NESMITH v. CAMDEN COUNTY CORRECTIONAL FACILITY
OPINION. Signed by Judge Jerome B. Simandle on 9/27/17. (jbk, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KAREEM A. NESMITH,
HONORABLE JEROME B. SIMANDLE
CAMDEN COUNTY CORRECTIONAL
No. 16-cv-08156 (JBS-AMD)
Kareem A. Nesmith, Plaintiff Pro Se
438 B Pfeiffer St.
Camden, NJ 08105
SIMANDLE, District Judge:
Plaintiff Kareem A. Nesmith seeks to bring a civil
rights complaint pursuant to 42 U.S.C. § 1983 against the Camden
County Correctional Facility (“CCCF”) for allegedly
unconstitutional conditions of confinement. Complaint, Docket
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
subject to sua sponte screening for dismissal under 28 U.S.C. §
1915(e)(2)(B) because Plaintiff is proceeding in forma pauperis.
For the reasons set forth below, the Court will: (1)
dismiss the Complaint with prejudice as to claims made against
CCCF; and (2) dismiss the Complaint without prejudice for
failure to state a claim. 28 U.S.C. § 1915(e)(2)(b)(ii).
Claims Against CCCF: Dismissed With Prejudice
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
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)).
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
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.
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.
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.
Because the Complaint has not sufficiently alleged
that a “person” deprived Plaintiff of a federal right, the
Complaint does not meet the standards necessary to set forth a
prima facie case under § 1983. In the Complaint, Plaintiff seeks
monetary damages from CCJ for allegedly unconstitutional
conditions of confinement. The CCCF, 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)); Grabow v. Southern
State Corr. Facility, 726 F. Supp. 537, 538–39 (D.N.J. 1989)
(correctional facility is not a “person” under § 1983). Given
See Monell v. N.Y.C. Dep't of Social Services, 436 U.S. 658,
that the claims against the CCCF must be dismissed with
prejudice, the claims may not proceed and Plaintiff may not name
the CCJ as a defendant.
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.
Conditions Of Confinement Claims:
Dismissed Without Prejudice
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).
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.
To survive sua sponte screening for failure to state a
claim3, the Complaint must allege “sufficient factual matter” to
“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
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)). 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).
A 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.
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. §
However, with respect to the alleged facts giving rise
to Plaintiff’s claims, Plaintiff complaint states in its
entirety: “Despite my disability I succumbed to harsh living
conditions. During my incarceration I was forced to sleep on the
floor for months despite my back disability. I was stereotyped
and judged by past faults and immediately forced to wear red
jumpsuits. I was also denied my psych medication despite my
documented disabilities.” Complaint § III(C).
Plaintiff provided a copy of his inmate recidivism
sheet which indicates he was detained in the CCCF on the
following dates: January 10, 2014 to February 27, 2015;
September 4, 2013 to September 17, 2013; September 1, 2010 to
September 9, 2010; December 29, 2009 to December 30, 2009;
September 8, 2009 to September 9, 2009; February 12, 2008 to
February 13, 2008; May 17, 2005 to November 17, 2006; May 2,
2005 to May 3, 2005; August 10, 2004 to September 1, 2004;
October 22, 2003 to December 11, 2003; September 21, 2003 to
October 15, 2003 and November 25, 1999 to November 26, 1999.
Exhibit to Complaint.
Plaintiff states that “because of these harsh
conditions and lack of proper medication my back has gotten
worse and I suffered from depression and insomnia. I am now
required to take lamotrigine for depression and Seroquel for
insomnia.” Id. § IV.
With respect to requested relief, Plaintiff seeks “to
be compensated for my pain and suffering.” Id. § V.
Even construing the Complaint as seeking to bring a
civil rights complaint pursuant to 42 U.S.C. § 1983 for alleged
prison overcrowding, any such purported claims must be dismissed
because the Complaint does not set forth sufficient factual
support for the Court to infer that a constitutional violation
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
Moreover, to the extent the complaint seeks relief for
conditions Plaintiff encountered during periods of confinement
ending prior to November 2, 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.4 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).
Plaintiff filed this complaint on November 2, 2016.
Plaintiff alleges the events giving rise to his claims
occurred January 10, 2014 to February 27, 2015; September 4,
2013 to September 17, 2013; September 1, 2010 to September 9,
2010; December 29, 2009 to December 30, 2009; September 8, 2009
to September 9, 2009; February 12, 2008 to February 13, 2008;
May 17, 2005 to November 17, 2006; May 2, 2005 to May 3, 2005;
August 10, 2004 to September 1, 2004; October 22, 2003 to
December 11, 2003; September 21, 2003 to October 15, 2003 and
November 25, 1999 to November 26, 1999. Complaint § III. The
allegedly unconstitutional conditions of confinement at CCJ
would have been immediately apparent to Plaintiff at the time of
his detention; therefore, the statute of limitations for
Plaintiff’s claims arising from all but his January 10, 2014 to
February 27, 2015 detention expired before this complaint was
filed in 2016. Plaintiff therefore cannot recover for any of the
claims prior to that incarceration.5
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).
Additionally, Plaintiff contends he was denied “psych
medication” (referred to hereinafter as “Medical Care Claim”).
Complaint at 5 and § IV.
The Due Process Clause of the Fourteenth Amendment
applies to pretrial detainees’ claims of inadequate medical
care. Bocchino v. City of Atlantic City, 179 F. Supp.3d 387, 403
(D.N.J. 2016). “[T]he Fourteenth Amendment in this context
incorporates the protections of the Eighth Amendment” (Holder v.
Merline, No. 05-1024, 2005 WL 1522130, at *3 (D.N.J. June 27,
2005) (citing Simmons v. City of Philadelphia, 947 F.2d 1042,
1067 (3d Cir. 1991), cert. denied, 503 U.S. 985 (1992)), and
most cases have stated that, at a minimum, the Eighth
Amendment’s “deliberate indifference” standard will suffice. In
other words, substantive due process rights are violated only
when the behavior of the government official is so egregious and
outrageous that it “shocks the conscience.” A.M. ex rel. J.M.K.
v. Luzerne Cnty. Juvenile Detention Ctr., 372 F.3d 572, 579 (3d
Cir. 2004) (citing County of Sacramento v. Lewis, 523 U.S. 833,
Applying this principle in the context of a claim for
violation of the right to adequate medical care, a pretrial
detainee must allege the following two elements to set forth a
cognizable cause of action: (1) a serious medical need; and (2)
behavior on the part of prison officials that constitutes
deliberate indifference to that need. Estelle v. Gamble, 429
U.S. 97, 106 (1976); Natale v. Camden Cnty. Corr. Facility, 318
F.3d 575, 582 (3d Cir. 2003).
Here, Plaintiff’s non-specific assertions regarding
“denied psych medication” (Complaint at 5 and § IV) is
insufficient to meet this pleading standard. Plaintiff offers no
facts to satisfy either of the two prongs required for his
Medical Care Claim. Estelle, 429 U.S. at 106; Natale, 318 F.3d
First, the Complaint is silent with respect to facts
relevant to establishing Estelle’s “serious condition” element,
demonstrating that Plaintiff’s health condition: “(1) has been
diagnosed by a physician as requiring treatment”; (2) “was so
obvious that a lay person would recognize the necessity for a
doctor's attention”; or (3) was a condition for which “the
denial of treatment would result in the unnecessary and wanton
infliction of pain” or “a life-long handicap or permanent loss.”
Atkinson, 316 F.3d at 272-73. The Complaint omits facts required
to demonstrate “serious condition,” such as: the nature,
symptoms, and severity of Plaintiff’s condition; Plaintiff’s
medical history as to frequency, duration and treatment he has
received; and health complications (if any) suffered by
Plaintiff as a result of allegedly denied medical care. (The
foregoing examples of facts demonstrating “serious condition”
are merely illustrative but not exhaustive or exclusive.) In
short, Plaintiff does not allege what condition he was diagnosed
with or what supposed suffering from this condition was so
obvious that a lay person would recognize the necessity of
medical care. Accordingly, Plaintiff has not satisfied Estelle’s
“serious condition” element for a Fourteenth Amendment claim.
Second, Plaintiff has not alleged any facts suggesting
deliberate indifference by any defendant to satisfy Estelle’s
subjective prong, under which Plaintiff must demonstrate that
prison officials acted with “deliberate indifference to his
serious medical need[s].” Holder, 2005 WL 1522130, at *4 (citing
Natale, 318 F.3d at 582). For example, Plaintiff here sets forth
no allegations as to whether any defendant deliberately ignored
his need for medication or treatment without justification or
with the intent to punish Plaintiff. See, e.g., Mattern v. City
of Sea Isle, 131 F. Supp.3d 305, 316 (D.N.J. 2015) (citing
Nicini, 212 F.3d at 815 n.14) (“[T]he Third Circuit has found
deliberate indifference in situations where there was ‘objective
evidence that [a] plaintiff had serious need for medical care,’
and prison officials ignored that evidence”). Furthermore, the
Complaint does not set forth any contentions that are necessary
to describe how individual defendants were personally involved
with and deliberately indifferent to Plaintiff’s purportedly
serious medical needs. Plaintiff’s bare allegation that he was
“denied psych medication” (Complaint at 5) is insufficient,
without more, to establish “deliberate indifference” for a
Fourteenth Amendment claim under Estelle. See Parkell v.
Markell, 662 F. App’x 136, 142 (3d Cir. 2015) (plaintiff “had no
constitutionally protected liberty interest in receiving a
particular result through the prison grievance process”).
Therefore, the Court finds that Plaintiff’s Medical
Care Claim has failed to state a cause of action under the
Fourteenth Amendment. Such claim will be dismissed without
prejudice and with leave to amend the Complaint, within 60 days
after the date this Opinion and Order are entered on the docket,
to meet the pleading deficiencies noted above, if Plaintiff
elects to pursue this claim with respect to deliberate
indifference to a serious medical condition. The amended
complaint may not adopt or repeat claims that have been
dismissed with prejudice by the Court in this Opinion and
As discussed above, if Plaintiff elects to file an
amended complaint, it should be limited to confinements in which
Plaintiff was released after November 2, 2014.
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.
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.
For the reasons stated above, the Complaint is: (a)
dismissed with prejudice as to the CCJ; and (b) dismissed
without prejudice for failure to state a claim, except that
claims arising prior to November 2, 2014, are dismissed with
An appropriate order follows.
September 27, 2017
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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