STILE v. HOLLINGSWORTH et al

Filing 82

OPINION. Signed by Judge Renee Marie Bumb on 6/3/2020. (tf, )

Case 1:17-cv-02693-RMB-AMD Document 82 Filed 06/04/20 Page 1 of 30 PageID: 663

NOT FOR PUBLICATION

ECF 65

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
JAMES STILE,
Plaintiff
v.
WARDEN JORDAN HOLLINGSWORTH
et al.,
Defendants

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Civ. Action No. 17-2693(RMB)
OPINION

APPEARANCES:
Francis X. Manning, Esq.
STRADLEY, RONON, STEVENS & YOUNG, LLP
Liberty View
457 Haddonfield Road
Suite 100
Cherry Hill, NJ 08002
Adam Joseph Petit, Esq.
Joseph William Catuzzi, Esq.
STRADLEY RONON STEVENS & YOUNG LLP
2005 Market Street
Suite 2600
Philadelphia, PA 19103
Samantha Beth Kats, Esq.
STRADLEY RONON STEVENS & YOUNG LLP
Great Valley Corporate Center
30 Valley Stream Parkway
Malvern, PA 19355
On behalf of Plaintiff
Jessica Rose O’Neill, Assistant United States Attorney
Office of the U.S. Attorney, District of New Jersey
401 Market Street
4th FLOOR
P.O. BOX 2098
Camden, NJ 08101
On behalf of Defendants

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BUMB, United States District Judge
On April 20, 2017, Plaintiff brought this Bivens and Federal
Tort Claim action, alleging he was subjected to unconstitutional
conditions of confinement while incarcerated for two years at the
Federal Correctional Institution

in Fort Dix, New Jersey (“FCI

Fort Dix”). (Compl., ECF No. 1.) This matter comes before the Court
upon

Defendants

Warden

Jordan

Hollingsworth

and

Warden

David

Ortiz’s (“Defs.”) Partial Motion to Dismiss Counts I, II and III
of

Plaintiff’s

Dismiss,”

ECF

Amended
No.

65);

Complaint.
Plaintiff’s

(“Defs.’

Partial

Opposition

to

Mot.

to

Defendants’

Partial Motion to Dismiss (“Pl’s Opp. Brief,” ECF No. 73); Reply
Brief in Further Support of Partial Motion to Dismiss Counts I, II
and III of Plaintiff’s Amended Complaint (“Defs.’ Reply Brief,”
ECF No. 76); and Plaintiff’s Sur-Reply Brief in Support of His
Opposition to Defendants’ Partial Motion to Dismiss. (“Pl’s SurReply Brief,” ECF No. 78 at 10.) This Court will decide the motions
on the briefs without an oral hearing, pursuant to Federal Rule of
Civil Procedure 78(b). For the reasons discussed below, the Court
will grant in part and deny in part Defendants’ Partial Motion to
Dismiss.
I.

PROCEDURAL HISTORY
As required by 28 U.S.C. § 1915(e)(2)(b) and § 1915A, this

Court reviewed the pro se complaint on October 23, 2017, and
permitted certain claims related to the environmental conditions
2

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at FCI Fort Dix against Wardens Hollingsworth and Ortiz to proceed,
noting that they were subject to further briefing pursuant to the
United States Supreme Court’s decision in Ziglar v. Abbasi, 137 S.
Ct. 1843 (2017). (Opinion and Order, ECF Nos. 4, 5.) Defendants
moved for dismissal of Plaintiff’s remaining claims. (First Mot.
to Dismiss, ECF No. 29.) Plaintiff responded with a motion to amend
his complaint to state his constitutional claims as tort claims
under the Federal Tort Claims Act. (Mot. to Amend, ECF No. 32.)
Plaintiff was appointed counsel on March 20, 2019. (Order, ECF No.
42.) After discussions with the Court, counsel filed an amended
complaint on August 13, 2019. (Am. Compl., ECF No. 51.) Upon
service of the amended complaint, Defendants filed the present
partial motion to dismiss Counts I, II and III and a motion for
partial summary judgment on Claim IV.
II.

AMENDED COMPLAINT
Plaintiff alleges the following in his amended complaint.

Plaintiff was confined at FCI Fort Dix from June 2015 to December
2017. (Am. Compl. ¶1, ECF No. 51.) During that time, the United
States of America was responsible for his care. (Id., ¶4.) Warden
Hollingsworth was the warden of Fort Dix from June 2015 until
approximately October 2016 and Warden Ortiz was the prison's warden
from approximately October of 2016 through, at least, the remainder
of Plaintiff’s confinement. (Id., ¶¶5-6.)

3

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Plaintiff alleges that during his confinement at Fort Dix, he
was subject to deprivations of potable water, overcrowded and
unsanitary conditions, and exposure to asbestos, mold and toxic
fumes. (Id., ¶¶13-103.) As early as 2015, Warden Hollingsworth
(and

subsequently

Warden

Ortiz)

became

aware

of

water

contamination at Fort Dix. (Am. Compl. ¶155, ECF No. 51.) However,
Defendants did not address the contamination and, as a result,
Plaintiff was forced to consume and bathe in water that was
contaminated

with

dangerous

chemicals.

(Id.)

Recognizing

the

dangers posed by the contaminated water, FCI Fort Dix prison staff
used their own bottled water and bottled water distributed by the
Government. (Id., ¶25.) On multiple occasions, staff at Fort Dix
would

tell

Plaintiff

"do

not

drink

the

water."

(Id.,

¶28.)

Realizing that something was wrong with the water, Plaintiff
requested bottled water, but his requests were denied by Defendants
and others. (Id., ¶¶30-31.) Thus, Plaintiff contends, he was forced
to consume contaminated water for years. (Id., ¶133.)
For the duration of Plaintiff’s confinement at FCI Fort Dix,
Plaintiff also alleges that he was forced to live in severely
overcrowded

conditions,

sharing

a

room

with

twelve

inmates,

amounting to just 43 square feet of living space for each inmate.
(Id., at ¶60.) This was significantly less than the mandated sixty
square feet, as set forth in Program Statement-1060.11, Part
7(3)(b), which states, "any multiple occupancy housing, areas in
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a low security institution must provide at least 60 square feet
per inmate." (Id.) The Warden Defendants were aware of the chronic
overcrowding at FCI Fort Dix. (Id., ¶72.) In the amended complaint,
Plaintiff alleges that as a result of overcrowding his residence
had inadequate sanitation, including leaking bathroom pipes and
refuse in the halls. (Id., ¶¶73-83.)
Plaintiff

was

also

exposed

to

asbestos

in

the

prison's

flooring tiles and pipe coverings throughout the prison. (Id.,
¶¶84-89.)

Additionally,

he

was

exposed

to

breathing

airborne

asbestos during a three-day demolition project in the law library,
where he spent time because he was not notified of the asbestos
exposure. (Id., ¶¶89-94.)
Plaintiff was exposed to black mold and toxic fumes. (Id.,
¶¶39-46.) The black mold permeated throughout Plaintiff’s primary
residence and remained unabated despite repeated complaints. (Id.,
¶¶43-45.) Likewise, Plaintiff was exposed to carbon monoxide and
other fumes from jets operating close to his residence daily. (Id.,
¶¶47-59.) Thus, Plaintiff suffered injuries including consumption
of chemicals, damages to his respiratory system, an exacerbation
of

pre-existing

conditions,

Escherichia

coli

(commonly

infections,

severe

numerous

known

emotional

as

distress

injuries. (Id., ¶104.)

5

bacterial

E.

coli),

and

infections,

urinary

anguish,

and

tract
other

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In Count I, Plaintiff brings a claim under the Federal Tort
Claims Act (“FTCA”) against the United States. 28 U.S.C. §§ 1346,
2671-2680. He claims that the United States breached a duty to
provide him with clean water, clean air and a sanitary environment.
(Am. Compl., ¶¶132-37.) Count II under the FTCA is for negligence
per se in violation of federal and state environmental statutes,
such as the Safe Drinking Water Act and the Clean Water Act. (Id.,
¶¶138-142.) In Count III, Plaintiff seeks to recover from the
present warden, Warden David Ortiz, and the former warden, Jordan
Hollingsworth, under a Bivens theory of liability. (Id., ¶¶143156.) Plaintiff claims that the wardens were aware of the various
environmental issues as well as the overcrowding and that they
maintained policies that allowed the conditions to persist. (Id.)
III. STANDARD OF REVIEW
Defendants

raise

a

factual

challenge

to

subject

matter

jurisdiction over Counts I and II, pursuant Federal Rule of Civil
Procedure

12(b)(1),

arguing

that

Plaintiff

jurisdictional requirements of the FTCA.

has

not

met

the

Rule 12(b)(1) permits a

party to challenge subject matter jurisdiction in a responsive
pleading. A factual challenge to subject matter jurisdiction is
more than a pleading deficiency, but rather the failure to comport
with jurisdictional prerequisites, U.S. ex rel. Atkinson v. PA.
Shipbuilding Co., 473 F.3d 506, 512 (3d Cir. 2007) (citations
omitted)). When deciding a factual challenge to jurisdiction, a
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court can look at materials beyond the pleadings. Gould Elecs.
Inc. v. United States, 220 F.3d 169, 176-77 (3d Cir. 2000)).
Additionally, Defendants seek dismissal of Count III of the
amended complaint under Rule 12(b)(6) for failure to state a claim
upon which relief may be granted. When considering a Rule 12(b)(6)
motion to dismiss, courts must accept a plaintiff’s allegations as
true “with the important caveat that the presumption of truth
attaches only to those allegations for which there is sufficient
“factual matter” to render them “plausible on [their] face.”
Schuchardt v. President of the United States, 839 F.3d 336, 347
(3d Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009)). The plausibility determination is context-specific and
requires a reviewing court to draw on its judicial experience and
common sense. Id. (citations omitted).
A plaintiff has the burden of pleading sufficient “factual
matter” but need not plead “specific facts.” Id. (quoting Boykin
v. KeyCorp, 521 F.3d 202, 215 (2d Cir. 2008) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 569 (2007) and Erickson v. Pardus,
551 U.S. 89, 93 (2007)). “Implicit in the notion that a plaintiff
need not plead ‘specific facts’ to survive a motion to dismiss is
that courts cannot inject evidentiary issues into the plausibility
determination.” Id., (citing Twombly, 550 U.S. at 556). A court
may not dismiss a complaint based on the court’s “assessment that
the

plaintiff

will

fail

to

find
7

evidentiary

support

for

his

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allegations

or

prove

his

claim

to

the

satisfaction

of

the

factfinder.” Id. (quoting Twombly, 550 U.S. at 573.)
In reviewing the sufficiency of a complaint, a court must
first identify the legal elements required to state a cognizable
claim. Argueta v. U.S. Immigration and Customs Enforcement, 643
F.3d 60, 74 (3d Cir. 2011) (citing Iqbal, 129 S. Ct. at 1950,
Santiago v. Warminster Tp., 629 F.3d 121, 129-30 (3d Cir. 2010)).
Second, the court should identify allegations that are no more
than conclusions that are not entitled to an assumption of truth.
Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d Cir. 2016).
“[T]he clearest indication that an allegation is conclusory and
unworthy of weight in analyzing the sufficiency of a complaint is
that it embodies a legal point.” Connelly, 809 F.3d at 790 (citing
Peñalbert–Rosa v. Fortuño–Burset, 631 F.3d 592, 595 (1st Cir. 2011)
(citation and internal quotation marks omitted).
Third,

a

court

must

determine

whether

the

“well-pleaded

factual allegations plausibly give rise to an entitlement to
relief.” Argueta, 643 F.3d at 74 (citing Iqbal, 129 S. Ct. at 1950,
Santiago, 629 F.3d at 129-30.) The plausibility requirement “‘is
not akin to a ‘probability requirement.’” Id. (quoting Iqbal, 129
S. Ct. at 1949). The plausibility requirement requires a pleading
to show “‘more than a sheer possibility that a defendant has acted
unlawfully.’” Connelly, 809 F.3d at 786 (quoting Iqbal, 556 U.S.
at

678)).

Allegations

that

are
8

“merely

consistent

with

a

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defendant's liability” … are not enough. Santiago, 629 F.3d at 133
(quoting Iqbal, 129 S. Ct. at 1949–50 (internal quotation marks
omitted)).

Where

defendant’s

there

liability

is
but

an

allegation

there

is

an

consistent
“obvious

with

a

alternative

explanation,” the inference of the defendant’s liability is not
plausible. Id.
IV. DISCUSSION
A.

Jurisdiction Over FTCA Claims
1.

Applicable Law

“Under the doctrine of sovereign immunity, the United States
‘is immune from suit save as it consents to be sued….’” Cooper v.
Comm'r, 718 F.3d 216, 220 (3d Cir. 2013) (quoting United States v.
Testan, 424 U.S. 392, 399 (1976) (citation and internal quotation
marks omitted)). “Absent a waiver, sovereign immunity shields the
Federal Government and its agencies from suit”. FDIC v. Meyer, 510
U.S. 471, 475 (1994)).
The FTCA is a limited waiver of sovereign immunity over claims
against the federal government and its agencies. Dolan v. U.S.
Postal Service, 546 U.S. 481, 484-85 (2006). For jurisdiction under
28 U.S.C. § 1346(b)(1), a claim must be made
[1] against the United States, [2] for money
damages, ... [3] for injury or loss of
property, or personal injury or death [4]
caused by the negligent or wrongful act or
omission of any employee of the Government [5]
while acting within the scope of his office or
employment, [6] under circumstances where the
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United States, if a private person, would be
liable to the claimant in accordance with the
law of the place where the act or omission
occurred.’
CNA v. United States, 535 F.3d 132, 141 (3d Cir. 2008), as amended
(Sept. 29, 2008) (quoting FDIC v. Meyer, 510 U.S. 471, 477 (1994)
(quoting 28 U.S.C. § 1346(b)(1)) (alterations in original)).
Furthermore, 28 U.S.C. § 2675(a) mandates that a tort action
“shall not be instituted” against the United States unless two
prerequisites have been satisfied: (1) “the claimant shall have
first presented the claim” to the agency and (2) the claim “shall
have been finally denied by the agency in writing.” 28 U.S.C. §
2675(a). Stated another way, no FTCA action may be commenced on a
claim against the United States until the claimant has first
presented, and exhausted, the available administrative remedies
prior to bringing suit in any court. McNeil v. United States, 508
U.S. 106, 111-13 (1993). If a plaintiff files a suit without
having submitted a timely claim to the appropriate agency, the
suit must be dismissed. Id. at 112-13 (1993); Perez-Barron v.
United States, 480 F. App’x 688, 691 (3d Cir. 2012). A complaint
must also be dismissed for lack of jurisdiction if a plaintiff
submits an administrative claim to the agency and then files a
complaint before either: (1) the agency has finally denied the
claim in writing, or (2) the six-month period for agency action

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has expired, the complaint must be dismissed for lack of subject
matter jurisdiction. Id. at 112-13.
2.

The Parties’ Arguments

Defendants contend that Plaintiff has not complied with the
administrative exhaustion requirement that is a jurisdictional
prerequisite to bringing an FTCA claim in a federal district court.
(Defs.’ Brief, ECF No. 65-1 at 28.) Plaintiff filed the original
complaint on April 20, 2017. (Defs.’ Brief, ECF No. 65-1 at 30.)
Plaintiff never filed an administrative claim before filing the
complaint. (Id., citing Declaration of Tara Moran (“Moran Decl.”),
ECF No. ECF No. 65-2.) Plaintiff first submitted an administrative
claim on June 5, 2017. (Id., ¶3, Ex. 1.) A few days later, the
Bureau of Prisons (“BOP”) responded by notifying Plaintiff that
because his claim involved multiple unrelated allegations, he must
refile separate claims. (Id., ¶4, Ex. 2.) Plaintiff failed to
respond to the BOP’s letter and did not take any further actions
to exhaust his administrative remedies. (Id., ¶5.)
Defendants contend that Plaintiff’s filing cannot satisfy the
presentment

requirement

because

Plaintiff

filed

his

original

complaint before the agency had “finally denied” the claim “in
writing.” 28 U.S.C. § 2675(a). (Defs.’ Brief, ECF No. 65-1 at 31.)
The subsequent filing of an amended complaint cannot undo the fact
that the suit was initiated before administrative exhaustion was
achieved. (Id., citing e.g., McNeil, 508 U.S. at 112; Perez-Barron,
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480 F. App’x at 691; Wadhwa v. Nicholson, 367 F. App’x 322, 325
(3d Cir. 2010)). Therefore, Defendants assert that the Court lacks
jurisdiction over Counts I and II, and they should be dismissed.
In

opposition,

Plaintiff

contends

that

he

met

the

jurisdictional requirements for his FTCA claims. (Pl’s Brief, ECF
No. 73 at 11.) Upon screening Plaintiff’s original complaint, the
Court was unsure whether Plaintiff intended to bring an FTCA claim,
thus stated that if Plaintiff "intended to bring an FTCA claim, he
must file an amended complaint, establishing that he met the
jurisdictional prerequisites." (Pl’s Brief, ECF No. 73 at 10,
citing ECF. No. 4 at 5.) Following the Court's Order, Plaintiff
amended his complaint and presented a claim under the FTCA against
the United States of America. (Id. at 11.)
Plaintiff

claims

that

he

satisfied

the

two

statutory

prerequisites, prior to asserting his FTCA claim, by presenting
his claim to the BOP on May 30, 2017, and responding to the BOP’s
letter requiring him to submit separate “SF95” forms on June 17,
2017. (Id., citing Declaration of James Stile, (“Stile Decl.”)
¶¶2-3, ECF No. 73 at 22.) The BOP still has not issued a written
decision on Plaintiff’s administrative claims. (Id., citing Stile
Decl., ¶5.) Pursuant to 28 U.S.C. § 2675(a), the FTCA claims may
be considered denied "any time" after six months. (Id.) If the
Court finds that it lacks jurisdiction, Plaintiff will seek to
file the FTCA claim in a separate complaint. (Id. at 13.)
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In reply, Defendants contend that Plaintiff’s individual SF95 forms were not presented to the agency. (Defs.’ Reply Brief,
ECF No. 73 at 6.) Pursuant to 28 C.F.R. § 14.2, “a claim shall be
deemed to have been presented when a Federal agency receives from
a claimant, his duly authorized agent or legal representative, an
executed Standard Form 95 or other written notification of an
incident…” (Defs.’ Reply Brief, ECF No. 73 at 6.)) Defendants
contend Plaintiff failed to meet his burden to demonstrate that
the federal agency was in actual receipt of his claim. (Id.,
quoting Lightfoot v. U.S., 564 F.3d 625, 628 (3d Cir. 2009) (“We
now join these sister Courts in rejecting the mailbox rule and
holding that a plaintiff must demonstrate that the Federal agency
was in actual receipt of the claim, whether on initial presentment
or

on

a

request

for

reconsideration.”))

According

to

the

Declaration of Tara Moran, Plaintiff never refiled his claims on
individual SF-95 forms. (Id., citing Moran Decl. ¶5.) In response,
Plaintiff asserts that there is a fact question requiring discovery
of whether Defendants received Plaintiff’s SF-95s. (Pl’s Surreply, ECF No. 78 at 10-11.)
3.

Analysis

Upon review of the original complaint, the Court concludes
that Plaintiff, acting pro se in April 2017, raised an FTCA claim.
In Plaintiff’s jurisdictional statement, he asserted jurisdiction
under Bivens and 28 U.S.C. § 1346. (Compl., ECF No. 1 at 2-3.)
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Consistent with an FTCA claim, Plaintiff named the United States
of

America

as

a

defendant,

based

on

alleged

negligence

of

government employees. (See generally, Compl., ECF No. 1.) The
complaint was filed on April 20, 2017, and the BOP received
Plaintiff’s first submission regarding his claims on June 5, 2017.
(Moran Decl., ¶3, ECF No. 65-2.) This was well in advance of the
Court’s October 23, 2017 Opinion and Order, directing Plaintiff to
file

an

amended

complaint

establishing

exhaustion

of

administrative remedies if he was asserting an FTCA claim. (Opinion
and Order, ECF Nos. 4, 5.)
As such, Plaintiff prematurely filed an FTCA complaint on
April

20,

2017,

without

meeting

the

FTCA

jurisdictional

requirements. Plaintiff’s FTCA claims were not saved by filing an
amended complaint on August 13, 2019. See Priovolos v. Fed. Bureau
of Investigation, 686 F. App'x 150, 152 (3d Cir. 2017) (“the
subsequent filing and denial of a claim after suit has been
commenced does not overcome the failure to exhaust administrative
remedies and premature filing of the complaint”) (quoting McNeil,
508 U.S. at 111-12.)) Therefore, the Court lacks jurisdiction over
Plaintiff’s FTCA claims, and Counts I and II are dismissed without
prejudice. 1

1

Plaintiff seeks leave of court to file a new FTCA action. Leave
of court is not required to file a new action and Defendants may
raise any defenses deemed proper if such action is filed.
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B.

Whether Special Factors Counsel Hesitation in Implying
a Bivens Remedy for an Eighth Amendment Conditions of
Confinement Claim

Defendants ask the Court to dismiss the claims in Count III,
arguing the Court should not extend the Bivens damages remedy into
this new context because (1) there are alternative processes
available to protect the interests at issue here and (2) special
factors counsel against extending Bivens to this context. (Defs.’
Brief, ECF No. 65-1 at 11.)

“Whether a cause of action exists is

not a question of jurisdiction, and may be assumed without being
decided” See Bistrian, 912 F.3d at 89 n.15 (quoting Air Courier
Conference of Am. v. Am. Postal Workers Union AFL-CIO, 498 U.S.
517, 523 n.3 (1991)). Thus, the Court assumes a damages remedy is
available for allegations of failure to protect Plaintiff from
environmental conditions that pose a serious risk to his health
and for conditions that caused Plaintiff to suffer a serious
medical need to be removed from exposure to those conditions, and
that Defendants were aware of the risks but refused to protect
Plaintiff. See Helling v. McKinney 509 U.S. 25 (1993) (holding
Eighth Amendment claim exists where conditions posed a serious
risk to prisoner’s
(1976)

(holding

future health); Estelle v. Gamble, 429 U.S. 97

allegations

that

prisoner

suffered

a

serious

medical need and prison official was deliberately indifferent to
the

need

for

treatment

states

an

Eighth

Amendment

claim).

Therefore, the Court turns to the qualified immunity defense.
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C.

Qualified Immunity on Bivens Claims

Defendants

assert

the

affirmative

defense

of

qualified

immunity to the Eighth Amendment conditions of confinement claims.
1.

Standard of Review

The defense of qualified immunity to a Bivens claim may
properly be addressed at the motion to dismiss stage. See e.g.
Iqbal, 556 U.S. at 672. “The doctrine of qualified immunity shields
government officials from Bivens claims and money damages, unless
a plaintiff can establish that the official violated a statutory
or

constitutional

right,

and

that

the

right

was

‘clearly

established at the time of the challenged conduct.’” Bryan v.
United States, 913 F.3d 356, 362 (3d Cir. 2019) (citing Pearson v.
Callahan, 555 U.S. 223, 236 (2009)).
There are two inquiries in determining qualified immunity
and courts may address the inquiries in either order. Pearson v.
Callahan, 555 U.S. at 232.

The two inquiries are

(1) “whether

the facts that [the plaintiff] has alleged . . . make out a
violation of a constitutional right” and (2) if so “whether the
right

at

issue

was

‘clearly

established.’”

Id.

(citations

omitted).
A constitutional right is “clearly established” if, at the
time of the challenged conduct, “‘[t]he contours of [a] right [are]
sufficiently clear’” that every “‘reasonable official would have
understood that what he is doing violates that right.’” Ashcroft
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v. al-Kidd, 563 U.S. 731, 741 (2011) (emphasis added) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987). To meet this
standard, existing precedent must have placed the constitutional
question beyond debate. Id.

(citation omitted). The inquiry must

involve a high degree of specificity of the challenged conduct in
relation to the existing precedent. D.C. v. Wesby, 138 S. Ct. 577,
590 (2018) (citation omitted). If “a reasonable officer might not
have known for certain” that the particular conduct ascribed to
him “was unlawful,” then he “is immune from liability.” Abbasi,
137 S. Ct. at 1867.
Thus, to apply the doctrine of qualified immunity, courts
must

look

to

the

constitutional

right

at

issue.

Government

officials are liable only for their own conduct; accordingly, they
must have had some sort of personal involvement in the alleged
constitutional violation. Argueta v. U.S. Immigration & Customs
Enforcement, 643 F.3d 60, 71 (3d Cir. 2011). Liability under Bivens
cannot be predicated on the doctrine of respondeat superior. See
Iqbal, 556 U.S. at 676.
The

Eighth

Amendment’s

prohibition

on

cruel

and

unusual

punishment applies to deprivations that constitute an “unnecessary
and wanton infliction of pain,” including “those that are ‘totally
without penological justification.’” Rhodes v. Chapman, 452 U.S.
337, 346 (1981) (quoting Gregg v. Georgia, 428 U.S. 153, 183
(1976)). “[A] prison official violates the Eighth Amendment only
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when two requirements are met.” Farmer v. Brennan, 511 U.S. 825,
834 (1994).
First,

“the

deprivation

alleged

must

be,

objectively,

‘sufficiently serious,’” resulting in “the denial of ‘the minimal
civilized measure of life’s necessities.’” Id. at 834 (quoting,
respectively, Wilson v. Seiter, 501 U.S. 294, 298 (1991) and Rhodes
v. Chapman, 452 U.S. at 347)). The Eighth Amendment “‘does not
mandate comfortable prisons.’” Wilson, 501 U.S. at 298 (quoting,
Rhodes, 452 U.S. at 349). However, it is “cruel and unusual
punishment to hold convicted criminals in unsafe conditions.”
Youngberg v. Romeo, 457 U.S. 307, 315–316 (1982); see also Helling,
509 U.S. at 33 (“The Amendment, as we have said, requires that
inmates be furnished with the basic human needs, one of which is
‘reasonable safety.’”) (quoting DeShaney v. Winnebago County Dep’t
of Social Services, 489 U.S. 189, 200 (1989)).
In challenges to conditions that pose an “unreasonable risk
of serious damage to [a prisoner’s] future health,” a prisoner
must allege that the exposure is of an unreasonably high level.
Helling, 509 U.S. at 35. The objective factor of the claim “also
requires a court to assess whether society considers the risk that
the

prisoner

complains

of

to

be

so

grave

that

it

violates

contemporary standards of decency to expose anyone unwillingly to
such a risk.” Id. at 36.

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Second, for an Eighth Amendment conditions of confinement
claim, “a prison official must have a ‘sufficiently culpable state
of mind.’” Mammana v. Fed. Bureau of Prisons, 934 F.3d 368, 372–
73 (3d Cir. 2019) (quoting Farmer, 511 U.S. at 834 (quoting Wilson,
501 U.S. at 297.). “In prison-conditions cases that state of mind
is one of ‘deliberate indifference’ to inmate health or safety
....” Id. (quoting Farmer, 511 U.S. at 834) (quoting Wilson, 501
U.S. at 302-03.) “[D]eliberate indifference requires that the
‘prison official must both know of and disregard an excessive risk
to inmate health or safety.’” Id. (quoting Woloszyn v. County of
Lawrence, 396 F.3d 314, 321 (3d Cir. 2005) (omissions in original)
(quoting Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir.
2001)).
2.

The Parties’ Arguments

Defendants contend, under the first step of the qualified
immunity test, that neither Warden Hollingsworth nor Warden Ortiz
personally participated in the deprivation of a constitutional
right. (Defs.’ Brief, ECF No. 65-1 at 24.) The sole allegations of
personal involvement against the wardens are that they were “aware”
of

the

asbestos,

water

contamination,

mold,

inadequate

ventilation, lack of sanitation, and overcrowding, and that they
“maintained policies that allowed these conditions” to persist; in
other words, mere conclusory statements. (Id. at 25.)

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Defendants state that Plaintiff does not allege how the
wardens had control over things such as the water supply, asbestos
tiling on the floor, flight paths of jets, or the designation of
federal inmates to this particular facility. (Id. at 25-26.)
Defendants argue that the law requires far more to proceed on a
Bivens claim. (Id. at 26.) Because Plaintiff has not alleged the
personal involvement required to hold an individual responsible
for

damages

under

Bivens,

the

claims

against

the

individual

defendants should be dismissed at the first step of the qualified
immunity analysis. (Id. at 27.)
At

the

second

step

of

the

qualified

immunity

analysis,

Defendants assert that it would not be clear to a reasonable
officer that his conduct was a violation of a specific right, where
the conduct was awareness of asbestos, mold, jet fumes, poor
bathroom sanitation and overcrowding. (Defs.’ Brief, ECF No. 65-1
at 28.) Defendants argue that “awareness” of these conditions, in
the

absence

information

of

further

regarding

allegations

Plaintiff’s

that

health

the

Wardens

conditions

had

or

any

health

concerns, is not something that a reasonable officer would believe
violated

a

clearly

established

constitutional

right.

(Id.)

Defendants submit they are entitled to qualified immunity. (Id.)
Plaintiff disagrees, noting that prison officials have an
obligation to provide adequate food, clothing, shelter, medical
care, and must "take reasonable measures to guarantee the safety
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of the inmates." (Pl’s Opp. Brief, ECF No. 73 at 19, quoting Stile
v. United States,

Civ. No. 17-2693 (RMB), 2017 WL 4779617, at *3

(D.N.J. Oct. 23, 2017). Plaintiff contends that he alleged a
sufficient factual basis to show that the Warden Defendants were
aware of the serious constitutional violations occurring at Fort
Dix,

were

deliberately

indifferent

to

those

violations

and

acquiesced to them. (Id. at 19-20.)
Plaintiff refers to allegations in the amended complaint that
Defendants

were

aware

of

the

water

contamination

at

levels

thousands of times higher than the federal government's health
advisory level for drinking water, yet they refused to provide
Plaintiff with an alternative water supply, compelling him to
continue to consume contaminated water. (Id. at 20.) Similarly, he
alleges Defendants were aware of the dangerous level of asbestos,
mold and polluted air from jet fumes, exacerbated by inadequate
ventilation in the prison, and that he complained to Defendants
that these conditions were exacerbating his medical conditions and
increasing his risk of cancer and other future harm to his health.
(See generally, Am. Compl., ECF No. 51.)
Likewise, Plaintiff alleges the Warden Defendants were aware
of the widespread overcrowding at Fort Dix, leading to unsanitary
conditions. (Pl’s Opp. Brief, ECF No. 73 at 21.) Plaintiff contends
that the persistence, duration, and scope of the overcrowding

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showed

that

the

Warden

Defendants

"maintained

a

policy

of

overcrowding" that resulted in sanitation problems. (Id.)
3.

Analysis
a.

Overcrowding Claim

Plaintiff’s overcrowding claim is not supported by clearly
established precedent. Brown v. Plata is relevant Supreme Court
precedent governing Eighth Amendment claims concerning overcrowded
prisons. 563 U.S. 493 (2011). In Plata, the Court affirmed an
injunction requiring a 137.5% design capacity prison population
limit, necessary to provide constitutionally adequate medical and
mental health care to prisoners. Id. at 541. The lower court found
the extent of overcrowding, 190% of systemwide design capacity,
was

“extraordinary”

Schwarzenegger,

922

and
F.

“almost

Supp.

2d

unheard
882,

920

of.”
(E.D.

Coleman
Cal.

v.

2009).

Overcrowding in the reception centers was at or above 200% design
capacity, making “it impossible to provide adequate medical and
mental health services to inmates entering the California prison
system.” Id. at 924. Space was insufficient to screen and treat
prisoners. Id. Exam rooms were so small that actual physical exams
were virtually impossible. Id.
Other issues impacted by the overcrowding in Plata included
forcing

prisons

to

house

25%

of

prisoners

outside

of

their

classification levels; severe bed shortages at every level of
mental health care, resulting in inmates “decompensating and …
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ending

up

in

mental

health

conditions

far

more

acute

than

necessary;” triple bunking in gymnasiums and dayrooms never meant
for

housing,

with

documented

disease

outbreaks

and

riots;

inadequate staffing in addition to inadequate space to provide for
additional

staffing;

and

an

increase

of

foreseeable

and

preventable suicides. See generally 922 F. Supp. 2d 882 (E.D. Cal.
2009).
Plaintiff’s allegations of overcrowding, that he was housed
in a twelve-man room with only 43 square feet per inmate and that
the

overcrowding

caused

spread

of

disease

and

unsanitary

conditions such as overflowing trash cans, excessive humidity from
the showers, leaking pipes, and unsanitary shared telephones, fall
far

short

of

the

clearly

established

precedent

of

an

Eighth

Amendment violation in Plata. See also Hubbard v. Taylor, 538 F.3d
229, 233-34 (3d Cir. 2008) (triple-celling of pre-trial detainees
with only sixteen unencumbered square feet per prisoner in a cell
did not violate the Constitution where adequate space existed in
common

The

rooms).

Court

will

grant

qualified

immunity

to

Defendants on Plaintiff’s Eighth Amendment overcrowding claim.
b.

Apart

from

Remaining claims of dangerous environmental
conditions
his

overcrowding

claims,

Petitioner

alleges

exposure to mold, asbestos, jet fumes and contaminated water,
conditions which allegedly violate the Clean Water Act, Safe

23

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Drinking Water Act and Clean Air Act. (See Am. Compl., ¶¶13-59,
84-118.) The Supreme Court, in Helling, held that a plaintiff could
state a cause of action under the Eighth Amendment by alleging
that the defendants, with deliberate indifference, exposed him to
levels

of

environmental

tobacco

smoke

(“ETS”)

that

posed

an

unreasonable risk of serious damage to his future health. 509 U.S.
at 35. The plaintiff in Helling was housed in a cell with a fivepack a day smoker. Id. The Supreme Court explained that
The Eighth Amendment requires more than a
scientific and statistical inquiry into the
seriousness of the potential harm and the
likelihood that such injury to health will
actually be caused by exposure to ETS. It also
requires a court to assess whether society
considers the risk that the prisoner complains
of
to
be
so
grave
that
it
violates
contemporary standards of decency to expose
anyone unwillingly to such a risk. . . . the
subjective factor, deliberate indifference,
should be determined in light of the prison
authorities' current attitudes and conduct.
Helling, 509 U.S. at 36.
The Supreme Court decision in Estelle is also relevant to
Plaintiff’s claims here. In Estelle, the Supreme Court clearly
established that deliberate indifference to serious medical needs
of prisoners constitutes the unnecessary and wanton infliction of
pain, which violates the Eighth Amendment. 429 U.S. at 104. The
Third Circuit, in Taylor v. Atkinson, 316 F.3d 257 (3d Cir. 2003),
held that an illness arising from an inmate’s exposure to an
environmental toxin, ETS in that case, could constitute a serious
24

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medical need if the condition endangered the inmate’s existing
health and appropriate medical treatment required removal from the
exposure. Id. at 266-67 (citing Estelle, 429 U.S. 97).
Solely for purposes of this motion to dismiss, the Court
accepts

as

true

the

allegations

in

the

amended

complaint

concerning: (1) Plaintiff’s level of exposure to toxins in the air
and water at FCI Fort Dix; (2) his allegations that Defendants
were aware of the serious to risk to his health posed by those
conditions and their refusal to address those conditions; and that
the conditions caused or exacerbated his illnesses and/ or caused
a serious risk of future damage to his health. For the purposes of
this motion, the Court will assume Plaintiff has stated an Eighth
Amendment conditions of confinement claim, as described in Helling
and Estelle. See Taylor, 316 F.3d at 263-66 (affirming district
court’s denial of qualified immunity where the plaintiff alleged
facts which, if proven, would establish that “he was unwillingly
exposed to levels of ETS [environmental tobacco smoke] that pose
an unreasonable risk of future harm;” that “society has become
unwilling to tolerate the imposition on anyone of continuous
unwanted risks of second-hand smoke[;]” and that Defendants knew
the ETS was dangerous and that Plaintiff was exposed to it. )
For the second prong of the qualified immunity analysis,
however, the Court cannot accept disputed factual allegations as
true.

The

Court

must

determine
25

whether

the

environmental

Case 1:17-cv-02693-RMB-AMD Document 82 Filed 06/04/20 Page 26 of 30 PageID: 688

conditions were such that a reasonable officer would believe he
violated a clearly established constitutional right by not taking
action to protect Plaintiff from the dangers posed to his health,
and that dangers to his future health were of the type that society
was unwilling to tolerate imposition of those risks on anyone
unwilling. See Atkinson, 316 F.3d at 264 (affirming denial of
qualified immunity at the summary judgment stage without weighing
the underlying evidence). For certain of the alleged dangerous
conditions, discovery is needed. The Court will discuss each
condition in turn.
Plaintiff alleges daily jet activity of takeoffs and landings
in close proximity to the building where he was housed caused him
to breathe carbon monoxide fumes at a level sufficient to cause
him to suffer a serious medical need or that the condition posed
a

serious

risk

to

Plaintiff’s

future

health,

and

that

the

Defendants were aware of these facts and did nothing to protect
Plaintiff. (Am. Compl. ¶¶47-59.) Plaintiff has not pled sufficient
facts to establish that defendants were deliberately indifferent
to his serious medical need caused by air pollution from jet
activity. He has not alleged that he complained to any medical
provider about symptoms he suffered after breathing jet fumes or
that any medical provider recommended that he be removed from the
area where jet fumes polluted the air. Further, the Court cannot
conclude, based on the facts alleged in the complaint, “that
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society considers the risk that the prisoner complains of to be so
grave that it violates contemporary standards of decency to expose
anyone unwillingly to such a risk.” Helling, 509 U.S. at 36.
Therefore,

Defendants

are

entitled

to

qualified

immunity

on

Plaintiff’s Eighth Amendment claim regarding air pollution from
jet activity.
Plaintiff also alleges he was exposed to black mold for two
years, that it permeated his entire residence, particularly the
showers, and that the ceiling fans caused the mold spores to become
airborne, exacerbating his COPD and emphysema. (Am. Compl. ¶¶3946.) He alleges inadequate ventilation exacerbated the risks to
his health. (Id. ¶¶56, 58, 62.) “The mere presence of mold does
not

indicate

an

objectively

serious

deprivation

of

life's

necessities.” Forde v. Fischer, No. CIV.A 08-5026(JAG), 2009 WL
5174650, at *4 (D.N.J. Dec. 16, 2009) (listing cases). Plaintiff
has not alleged the basis for his belief that exposure to the mold
was dangerous to his health or that Defendants were aware it was
dangerous

and

they

did

nothing

to

alleviate

it. 2

The

Court

concludes Defendants are entitled to qualified immunity because

2

If Plaintiff can allege facts supporting his knowledge that the
black mold he was exposed to was dangerous, or that a medical
provider recommended that he should not be exposed to the mold
because it exacerbated his medical conditions and defendants were
deliberately indifferent to the medical provider’s recommendation,
he can seek reconsideration of Defendants’ qualified immunity on
this claim.
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the risk caused by mold, if it is not known to pose a danger to a
person’s health, is not “so grave that it violates contemporary
standards of decency to expose anyone unwillingly to such a risk.”
Plaintiff also alleges that he complained to Defendants that
exposure

to

the

mold

exacerbated

his

COPD

and

emphysema.

Defendants, however, are the warden and former warden of the
facility, not medical providers. “[A]bsent a reason to believe (or
actual knowledge) that prison doctors or their assistants are
mistreating (or not treating) a prisoner, a non-medical prison
official . . . will not be chargeable with the Eighth Amendment
scienter

requirement

of

deliberate

indifference.”

Spruill

v.

Gillis, 372 F.3d 218, 236 (3d Cir. 2004). Plaintiff does not allege
that he complained to a medical provider about exacerbation of his
symptoms and they refused to treat him or that the non-medical
defendants ignored a medical provider’s recommendation for removal
of the mold or moving Plaintiff to a different environment. Based
on

these

allegations,

Defendants

are

entitled

to

qualified

immunity because Plaintiff fails to state an Eighth Amendment
claim.
Plaintiff alleges he was forced to drink and bathe in water
contaminated by lead, PFOA, TCE, PCE, vinyl chloride, benzene,
halogenated hydrocarbons and other dangerous chemicals, far in
excess of the safe level for drinking by government standards.
(Am. Compl., ECF No. 51 ¶¶13-38.) Discovery is required to show
28

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the level of these contaminates in the water, the duration of time
that Plaintiff consumed water that was contaminated at this level,
and that Defendants were aware the contamination created a serious
medical need or that the contamination posed a serious risk to
Plaintiff’s future health.
The presence of asbestos is another condition that Plaintiff
alleges was harmful to his health. Plaintiff alleges he was exposed
daily to asbestos in the flooring tiles and mastic glue, which
were worn down and created airborne dust when swept and stripped;
he was exposed to airborne asbestos during a three-day law library
demolition;

and

he

was

exposed

daily

to

asbestos

laden

pipe

coverings throughout the buildings, all of which infiltrated his
lungs over two years. (Am. Compl. ¶¶84-103.) Although Plaintiff’s
claims appear overstated, as they are generalized, discovery is
required to determine whether Defendants knew that the wear and
tear on the floor tiles or the asbestos on pipe coverings caused
asbestos to become airborne; whether Defendants knew that if
Plaintiff was in the law library during the three-day demolition
he would be exposed to a dangerous level of asbestos, and whether
they knew these conditions harmed Plaintiff’s health or posed a
serious risk to Plaintiff’s future health.
In sum, the Court cannot determine whether Defendants are
entitled
questions

to
of

qualified
fact

immunity

concerning

without

contaminated
29

discovery
water

and

on

these

asbestos

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exposure. See Oliver v. Roquet, 858 F.3d 180, 189 (3d Cir. 2017)
(postponement of qualified immunity defense pending discovery is
appropriate

where,

without

discovery,

a

plaintiff

“would

be

foreclosed from being able to show that there is a question of
fact

as

to

whether

[the

defendant]

knowingly

violated

his

[constitutional right].”
V.

CONCLUSION
For the reasons discussed above, Defendants’ partial motion

to dismiss Counts I, II and III of the amended complaint is granted
in part, and denied in part. Plaintiff’s FTCA claims are dismissed
for lack of jurisdiction. Defendants are entitled to qualified
immunity on Plaintiff’s Eighth Amendment overcrowding claim, jet
fume exposure claim and mold exposure claim. The Court postpones
ruling on Defendants’ qualified immunity to Plaintiff’s remaining
Eighth

Amendment

conditions

of

confinement

claims,

pending

discovery.

An appropriate Order follows.

Date:

June 3, 2020

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

30