McCARGO V CAMDEN COUNTY JAIL

Filing 4

OPINION. Signed by Chief Judge Jerome B. Simandle on 2/9/17. (jbk, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TIMOTHY McCARGO,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
v.

Civil Action
No. 16-cv-06955 (JBS-AMD)

CAMDEN COUNTY JAIL,

OPINION

Defendant.
APPEARANCES:
Timothy McCargo, Plaintiff Pro Se
433 N. 7th Street, Apt. 19K
Camden, NJ 08102
SIMANDLE, Chief District Judge:
I.

INTRODUCTION
Plaintiff Timothy McCargo seeks to bring a civil rights

complaint against Camden County Jail (“CCJ”) pursuant to 42
U.S.C. § 1983 for allegedly unconstitutional conditions of
confinement. Complaint, Docket Entry 1.
28 U.S.C. 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 Section 1915(e)(2)(B)
because Plaintiff is proceeding in forma pauperis.

1

For the reasons set forth below, the Court will dismiss the
Complaint with prejudice for failure to state a claim. 28 U.S.C.
§ 1915(e)(2)(b)(ii).
II.

BACKGROUND
Plaintiff’s Complaint states: “I was sleeping on the floor

housed with four other male inmates. Men was [sic] withdrawing
from herion [sic] vomiting on me while I was sleeping. Also I
received a boil (infection) that was left unattended due to
overcrowding in the medical department.” Complaint § III(C).
Plaintiff states that the alleged events giving rise to
these claims occurred: “Winter of 2004 (November).” Id. §
III(B).
Plaintiff contends that he has sustained a boil, back
problems, mouth infection and bug bites while incarcerated at
CCJ. He alleges that his boil was “left untreated”, that his
mouth infection was not treated “until 3 weeks later”, and that
he “never received my asthma pump nor my blood pressure meds
while being housed.” Id. § IV.
Plaintiff seeks $50,000 in relief. Id. § V.
III. STANDARD OF REVIEW
To survive sua sponte screening under 28 U.S.C. §
1915(e)(2) for failure to state a claim, a 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.
2

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)).
IV.

DISCUSSION
Plaintiff asserts claims against CCJ for allegedly

unconstitutional conditions of confinement. The Complaint must
be dismissed for failure to state a claim. 28 U.S.C. §
1915(e)(2)(B)(ii).
First, the Complaint must be dismissed as CCJ is not a
“state actor” within the meaning of § 1983. See, e.g., Grabow v.
Southern State Corr. Facility, 726 F. Supp. 537, 538–39 (D.N.J.
1989) (correctional facility is not a “person” under § 1983).
Accordingly, the claims against CCJ must be dismissed with
prejudice.
Second, there are not enough facts for the Court to infer
Plaintiff was denied adequate medical care. In order to set
forth a cognizable claim for violation of his right to adequate
medical care, an inmate must allege: (1) a serious medical need;
3

and (2) behavior on the part of prison officials that
constitutes deliberate indifference to that need. See Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Natale v. Camden Cnty. Corr.
Facility, 318 F.3d 575, 582 (3d Cir. 2003). A mere assertion
that Plaintiff was not given medication (Complaint § IV) is
insufficient to meet the pleading standard for a claim of
inadequate medical care.
Finally, “plaintiffs who file complaints subject to
dismissal should receive leave to amend unless amendment would
be inequitable under [§ 1915] or futile.” Grayson v. Mayview
State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). This Court denies
leave to amend at this time as Plaintiff’s Complaint is barred
by the statute of limitations, which is governed by New Jersey's
two-year limitations period for personal injury.1 See Wilson v.
Garcia, 471 U.S. 261, 276 (1985); Dique v. N.J. State Police,
603 F.3d 181, 185 (3d Cir. 2010). The accrual date of a § 1983
action is determined by federal law, however. Wallace v. Kato,
549 U.S. 384, 388 (2007); Montanez v. Sec'y Pa. Dep't of Corr.,
773 F.3d 472, 480 (3d Cir. 2014). “Under federal law, a cause of

1

“Although the running of the statute of limitations is
ordinarily an affirmative defense, where that defense is obvious
from the face of the complaint and no development of the record
is necessary, a court may dismiss a time-barred complaint sua
sponte under § 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to
state a claim.” Ostuni v. Wa Wa's Mart, 532 F. App’x 110, 111–12
(3d Cir. 2013) (per curiam).
4

action accrues when the plaintiff knew or should have known of
the injury upon which the action is based.” Montanez, 773 F.3d
at 480 (internal quotation marks omitted).
Plaintiff states that the alleged events giving rise to
these claims occurred: “Winter of 2004 (November).” Complaint §
III(B). The allegedly unconstitutional conditions of confinement
at CCJ would have been immediately apparent to Plaintiff at the
time of detention. Accordingly, the statute of limitations for
Plaintiff’s claims expired in November 2006. As there are no
grounds for equitable tolling of the statute of limitations,2 the
Complaint will be dismissed with prejudice. Ostuni v. Wa Wa's
Mart, 532 F. App’x 110, 112 (3d Cir. 2013) (per curiam)
(affirming dismissal with prejudice due to expiration of statute
of limitations).

2

Equitable tolling “is only appropriate ‘(1) where the defendant
has actively misled the plaintiff respecting the plaintiff's
cause of action; (2) where the plaintiff in some extraordinary
way has been prevented from asserting his or her rights; or (3)
where the plaintiff has timely asserted his or her rights
mistakenly in the wrong forum.’” Omar v. Blackman, 590 F. App’x
162, 166 (3d Cir. 2014) (quoting Santos ex rel. Beato v. United
States, 559 F.3d 189, 197 (3d Cir. 2009)).
5

V.

CONCLUSION
For the reasons stated above, the Complaint is dismissed

with prejudice for failure to state a claim. An appropriate
order follows.

February 9, 2017
Date

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

6