BULLOCK v. COHEN et al

Filing 4

OPINION. Signed by Judge Noel L. Hillman on 5/29/2018. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Plaintiff,
:
:
v.
:
:
GERALDINE COHEN, et al.,
:
:
Defendants.
:
___________________________________:
THOMAS L. BULLOCK,

Civ. No. 17-271(NLH)(AMD)
OPINION

APPEARANCE:
Thomas L. Bullock
524 E. Pine Street
Millville, NJ 08330
Plaintiff Pro se
HILLMAN, District Judge
Plaintiff Thomas L. Bullock (“Plaintiff”) seeks to bring a
civil rights complaint pursuant to 42 U.S.C. § 1983.
1.)

(ECF No.

Based on his affidavit of indigence (ECF No. 1-1), the

Court previously granted Plaintiff leave to proceed in forma
pauperis and ordered the Clerk of the Court to file the
Complaint.

(ECF No. 2.)

At this time, the Court must review Plaintiff’s Complaint,
pursuant to 28 U.S.C. § 1915(e)(2), to determine whether it
should be dismissed as frivolous or malicious, for failure to
state a claim upon which relief may be granted, or because it
seeks monetary relief from a defendant who is immune from such

relief.

For the reasons set forth below, the Court concludes

that the Complaint should be dismissed without prejudice.
I. BACKGROUND 1
Plaintiff brings this civil rights action, pursuant to 42
U.S.C. § 1983, against the following defendants: (1) Geraldine
Cohen, Warden of Atlantic County Justice Facility (“ACJF”); (2)
Cheryl DeBoise, a medical services supervisor at ACJF; (3)
Atlantic County Chairman Frank Formica; and (4) Atlantic County
Executive Dennis Levinson.
In his Complaint, Plaintiff presents a litany of grievances
about the conditions at ACJF.

Plaintiff asserts that ACJF is

overcrowded, as evidenced by the fact that three men share a
cell designed for one person, and by the fact that there are
only two showers per 48-60 people.

(Compl. at ¶ 4.)

Although

Plaintiff fails to specify whether he himself is a convicted
inmate or a non-convicted pretrial detainee, he complains that
ACJF improperly intermingles convicted inmates, pretrial
detainees, and psychiatric patients.

(Id.)

Plaintiff alleges that a federal inmate whom he was housed
with had scabies.

(Id.)

Plaintiff claims “that within two

weeks [of being housed together, that inmate] claimed something

1

The factual allegations detailed herein are taken from
Plaintiff’s Complaint, and are accepted as true for purposes of
this screening only. The Court makes no findings as to the
veracity of Plaintiff’s allegations.
2

was itching him.”

(Id.)

While Plaintiff notes that he and that

inmate received medical treatment after reporting the issue to
ACJF medical staff, Plaintiff claims that this would never have
happened had ACJF properly screened this inmate.

(Id.)

Plaintiff complains about ACJF’s unclean and unsanitary
conditions.

Plaintiff notes that the showers have mold and

mildew, and that inmates frequently complain of dizziness after
showering.

(Id.)

sewage backups.

Plaintiff asserts that there are frequent
(Id.)

Plaintiff also asserts that doors in the

jail frequently malfunction, and that this “causes all types of
problems[, e.g.,] eating late, missing court, etc.”

(Id.)

Plaintiff complains about the food served at ACJF.
Plaintiff avers that the food portions are inadequate, that
leftovers are frequently served, and “90% of the time food is
not cooked, cold or objects are found.”

(Id.)

Plaintiff claims

that “to question the issue, you are threatened, other times
locked down.”

(Id.)

Plaintiff complains that the ACJF commissary engages in
“price gauging,” as evidenced by the fact that it charges $1.16
for one package of ramen noodles, $.61 for an oatmeal packet,
and $3.25 for indigent kits.

(Id.)

Plaintiff also complains

that ACJF charges for medical and dental services.

(Id.)

Plaintiff vis-à-vis several isolated, one-sentence
declarations, complains that: (1) ACJF has no law library; (2)

3

“religion services [are] violated [because there is] no
designated place to assemble[;]” and (3) ACJF only offers
“recreation and fresh air once or twice a week, maybe.”

(Id.)

Plaintiff does not claim to have directly interacted with
any of the four defendants identified in his pleading, nor does
he claim that any of the four named defendants have been made
aware of Plaintiff’s specific grievances.
Instead, Plaintiff’s claims against Warden Geraldine Cohen
appear to arise solely out of Warden Cohen’s supervisory
responsibilities at ACJF to “[make] sure [all ACJF
inmates/prisoners’] needs are accommodated and making sure each
department within the facility is in compliance with the
facility rules towards all prisoners.”

(See Compl. ¶ 3.)

Plaintiff’s claims against Cheryl DeBoise likewise appear
to be based solely on her role as an ACJF medical supervisor.
Indeed, although Plaintiff fails to detail any specific actions
undertaken by Ms. DeBoise which have directly caused him harm,
Plaintiff claims that Ms. DeBoise deprived him of his
constitutional rights by “intentionally ignor[ing] the fact that
her staff are failing to screen, diagnose and give adequate
medical attention.”

(Id.)

Plaintiff’s claims against Atlantic County Executive Dennis
Levinson and Atlantic County Chairman Frank Formica similarly
appear to arise out of their respective roles as Atlantic

4

County’s executive and the chairman of its governing body.
Indeed, other than asserting that these defendants have deprived
him of his constitutional rights because they have intentionally
ignored the fact that ACJF “is not in compliance[,]” Plaintiff
does not make any specific factual allegations against either of
these defendants.

(Id. at Attached Sheet.)

Plaintiff requests

an award of $2,500,000.00 in monetary damages.

(Id. at ¶ 5.)

II. DISCUSSION
A. Legal Standard
1. Standards for a Sua Sponte Dismissal
District courts must review complaints in those civil
actions in which a person is proceeding in forma pauperis.
28 U.S.C. § 1915(e)(2)(B).

See

This statute directs district courts

to 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.

Id.

This action is subject to sua sponte screening for

dismissal under 28 U.S.C. §§ 1915(e)(2)(B) because Plaintiff is
proceeding as indigent.
According to the Supreme Court’s decision in Ashcroft v.
Iqbal, “a pleading that offers ‘labels or conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will
not do.’”

556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 555 (2007)).

5

To survive sua sponte

screening for failure to state a claim, 2 the complaint must
allege “sufficient factual matter” to show that the claim is
facially plausible.

Fowler v. UPMC 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.”

Belmont v. MB

Inv. Partners, Inc., 708 F.3d 470, 483 n.17 (3d Cir. 2012)
(quoting Iqbal, 556 U.S. at 678); see also Iqbal, 556 U.S. 662,
679 (2009) (“Determining whether a complaint states a plausible
claim for relief [is] a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.”).
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).
2. Section 1983 Actions
A plaintiff may have a cause of action under 42 U.S.C. §
1983 for certain violations of his constitutional rights.

2

“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 of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F.
App’x 120, 122 (3d Cir. 2012) (citing Allah v. Seiverling, 229
F.3d 220, 223 (3d Cir. 2000)).
6

Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory
. . . 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.
Thus, to state a claim for relief under § 1983, a plaintiff
must allege, first, the violation of a right secured by the
Constitution or laws of the United States and, second, that the
alleged deprivation was committed or caused by a person acting
under color of state law.

See West v. Atkins, 487 U.S. 42, 48

(1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
For the reasons detailed infra, Plaintiff’s Complaint will
be dismissed without prejudice for failure to state a claim.
B. Analysis
1. Conditions of Confinement
As noted above, Plaintiff’s Complaint sets forth a litany
of grievances about the conditions at ACJF.

Many of these

factual allegations fall under the ambit of a Section 1983
“conditions of confinement” claim.

Plaintiff fails to specify

whether he was a pretrial detainee or a convicted prisoner while

7

housed at ACJF. 3

In considering Plaintiff’s constitutional

challenges to his conditions of confinement, this distinction
has some bearing.

Indeed, whereas, pretrial detainees are

protected from punishment under the Fourteenth Amendment’s Due
Process Clause, convicted inmates are protected only from
punishment that is cruel and unusual under the Eighth Amendment.
Bell v. Wolfish, 441 U.S. 520, 535–36, 536 n.16 (1979); accord
Mestre v. Wagner, 488 F. App’x 648, 649 (3d Cir. 2012) (noting
that plaintiff’s claims would be governed by the Fourteenth
Amendment if he were pretrial detainee and by the Eighth
Amendment if he were a convicted prisoner) (citing Hubbard v.
Taylor, 399 F.3d 150, 164 (3d Cir. 2005) (hereinafter “Hubbard
I”); Hubbard v. Taylor, 538 F.3d 229, 331 (3d Cir. 2008)
(hereinafter “Hubbard II”).

Indeed, “pretrial detainees are

entitled to greater constitutional protection than that provided
by the Eighth Amendment.”

Hubbard I, 399 F.3d at 167 n. 23.

In spite of this distinction, there is significant overlap
in how Plaintiff’s conditions of confinement claim is analyzed,
regardless of whether he is a pretrial detainee or a convicted
inmate.

See Keller v. Cty. of Bucks, 209 F. App’x 201, 205 (3d

3

On June 23, 2017, the Court received a letter from Plaintiff
requesting that all correspondence in this matter be sent to the
Millville, New Jersey address listed above. (See ECF No. 3.)
It therefore appears that Plaintiff may no longer be detained at
ACJF.
8

Cir. 2006) (the parameters of an “unconstitutional conditions of
confinement [claim under the] Fourteenth Amendment . . . are
coextensive with those of the Eighth Amendment’s prohibition
against cruel and unusual punishment.”) (quoting Surprenant v.
Rivas, 424 F.3d 5, 18 (1st Cir. 2005); see also Southerland v.
Cnty. of Hudson, 523 F. App’x 919, 921 (3d Cir. 2013) (in
analyzing a conditions of confinement claim under the Fourteenth
Amendment, the central question is whether the alleged
conditions constitute punishment).
For example, a prisoner asserting an Eighth Amendment
conditions of confinement claim must show that the alleged
deprivation is “sufficiently serious” and that he has been
deprived of the “minimal civilized measure of life’s
necessities[,]” i.e., food, clothing, shelter, sanitation,
medical care, and personal safety.

See Farmer v. Brennan, 511

U.S. 825, 834 (1994) (citing Rhodes v. Chapman, 452 U.S. 337,
347 (1981)); Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249,
256 (3d Cir. 2010) (citations omitted).

Likewise, “[p]ursuant

to the [Fourteenth Amendment], prison officials must satisfy
“basic human needs - e.g., food, clothing, shelter, medical
care, and reasonable safety.”

Brooks v. Camden Cty. Jail, No.

1:17-cv-975(JBS), 2018 WL 747374, at *4 (D.N.J. Feb. 7, 2018)
(citing Helling v. McKinney, 509 U.S. 25, 32 (1993); see also
Ford v. Essex Cty. Jail, No. 2:17-cv-4864 (JMV), 2017 WL

9

4919234, at *5 (D.N.J. Oct. 31, 2017) (“[t]o state a
constitutional violation [under the Fourteenth Amendment], a
[pretrial detainee] must allege facts suggesting the conditions
of confinement were severe enough to deprive him of a basic
human need.”) (citing Wilson v. Seiter, 501 U.S. 294, 305
(1991)).
Moreover, when analyzing a conditions of confinement claim,
be it under the Eighth Amendment or the Fourteenth Amendment,
this Court considers the conditions in their totality.

See Nami

v. Fauver, 82 F.3d 63, 67 (3d Cir. 1996) (setting forth Eighth
Amendment standard); Garcia v. Lancaster Cnty. Prison, No. 13–
2018, 2014 WL 176608, at *6 (E.D. Pa. Jan. 15, 2014) (citing
Hubbard I, 399 F.3d at 160; Wright v. Atl. Cnty. Justice
Facility, No. 1:10–cv-6101 (RBK), 2010 WL 5059561, at *6 (D.N.J.
Dec. 2, 2010) (considering the totality of the deprivations
alleged to determine whether plaintiff had stated a Fourteenth
Amendment conditions of confinement claim).

“Relevant

considerations [under the Eighth Amendment] include the length
of confinement, the amount of time prisoners must spend in their
cells each day, sanitation, lighting, bedding, ventilation,
noise, education and rehabilitation programs, opportunities for
activities outside the cells, and the repair and functioning of
basic physical facilities such as plumbing, ventilation, and
showers.”

Nami, 83 F.3d at 67 (citing Tillery v. Owens, 907

10

F.2d 418, 427 (3d Cir. 1990)); accord Riley v. DeCarlo, 532 F.
App’x 23, 26 (3d Cir. 2013) (per curiam).
Similarly, when analyzing a conditions of confinement claim
under the Fourteenth Amendment, this Court must inquire as to
whether the totality of the conditions “‘cause [inmates] to
endure genuine privations and hardship over an extended period
of time, [such] that the adverse conditions become excessive in
relation to the purposes assigned to them.’”

Hubbard I, 399

F.3d at 159-60 (citations omitted); see also Bell, 441 U.S. at
540 (“[r]estraints that are reasonably related to the
institutions interest in maintaining jail security do not,
without more, constitute unconstitutional punishment, even if
they are discomforting and are restrictions that the detainee
would not have experienced had he been released while awaiting
trial.”).
Moreover, because prison officials must ensure that
convicted inmates and pretrial detainees receive adequate food,
clothing, shelter, and medical care, and must ‘“take reasonable
measures to guarantee [their] safety[,]’” Farmer, 511 U.S. at
832 (quoting Hudson v. Palmer, 468 U.S. 517, 526–27 (1984)), a
Section 1983 plaintiff asserting a conditions of confinement
claim must also allege that prison officials acted with
deliberate indifference to that plaintiff’s health or safety.
See Wilson v. Seiter, 501 U.S. at 298–99; see also Wilson v.

11

Burks, 423 F. App’x 169, 173 (3d Cir. 2011) (per curiam)
(“‘[T]he official must both be aware of facts from which the
inference could be drawn that a substantial harm exists, and he
must also draw that inference.’”) (quoting Farmer, 511 U.S. at
837).

Indeed, unconstitutional punishment – be it under the

Eighth Amendment or the Fourteenth Amendment – typically
includes both objective and subjective components.

Stevenson v.

Carroll, 495 F.3d 62, 68 (3d Cir. 2007).
[T]he objective component requires an inquiry into
whether “the deprivation [was] sufficiently serious” and
the subjective component asks whether “the officials
act[ed] with a sufficiently culpable state of mind[.]”
Id. (citing Wilson v. Seiter, 501 U.S. at 298; Bell, 441 U.S. at
538–39, 539 n.20).
Among ACJF’s conditions which Plaintiff complains about are
(1) overcrowding, e.g., triple-bunking and an inadequate number
of showers for the current ACJF population; (2) unsanitary
conditions, e.g., mold and mildew infested showers and frequent
sewage backups; (3) price gauging at ACJF’s commissary; (4)
inadequate outdoor recreation opportunities; (5) malfunctioning
doors; and (6) subpar food.

Each of these specific claims will

be discussed in turn, and ultimately, will be considered in
their totality to determine whether Plaintiff’s conditions of
confinement claim will be permitted to proceed.

See Nami, 82

F.3d at 67; Garcia, 2014 WL 176608, at *6; Wright, 2010 WL

12

5059561, at *6.
a. Overcrowding
Plaintiff complains that three men share a cell designed
for one person.

Plaintiff does not, however, indicate if he

personally has been assigned to a triple-bunked cell, nor does
he specify how long he has been forced to share a cell with two
other individuals.

The mere fact that an individual is lodged

temporarily in a cell with more persons than its intended design
does not, in and of itself, rise to the level of a
constitutional violation.

See Rhodes, 452 U.S. at 348–50;

Carson v. Mulvihill, 488 F. App’x 554, 560 (3d Cir. 2012)
(“there is no ‘one man, one cell principle lurking in the Due
Process Clause of the Fifth Amendment.’” (quoting Bell, 441 U.S.
at 542).

Indeed, pretrial detainees – whose conditions of

confinement are governed by more stringent constitutional
standards – do not have a right to necessarily be free from
triple-bunking.

See Hubbard II, 538 F.3d at 236; see also North

v. White, 152 F. App’x 111, 113 (3d Cir. 2005) (per curiam)
(“triple-bunking cells, alone, is not per se unconstitutional.”)
(citing Union Cnty. Jail Inmates v. DiBuono, 713 F.2d 984, 1000
(3d Cir. 1983)).
Plaintiff also complains about the limited number of
showers at ACJF.

Plaintiff specifically claims that there are

only two showers per 48-60 ACJF inmates.

13

Plaintiff does not,

however, indicate how this ratio has directly impacted him.

He

does not, for example, specify how often he is permitted to
shower, e.g., daily, weekly, etc., nor does he allege any facts
which suggest that the showers he takes are otherwise
inadequate, e.g., that his showers are limited in duration, that
there is inadequate hot water, etc.

Without these additional

facts – and a definitive understanding as to whether Plaintiff
is confined at ACJF as a pretrial detainee or as a convicted
prisoner – this Court is unable to find that ACJF’s limited
number of showers, per se, supports a prima facie Section 1983
conditions of confinement claim.

Compare, e.g., Monmouth Cnty.

Corr. Inst. Inmates v. Lanzaro, 595 F. Supp. 1417, 1432 (D.N.J.
1984) (finding inadequate hot water as one of numerous factors
contributing to unconstitutional conditions of confinement for
both inmates and pretrial detainees); Grohs v. Yatauro, 984 F.
Supp. 2d 273, 285 (D.N.J. 2013) (finding civilly confined
plaintiff’s complaint stated plausible constitutional claim in
light of holdings in Lanzaro, among others); with, e.g., Dockery
v. Beard, 509 F. App’x 107, 113 (3d Cir. 2013) (limiting
plaintiff to one shower every three days does not violate the
Eighth Amendment).
b. Unsanitary Conditions
Plaintiff details certain unsanitary conditions at ACJF.
Plaintiff complains that the “showers [have] black mold and

14

mildew painted over” and that “most inmates complain[] about
dizziness or sickness to their stomach after showering.”
(Compl. at ¶ 4.)

Plaintiff does not himself, however, claim to

have suffered from dizziness or sickness after showering.
Plaintiff also fails to indicate how long this condition has
existed at ACJF.

Plaintiff also complains about ACJF’s “sewage

waste back-ups.”

Plaintiff claims that “inmates/prisoners are

moved from pod to pod or gym regularly” in response to these
backups, and further alleges that these backups are
insufficiently cleaned by non-professional, “court compelled
community service people.”

(Id.)

Plaintiff, however, fails to

specify how long this condition has persisted, fails to specify
the frequency with which such waste backups occur, and fails to
explain how these waste backups have impacted him personally.
The Court recognizes that unsanitary conditions frequently
support cognizable Section 1983 conditions of confinement
claims.

See, e.g., Daniels v. Taylor, No. 1:13-cv-5510 (RBK),

2014 WL 3955372, at *5-6 (D.N.J. Aug. 13, 2014) (allowing
plaintiff’s conditions of confinement claim to proceed past sua
sponte screening where plaintiff complained of, inter alia,
“mold and insect infested show[ers]” which caused him to develop
a foot fungus); Hargis v. Atl. Cty. Justice Facility, No. 1:10cv-1006 (JBS), 2010 WL 1999303, at *8 (D.N.J. May 18, 2010)
(allowing pretrial detainee’s conditions of confinement claim to

15

proceed where plaintiff “plainly [alleged, inter alia,] that he
[was] frequently splashed with urine, feces, and toilet water
while sleeping on the floor for nine months”).
Here, however, Plaintiff’s general allegations are
insufficient.

In failing to specify the frequency with which

sewage waste backups occur, and for how long the waste back up
and shower issues he complains of have persisted, Plaintiff has
failed to allege sufficient facts showing that he was subjected
to genuine privation and hardship over an extended period of
time.

Plaintiff has also failed to explain how the sewage

backups and moldy showers have caused him direct harm.

In

addition, Plaintiff has failed to allege facts which plausibly
suggest that any of the named defendants have affirmatively been
made aware of the specific unsanitary conditions which Plaintiff
complains of.

See, e.g., Holloway v. Cappelli, No. 1:13-cv-3378

(NLH), 2014 WL 2861210, at * 5 (“Plaintiff’s general allegations
are insufficient to satisfy either the objective or subjective
component [of the conditions of confinement analysis].”).
c. Price-Gauging at the Commissary
Plaintiff also complains about the prices of items sold at
the ACJF commissary.

Plaintiff specifically alleges that the

ACJF commissary engages in “price gauging,” as evidenced by the
fact that it charges $1.16 for one package of ramen noodles,
$.61 for an oatmeal packet, and $3.25 for indigent kits.

16

(Compl. at ¶ 4.)

These allegations fail to support a

constitutional violation.

See Pelzer v. Shea, 470 F. App’x 62

(3d Cir. 2012) (inmate has no protected liberty interest in
commissary privileges); Landor v. Lamartiniere, 515 F. App’x
257, 259 (5th Cir. 2013) (same); Grady v. Garcia, 506 F. App’x
812, 814–15 (10th Cir. 2013) (same); see also Planker v.
Christie, No. 3:13-cv-4464 (MAS), 2015 WL 268847, at *22 (D.N.J.
Jan. 21, 2015) (“The loss of commissary purchasing privileges
does not violate the Constitution.”).
d. Malfunctioning Doors
Plaintiff asserts that doors at ACJF frequently
malfunction, and that this “causes all types of problems[,
e.g.,] eating late, missing court, etc.”

(Compl. at ¶ 4.)

Plaintiff’s allegations regarding the conditions of ACJF’s doors
fail to support a cognizable Section 1983 claim.

See Planker,

2015 WL 268847, at *24 (cell door with rusted and jagged edges,
which went unrepaired in spite of plaintiff’s requests, failed
to support an actionable constitutional violation); see also
Bell, 441 U.S. at 540 (“[r]estraints that are reasonably related
to the institutions interest in maintaining jail security do
not, without more, constitute unconstitutional punishment, even
if they are discomforting and are restrictions that the detainee
would not have experienced had he been released while awaiting
trial.”).

17

e. Limited Recreation
Plaintiff appears to complain about the limited outdoor
recreation afforded to persons confined at ACJF.

(See Compl. at

¶ 4 (“[R]ecreation and fresh air once or twice a week,
maybe.”).)

Plaintiff does not plead any other facts or

otherwise provide additional context in support of this claim.
It therefore is wholly unclear how much time each outdoor
recreation session lasts, e.g., one hour, three hours, etc.

It

is also unclear if Plaintiff receives additional indoor
recreation.
While the denial of exercise or recreation in some
circumstances may result in a violation of the Eighth Amendment,
see Peterkin v. Jeffes, 855 F.2d 1021, 1031–33 (3d Cir. 1988),
“a temporary denial of outdoor exercise with no medical effects
is not a substantial deprivation.”

Fantone v. Herbik, 528 F.

App’x 123, 127 (3d Cir. 2013) (citation omitted); see also
Gattis v. Phelps, 341 F. App’x 801, 805 (3d Cir. 2009); Knight
v. Armontrout, 878 F.2d 1093, 1096 (8th Cir. 1989) (denial of
outdoor recreation for thirteen days not cruel and unusual
punishment); Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir. 1992)
(forty-five minutes of exercise per week not constitutionally
infirm).

At least one court in this district has applied these

considerations with similar force to a pretrial detainee’s
denial of recreation claim.

See Allah v. Ocean Cty. Jail, No.

18

1:06-cv-2181 (MLC), 2006 WL 1455777, at *4–5 (D.N.J. May 19,
2006).

Thus, even the minimal provision of time for exercise

and recreation may satisfy constitutional requirements.

Gattis,

341 F. App’x at 805 (citing Wishon, 978 F.2d at 449; Knight, 878
F.2d at 1096).
Here, Plaintiff’s one-sentence allegation about the limited
opportunities for outdoor recreation at ACJF fails to plausibly
suggest that his constitutional rights have been violated.
Plaintiff does not allege any resulting harm or injury.

In

addition, Plaintiff does not assert that he is precluded from
indoor exercise and recreation; his Complaint only speaks to the
limited opportunities for outdoor recreation at ACJF.

Plaintiff

has therefore failed to allege facts supporting a cognizable
Section 1983 denial of recreation claim.

Planker, 2015 WL

268847, at *16 (“alleged denial of outdoor recreation is not
sufficiently serious to deprive the prisoner of the minimal
civilized measure of life necessities”); see also Gregorio v.
Aviles, No. 2:11–cv-2771 (WJM), 2013 WL 1187096, at *6 (D.N.J.
Mar. 20, 2013) (dismissing pretrial detainee’s denial of outdoor
recreation claim where detainee was denied outdoor recreation
for ten months); Wyland v. Brownfield, No. 08–1601, 2011 WL
5445305, at *7 (W.D. Pa. Nov. 9, 2011) (dismissing denial of
outdoor exercise claim where plaintiff failed to allege that he
was precluded from any form of exercise or that he sustained a

19

specific injury from lack of exercise).
f. Plaintiff’s Food-Related Claims
Plaintiff’s Complaint sets forth numerous grievances about
the food served at ACJF.

Plaintiff avers that the food portions

are inadequate, that leftovers are frequently served, and that
“90% of the time [in the aggregate] food is not cooked, cold or
objects are found.”

(Compl. at ¶ 4.)

Plaintiff does not,

however, further specify what percentage of the time the food,
respectively, contains foreign objects, or is served cold, or is
uncooked.

Moreover, Plaintiff does not claim that the food

itself is inedible or nutritionally deficient.
The constitutionally adequate diet “must provide adequate
nutrition, but corrections officials may not be held liable [as
to claims of inadequate food] unless the inmate shows both an
objective component (that the deprivation was sufficiently
serious) and a subjective component (that the officials acted
with a sufficiently culpable state of mind).”

Duran v. Merline,

923 F. Supp. 2d 702, 719-20 (D.N.J. 2013) (citations omitted).
As to the first prong, “[w]hether the deprivation of food
falls below [the constitutionally objective] threshold depends
on the amount and duration of the deprivation.”

Duran, 923 F.

Supp. 2d at 720 (citing Berry v. Brady, 192 F.3d 504, 507 (5th
Cir. 1999)).

“Under the Eighth Amendment, which provides a

floor for the rights of pretrial detainees, see Natale v. Camden

20

Cty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003), inmates
must be served ‘nutritionally adequate food that is prepared and
served under conditions which do not present an immediate
danger’ to their health and well-being.”

Duran, 923 F. Supp. 2d

at 720 (citations omitted); Mora v. Camden Cty., No. 1:09–cv4183 (JBS), 2010 WL 2560680, at *8 (D.N.J. June 21, 2010)).
Indeed, “isolated instances of contaminated or spoiled food,
while certainly unpleasant, are not unconstitutional.”
923 F. Supp. 2d at 720.

Duran,

Likewise, “[b]eing served cold meals .

. . is not ‘punishment’ under Bell.

So long as the food is

nutritionally adequate, the mere fact that it is unvaried or
cold does not give rise to a constitutional violation[.]”

Id.

Plaintiff, while alleging that “90% of the time [the food
served at ACJF] is not cooked, cold or objects are found[,]”
does not claim that any of this food fails to provide him with
adequate nutrition or that it is served under conditions which
present an immediate danger to his health and well-being.
Plaintiff similarly fails to claim that the supposed substandard
fare caused more than temporary discomfort.

Without facts

demonstrating substantial nutritional deprivation, such as how
frequently the alleged constitutionally infirm food was served,
for how long during his dates of confinement Plaintiff was
arguably compelled to eat this food, and the injuries – if any –
Plaintiff sustained from such food, this Court cannot find that

21

Plaintiff has stated a cognizable constitutional claim; that is,
without additional facts such as these, Plaintiff has met the
objective prong of the constitutional analysis.
Moreover, Plaintiff has not alleged that any of the named
defendants possessed the requisite culpability to satisfy the
subjective component of the constitutional analysis.

As noted

above, Plaintiff must establish that ACJF officials acted with
“deliberate indifference” to his needs, meaning that they were
subjectively aware of the alleged conditions and failed to
reasonably respond to them.

Duran, 923 F. Supp. 2d at 721

(citing Farmer, 511 U.S. at 829, and Mora, 2010 WL 2560680, at
*9).

Plaintiff has not offered any facts from which this Court

can reasonably infer deliberate indifference by the named
defendants with respect to Plaintiff’s various grievances about
the food served at ACJF.
Given that Plaintiff has failed to demonstrate facts
suggesting that: (1) the food served to him at ACJF presented an
objectively serious risk of nutritional deficiency (regardless
of Plaintiff’s dislike of the food he was provided); and (2)
that ACJF officials responsible for feeding Plaintiff knew of
that risk and were deliberately indifferent to it, Plaintiff’s
specific complaints about the food served at ACJF fail to
plausibly allege a constitutional violation.

22

g. Totality of the Conditions
Having considered the foregoing allegations separately, the
Court also considers them in their totality.

However, even in

combination, this Court finds that the foregoing allegations are
insufficient to support a cognizable Section 1983 conditions of
confinement claim.

Plaintiff fails to allege that the food he

is receiving is nutritionally inadequate.

The moldy showers and

frequent sewage backups, while unpleasant, are not alleged to
have caused Plaintiff harm.

Plaintiff’s living conditions,

while tight, are not devoid of necessary sleeping facilities.
The alleged scarcity of showers, too, is not alleged to have
created conditions akin to punishment.

The limited outdoor

recreational time, while less than ideal, is not
constitutionally infirm.

The prices charged by the commissary

and ACJF’s frequently malfunctioning doors fail similarly fail
to support a finding that Plaintiff’s constitutional rights have
been violated.
In short, individually inadequate claims do not add up to a
viable conditions of confinement claim under either the
Fourteenth Amendment or the Eighth Amendment.

See Grohs v.

Santiago, No. CIV. 2:13-cv-3877 (KM), 2014 WL 4657116, at *8
(D.N.J. Sept. 17, 2014).

As such, Plaintiff’s conditions of

confinement claim will be dismissed without prejudice.

23

2. Retaliation
Plaintiff’s Complaint appears to relatedly allege that when
ACJF inmates complain about the quality of food, they are
retaliated against.

(See Compl. at ¶ 4 (“[T]o question the

issue you are threatened, other times locked down.”).)
“[R]etaliation for the exercise of constitutionally protected
rights . . . ‘is itself a violation of rights secured by the
Constitution actionable under section 1983.’”

Miller v.

Mitchell, 598 F.3d 139, 147 (3d Cir. 2010) (quoting White v.
Napoleon, 897 F.2d 103, 111-12 (3d Cir. 1990)).
In order for Plaintiff’s retaliation claim to survive sua
sponte dismissal, Plaintiff must allege sufficient facts
demonstrating that: (1) the conduct in which he was engaged was
constitutionally protected; (2) he suffered an “adverse action”
at the hands of ACJF officials sufficient to deter a person of
ordinary firmness from exercising his constitutional rights; and
(3) his constitutionally protected conduct was a substantial or
motivating factor in the decision to discipline him.

Fantone v.

Latini, 780 F.3d 184, 191 (3d Cir. 2015), as amended (Mar. 24,
2015); accord Carter v. McGrady, 292 F.3d 152, 157-58 (3d Cir.
2002).
The facts alleged in Plaintiff’s Complaint fail to satisfy
these pleading requirements.

As an initial matter, it appears

that Plaintiff would have a constitutionally protected right to

24

complain about the quality of food served at ACJF to prison
officials.

See, e.g., Williams v. Hull, No. 08-135, 2009 WL

1586832, at * 11 (W.D. Pa. June 4, 2009) (implicitly finding
that plaintiff’s request for “a grievance to complain about the
inedible food” was constitutionally protected); accord Mearin v.
Vidonish, 450 F. App’x 100, 102 (3d Cir. 2011) (per curiam)
(“the filing of grievances and lawsuits against prison officials
constitutes constitutionally protected activity.”).
That being said, Plaintiff has failed to plead any facts
which suggest that he himself ever complained to ACJF officials
– either formally or informally – about the quality of food
served at ACJF.

Plaintiff similarly fails to allege that he

himself suffered any adverse action at the hands of any ACJF
official because he complained about the food.

As such,

Plaintiff has failed to allege sufficient facts suggesting that
his right to file formal grievances or otherwise complain to
ACJF officials about the quality of its food has been hindered.
Plaintiff therefore has failed to state a cognizable Section
1983 retaliation claim.
3. Access to Courts
Plaintiff complains that ACJF does not have a law library.
(Compl. at ¶ 4.)

It therefore appears that Plaintiff is

attempting to assert a denial of access to courts claim.
Prisoners have a right of access to the courts under the

25

First and Fourteenth Amendments.
821 (1977).

Bounds v. Smith, 430 U.S. 817,

Pretrial detainees enjoy a similar right of access

to the courts with respect to legal assistance and participation
in one’s own defense against pending criminal charges.

See,

e.g., May v. Sheahan, 226 F.3d 876, 883–84 (7th Cir. 2000);
Hargis, 2010 WL 1999303, at *6.

This right requires that

“adequate, effective, and meaningful” access be provided for
inmates who wish to challenge their criminal charge, conviction,
or conditions of confinement.

Bounds, 430 U.S. at 822.

This

constitutional right of access to the courts is not, however,
unlimited.

Indeed, there is no constitutional requirement that

ACJF have a law library at all.

See id. at 828 (“the

fundamental constitutional right of access to the courts
requires prison authorities to . . . prov[ide] prisoners with
adequate law libraries or adequate assistance from persons
trained in the law.”) (emphasis added).
As noted above, Plaintiff’s Complaint simply notes that
ACJF does not have a law library.

Plaintiff has not, however,

pled any additional facts to suggest that ACJF has also failed
to provide him “adequate assistance from persons trained in the
law.”

Plaintiff has similarly failed to suggest that he has

suffered any actual injury – cognizable under Section 1983 or
otherwise – as a result of ACJF’s lack of a law library.
Indeed, Plaintiff has failed to in any way articulate how ACJF’s

26

lack of a library has caused him direct harm.

Plaintiff,

therefore, has not pled sufficient facts demonstrating that he
has been denied access to the courts in a manner which can give
rise to a cognizable Section 1983 claim.
4. First Amendment Free Exercise Claim
Plaintiff also alleges that “religion services [are]
violated [because there is] no designated place to assemble.”
(See Compl. at ¶ 4.)

Plaintiff has not provided any additional

context as to how ACJF’s purported lack of a “designated place
to assemble” has personally impacted him.

Indeed, Plaintiff

does not claim to have any affiliation with any particular
denomination, nor does he explain how ACJF’s lack of a
designated assembly area has affected his ability to engage in
specific religious practices.
The Free Exercise Clause of the First Amendment prohibits
prison officials from denying an inmate “a reasonable
opportunity of pursuing his faith.”
319, 322 & n. 2 (1972).

See Cruz v. Beto, 405 U.S.

However, “[o]nly beliefs which are both

sincerely held and religious in nature are protected under the
First Amendment.”

Sutton v. Rasheed, 323 F.3d 236, 251 (3d Cir.

2003) (citation and internal quotation marks omitted).

Here,

Plaintiff’s Complaint is bereft of any facts to suggest that he,
personally, has any sincerely held religious beliefs.

As such,

Plaintiff has failed to plausibly allege that ACJF’s purported

27

lack of a designated place of assembly has denied him the
opportunity to pursue his faith. 4
5. Denial of Adequate Medical Care
As noted above, Plaintiff complains that a federal inmate
he was housed with had scabies.

Plaintiff attributes this to

ACJF’s inadequate screening procedures, notwithstanding that he
simultaneously claims that his housing mate “claimed something
was itching him” two weeks after being housed with Plaintiff.
(See Compl. at ¶ 4.)

Plaintiff notes that the inmate was

formally diagnosed with scabies only after complaining of
itching to ACJF officials, and that upon being diagnosed, both
Plaintiff and that inmate were segregated from the rest of the
ACJF population and were otherwise treated.

(Id.)

Notably,

Plaintiff does not allege that he himself also contracted
scabies; only that he was also segregated.

4

(Id.)

Plaintiff

Even if Plaintiff pled sufficient facts suggesting that
ACJF’s purported lack of a designated place to assemble impacted
his personal, sincerely-held religious beliefs – and he has not
– it is far from certain that he would have an actionable free
exercise claim. Indeed, “prisoners’ exercise of First Amendment
freedoms may be curtailed when, in the informed judgment of
prison officials, such exercise poses ‘the likelihood of
disruption to prison order or stability, or otherwise interferes
with the legitimate penological objectives of the prison
environment.’” Wilson v. Schillinger, 761 F.2d 921, 925 (3d
Cir. 1985) (quoting Jones v. North Carolina Prisoners’ Labor
Union, 433 U.S. 119, 132 (1977)) see also Tirone v. Trella, No.
2:03-cv-257(SRC), 2007 WL 3170098, at *7 (D.N.J. Oct. 29, 2007)
(analyzing the merits of a pretrial detainee’s free exercise of
religion claim using this standard) (citing Stevenson v.
Carroll, 495 F.3d 62, 67-68, 68 n. 3. (3d Cir. 2007).
28

also complains that ACJF charges for medical and dental
services.

(See id. (“All medical and dental services

charged.”).)

Plaintiff has not, however, provided any

additional factual context in support of this assertion.

In

making the foregoing allegations, Plaintiff appears to be
complaining about the purported inadequacies of the medical care
provided at ACJF.
As detailed above, the Eighth Amendment prohibits the
states from inflicting “cruel and unusual punishments” on those
convicted of crimes.

Rhodes, 452 U.S. at 344–46.

This

proscription requires that prison officials provide inmates with
adequate medical care. Estelle v. Gamble, 429 U.S. 97, 103–04
(1976).

Pretrial detainees also have a constitutional right to

receive adequate medical care; this right, however, is grounded
in the due process protections the Fourteenth Amendment, as
opposed to the Eighth Amendment.

See Natale, 318 F.3d at 581.

This Court applies the Eighth Amendment standard set forth in
Estelle when evaluating a Fourteenth Amendment due process claim
for inadequate medical care by a detainee.

Banda v. Adams, 674

F. App’x 181, 184 (3d Cir. 2017) (citing Natale, 318 F.3d at
581).
In order to set forth a facially plausible Section 1983
denial of adequate medical care claim, Plaintiff must allege:
(1) a serious medical need; and (2) behavior on the part of

29

prison officials that constitutes deliberate indifference to
that need.

Estelle, 429 U.S. at 106 (1976).

Serious medical needs which will satisfy the first prong of
Estelle include those that have been diagnosed by a physician as
requiring treatment or that are so obvious that a lay person
would recognize the necessity for a doctor’s attention, and
those conditions which, if untreated, would result in lifelong
handicap or permanent loss.

Monmouth Cty. Corr. Inst. Inmates

v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987).
The second element of the Estelle test requires an inmate
to show that prison officials acted with deliberate indifference
to his serious medical needs.

“Deliberate indifference” is more

than mere malpractice or negligence; it is a state of mind
equivalent to reckless disregard of a known risk of harm.
Farmer, 511 U.S. at 837–38.
Where prison authorities deny reasonable requests for
medical treatment, however, and such denial exposes the
inmate ‘to undue suffering or the threat of tangible
residual injury,’ deliberate indifference is manifest.
Similarly, where ‘knowledge of the need for medical care
[is accompanied by the] . . . intentional refusal to
provide that care,’ the deliberate indifference standard
has been met. . . . Finally, deliberate indifference is
demonstrated '[w]hen . . . prison authorities prevent an
inmate from receiving recommended treatment for serious
medical needs or deny access to a physician capable of
evaluating the need for such treatment.’
Lanzaro, 834 F.2d at 346 (citations omitted).
The Third Circuit has found “deliberate indifference” in a

30

myriad of situations, including:
‘where the prison official (1) knows of a prisoner's
need for medical treatment but intentionally refuses
to provide it; (2) delays necessary medical treatment
based on a non-medical reason; . . . (3) prevents a
prisoner from receiving needed or recommended medical
treatment;’ and (4) ‘where the prison official
persists in a particular course of treatment in the
face of resultant pain and risk of permanent injury.’
McCluskey v. Vincent, 505 F. App’x 199, 202 (3d Cir. 2012)
(citations omitted).
However, it also remains “well-settled that claims of
negligence or medical malpractice, without some more culpable
state of mind, do not constitute ‘deliberate indifference.’”
Id. (citing Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
Accord Andrews v. Camden Cty., 95 F. Supp. 2d 217, 228 (D.N.J.
2000) (citing White v. Napoleon, 897 F.2d 103, 110 (3d Cir.
1990).
Here, Plaintiff has failed to plead any facts to suggest
that any ACJF official – much less the specific defendants named
in his Complaint – acted with constitutionally actionable
“deliberate indifference” to his medical needs, i.e., that
defendants knew of Plaintiff’s need for medical treatment but
intentionally refused to provide it, or delayed necessary
treatment for non-medical reasons, or prevented Plaintiff from
receiving needed or recommended treatment, or persisted in a
particular course of treatment in the face of resultant pain or

31

risk of permanent injury.

McCluskey, 505 F. App’x at 202.

Instead, the factual allegations detailed by Plaintiff, i.e.,
that the inmate whom Plaintiff was housed with was formally
diagnosed with scabies only after complaining of itching to ACJF
officials, and that upon being formally diagnosed, both
Plaintiff and that inmate were segregated from the rest of the
ACJF population and were otherwise treated, suggest that ACJF
officials promptly provided appropriate medical care upon being
informed that Plaintiff’s housing mate had excessive itching.
Notably, Plaintiff fails to allege any facts that suggest that
ACJF charged Plaintiff or his housing mate for these services,
and likewise fails to in any way suggest that ACJF officials
withheld medical treatment pending receipt of payment.
Plaintiff has similarly failed to allege any facts showing
how ACJF’s policy of charging inmates – even if true – for
dental and medical services has in any way adversely impacted
him.

His one sentence allegation that “all medical and dental

services [are] charged” fails to provide any specificity or
detail, e.g., which specific medical services he himself
received while confined at ACJF, when those services were
provided, how much ACJF charged and ultimately required
Plaintiff to pay before providing those services, etc.

In light

of the foregoing, Plaintiff’s Complaint, as pled, fails to
allege sufficient facts demonstrating that the medical treatment

32

he received while confined at ACJF was constitutionally
inadequate.

As such, the above-referenced facts do not support

a facially plausible Section 1983 claim under Estelle.
6. Supervisor Liability
For the reasons detailed above, Plaintiff has failed to
plead sufficient facts which plausibly suggest that his
constitutional rights have been violated in a manner giving rise
to an actionable Section 1983 claim.

Even if Plaintiff’s

Complaint alleged sufficient facts to support facially plausible
violations of his constitutional rights – and he has not – the
Court would still dismiss Plaintiff’s Complaint against all
named defendants, i.e., Warden Geraldine Cohen, Atlantic County
Freeholder Frank Formica, Atlantic County Executive Dennis
Levinson, and Cheryl DeBoise, because there are no factual
allegations which plausibly suggest that any of these defendants
had any personal involvement in the decisions and actions
Plaintiff complains of.

See Ashcroft v. Iqbal, 556 U.S. 662,

676 (“a plaintiff must plead that each Government official
defendant, through the official’s own individual actions, has
violated the Constitution.”).
Indeed, Plaintiff fails to allege that he had any direct
interactions with any of the four defendants formally named in
his Complaint.

Plaintiff likewise fails to plead any facts

which would allow this Court to reasonably infer that any of

33

these defendants were in any way aware of the specific issues
and grievances detailed in Plaintiff’s pleading.

Instead, each

of these individuals appear to have been named as defendants
solely in light of their supervisory responsibilities at ACJF.
As a general matter, “[g]overnment officials may not be
held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior.”

Id.

The

Court notes that “a supervisor may [nonetheless] be personally
liable . . . if he or she participated in violating the
plaintiff’s rights, directed others to violate them, or, as the
person in charge, had knowledge of and acquiesced in his
subordinates’ violations.”

Santiago v. Warminster Tp., 629 F.3d

121, 129 (3d Cir. 2010) (quoting A.M. ex rel. J.M.K. v. Luzerne
Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)).
The Court also recognizes that a supervisor may be liable for an
Eighth Amendment or Fourteenth Amendment violation if the
plaintiff “identif[ies] a supervisory policy or procedure that
the supervisor defendant failed to implement, and proves that:
(1) the policy or procedures in effect at the time of the
alleged injury created an unreasonable risk of a constitutional
violation; (2) the defendant-official was aware that the policy
created an unreasonable risk; (3) the defendant was indifferent
to that risk; and (4) the constitutional injury was caused by
the failure to implement the supervisory procedure.”

34

Barkes v.

First Correctional Medical, Inc., 766 F.3d 307, 316 (3d Cir.
2015), rev’d on other grounds sub nom. Taylor v. Barkes, 135 S.
Ct. 2042 (2017).
Here, however, it clear that Plaintiff has not alleged any
facts that support a finding of supervisory liability against
Warden Cohen, Freeholder Formica, Executive Levinson, or Cheryl
DeBoise.

As noted above, Plaintiff’s Complaint fails to allege

sufficient facts which plausibly suggest that the conditions of
his confinement at ACJF are in any way constitutionally
inadequate.

Even if he had, Plaintiff has still failed to

allege additional facts which suggest that any of the specific
defendants named in his pleading should be held liable for the
acts committed by their subordinates or for implementing
policies and procedures which resulted in the conditions which
Plaintiff complains of.

As such, this Court would still dismiss

Plaintiff’s Complaint against each of those defendants.
In sum, Plaintiff has failed to state any federal claim for
relief.

Any remaining potential basis for this Court to

consider Plaintiff’s state law claims – to the extent he is
attempting to assert any – lies within the Court’s supplemental
jurisdiction.

28 U.S.C. § 1367.

However, when a court has

dismissed all claims over which it had federal question
jurisdiction, it has the discretion to decline to exercise
supplemental jurisdiction over the remaining state law claims.

35

See id. at § 1367(c)(3).

This Court will exercise its

discretion to decline supplemental jurisdiction over the state
law claims Plaintiff may additionally be seeking to pursue.
III. CONCLUSION
For the foregoing reasons, Plaintiff’s Complaint will be
dismissed without prejudice as to all defendants.

Because it is

conceivable that Plaintiff may be able to supplement his
pleading with facts sufficient to overcome the deficiencies
noted herein, Plaintiff shall be given the opportunity to file a
proposed amended complaint should he elect to do so that shall
also be subject to screening. 5

An appropriate Order follows.

Dated: May 29, 2018
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

5

Plaintiff should note that when an amended complaint is
filed, it supersedes the original and renders it of no legal
effect, unless the amended complaint specifically refers to or
adopts the earlier pleading. See West Run Student Housing
Associates, LLC v. Huntington National Bank, 712 F.3d 165, 171
(3d Cir. 2013)(collecting cases); see also 6 Charles Alan Wright
& Arthur R. Miller, Federal Practice and Procedure § 1476 (3d
ed. 2008). To avoid confusion, the safer practice is to submit
an amended complaint that is complete in itself. Id.
36