Filing 3

OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 10/26/16. (js)

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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY HONORABLE JEROME B. SIMANDLE MARVIN POLLITT, Plaintiff, v. CAMDEN COUNTY FACILITY, Civil Action No. 16-cv-05906 (JBS-AMD) CORRECTION OPINION Defendants. APPEARANCES: Marvin Pollitt, Plaintiff Pro Se 1501 Old Black Horse Pike Apt. K-6 Blackwood, NJ 08012 SIMANDLE, Chief District Judge: 1. Plaintiff Marvin Pollitt seeks to bring a civil rights complaint pursuant to the 42 U.S.C. § 1983 against the Camden County Correctional Facility (“CCCF”) for allegedly unconstitutional conditions of confinement in CCCF. Complaint, Docket Entry 1. 2. Section 1915(e)(2) requires a court to review complaints prior to service in cases in which a plaintiff is proceeding in forma pauperis. The Court must 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) because Plaintiff is proceeding in forma pauperis. 3. For the reasons set forth below, the Court will dismiss the complaint without prejudice for failure to state a claim. 28 U.S.C. § 1915(e)(2)(b)(ii). 4. To survive sua sponte screening for failure to state a claim, 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). “[A] pleading that offers ‘labels or conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 5. The claims against CCCF for monetary damages must be dismissed with prejudice as a prison is not an entity subject to suit under 42 U.S.C. § 1983. See Crawford v. McMillian, No. 163412, 2016 WL 6134846 (3d Cir. Oct. 21, 2016) (citing Fischer v. Cahill, 474 F.2d 991, 992 (3d Cir. 1973)). 2 6. Plaintiff may be able to amend the complaint to name state actors who were personally involved in the alleged unconstitutional conditions of confinement, however. To that end, the Court shall grant Plaintiff leave to amend the complaint within 30 days of the date of this order.1 7. Plaintiff is advised that the amended complaint must plead sufficient facts to support a reasonable inference that a constitutional violation has occurred in order to survive this Court’s review under § 1915. Plaintiff alleges he experienced unconstitutional conditions of confinement during his detention at the CCCF at various points between 2008 and 2016. Complaint ¶ III. He states: “I was on the floor and I kept banging my knee on bottom bunk my roommate jumped down and landed on right knee and lower back I had to sleep close to the toilet and urin[e] was sprinkled on my mattress.” Id. Even accepting the statement as true for screening purposes only, there is not enough factual support for the Court to infer a constitutional violation has occurred. 8. The mere fact that an individual is lodged temporarily in a cell with more persons than its intended design does not rise to the level of a constitutional violation. See Rhodes v. Chapman, 452 U.S. 337, 348–50 (1981) (holding double-celling by 1 The amended complaint shall be subject to screening prior to service. 3 itself did not violate Eighth Amendment); Carson v. Mulvihill, 488 F. App'x 554, 560 (3d Cir. 2012) (“[M]ere double-bunking does not constitute punishment, because there is no ‘one man, one cell principle lurking in the Due Process Clause of the Fifth Amendment.’” (quoting Bell v. Wolfish, 441 U.S. 520, 542 (1979))). More is needed to demonstrate that such crowded conditions, for a pretrial detainee, shocks the conscience and thus violates due process rights. See Hubbard v. Taylor, 538 F.3d 229, 233 (3d Cir. 2008) (noting due process analysis requires courts to consider whether the totality of the conditions “cause inmates to endure such genuine privations and hardship over an extended period of time, that the adverse conditions become excessive in relation to the purposes assigned to them.”). 9. In the event Plaintiff files an amended complaint, he should include specific facts, such as the specific dates and length of his confinement(s), whether he was a pretrial detainee or convicted prisoner, any specific individuals who were involved in creating or failing to remedy the conditions of confinement, and any other relevant facts regarding the conditions of confinement.2 2 To the extent the complaint seeks relief for conditions Plaintiff encountered prior to his 2015 and 2016 confinements those claims are barred by the statute of limitations. Claims brought under § 1983 are governed by New Jersey's two-year 4 10. Plaintiff should note that when an amended complaint is filed,3 the original complaint no longer performs any function in the case and cannot be utilized to cure defects in the amended complaint, unless the relevant portion is specifically incorporated in the new complaint. 6 Wright, Miller & Kane, Federal Practice and Procedure 1476 (2d ed. 1990) (footnotes omitted). An amended complaint may adopt some or all of the allegations in the original complaint, but the identification of the particular allegations to be adopted must be clear and explicit. Id. To avoid confusion, the safer course is to file an amended complaint that is complete in itself. Id. 11. For the reasons stated above, the complaint is dismissed without prejudice for failure to state a claim. The Court will reopen the matter in the event Plaintiff files an amended complaint within the time allotted by the Court. limitations period for personal injury. See Wilson v. Garcia, 471 U.S. 261, 276 (1985); Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010). “Under federal law, a cause of action accrues when the plaintiff knew or should have known of the injury upon which the action is based.” Montanez v. Sec'y Pa. Dep't of Corr., 773 F.3d 472, 480 (3d Cir. 2014). The allegedly unconstitutional conditions of confinement at CCCF would have been immediately apparent to Plaintiff at the time of his detention; therefore, the statute of limitations for some of Plaintiff’s claims expired April 2015 at the latest. In the event Plaintiff elects to file an amended complaint, he should limit his complaint to his April 2015 to August 2015 and September 2015 to June 2016 confinements. 3 The amended complaint shall be subject to screening prior to service. 5 12. An appropriate order follows. October 26, 2016 Date s/ Jerome B. Simandle JEROME B. SIMANDLE Chief U.S. District Judge 6

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