiff is seeking
(Id. at ¶ 7.)
A. Legal Standard
1. 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.
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. §
1915(e)(2)(B) and 1915A because Plaintiff is a prisoner who is
proceeding as indigent.
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
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 1, the complaint must
allege “sufficient factual matter” to show that the claim is
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
“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.
defendant is liable for the misconduct alleged.”
Belmont v. MB
Inv. Partners, Inc., 708 F.3d 470, 483 n.17 (3d Cir. 2012)
(quoting Iqbal, 556 U.S. at 678).
Moreover, while pro se
pleadings are liberally construed, “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)
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
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
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).
The exact allegations made by Plaintiff against Defendant
McCray were also made by another inmate from Talbot Hall, Kyle
See Taylor v. McCray, No. 16-4513, 2017 WL 1528680
(D.N.J. Apr. 26, 2017).
Mr. Taylor’s case was assigned to the
Honorable Jerome B. Simandle, U.S.D.J. and he found as follows:
Plaintiff has not sufficiently alleged a
Fourth Amendment violation for an improper
strip search. Under the Fourth Amendment,
inmates have a limited right of bodily privacy
necessitated by the prison setting.” Parkell
v. Danberg, 833 F.3d 313, 325 (3d Cir. 2016).
This right is very narrow, however. Id. at
“The test of reasonableness under the Fourth
Amendment ... requires a balancing of the need
for the particular search against the invasion
of personal rights that the search entails.
Courts must consider the scope of the
particular intrusion, the manner in which it
is conducted, the justification for initiating
it, and the place in which it is conducted.”
Bell v. Wolfish, 441 U.S. 520, 559 (1979). A
prisoner search policy is constitutional if it
strikes a reasonable balance between the
inmate's privacy and the needs of the
institution. Parkell, 833 F.3d at 326 (citing
Florence v. Bd. of Chosen Freeholders of Cty.
of Burlington, 132 S. Ct. 1510, 1515, 1517
Plaintiff's cursory allegations that the strip
search was illegal is insufficient to state a
claim for relief. In the absence of further
facts regarding the circumstances of the
search, such as whether this urine test was
random, conducted in the view of other
persons, or if Talbot Hall has policies
regarding conducting urine tests, the claim
cannot proceed at this time. Plaintiff may
address these deficiencies in an amended
constituted sexual harassment. “While it is
possible for sexual abuse of a prisoner to
violate the Eighth Amendment, a small number
of incidents in which a prisoner is verbally
harassed, touched, and pressed against without
his consent do not amount to such a
violation.” Obiegbu v. Werlinger, 581 F. App’x
119, 121 (3d Cir. 2014) (internal citation
omitted). “Rather, ‘isolated episodes of
harassment and touching ... are despicable
and, if true, they may potentially be the
basis of state tort actions. But they do not
involve a harm of federal constitutional
proportions as defined by the Supreme Court.’”
Id. (quoting Boddie v. Schnieder, 105 F.3d
857, 861 (2d Cir. 1997)) (omission in
Plaintiff only alleges one instance of alleged
harassment. He has therefore not sufficiently
pled a federal constitutional violation. To
the extent he alleges a state law claim, the
jurisdiction as the federal constitutional
claims are being dismissed. 28 U.S.C. §
Taylor v. McCray, No. 16-4513, 2017 WL 1528680, at *2 (D.N.J.
Apr. 26, 2017).
This Court sees no basis to depart from the thorough and
well-reasoned decision by the Honorable Jerome B. Simandle when
he addressed identical factual allegations to those that are
Therefore, for the reasons stated by the court in
Taylor v. McCray, this Court will dismiss the Complaint in its
entirety without prejudice.
2017 WL 1528680, at *2.
As discussed above, the Complaint will be dismissed without
prejudice in its entirety pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A for failure to state a claim upon which relief may be
Because it is conceivable that Plaintiff may be able
to supplement his pleading with facts sufficient to overcome the
deficiencies noted herein, the Court will grant Plaintiff leave
to move to re-open this case and to file an amended complaint. 2
An appropriate Order follows.
Dated: January 8, 2018
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Plaintiff should note that when an amended complaint is filed,
it supersedes the original and renders it of no legal effect,
unless the amended complaint specifically refers to or adopts the
earlier pleading. See West Run Student Housing Associates, LLC v.
2013)(collecting cases); see also 6 CHARLES ALAN WRIGHT ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 1476 (3d ed. 2008). To avoid confusion,
the safer practice is to submit an amended complaint that is
complete in itself. Id.
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