GIBSON v. OWENS
OPINION. Signed by Chief Judge Jerome B. Simandle on 3/9/2017. (rtm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE
No. 16-cv-06362 (JBS-AMD)
WARDEN DAVID OWENS,
Raymond Gibson, Plaintiff Pro Se
Bayside State Prison
P.O. Box F-2
Leesburg, NJ 08327
SIMANDLE, Chief District Judge:
Plaintiff Raymond Gibson seeks to bring a civil rights
complaint pursuant to 42 U.S.C. § 1983 against Warden David
Owens (“Owens”) for allegedly unconstitutional conditions of
confinement. Complaint dated September 28, 2016 (“Complaint”),
Docket Entry 1. On February 8, 2017, Plaintiff filed a Notice
with this Court (“Notice”) seeking to add Camden County
Correctional Facility (“CCCF”) and the Freeholders Associated
With Board of Directioners (“the Freeholders”) as additional
defendants in this action. (Docket Entry 6.)
28 U.S.C. § 1915(e)(2) requires courts to review
complaints prior to service in cases in which a plaintiff is
proceeding in forma pauperis. Courts 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.
For the reasons set forth below, the Court now: (a)
dismisses the Complaint without prejudice for failure to state a
claim, 28 U.S.C. § 1915(e)(2)(b)(ii); (b) determines that
Plaintiff’s Notice does not constitute an amended complaint; and
(c) grants Plaintiff leave to file an amended complaint within
30 days of the date of this Opinion and Order.
First, the Complaint fails to state a claim as it does
not allege sufficient facts to support a reasonable inference
that a constitutional violation has occurred in order to survive
this Court’s review under § 1915. 28 U.S.C. § 1915(e)(2)(b)(ii).
Even accepting the statements in Plaintiff’s Complaint as true
for screening purposes only, there is not enough factual support
for the Court to infer a constitutional violation has occurred.
To survive sua sponte screening for failure to state a
claim1, the Complaint must allege “sufficient factual matter” to
“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).” Samuels v. Health Dep’t, No. 161289, 2017 WL 26884, slip op. at *2 (D.N.J. Jan. 3, 2017)
(citing Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir.
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). “[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)). 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) (citation
omitted) (emphasis added).
With respect to the alleged facts giving rise to
Plaintiff’s claims, the Complaint states that Owens was
“deliberately indifferent to my right by having me in a[n]
overcrowded housing unit where I’m forced to sleep on the
floor.” Complaint § 4(b). Plaintiff alleges that “[o]vercrowded
2012)); Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000));
Mitchell v. Beard, 492 F. App’x 230, 232 (3d Cir. 2012)
(discussing 28 U.S.C. § 1997e(c)(1)); Courteau v. United States,
287 F. App’x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C. §
conditions in C.C.C.F. ha[ve] been going on for years and [are]
a well-known fact so I felt as if my situation was hopeless.”
Id. § 5. Plaintiff contends that “[t]he warden has allowed
myself and others to sleep on the floor. These overcrowded
conditions have subjected me to unsanitary conditions which
breed infections such as boils and mercer [sic]. The overcrowded
conditions also breed violence in a[n] already unsafe
environment. These conditions have me subjected to back pains,
sore muscles, and repeated nightmares from living in such a
volatile environment. The inhumane conditions at C.C.C.F. from
8/13/15 to 9/28/16 have taken a toll on my physical and mental
health.” Id. § 6.
Plaintiff “move[s] for relief to all future inmates
housed at C.C.C.F. so they never have to sleep on the floor and
be subjected to these overcrowded conditions. Also I seek a
mon[e]tary award for my civil rights being violated, namely
$1,500,000 in compensatory damages and $1,500,000 in punitive
damages.” Id. § 7.
Construing the Complaint as seeking to bring a civil
rights complaint pursuant to 42 U.S.C. § 1983 for alleged prison
overcrowding, any such purported claims must be dismissed
because the Complaint does not set forth sufficient factual
support for the Court to infer that a constitutional violation
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
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[s] 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.”). Some relevant factors are the length of the
confinement(s), whether plaintiff was a pretrial detainee or
convicted prisoner, any specific individuals who were involved
in creating or failing to remedy the conditions of confinement,
any other relevant facts regarding the conditions of
Therefore, given that the Complaint does not set forth
sufficient factual support for the Court to infer that a
constitutional violation has occurred, it must be dismissed as
to claims made against Owens because the Complaint does “[not]
allege any personal involvement by [the warden] in any
constitutional violation – a fatal flaw [in] a § 1983 suit.”
Baker v. Flagg, 439 F. App’x 82, 84 (3d Cir. 2011) (citing Rode
v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). “‘Because
vicarious liability is inapplicable to § 1983 suits, a plaintiff
must plead that each Government-official defendant, through the
official's own individual actions, has violated the
Constitution.’ Thus, [plaintiff] failed to state a claim against
[the] Warden.” Bob v. Kuo, 387 F. App’x 134, 136 (3d Cir. 2010)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
Plaintiff may be able to amend the Complaint to
particularly identify adverse conditions that were caused by
specific state actors, that caused Plaintiff to endure genuine
privations and hardship over an extended period of time, and
that were excessive in relation to their purposes. To that end,
the Court shall grant Plaintiff leave to amend the Complaint
within 30 days of the date of this order.2
The amended complaint shall be subject to screening prior to
Second, construing Plaintiff’s Notice as an attempt to
amend the original Complaint, it is insufficient to constitute
an amended complaint.
Under Federal Rule of Civil Procedure 15(a), once 21
days have elapsed after service of a pleading, “a party may
amend its pleading only with the opposing party’s written
consent or the court’s leave.” Fed. R. Civ. P. 15(a).
When an amended complaint is filed, the original
complaint no longer performs any function in the case and cannot
be utilized to cure defects in an 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.
However, Plaintiff’s Notice does not clearly adopt the
allegations in the original Complaint.
The Notice states in its entirety: “I would hereby
like to name additional defendants in the above mentioned civil
action. In addition to Warden David Owens, the Camden County
Correctional Facility and the Freeholders Associated With Board
of Directioners are also directly responsible for all damages
sought in regards to physical and psyc[h]ological effects of
being housed in the overcrow[de]d facility. I have slept on the
floor for long periods of time and been exposed to unsanitary
living conditions. Overcrowded housing units also lead to
violent living condition and unnecessary tension among inmates.”
(Docket Entry 6.)
Plaintiff has not incorporated his previously filed
Complaint (Docket Entry 1) into Plaintiff’s Notice (Docket Entry
6). As such, Plaintiff’s Notice fails to contain “a short and
plain statement of the grounds for the court's jurisdiction . .
a short and plain statement of the claim showing that the
pleader is entitled to relief; and demand for the relief sought
. . . .” Fed. R. Civ. P. 8(a)(1)-(3).
Plaintiff’s original Complaint does not cure the
pleading defects in Plaintiff’s Notice. The safer course would
have been for Plaintiff to file an amended complaint that was
complete in itself.
In short, even considering Plaintiff’s Notice together
with the original Complaint, he has still failed to plead
specific facts that state a claim regarding the conditions of
his confinement. Therefore, even liberally construing the
Complaint and Plaintiff’s Notice as this Court is required to
do, Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.
2013), Plaintiff has still failed to plead sufficient facts to
support a reasonable inference that a constitutional violation
occurred during his incarceration in order to survive this
Court’s review under § 1915.
In addition, Plaintiff should note that with respect
to the Notice’s attempted addition of CCCF as a defendant, only
“persons” acting “under the color of state law” may be held
liable under § 1983 for civil rights violations. See 42 U.S.C. §
1983 (“Every person, who under color of any statute, ordinance,
regulation, custom or usage, of any State . . ., subjects, or
causes to be subjected, any citizen of the United States . . .
to the deprivation of any rights, privileges or immunities
secured by the Constitution and laws, shall be liable to the
party injured . . .”); Nicini v. Morra, 212 F.3d 798, 806 (3d
Cir. 2000) (“[t]o establish a claim under 42 U.S.C. § 1983, a
plaintiff must demonstrate a violation of a right protected by
the Constitution or laws of the United States that was committed
by a person acting under the color of state law”). In other
words, only “persons” who, under authority of state law,
exercise power they possess as a result of such state law can be
held liable under § 1983. While the determination of who is a
"person" is a matter of federal statutory interpretation, the
matter of who has the capacity to be sued is determined by the
law of the forum state. In this jurisdiction, CCCF is not a
“state actor” within the meaning of § 1983. See Crawford v.
McMillian, 660 F. App’x 113, 116 (3d Cir. 2016) (“[T]he prison
is not an entity subject to suit under 42 U.S.C. § 1983.”)
(citing Fischer v. Cahill, 474 F.2d 991, 992 (3d Cir. 1973));
Grabow v. Southern State Corr. Facility, 726 F. Supp. 537, 538–
39 (D.N.J. 1989) (correctional facility is not a “person” under
§ 1983). Therefore, the Court observes that Plaintiff’s
purported claims against CCCF as referenced in Plaintiff’s
Notice attempting to add CCCF as a defendant would have to be
dismissed with prejudice, in any event, because CCCF is not a
“state actor” within the meaning of § 1983.
In light of Plaintiff’s pro se status, the Court will
grant Plaintiff one final opportunity to submit an amended
complaint that meets the pleading standards. If Plaintiff is
unable to allege facts sufficient to survive § 1915 review in
his amended complaint, the Court may conclude that permitting
further amendment would be futile and dismiss the complaint with
prejudice. See Hoffenberg v. Bumb, 446 F. App'x 394, 399 (3d
Cir. 2011); Rhett v. N.J. State Superior Court, 260 F. App'x
513, 516 (3d Cir. 2008) (affirming dismissal with prejudice
after District Court gave pro se plaintiff several opportunities
to comply with Rule 8). Plaintiff should not that an amended
complaint may not adopt or repeat claims in an original
complaint that have been dismissed by the Court.
For these reasons as well as those stated above, the
original Complaint is dismissed without prejudice for failure to
state a claim, and Plaintiff is granted leave to file an amended
complaint within 30 days of the date of this Opinion and Order.
Any amended complaint is subject to screening prior to
service, and it must plead specific facts regarding the
conditions of confinement sufficient to support a reasonable
inference that a constitutional violation has occurred in order
to survive this Court’s review under § 1915.
For the reasons stated above: (a) the Court dismisses
the Complaint without prejudice for failure to state a claim;
(b) the Court finds that the Notice does not constitute an
amended complaint; and (c) the Court grants Plaintiff leave to
file an amended complaint within 30 days of the date of this
Opinion and Order.
An appropriate order follows.
March 9, 2017
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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