HARRISON v. NO DEFENDANT LISTED
OPINION. Signed by Chief Judge Jerome B. Simandle on 4/13/2017. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE
No. 16-cv-08111 (JBS-AMD)
NO DEFENDANT LISTED,
Kiesha Harrison, Plaintiff Pro Se
828 Blackwood Clementon Rd., Apt. 272
Pine Hill, NJ 08021
SIMANDLE, Chief District Judge:
Plaintiff Kiesha Harrison seeks to bring a civil
rights complaint pursuant to 42 U.S.C. § 1983. Complaint, Docket
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
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).
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)).
Plaintiff brings this action pursuant to 42 U.S.C.
§ 19831 for alleged violations of Plaintiff’s constitutional
rights. In order to set forth a prima facie case under § 1983, a
Section 1983 provides: “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 or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .” 42 U.S.C. § 1983.
plaintiff must show: “(1) a person deprived [her] of a federal
right; and (2) the person who deprived [her] of that right acted
under color of state or territorial law.” Groman v. Twp. of
Manalapan, 47 F.3d 628, 633 (3d Cir. 1995) (citing Gomez v.
Toledo, 446 U.S. 635, 640 (1980)).
Generally, for purposes of actions under § 1983,
“[t]he term ‘persons’ includes local and state officers acting
under color of state law.” Carver v. Foerster, 102 F.3d 96, 99
(3d Cir. 1996) (citing Hafer v. Melo, 502 U.S. 21 (1991)).2 To
say that a person was “acting under color of state law” means
that the defendant in a § 1983 action “exercised power [that the
defendant] possessed by virtue of state law and made possible
only because the wrongdoer [was] clothed with the authority of
state law.” West v. Atkins, 487 U.S. 42, 49 (1988) (citation
omitted). Generally, then, “a public employee acts under color
of state law while acting in his official capacity or while
exercising his responsibilities pursuant to state law.” Id.
Plaintiff has not named a defendant in the complaint.
The Complaint must therefore be dismissed.
“Person” is not strictly limited to individuals who are state
and local government employees, however. For example,
municipalities and other local government units, such as
counties, also are considered “persons” for purposes of § 1983.
See Monell v. N.Y.C. Dep't of Social Services, 436 U.S. 658,
Plaintiff may be able to amend the complaint to name a
person or persons 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.
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 that she was
confined in the Camden County Jail in 2009, 2012, 2013, 2014,
and 2015. Complaint § III. The facts section of the complaint
states: “When I was in the jail over crowding in my cells no
proper bedding laying on the floor with no matts [illegible]
Bugs such as roach[es] in my food.” Id. Plaintiff further
alleges: “My shoes were not safe the rubber of my shoe came off
I fell and hurt my knee in the gymnasium and I was sent to
medical and they just gave me Tylenol for pain, I asked [to go]
to hospital cause I hit my head but they refuse to send me out.
This happen in June 28, 2015.” Even accepting these statements
as true for screening purposes only, there is not enough factual
support for the Court to infer a constitutional violation has
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 dates and length of
the confinement(s), whether Plaintiff was a pretrial detainee or
convicted prisoner, etc.
In addition, to the extent that Plaintiff seeks to
allege a claim based on a violation of her right to adequate
medical care, there are not enough facts to support an inference
that Plaintiff’s rights were violated in this regard. In order
to set forth a cognizable claim for a violation of her right to
adequate medical care, an inmate must allege: (1) a serious
medical need; 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).
Plaintiff’s assertion that she was not sent to the hospital when
she asked to go is insufficient to meet the pleading standard in
the absence of additional facts. If she wishes to pursue this
claim, Plaintiff should provide additional facts supporting both
of the requirements in her amended complaint.
Moreover, to the extent the complaint seeks relief for
conditions Plaintiff encountered during confinements ending
prior to November 1, 2014, namely, Plaintiff’s claims arising
from her 2009, 2012, and 2013 confinements, those claims are
barred by the statute of limitations and must be dismissed with
prejudice, meaning that Plaintiff cannot recover for those
claims because they have been brought too late.
Civil rights claims under § 1983 are governed by New
Jersey's limitations period for personal injury and must be
brought within two years of the claim’s accrual. 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 CCJ,
namely the overcrowded conditions, bugs in Plaintiff’s food, and
alleged lack of medical care, would have been immediately
apparent to Plaintiff at the time of her detention; therefore,
the statute of limitations for Plaintiff’s 2009, 2012, and 2013
claims expired in 2011, 2014, and 2015, respectively, well
before this complaint was filed on November 1, 2016. Plaintiff
therefore cannot recover for these claims.3
As Plaintiff may be able to amend her 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. However, in the event Plaintiff elects to
file an amended complaint, she should focus only on facts that
occurred during her 2015 confinement and her 2014 confinement,
provided her 2014 confinement ended on or subsequent to November
1, 2014. Claims arising from periods of confinement ending prior
to November 1, 2014, are barred by the statute of limitations
and Plaintiff may not assert them in an amended complaint.
Although the Court may toll, or extend, the statute of
limitations in the interests of justice, certain circumstances
must be present before it can do so. Tolling is not warranted in
this case because the state has not “actively misled” Plaintiff
as to the existence of her cause of action, there are no
extraordinary circumstances that prevented Plaintiff from filing
her claim, and there is nothing to indicate Plaintiff filed her
claim on time but in the wrong forum. See Omar v. Blackman, 590
F. App’x 162, 166 (3d Cir. 2014).
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.4 Id.
For the reasons stated above, Plaintiff’s claims
arising from her 2009, 2012, and 2013 confinements are barred by
the statute of limitations and are therefore dismissed with
prejudice. The remainder of the complaint, insofar as it seeks
relief for claims arising from Plaintiff’s 2014 and 2015
confinements, 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 amended complaint shall be subject to screening prior to
An appropriate order follows.
April 13, 2017
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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