MILLINER v. OWENS et al

Filing 3

OPINION. Signed by Chief Judge Jerome B. Simandle on 4/17/17. (jbk, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOHN DOUGLAS MILLINER, JR.,
Plaintiff,
v.

HONORABLE JEROME B. SIMANDLE

Civil Action
No. 16-cv-08116 (JBS-AMD)

WARDEN OWENS; CAMDEN COUNTY
JAIL,

OPINION

Defendants.
APPEARANCES:
John Douglas Milliner, Jr., Plaintiff Pro Se
520 Cloverdale Rd.
Blackwood, NJ 08012
SIMANDLE, Chief District Judge:
1.

Plaintiff John Douglas Milliner, Jr., seeks to bring a

civil rights complaint pursuant to 42 U.S.C. § 1983 against
Warden Owens (“Warden”) and the Camden County Jail (“CCJ”).
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 with prejudice in part and dismiss the
complaint without prejudice in part 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 brings this action pursuant to 42 U.S.C.

§ 19831 for alleged violations of Plaintiff’s constitutional

1

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
2

rights. In order to set forth a prima facie case under § 1983, a
plaintiff must show: “(1) a person deprived him of a federal
right; and (2) the person who deprived him 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)).
6.

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

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.
2 “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,
690-91 (1978).
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exercising his responsibilities pursuant to state law.” Id.
at 50.
7.

Because Plaintiff has not sufficiently alleged that a

person deprived him of a federal right, the complaint does not
meet the standards necessary to set forth a prima facie case
under § 1983 and to survive this Court’s review under § 1915.
Plaintiff alleges he experienced unconstitutional conditions of
confinement on October 25, 2013, and from November 27 to
November 28, 2013, March 18 to March 19, 2015, May 20 to May 26,
2015, and January 13 to February 12, 2016. Complaint § III.
Regarding the facts of Plaintiff’s claim, the complaint states
only: “I was placed in cells with more than 2 inmates and had to
sleep on the floor next to the urinal.” Id. Even accepting the
statement as true for screening purposes only, there is not
enough factual support for the Court to infer a constitutional
violation has occurred.
8.

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
4

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.

Moreover, even if Plaintiff’s allegations were enough

to set forth a claim for a deprivation of a constitutional
right, Plaintiff has not alleged sufficient facts demonstrating
that a person acting under color of state law may be held liable
for the alleged constitutional violations.
10.

Plaintiff has not pled sufficient facts to support an

inference that the Warden was personally involved in either the
creation of, or failure to address, the conditions of his
confinement. State actors are liable only for their own
unconstitutional conduct and may not be held liable for the
unconstitutional conduct of their subordinates under a theory of
respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 676
5

(2009); Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir. 2012).
Plaintiff has made no allegations regarding the conduct or
actions of the Warden.
11.

In addition, though the Warden may be a proper

defendant in a § 1983 action, the CCJ may not be sued under
§ 1983. Plaintiff seeks monetary damages from CCJ for the
allegedly unconstitutional conditions of confinement. The CCJ,
however, is not a “person” within the meaning of § 1983;
therefore, 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)). Because the claims against the CCJ must be
dismissed with prejudice, the claims may not proceed and
Plaintiff may not name the CCJ as a defendant.
12.

Finally, to the extent the complaint seeks relief for

conditions Plaintiff encountered during confinements ending
prior to November 1, 2014, 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.3 Civil rights claims under
§ 1983 are governed by New Jersey's limitations period for

3

Plaintiff filed his complaint on November 1, 2016.
6

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).
13.

Plaintiff alleges the events giving rise to his claims

occurred on October 25, 2013, and from November 27 to November
28, 2013, March 18 to March 19, 2015, May 20 to May 26, 2015,
and January 13 to February 12, 2016. Complaint § III. The
allegedly unconstitutional conditions of confinement at CCJ,
namely the overcrowding, would have been immediately apparent to
Plaintiff at the time of his detention; therefore, the statute
of limitations for Plaintiff’s 2013 claims expired in 2015, well
before this complaint was filed in 2016. Plaintiff therefore
cannot recover for these claims.4

4

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 his cause of action, there are no
extraordinary circumstances that prevented Plaintiff from filing
his claim, and there is nothing to indicate Plaintiff filed his
claim on time but in the wrong forum. See Omar v. Blackman, 590
F. App’x 162, 166 (3d Cir. 2014).
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14.

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. However, in the event Plaintiff does
elect to file an amended complaint, he should focus only on the
facts of his 2015 and 2016 confinements. Because Plaintiff’s
2013 claims must be dismissed with prejudice, Plaintiff may not
assert these claims in the amended complaint.
15.

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.5 Id.
16.

For the reasons stated above, Plaintiff’s claims

against the CCJ are dismissed with prejudice because the CCJ is
not a person under § 1983. Plaintiff’s claims arising from

5

The amended complaint shall be subject to screening prior to
service.
8

Plaintiff’s confinements in 2013 are barred by the statute of
limitations and therefore are dismissed with prejudice. The
remainder of 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.
17.

An appropriate order follows.

April 17, 2017
Date

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

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