Filing 3

OPINION. Signed by Chief Judge Jerome B. Simandle on 5/3/2017. (tf, n.m.)

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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY HONORABLE JEROME B. SIMANDLE WILLIAM MARR, Plaintiff, v. CAMDEN COUNTY CORRECTIONS, Civil Action No. 16-cv-09082 (JBS-AMD) OPINION Defendant. APPEARANCES: William Marr, Plaintiff Pro Se 222 Sherwood Drive Williamstown, NJ 08094 SIMANDLE, Chief District Judge: 1. Plaintiff William Marr seeks to bring a civil rights complaint pursuant to 42 U.S.C. § 1983 against the Camden County Department of Corrections (“CCDOC”). 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. 2 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 alleges he experienced unconstitutional conditions of confinement during confinement, presumably, at the 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). 3 Camden County Correctional Facility (“CCCF”). Complaint § III. He does not allege the dates of his confinement at CCCF. Plaintiff states: “I was arrested and was put in 7-day lock down with 4 people in one cell, 2 people on the bunks and 2 people on the floor for 7 day’s [sic]. Then they moved me to population and spent 3 months on the floor. There where [sic] 3-4 people in on cell at all times. The officer or C/O’s that where [sic] assigned to handle the movement’s [sic] from intake to 7-day lockdown. Then after the seven days on the floor, the CO’s where [sic] fully aware of how many people where [sic] in each cell. Everyone in uniform including serg[eants], CO’s, and lieutenant’s where [sic] aware of people sleeping on the floor for month’s [sic] on end. Even the Warden was aware . . . .” Id. 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 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. Plaintiff has not alleged the dates when he was confined, nor does he claim to have suffered injury, as he has left the “Damages” section of his Complaint blank. 9. Moreover, the CCDOC is not independently subject to suit because it is not a separate legal entity from Camden County. See Bermudez v. Essex Cty. D.O.C., No. 12-6035, 2013 WL 1405263, at *5 (D.N.J. Apr. 4, 2013) (citing cases). Plaintiff has not pled sufficient facts to impose liability on Camden County. 10. The County is not liable under § 1983 merely because a county employee violated someone’s rights. “There is no respondeat superior theory of municipal liability, so a city may not be held vicariously liable under § 1983 for the actions of 5 its agents. Rather, a municipality may be held liable only if its policy or custom is the ‘moving force’ behind a constitutional violation.” Sanford v. Stiles, 456 F.3d 298, 314 (3d Cir. 2006) (citing Monell v. N.Y.C. Dep't of Social Services, 436 U.S. 658, 691 (1978)). See also, Collins v. City of Harker Heights, 503 U.S. 115, 122 (1992) (“The city is not vicariously liable under § 1983 for the constitutional torts of its agents: It is only liable when it can be fairly said that the city itself is the wrongdoer.”). 11. If Plaintiff hopes to recover against Camden County, he must plead facts showing that the relevant Camden County policy-makers are “responsible for either the affirmative proclamation of a policy or acquiescence in a well-settled custom.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990).3 In other words, Plaintiff must set forth facts supporting an inference that Camden County itself was the “moving force” 3 “Policy is made when a decisionmaker possess[ing] final authority to establish municipal policy with respect to the action issues an official proclamation, policy, or edict. Government custom can be demonstrated by showing that a given course of conduct, although not specifically endorsed or authorized by law, is so well-settled and permanent as virtually to constitute law.” Kirkland v. DiLeo, 581 F. App'x 111, 118 (3d Cir. 2014) (internal quotation marks and citations omitted) (alteration in original). 6 behind the alleged constitutional violation. Monell, 436 U.S. at 689. Plaintiff has made no such allegations.4 12. 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. 13. Any amended complaint must also indicate the date of the alleged constitutional violation. The statute of limitations under § 1983 is two years. This means that Plaintiff’s confinement at the CCCF must have occurred within two years prior to his filing of the Complaint on December 8, 2016, or it will be time-barred. 4 The Complaint does not name the Warden as a defendant. Plaintiff alleges that the Warden was “aware” of the alleged unconstitutional conditions, namely the overcrowding and that inmates were sleeping on the floor, but has not alleged sufficient facts to infer municipal liability on the part of Camden County. Plaintiff has not alleged that the Warden is a policymaker for Camden County. See, e.g., Shaw v. Burlington Cty. Corr., Civ. No. 11-CV-07056, 2013 WL 3949021, at *6 (D.N.J. Aug. 1, 2013) (“It is the plaintiff's burden . . . to establish that a particular individual is a policymaker and even a warden is not necessarily a policymaker for the purpose of Monell liability”) (emphasis in original). Moreover, even if the Warden were a Camden County policymaker, Plaintiff has not alleged sufficient facts showing that the Warden affirmatively instituted a policy or acquiesced in a well settled custom resulting in a violation of Plaintiff’s constitutional rights. In any event, since the Complaint does not name the Warden or any other person as a defendant, the Court does not determine the issue of whether the Complaint states a claim against any individual at this time. 7 14. 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. 15. For the reasons stated above, 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. 16. An appropriate order follows. May 3, 2017 Date s/ Jerome B. Simandle JEROME B. SIMANDLE Chief U.S. District Judge 5 The amended complaint shall be subject to screening prior to service. 8

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