VELASQUEZ v. C.C.C.F.

Filing 3

OPINION. Signed by Chief Judge Jerome B. Simandle on 3/3/2017. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JUAN VELASQUEZ,
Plaintiff,
v.
C.C.C.F.,

HONORABLE JEROME B. SIMANDLE

Civil Action
No. 16-cv-07248 (JBS-AMD)
OPINION

Defendant.
APPEARANCES:
Juan Velasquez, Plaintiff Pro Se
1025 North 20th Street
Camden, NJ 08105
SIMANDLE, Chief District Judge:
1.

Plaintiff Juan Velasquez seeks to bring a civil rights

complaint pursuant to 42 U.S.C. § 1983 against the Camden County
Correctional Facility (“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). “[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.

Plaintiff seeks monetary damages from CCCF for

allegedly unconstitutional conditions of confinement. As the
CCCF is not a “state actor” within the meaning of § 1983, the
claims against it must be dismissed with prejudice. 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)).
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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.
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. The fact section of the complaint
states: “While I was incarcerated I suffer from my back and neck
now for sleeping in that cold floor next to the toilet and was
getting sick a lot in there.” Complaint § III. Even accepting
the statements as true for screening purposes only, there is not
enough factual support for the Court to infer a constitutional
violation has occurred.
8.

Plaintiff alleges he slept on the floor, presumably

because no beds were available. 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
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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
dates and length of the confinement(s), whether Plaintiff was a
pretrial detainee or convicted prisoner, etc.
9.

As Plaintiff may be able to amend his complaint to

address the deficiencies noted by the Court, the Court shall
grant Plaintiff leave to amend the complaint within 30 days of
the date of this order.
10.

Plaintiff should note that 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 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
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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.1 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.
12.

An appropriate order follows.

March 3, 2017
Date

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

1

The amended complaint shall be subject to screening prior to
service.
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