FORTUNA v. COUNTY OF CAMDEN et al

Filing 4

OPINION. Signed by Judge Jerome B. Simandle on 8/30/17. (jbk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

WILSON FORTUNA,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
v.

Civil Action
No. 17-cv-0401(JBS-AMD)

COUNTY OF CAMDEN; CAMDEN
COUNTY BOARD OF CHOSEN
FREEHOLDERS; WARDEN, CAMDEN
COUNTY CORRECTIONAL FACILITY;
CORRECTIONAL OFFICERS JANE &
JOHN DOES 1 THROUGH 100,

OPINION

Defendants.

APPEARANCES:
Wilson Fortuna, Plaintiff Pro Se
619275-E/ 1070062
Bayside State Prison
4293 Route 47
P.O. Box F-1
Leesburg, NJ 08327
SIMANDLE, District Judge:
INTRODUCTION
Plaintiff Wilson Fortuna seeks to bring a civil rights
complaint pursuant to the 42 U.S.C. § 1983 against the County of
Camden (“County”), Camden County Board of Chosen Freeholders
(collectively “Freeholders”), Warden of Camden County
Correctional Facility (“Warden”), and Correctional Officers Jane
& John Does 1 through 100 (”collectively “Officers”) for
allegedly unconstitutional conditions of confinement in Camden
County Correctional Facility (“CCCF”). Complaint, Docket Entry

1. At this time, the Court must review the complaint 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 will proceed in part.
II. BACKGROUND
The following factual allegations are taken from the
complaint and are accepted for purposes of this screening only.
The Court has made no findings as to the truth of Plaintiff’s
allegations.
Plaintiff alleges he endured unconstitutional conditions of
confinement in CCCF from June 3, 2015 to August 2016, when he
was held as a pre-trial detainee, as well as until September 28,
2016 when he was held as a convicted inmate, prior to
sentencing. Complaint ¶ 9-10. During these times, Plaintiff was
housed in an overcrowded and unsanitary cell. He further alleges
he was housed in a two-person cell with three other people and
required to sleep on the floor next to the toilet with only a
thin mattress. Id. ¶ 12-14. He further states there was only one
set of fingernail clippers for all the inmates on the unit, and
he sustained a skin infection. Id. ¶ 14. He states the housing
unit was unsanitary with mold throughout, causing him to sustain
respiratory problems. Id. ¶ 18. He alleges that to “cover up
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this mold” defendants would just paint over it to conceal these
conditions. Id. ¶ 25. He also alleges a lack of hot water in the
cells and only cold air would be circulated, even in the winter.
Id. ¶ 18, 24. He also alleges he sustained insect bites and was
housed with inmates infected with M.R.S.A. Id. ¶ 19. He alleges
all defendants were notified of these complaints. Id. ¶ 21, 26.
He seeks relief in the form of compensatory and punitive
damages. Id. ¶ 40.
III. STANDARD OF REVIEW
A. Standards for a Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub. L. No. 104-134,
§§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996)
(“PLRA”), district courts must review complaints in those civil
actions in which a prisoner is proceeding in forma pauperis, see
28 U.S.C. § 1915(e)(2)(B), seeks redress against a governmental
employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim
with respect to prison conditions, see 42 U.S.C. § 1997e. The
PLRA 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. This action is subject
to sua sponte screening for dismissal under 28 U.S.C. §§ 1915,
1915A and 42 U.S.C. § 1997e because Plaintiff is a prisoner

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proceeding in forma pauperis and is seeking redress from
government officials about the conditions of his confinement.
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)). 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)
(quoting Iqbal, 556 U.S. at 678). Moreover, while pro se
pleadings are liberally construed, they “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).
B. Section 1983 Actions
A plaintiff may have a cause of action under 42 U.S.C. §
1983 for certain violations of his constitutional rights.
Section 1983 provides in relevant part:
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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 ....

28 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); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d
Cir. 1994).
IV. DISCUSSION
Plaintiff alleges he experienced unconstitutional
conditions of confinement during his detention at CCCF as both a
pretrial detainee and convicted inmate. Plaintiff alleges
unconstitutional violations of Freedom of Speech and Access to
the Courts. Plaintiff also alleges violations of the New Jersey
State Constitution.

Plaintiff’s complaint shall proceed in

part.
A. Fourteenth Amendment Claim

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Plaintiff alleges he experienced unconstitutional
conditions of confinement at CCCF due to overcrowding and other
unsanitary conditions. “[U]nder the Due Process Clause, a
detainee may not be punished prior to an adjudication of guilt
in accordance with due process of law.” Bell v. Wolfish, 441
U.S. 520, 535 (1979). Plaintiff was detained in the CCCF from
June 3, 2015 to August 2016 as a pretrial detainee. Complaint ¶
10. As a pretrial detainee, plaintiff’s condition of confinement
claim is analyzed under the Fourteenth Amendment as opposed to
the Eight Amendment. Hubbard v. Taylor, 538 F.3d 229, 231 (3d
Cir.2008).
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 Carson v.
Mulvihill, 488 F. App'x 554, 560 (3d Cir. 2012) (“[M]ere doublebunking 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, 441 U.S. at 542). Overcrowding
leading to conditions that “cause inmates to endure such genuine
privations and hardship over an extended period of time” and
that “become excessive in relation to the purposes assigned to
them” does constitute unconstitutional punishment, however.
Hubbard v. Taylor, 538 F.3d 229, 233 (3d Cir. 2008) (internal
citations and quotation marks omitted).
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Construing the complaint liberally and giving Plaintiff the
benefit of all reasonable inferences, he has sufficiently stated
a claim for unconstitutional conditions of confinement against
the defendants. Considering the totality of the circumstances
alleged by Plaintiff, the Court finds that he has sufficiently
pled a plausible basis for a claim that he experienced
unconstitutionally punitive conditions at CCCF as a detainee.
This claim shall therefore be permitted to proceed.
B. Eighth Amendment Claim
Plaintiff alleges he experienced unconstitutional
conditions of confinement at CCCF due to overcrowding and other
unsanitary conditions for the time he was detained in CCCF as a
convicted inmate. Complaint ¶ 31, 9-10. As a convicted prisoner,
plaintiff’s condition of confinement claim is analyzed under the
Eight Amendment. Hubbard v. Taylor, 538 F.3d 229, 231 (3d
Cir.2008). The Fourteenth Amendment provides greater protection
to pretrial detainees than the Eighth Amendment provides to
convicted prisoners because pretrial detainees may not be
subjected to punishment, whereas convicted prisoners may not be
subjected to cruel and unusual punishment. Hubbard, 399 F.3d at
166.
In

order

to

state

a

claim

for

violation

of

the

Eighth

Amendment, Plaintiff must allege both an objective and subjective
element. Ingalls v. Florio, 968 F.Supp. 193, 198 (D.N.J. 1997). He
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must first demonstrate the serious deprivation of a basic human
need. See Wilson v. Seiter, 501 U.S. 294, 308 (1991); Young v.
Quinlan, 960 F.2d 351, 365 (3d Cir.1992). “[T]he deprivation caused
by the prison official’s act or omission [must be] sufficiently
serious to result in the denial of the minimal civilized measure
of life’s necessities.” Ingalls, 968 F.Supp. at 198 (citing Farmer
v. Brennan, 511 U.S. 825, 834 (1994); Wilson, 501 U.S. at 304
(1991); Nami v. Fauver, 82 F.3d 63, 67 (3d Cir. 1996)). He must
also show that the official “acted or failed to act with deliberate
indifference to a substantial risk of harm to inmate health or
safety.” Ingalls, 968 F.Supp. at 198 (citing Farmer, 511 U.S. at
834; Wilson, 501 U.S. at 305; Nami, 82 F.3d at 67). The duration
of the alleged violation is a particularly important factor to be
considered in conducting this examination.
Some conditions of confinement may establish an Eighth
Amendment violation “in combination” when each would not do so
alone, but only when they have a mutually enforcing effect that
produces the deprivation of a single, identifiable human need
such as sleep, food, warmth, or exercise—for example, a low cell
temperature at night combined with a failure to issue blankets.
Wilson, 501 U.S. at 304.
Indifference may be established by the response to a
prisoner's needs or by intentional deprivation of a need.
Estelle v. Gamble, 429 U.S. 97, 104 (1976). “Use of
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‘deliberate,’ ... arguably requires nothing more than an act (or
omission) of indifference to a serious risk that is voluntary,
not accidental.” Farmer v. Brennan, 511 U.S. 825, 840
(1994)(comparing Estelle, 429 U.S. at 105.) “And even if
‘deliberate’ is better read as implying knowledge of a risk, the
concept of constructive knowledge is familiar enough that the
term ‘deliberate indifference’ would not, of its own force,
preclude a scheme that conclusively presumed awareness from a
risk's obviousness.” Id. at 841.
The conditions alleged, in their totality, potentially
deprive inmates of the basic human necessities of sleep,
sanitation, and health. Plaintiff alleged that there has been a
longstanding history of overcrowding at this facility and
defendants have continued to overcrowd inmates in an unsanitary,
inhumane and degrading condition. Complaint ¶ 23. Plaintiff
alleges a totality of conditions from overcrowding forcing
plaintiff’s to sleep near the toilet, causing urine and feces to
splash onto them; mold throughout the unit that was continuously
painted over, causing respiratory problems; no hot water/
extremely cold air in the cells for months; lack of access to
cleaning supplies; and insect bites from infestation in the
living areas. See Complaint, generally.
Consistent with these conditions being reported, Plaintiff
states various Correctional Officers would respond, “There is
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nothing that could be done, and this has been going on for
years.” Complaint ¶ 20. This creates a reasonable inference that
staff at the facility was aware of the conditions and nothing
was done to alleviate the conditions.
It is possible to establish deliberate indifference under
the Eighth Amendment based on the obviousness of a risk. See
Beers Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir.
2001)(“subjective knowledge on the part of the official can be
proved by circumstantial evidence to the effect that the
excessive risk was so obvious that the official must have known
of the risk”) (quoting Farmer, 511 U.S. at 842).
Construing the complaint liberally and giving Plaintiff the
benefit of all reasonable inferences, he has sufficiently stated
a claim for unconstitutional conditions of confinement as a
convicted prisoner that may be able to be viewed to amount to an
eighth amendment violation to survive this Court’s initial
screening. This claim shall therefore be permitted to proceed.
C. Access to the Courts Claim
Plaintiff has alleged an “access to the courts” claim
(Complaint ¶ 32), however has failed to allege any facts to
satisfy this claim. “To establish a cognizable [access to the
courts] claim, a prisoner must demonstrate that he has suffered
an actual injury to his ability to present a claim.” Henry v.
Moore, 500 F. App'x 115, 117 (3d Cir. 2012) (citing Christopher
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v. Harbury, 536 U.S. 403, 415 (2002)). Additionally, “the claim
must relate to either a direct or collateral challenge to the
prisoner's sentence or conditions of confinement [and] a
prisoner must demonstrate that no other remedy will potentially
compensate for the lost claim.” Id. (internal citations
omitted).
Even construing Plaintiff’s complaint liberally, as this
Court is required to do, in support of this claim Plaintiff
merely alleges he “attempted to obtain grievance forms and an
Inmate handbook, which he was denied.” Complaint ¶ 11. This is
insufficient to allege an access to the courts claim as
Plaintiff has not identified a non-frivolous claim he has lost
or alleged that the policies impacted his criminal case. See
Lewis v. Casey, 518 U.S. 343, 351 (1996) (“[A]n inmate cannot
establish relevant actual injury simply by establishing that his
prison's law library or legal assistance program is subpar in
some theoretical sense.”). This claim is dismissed without
prejudice, and Plaintiff may amend this claim if he is able to
allege facts that address the deficiencies noted by the Court.1

1

In the event Plaintiff elects to move to amend his complaint
under Federal Rule of Civil Procedure 15, he should note that
once 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.
Wright, Miller & Kane, Federal Practice and Procedure 1476 (2d
ed. 1990) (footnotes omitted). An amended complaint may adopt
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D. First Amendment Freedom of Speech Claim
Plaintiff has alleged a “Freedom of Speech” claim
(Complaint ¶ 33). He has failed, however, to allege any facts to
serve as the basis for this claim. Even construing this claim
liberally, this Court cannot find any factual allegations within
Plaintiff’s complaint to support this claim.
The First Amendment offers protection for a wide variety of
expressive activities. See U.S. Const. amend I. These rights are
lessened, but not extinguished in the prison context, where
legitimate penological interests must be considered in assessing
the constitutionality of official conduct. See Turner v. Safley,
482 U.S. 78, 89 (1987). To state a freedom of speech claim which
is often interpreted as a retaliation claim, Plaintiff must, as
a threshold matter, establish “that the conduct which led to the
alleged retaliation was constitutionally protected.” Rauser v.
Horn, 241 F.3d 330, 333 (3d Cir. 2001). Next, Plaintiff must
assert “he suffered some adverse action at the hands of the
prison officials,” such that “the alleged retaliatory conduct
was sufficient to deter a person of ordinary firmness from
exercising his First Amendment rights.” Id. (internal citations

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.
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omitted). Finally, Plaintiff must establish “a causal link
between the exercise of his constitutional rights and the
adverse action taken against him,” by showing that “the
constitutionally protected conduct was a substantial or
motivating factor in the decision to discipline the inmate.” Id.
(internal citations omitted). Filing grievances “against prison
officials constitutes constitutionally protected activity.” See
Mearin v. Vidonish, 450 Fed.Appx. 100, 102 (3d Cir. 2011).
However, the Court can discern no allegations set forth by
Plaintiff of an adverse action that causally resulted from his
constitutionally protected activity of filing grievances.
At best, Plaintiff asserts he “was prevented from filing
any formal grievances due to the Camden County Correctional
Facility Staff refusing to supply him with grievance forms, and
advising him about the Grievance Procedure.” Complaint ¶ 28.
Further, Plaintiff asserts he “attempted on numerous occasions
to file grievances in the form of a letter written on paper but
those letter/ grievances were never responded to.” Id. Other
than these assertions, Plaintiff does not allege any additional
facts to support this claim. For instance, his complaint is
devoid of any alleged retaliatory conduct that would deter a
reasonably firm prisoner from exercising his First Amendment
rights, such as being placed in segregation.

13

To the extent Plaintiff alleges a due process violation in
the context of filing grievances, none of the allegations set
forth in his complaint deprived him of due process or implicated
a liberty interest. Thus, Plaintiff's claim that his rights were
violated by denying him his grievances fails to state a claim.
Accordingly, this claim is dismissed without prejudice, and
Plaintiff may amend this claim if he is able to allege facts
that address the deficiencies noted by the Court.
E. New Jersey Constitutional Claims
Plaintiff has alleged violations of the New Jersey State
Constitution. Complaint ¶ 34-36. Construing Plaintiff’s
complaint liberally, plaintiff is alleging a violation of the
New Jersey Constitution and New Jersey Civil Rights Act. The New
Jersey Civil Rights Act (“NJCRA”) is analogous to 42 U.S.C. §
1983 in that it creates a private right of action for violation
of civil rights secured by the New Jersey Constitution, the law
of the state of New Jersey, and the Constitution and laws of the
United. States. Gormley v. Wood-El, 218 N.J. 72, 97 (N.J. 2014).
It provides, in part: “Any person who has been deprived of any
substantive due process or equal protection rights, privileges
or immunities secured by the Constitution or laws of the United
States, or any substantive rights, privileges, or immunities
secured by the Constitution or laws of this State. . .may bring
a civil action for damages and or injunctive or other
14

appropriate relief.” N.J. Stat. Ann. § 10:6-2 (c). The NJCRA has
been viewed to be coextensive with its federal counterpart.
Therefore, the Court will proceed any claims arising under
the New Jersey Constitution and NJCRA that are coextensive of
the federal counterpart.
F. New Jersey Administrative Code Claim
Plaintiff alleges a violation of New Jersey Administrative
Code § 10A-31-14.4, Grievance Procedure. Complaint ¶ 37. N.J.A.C
§ 10A-31-14.4 states, “A written inmate grievance procedure
shall be afforded to all inmates which shall include at least
one level of appeal.” However, there is no private cause of
action explicitly created by Title 10A of the New Jersey
Administrative Code. See Maqbool v. Univ. Hospital of Medicine &
Dentistry of New Jersey, 2012 WL 2374689, at *4 (D.N.J. June 13,
2012); Ali v. D.O.C., 2008 WL 5111274, at *7 (D.N.J. Nov. 25,
2008). Therefore, because no private cause of action exists
within the regulation at issue, Plaintiff's claim as to a
violation of N.J.A.C. § 10A-31-14.4 is dismissed with prejudice.
G. Appointment of Pro Bono Counsel
The Court is aware that Plaintiff filed an application for
the appointment of pro bono counsel (Motion for Counsel, Docket
Entry 3); however, the Court will defer ruling on that
application at this time.

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V.

CONCLUSION
For the reasons stated above, the complaint shall proceed

as discussed above. An appropriate order follows.

August 30, 2017
Date

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

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