LEAK v. NO DEFENDANT LISTED

Filing 3

OPINION. Signed by Chief Judge Jerome B. Simandle on 4/17/2017. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

HONORABLE JEROME B. SIMANDLE

DAVID LEAK,
Plaintiff,
v.
NO DEFENDANT LISTED,

Civil Action
No. 16-cv-08203 (JBS-AMD)
OPINION

Defendant.
APPEARANCES:
David Leak, Plaintiff Pro Se
35 Bellview Terrace
Collingswood, NJ 08108
SIMANDLE, Chief District Judge:
1.

Plaintiff David Leak seeks to bring a civil rights

complaint pursuant to 42 U.S.C. § 1983. 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 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

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
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.
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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
exercising his responsibilities pursuant to state law.” Id.
at 50.
7.

Plaintiff has not named a defendant in the complaint.

The Complaint therefore must be dismissed.

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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8.

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.
9.

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 states that the events
giving rise to his claims occurred at the “Camden County
[Facility]” and that those events occurred in 2002, August 2015,
and February 2016. Complaint § III. The facts section of the
complaint states: “Sleeping on floor.” 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.
10.

Plaintiff alleges that he slept on the floor,

presumably because no open 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
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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.
11.

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.3

3

However, to the extent the complaint seeks relief for
conditions Plaintiff encountered during his confinement in 2002,
those claims are barred by the statute of limitations and must
be dismissed with prejudice. 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
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12.

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.
13.

For the reasons stated above, the claims arising from

Plaintiff’s 2002 confinement are barred by the statute of
limitations and therefore are dismiss with prejudice. The
remainder of the complaint is dismissed without prejudice for

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 the Camden County Correctional Facility, namely
the overcrowded conditions, would have been immediately apparent
to Plaintiff at the time of his detention; therefore, the
statute of limitations for Plaintiff’s 2002 claims expired in
2004, well before this complaint was filed in 2016. In the event
Plaintiff elects to file an amended complaint, he should focus
on facts that occurred during his 2015 and 2016 confinements.
Because the claims arising from Plaintiff’s 2002 confinement are
barred by the statute of limitations and must be dismissed with
prejudice, Plaintiff may not recover for those claims and may
not assert them in an amended complaint.
4 The amended complaint shall be subject to screening prior to
service.
6

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.
14.

An appropriate order follows.

April 17, 2017
Date

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

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