DEMBY v. OWENS et al

Filing 3

OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 2/22/17. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

HONORABLE JEROME B. SIMANDLE

MARVIN DEMBY,
Plaintiff,

Civil Action
No. 16-cv-07424(JBS-AMD)

v.
WARDEN DAVID OWENS and
WARDEN J. TAYLOR,

OPINION

Defendants.

APPEARANCES:
Marvin Demby, Plaintiff Pro Se
1077 Ironside Road
Camden, NJ 08103
SIMANDLE, Chief District Judge:
1.

Plaintiff Marvin Demby seeks to bring a civil rights

complaint pursuant to 42 U.S.C. § 1983 against Warden David
Owens (“Owens”) and Warden J. Taylor (“Taylor”) for allegedly
unconstitutional conditions of confinement. Complaint, Docket
Entry 1.
2.

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

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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: (1)

dismiss the Complaint with prejudice as to claims made against
Owens and Taylor; and (2) dismiss the Complaint without
prejudice for failure to state a claim. 28 U.S.C. §
1915(e)(2)(b)(ii).
4.

First, the Complaint must be dismissed with prejudice

as to claims made against Owens and Taylor because the Complaint
does “[not] allege[] any personal involvement by [the wardens]
in any constitutional violation – a fatal flaw, since ‘liability
in a § 1983 suit cannot be predicated solely on the operation of
respondeat superior.’” Baker v. Flagg, 439 F. App’x 82, 84 (3d
Cir. 2011) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207
(3d Cir. 1988)). “[Plaintiff’s] complaint contains no
allegations regarding [the] Warden[s]. ‘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[s].” Bob v. Kuo, 387 F. App’x 134, 136 (3d Cir.
2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)).
Accordingly, Plaintiff’s claims against Owens and Taylor must be
dismissed with prejudice.
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5.

Second, 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).
6.

The present Complaint 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. 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.
7.

To survive sua sponte screening for failure to state a

claim1, 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

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“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.
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. §
1915A(b)).
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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, 556 U.S. at 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).
8.

With respect to alleged facts giving rise to his

claims, Plaintiff states: “I was tooken [sic] to Camden Co.
corr. facility. Knowingly the jail was overcrowded and placed in
a cell with three other inmates. I was on the floor in harsh
conditions and urine and species [sic].” Complaint § III(C).
9.

Plaintiff states that the purported events giving rise

to these claims occurred: “Around 2013[,] 2014.” Id. § III(B).
10.

Plaintiff does not identify or otherwise describe any

injury sustained in connection with the alleged events. Id. §
IV.
11.

Plaintiff seeks $150,000 in relief. Id. § V.

12.

These claims must be dismissed because the Complaint

does not set forth enough factual support for the Court to infer
that a constitutional violation has occurred.
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13.

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
confinement, etc.

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14.

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
15.

Plaintiff is further advised that any amended

complaint must plead specific facts regarding the conditions of
confinement. In the event Plaintiff files an amended complaint,
Plaintiff must plead sufficient facts to support a reasonable
inference that a constitutional violation has occurred in order
to survive this Court’s review under § 1915.3

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The amended complaint shall be subject to screening prior to
service.
3 To the extent the Complaint seeks relief for conditions
Plaintiff encountered prior to October 18, 2014, those claims
are barred by the statute of limitations. Claims brought under §
1983 are governed by New Jersey's two-year 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). Any allegedly unconstitutional
conditions of confinement would have been immediately apparent
to Plaintiff; therefore, the statute of limitations on some of
Plaintiff’s claims expired two years after release from
incarceration. In the event Plaintiff elects to file an amended
complaint, its claims should be limited confinements in which
Plaintiff was released after October 18, 2014.
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16.

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
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. The amended
complaint may not adopt or repeat claims that have been
dismissed with prejudice by the Court.
17.

For the reasons stated above, the Complaint is: (a)

dismissed with prejudice as to Owens and Taylor; and (b)
dismissed without prejudice for failure to state a claim. An
appropriate order follows.

February 22, 2017
Date

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

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