MURPHY v. NEW JERSEY DEPARTMENT OF CORRECTIONS et al

Filing 3

OPINION. Signed by Judge Renee Marie Bumb on 6/8/17. (jbk, )

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
TREMAINE MURPHY,

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Plaintiff,
v.
NEW JERSEY DEP’T OF CORR.,
et al.,
Defendants.

Civ. Action No. 17-2632 (RMB)

OPINION

BUMB, District Judge:
Plaintiff Tremaine Murphy, an inmate incarcerated in South
Woods

State

rights

Prison,

action

under

(Compl., ECF No. 1.)

in
42

Delmont,
U.S.C.

§

New

Jersey,

1983

on

filed

April

a

civil

17,

2017.

On May 24, 2017, Plaintiff subsequently

filed an amended complaint.

(Am. Compl., ECF No. 2.)

He seeks

to proceed without prepayment of fees (“in forma pauperis” or
“IFP”) under 28 U.S.C. § 1915(a).
Plaintiff

has

establishing

filed

his

a

properly

financial

(IFP App., ECF No. 1-1.)
completed

eligibility

to

IFP

application,

proceed

in

forma

pauperis, and his application will be granted.
The Court must review the complaint pursuant to 28 U.S.C.
§§ 1915(e)(2)(B); 1915A(b) 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.
I. STANDARDS FOR A SUA SPONTE DISMISSAL
A pleading must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.”
Civ. P. 8(a)(2).

Fed. R.

“To survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as true, to
‘state

a

Ashcroft

claim
v.

to

relief

Iqbal,

556

that
U.S.

is

plausible

662,

678

on

its

(2009)(quoting

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
has

facial

plausibility

when

the

face.’”

plaintiff

pleads

Bell

“A claim
factual

content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”

Id.

(quoting Twombly, 550 U.S. at 556.)
“[A]

court

must

accept

contained in a complaint.”
conclusions

as

true.

as

Id.

Id.

true

all

of

the

allegations

A court need not accept legal

Legal

conclusions,

together

with

threadbare recitals of the elements of a cause of action, do not
suffice to state a claim.

Id.

Thus, “a court considering a

motion to dismiss can choose to begin by identifying pleadings
that,

because

they

are

no

more

than

conclusions,

entitled to the assumption of truth.” Id. at 679.

are

not

“While legal

conclusions can provide the framework of a complaint, they must
be supported by factual allegations.”
2 

Id.

If a complaint can

be remedied by an amendment, a district court may not dismiss
the complaint with prejudice, but must permit the amendment.
Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir.
2002).

A court must liberally construe a pro se complaint.

Erickson v. Pardus, 551 U.S. 89, 94 (2007).
II.

DISCUSSION
A.
In

The Amended Complaint
his

amended

original complaint.

complaint,

Plaintiff

(ECF No. 2 at 3, ¶1.)

incorporates

the

Assuming Plaintiff

intended to sue all defendants named in both complaints, the
defendants

are:

the

(“NJDOC”),

South

Woods

New

Jersey

State

Department

Prison,

of

Corrections

Administrator

of

South

Woods State Prison, Correctional Officer Romeo at South Woods
State Prison, and Correctional Officer “John Doe” at South Woods
State Prison.

(Compl., ECF No. 1; Am. Compl., ECF No. 2.)

Plaintiff alleges the following in the amended complaint,
accepted as true for purposes of screening pursuant to 28 U.S.C.
§§ 1915A(b); 1915(e)(2)(B).

On February 12, 2016, at South

Woods State Prison, Plaintiff was attacked by several inmates
who beat him with their fists and a lock in a sock, rendering
him unconscious and causing severe damage to his right eye, left
cheek, and base of the head.
Plaintiff

alleges

(Am. Compl., ECF No. 2 at 3-5.)

Correctional

Officers

Romeo

and

the

unidentified control booth officer, referred to as “John Doe,”
3 

conspired

to

retaliation

for

Officer Romeo.
of

the

pay

three

inmates

Plaintiff

filing

(Id. at 4-5.)

attackers

so

they

afternoon meal movement.

to

an

attack

inmate

Plaintiff

grievance

in

against

Officer John Doe opened the cells

could

attack

(Id. at 5.)

Plaintiff

during

the

Officers Romeo and “John

Doe” stood by and watched while Plaintiff was beaten, and did
nothing

to

prevent

or

intervene

in

the

beating.

Plaintiff in no way instigated the attack on him.

(Id.)

(Id. at 7.)

Plaintiff alleges violation of the First, Fourth, Fifth,
Eighth, and Fourteenth Amendments to the Constitution of the
United States, asserting jurisdiction under 42 U.S.C. § 1983;
and he asserts unidentified claims under New Jersey law.
at 4, 7.)
and costs.
B.

(Id.

Plaintiff seeks declaratory relief, money damages,
(ECF No. 2 at 8.)
Section 1983 claims

A plaintiff may have a cause of action under 42 U.S.C. §
1983

for

certain

violations

of

his

constitutional

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.
4 

rights.

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.

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

(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255–56 (3d
Cir. 1994).  
1.

Fourth,
Claims

Fifth,

Eighth

and

Fourteenth

Amendment

The defendant officers did not use force against Plaintiff,
but

they

are

alleged

to

have

paid

inmates

to

attack

him.

“[G]ratuitously allowing the beating . . . of one prisoner by
another serves no ‘legitimate penological objectiv[e].’” Farmer
v. Brennan, 511 U.S. 825 (1994)(quoting Hudson v. Palmer, 468
U.S. [517,] 548 [(1984)](STEVENS, J., concurring in part and
dissenting

in

part)).

The

claim

arises

under

the

Eighth

Amendment’s protection against cruel and unusual punishment.
“New Jersey Courts ‘have consistently looked to federal §
1983

jurisprudence

for

guidance’

and

interpreted NJCRA analogously to § 1983.’”
of

Deptford,

911

F.Supp.2d

289,

298

have

‘repeatedly

Ingram v. Township

(D.N.J.

2012)(quoting

(Gonzalez v. Auto Mall 46, Inc., Nos. 2412–09 & 216–10, 2012 WL
2505733, at *4 (N.J. Super. Ct. App. Div. July 2, 2012)(citing
Rezem

Family

Assocs.,

LP

v.

Borough
5 

of

Millstone,

423

N.J.

Super. 103 (2011), cert. denied, 208 N.J. 366 (2011)(additional
citations omitted).

The Court will proceed the Eighth Amendment

claim, and its counterpart under the New Jersey Civil Rights Act
N.J.S.A. § 10:6-1 et seq. (“NJCRA”), against Officers Romeo and
John Doe.
The Court will also proceed the Eighth Amendment  failure to
protect claim, and its counterpart under the New Jersey Civil
Rights Act (“NJCRA”), against Officers Romeo and John Doe for
allegedly standing by and watching while Plaintiff was beaten by
three inmates.
deliberate

See Farmer 511 U.S. at 825 (a prison official’s

indifference

to

sufficiently

serious

threats

inmate health and safety violates the Eighth Amendment.)

to
The

Court, however, cannot discern a cognizable claim in the amended
complaint under the Fourth, Fifth or Fourteenth Amendments of
the

United

States

Constitution,

and

those

claims,

and

their

counterparts under the New Jersey Civil Rights Act, will be
dismissed without prejudice.
2.

Defendants NJDOC and South Woods State Prison

Plaintiff named the NJDOC as a defendant in this action.
The NJDOC is a state agency immune from § 1983 claims for money
damages under the Eleventh Amendment.

See Wisconsin Dept. of

Corrections v. Schacht, 524 U.S. 381, 384 (1998))(a suit in
federal court against a state or one of its agencies is barred
by

the

Eleventh

Amendment

unless
6 

the

state

waives

its

immunity)(citations omitted).

“The State of New Jersey has not

waived its sovereign immunity with respect to § 1983 claims in
federal court.”
2008).

Mierzwa v. U.S., 282 F. App’x 973, 976 (3d Cir.

Therefore, the Court will dismiss Plaintiff’s § 1983 and

NJCRA claims for money damages against NJDOC with prejudice.
Plaintiff

also

named

South

Woods

State

Prison

as

a

defendant because it is the place where the alleged misconduct
occurred.

(Compl., ECF No. 1 at ¶4(c)).

A prison is not a

“person” who can be sued under 42 U.S.C. § 1983.

Lenhart v.

Pennsylvania, 528 F. App’x 111, 114 (3d Cir. 2013) (citing Will
v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989); Fischer
v. Cahill, 474 F.2d 991, 992 (3d Cir. 1973)).

The Court will

dismiss the § 1983 and NJCRA claims against South Woods State
Prison with prejudice.
3.

Defendant

Administrator

of

South

Woods

State

South

Woods

State

Prison
Plaintiff

sued

the

administrator

of

Prison in the original complaint, incorporated by reference into
the amended complaint.

In the body of the original complaint,

Plaintiff

unit

alleged

the

properly supervised.
Amendment
allege

supervisory

facts

where

he

was

(ECF No. 1, ¶2(c)).
claim

supporting

the

under

§

was

not

To state an Eighth

1983,

conclusion

attacked

a

that

plaintiff
the

must

“supervisor

‘knew or w[as] aware of and disregarded an excessive risk to the
7 

plaintiff['s] health or safety [.]’” Palakovic v. Wetzel, 854
F.3d 209, 225 n. 17 (quoting Beers–Capitol v. Whetzel, 256 F.3d
120, 135 (3d Cir. 2001).
Alternatively,

a

plaintiff

may

allege

a

specific

supervisory practice or procedure that the supervisor failed to
employ that created an unreasonable risk of an inmate on inmate
attack,

that

the

supervisor

was

aware

the

unreasonable

risk

existed and was indifferent to that risk, and that the failure
to employee the supervisory practice or procedure resulted in
the

attack

on

intervene.

Plaintiff,

and

the

failure

of

officers

to

See Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir.

1989)(defining elements of supervisory liability claim based on
failure

to

institute

a

specific

supervisory

practice

or

procedure.)
Plaintiff has pled only the legal conclusion that the unit
where he was attacked was not properly supervised.
insufficient

to

state

a

claim

against

the

This is

administrator.

Therefore, the Court will dismiss the § 1983 and NJCRA claims
against the administrator without prejudice.
to

amend

regarding

these
the

claims,

he

administrator’s

must

provide

knowledge

of

If Plaintiff seeks
additional
and

alleged constitutional violation.
4.

First Amendment Retaliation Claim

8 

role

facts
in

the

Plaintiff alleges Officers Romeo and John Doe conspired to
pay three inmates to beat Plaintiff in retaliation for Plaintiff
filing a grievance against Officer Romeo.
retaliation

claim

include

(1)

The elements of a

constitutionally

protected

conduct, (2) an adverse action by prison officials “‘sufficient
to

deter

a

person

of

ordinary

firmness

from

exercising

his

[constitutional] rights,’” and (3) “a causal link between the
exercise of his constitutional rights and the adverse action
taken against him.”

Mitchell v. Horn, 318 F.3d 523, 530 (3d

Cir. 2003)(quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.
2001)(quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir.
2000)(alteration

in

original).

“To

establish

the

requisite

causal connection a plaintiff usually must prove either (1) an
unusually suggestive temporal proximity between the protected
activity and the allegedly retaliatory action, or (2) a pattern
of antagonism coupled with timing to establish a causal link.”
Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d
Cir. 2007) (citing Krouse v. American Sterilizer Co., 126 F.3d
494, 503–04 (3d Cir. 1997); Woodson v. Scott Paper Co., 109 F.3d
913, 920–21 (3d Cir. 1997)).
Filing a grievance in prison is constitutionally protected
conduct.
White,
survive

See

102

Mitchell,

F.3d

summary

267,

318

275–76

judgment

on

F.3d
(7th
his
9 

at

530

Cir.

claim

(citing

Babcock

1996)(prisoner
that

prison

v.

could

officials

retaliated against him for “use of the ‘inmate grievance system’
and previous lawsuits”).

Paying three inmates to beat another

inmate is obviously a sufficient adverse action sufficient to
deter a person of ordinary firmness from engaging in a protected
activity.
Plaintiff, however, has not sufficiently pled the causation
element of a retaliation claim.

He has not alleged facts to

support an inference that the amount of time between when he
filed a grievance against Officer Romeo and the attack on him by
three inmates suggests a connection between the two, nor has he
alleged a pattern of antagonism with Officers Romeo and John
Doe, close in time to the attack on him by three inmates.
Court

will

dismiss

these

claims

under

§

1983

and

the

The
NJCRA

without prejudice.
5.

Conspiracy Claim under § 1983

Plaintiff alleged Officers Romeo and John Doe conspired to
pay three inmates to attack Plaintiff, and that John Doe opened
the

inmates’

cells

to

give

Plaintiff during meal service.

them

an

opportunity

to

attack

(Am. Compl., ECF No. 2 at 4-5.)

“ʽ[A]llegations of a conspiracy must provide some factual basis
to

support

the

existence

of

the

agreement and concerted action.’”

elements

of

a

conspiracy:

Capogrosso v. The Supreme

Court of New Jersey, 588 F.3d 180, 185 (3d Cir. 2009)(quoting
Crabtree By and Through Crabtree v. Muchmore, 904 F.2d 1475,
10 

1481

(10th

omitted)).

Cir.

1990)

(internal

quotations

and

citations

Plaintiff failed to allege any facts that led him to

the conclusion that Officer Romeo and Officer John Doe agreed to
and actually paid three inmates to attack Plaintiff.

Without

any facts supporting the conclusion of a conspiracy, the claim
fails.

The Court will dismiss the § 1983 and NJCRA conspiracy

claims against Officers Romeo and John Doe without prejudice.

III. CONCLUSION
For

the

reasons

discussed

above,

the

Court

grants

Plaintiff’s IFP application, and proceeds the amended complaint
in part.

An appropriate order follows.

Dated: June 8, 2017
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

11