ABDULLAH v. COHEN et al

Filing 2

OPINION. Signed by Judge Renee Marie Bumb on 10/23/2017. (rtm, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

ABDUL-WOLI ABDULLAH,
Civ. No. 17-4006 (RMB)

Plaintiff,
v.

OPINION

WARDEN, GERALDINE D. COHEN, et
al.,
Defendants.

BUMB, District Judge
Plaintiff
complaint

under

Abdul-Woli
42

Abdullah

U.S.C.

§

brings

1983

this

alleging

civil

rights

unconstitutional

conditions of confinement at Atlantic County Justice Facility.
(Compl., ECF No. 1.)

Plaintiff has filed an application to

proceed in forma pauperis (“IFP”.)

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

28

U.S.C. § 1915(b) requires that a prisoner:
shall submit a certified copy of the trust
fund account statement (or institutional
equivalent) for the prisoner for the 6-month
period immediately preceding the filing of
the complaint or notice of appeal, obtained
from the appropriate official of each prison
at which the prisoner is or was confined.
Plaintiff’s IFP application is missing the certified copy of his
trust fund account statement for the preceding 6-month period.
Therefore,

the

Court

will

administratively

terminate

this

matter, subject to reopening if Plaintiff submits a properly
completed IFP application.
Plaintiff should be aware that 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A(b) require courts to review a prisoner’s complaint in
a civil action and sua sponte dismiss any claims that are (1)
frivolous

or

malicious;

(2)

fail

to

state

a

claim

on

which

relief may be granted; or (3) seek monetary relief against a
defendant
discussed

who

is

below,

immune

from

such

Plaintiff’s

relief.

complaint

For

would

the
not

reasons
survive

screening pursuant to §§ 1915(e)(2)(B) and 1915A(b).1
I.

Sua Sponte Dismissal
Courts must liberally construe pleadings that are filed pro

se.

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

v. Gamble, 429 U.S. 97, 106 (1976)).
however

inartfully

standards

than

pleaded,

formal

must

pleadings

be

se

pleadings

are

charged

held

drafted

(internal quotation marks omitted).
pro

Thus, “a pro se complaint,
to
by

‘less

stringent

lawyers.’”

Id.

“Court personnel reviewing

with

the

responsibility

of

deciphering why the submission was filed, what the litigant is
seeking, and what claims she may be making.”

1

See Higgs v. Atty.

This Court’s conclusive screening of Plaintiff’s claims is
reserved until he obtains in forma pauperis status.
See
Izquierdo v. New Jersey, 532 F. App’x 71, 72-73 (3d Cir. July
25, 2013) (district court may decide whether to dismiss the
complaint under 28 U.S.C. § 1915(e)(2) after leave to proceed
IFP is granted).
2

Gen. of the U.S., 655 F.3d 333, 339-40 (3d Cir. 2011) (quoting
Jonathan D. Rosenbloom, Exploring Methods to Improve Management
and Fairness in Pro Se Cases: A Study of the Pro Se Docket in
the Southern District of New York, 30 Fordham Urb. L.J. 305, 308
(2002)).
Under

28

U.S.C.

§

1915(e)(2)(B),

district

courts

must

review complaints filed by persons proceeding in forma pauperis
in civil actions, and dismiss any claim that is frivolous or
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.

A pleading must contain a “short and plain

statement of the claim showing that the pleader is entitled to
relief.”

Fed. R. Civ. P. 8(a)(2).

dismiss,

a

complaint

must

contain

“To survive a motion to
sufficient

factual

matter,

accepted as true, to ‘state a claim to relief that is plausible
on its face.’”
(quoting

Bell

(2007)).
pleads

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
Atlantic

content

inference

misconduct alleged.”
“[A]

v.

Twombly,

550

U.S.

544,

570

“A claim has facial plausibility when the plaintiff

factual

reasonable

Corp.

court

must

that

that

allows

the

the

defendant

court
is

to

liable

draw

the

for

the

Id. (quoting Twombly, 550 U.S. at 556.)
accept

contained in a complaint[.]”

as
Id.

true

all

of

the

allegations

Legal conclusions, together

with threadbare recitals of the elements of a cause of action,
3

do

not

suffice

to

considering

a

identifying

state

motion

to

pleadings

a

claim.

dismiss

that,

Id.
can

because

Thus,

choose

they

are

to
no

“a

court

begin
more

conclusions, are not entitled to the assumption of truth.”
at 679.

by
than
Id.

“While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations.”

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).
II.

DISCUSSSION
A.

The Complaint

Plaintiff

alleges

the

following

facts

in

his

Complaint,

which are accepted as true for purposes of this screening only.
Plaintiff is not on a “Ramadan list” because he is receiving a
cardiac diet.

(Compl., ECF No. 1, ¶4.)

He receives the same

food as the General Population, but no sweets.

(Id.)

Plaintiff states that he reported his “condition” to a POD
Officer on May 27, 2017, but he does not explain what condition
he reported.

(Id.)

Plaintiff also alleges that he requested

medical assistance on April 6, 2017, “to no avail,” but he does
not say why he requested medical assistance.
The

Court

construes

the

overcrowding and retaliation claims:
4

following

allegations

as

From being constantly being moved from one
place to another, deriving from retaliation
because I wouldn’t stay put under the
conditions
the
facility
inforces
[sic]
unknowingly to many live in.
I’ve been
confined here in the “A.J.C.F.” since 4-6[2017] what I have feared all along in
regard[] to the conditions of this jail has
become
a
reality
(being
affected)
contracting a desease [sic] I didn’t come
here with, more important in this jail,
which is not, which is negligence and a
violation.
(Compl., ECF No. 1, ¶4.)
Plaintiff further alleges the conditions in the jail have
caused his lower disk to fall out of place and “leg problems”.
(Id., ¶3C.)
POD,

and

He claims that the conditions of the showers, the

the

“room

condition”

cause

boils

(Id., ¶5.) Finally, he states “Religious.
from since I came to Atl. Co.”
For

relief,

Plaintiff

and

chicken

pox.

I am kept isolated

(Id., ¶3C.)

seeks

money

damages.

(Id.,

¶5.)

Plaintiff alleges Warden Geraldine Cohen is liable because she
is “responsible for ensuring that all the rights and Amendments
of every prisoner/inmate within this institution are honored.”
(Id.)

Plaintiff also includes the following defendants in the

caption, without making any further reference to them in the
Complaint:

Cherlye

Deboise

CFG;

Atl.

Co.

Freeholder

Dennis

Levinson (Exec); Atl. Co. Freeholder Frank Formica (Chairman);
and State of New Jersey Risk Management, Trenton N.J.

5

B.

Failure to State a Claim Against Defendants Deboise,
Levinson, Formica and State of New Jersey Risk
Management

Plaintiff
defendants

has

did

not

or

alleged

failed

constitutional rights.

to

what

any

do

in

of

the

above-named

violation

of

his

For liability under § 1983, a defendant

must have personal involvement in a constitutional violation.
See Iqbal, 556 U.S. at 676 (“[b]ecause vicarious liability is
inapplicable to . . . § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official's own
individual actions, has violated the Constitution.”)

Defendants

Levinson and Formica, referred to by their titles as Freeholders
of the County, appear to be sued in their official capacities.2
Suits

against

local

government

officials

in

their

official

capacities are viewed as suits against the local government, an
entity that can be sued under 42 U.S.C. § 1983.
of

Social

(1978).

Services

of

City

of

New

York,

436

Monell v. Dep’t
U.S.

658,

690

Thus, the proper defendant to the § 1983 claim is

Atlantic County.

2

Local government officials may also be sued under § 1983 in
their individual capacities, but the complaint must contain
allegations showing the officials’ personal involvement in a
constitutional violation.
See Rode v. Dellarciprete, 845 F.2d
1195, 1207 (3d Cir. 1998) (“A defendant in a civil rights action
must have personal involvement in the alleged wrongs; liability
cannot be predicated solely on the operation of respondeat
superior.”)
Personal involvement can be established through
allegations of personal direction or actual knowledge of the
violation and acquiescence in it. Id.
6

A local government is liable under § 1983 only where it
causes the constitutional violation at issue.
Ohio v. Harris, 489 U.S. 378, 385 (1989).

City of Canton,

Therefore, there must

be “a direct causal link between “a municipal policy or custom
and the alleged constitutional deprivation.”

Id.

Plaintiff has

not alleged any local government policy or custom that caused
the conditions in Atlantic County Justice Facility of which he
complains.

Therefore, the claims against Atlantic County would

not survive screening pursuant to §§ 1915(e)(2)(B) and 1915A(b).
Finally,

Plaintiff

named

the

“State

Management” as a defendant to this action.
not a person subject to suit under § 1983.

of

New

Jersey

Risk

A state agency is
See Will v. Michigan

Dept. of State Police, 491 U.S. 58, 71 (1989).

Furthermore,

under the Eleventh Amendment, “an unconsenting State is immune
from suits brought in federal courts by her own citizens as well
as by citizens of another State.”
651 (1974) (citations omitted).

Edelman v. Jordan, 415 U.S.
New Jersey has not waived its

sovereign immunity to § 1983 claims.
App’x 973, 976 (3d Cir. 2008).

Mierzwa v. U.S., 282 F.

Plaintiff’s claim against the

State of New Jersey Risk Management would not survive screening
pursuant to §§ 1915(e)(2)(B) and 1915A(b).
C.

Fourteenth Amendment Conditions
Inadequate Medical Care Claims

7

of

Confinement

and

When

a

pretrial

detainee

alleges

unconstitutional

conditions of confinement in violation of the Due Process Clause
of the Fourteenth Amendment, the Third Circuit Court of Appeals
has set forth a two-step test to analyze the claim.

Hubbard v.

Taylor (“Hubbard I”), 399 F.3d 150, 159-60 (3d Cir. 2005).

This

same test applies to a pretrial detainee’s claims of inadequate
medical care.

Montgomery v. Ray, 145 F. App’x 738, 739-40 (3d

Cir. 2005).
[W]e must ask, first, whether any legitimate
purposes are served by these conditions, and
second,
whether
these
conditions
are
rationally related to these purposes. In
assessing
whether
the
conditions
are
reasonably related to the assigned purposes,
we must further inquire as to whether these
conditions “cause [inmates] to endure [such]
genuine privations and hardship over an
extended period of time, that the adverse
conditions become excessive in relation to
the purposes assigned to them.” [Union
County Jail Inmates v. DiBuono,] 713 F.2d
[984], 992 [3d Cir. 1983] (citing Bell [v.
Wolfish], 441 U.S. [520] 542, 99 S.Ct. 1861
[1979]) (internal quotation marks omitted).
Our inquiry into whether given conditions
constitute
“punishment”
must
therefore
consider
the
totality
of
circumstances
within an institution. Id. at 996; see also
Jones v. Diamond, 636 F.2d 1364, 1368 (5th
Cir.1981)
(“In
determining
whether
conditions
of
confinement
are
unconstitutional under ... the fourteenth
amendment, we do not assay separately each
of the institutional practices, but look to
the totality of the conditions.”), overruled
in part on other grounds, Int'l Woodworkers
of America, AFL–CIO v. Champion Int'l Corp.,
790 F.2d 1174 (5th Cir.1986) (en banc).

8

Hubbard I, 399 F.3d at 159-60.
Unconstitutional punishment under the Fourteenth Amendment
has objective and subjective components.

Stevenson v. Carroll,

295

subjective

F.3d

62,

68

(3d

Cir.

2007).

The

component,

whether the defendant prison official acted with a sufficiently
culpable state of mind, is met where the condition is arbitrary
or purposeless or the condition is excessive, even if it would
accomplish

a

legitimate

governmental

objective.

Id.

The

objective component is met where the prison conditions cause
inmates

to

“endure

genuine

extended period of time.”

privations

and

hardship

over

an

Bell, 441 U.S. at 542.

Plaintiff generally alleges that the “hideous” conditions
in the prison caused him to contract chicken pox and to suffer
lower back and leg injuries.

Anyone exposed to chicken pox may

contract

Complaint

factual

the

disease.

allegations

particular

conditions

The

that
in

Warden
the

does

Cohen

jail

not

was

that

contain

aware

would

of

create

any
any
an

unreasonable risk of prisoners contracting chicken pox, and that
she failed to do anything to ameliorate that risk.
Plaintiff’s claim regarding his lower back and leg injuries
is

even

more

deficient.

Plaintiff

has

not

described

any

condition(s) in the jail that caused his back and leg injuries,
nor has he alleged how Warden Cohen was deliberately indifferent
to the risk of his injuries.

See Fantone v. Herbik, 528 F.
9

App’x 123, 127 (3d Cir. 2013) (“[o]nly extreme deprivations are
sufficient to present a claim for unconstitutional conditions of
confinement”)

(citing

Hudson

v.

McMillian,

503

U.S.

1,

8-9

Plaintiff

has

(1992)).
For

his

inadequate

medical

care

claim,

alleged only that he requested medical care on April 6, 2017,
“to no avail.”

(Compl., ECF No. 1, ¶4.)

Plaintiff has not

explained what medical assistance he needed and why, who denied
his request, or how he was harmed by the denial of his request.
Without this information, Plaintiff has failed to state how his
inadequate medical care amounted to punishment.
To state a constitutional violation, Plaintiff must allege
facts

suggesting

the

conditions

of

confinement

enough to deprive him of a basic human need.
501 U.S. 294, 305 (1991).
by

further

identifying
Plaintiff

describing
a

may

basic
wish

severe

Wilson v. Seiter,

If Plaintiff can meet this standard
the

human
to

were

conditions
need

file

an

of

of

which

amended

dismissal of this action upon screening.

confinement
he

was

complaint

and

deprived,
to

avoid

Plaintiff should also

indicate how the warden became aware of the conditions, and how
the

warden

was

deliberately

Plaintiff’s health.

indifferent

to

the

risk

to

Plaintiff should note that when an amended

complaint is filed, it should be complete because it replaces
the original complaint.

See 6 Wright, Miller & Kane, Federal
10

Practice

and

Procedure

1476

(2d

ed.

1990).

The

Fourteenth

Amendment conditions of confinement claims against Warden Cohen
would not survive screening pursuant to §§ 1915(e)(2)(B) and
1915A(b).
D.

Retaliation Claim

Plaintiff alleges he was retaliated against by constantly
moving him from place to place.

(Compl, ECF No. 1, ¶4.)

He

asserts this was done because “I wouldn’t stay put under the
conditions the facility inforces [sic].”
“As

a

threshold

matter,

a

(Id.)

prisoner-plaintiff

in

a

retaliation case must prove that the conduct which led to the
alleged retaliation was constitutionally protected.”
Horn, 241 F.3d 330, 333 (3d Cir. 2001).
stay

put”

is

not

Rauser v.

Plaintiff’s behavior of

refusing

“to

constitutionally

protected

conduct.

This claim would not survive screening pursuant to §§

1915(e)(2)(B) and 1915A(b).
E.

First Amendment Free Exercise of Religion Claim

Plaintiff alleges two facts suggesting he is attempting to
bring a claim under the First Amendment Free Exercise Clause3:

3

A state prisoner may also bring a claim the Religious Land Use
and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C.
§§ 2000cc et seq.
Washington v. Klem, 497 F.3d 272, 277 (3d
Cir. 2007) (“Section 3 of RLUIPA states that ‘[n]o government
shall impose a substantial burden on the religious exercise of a
person residing in or confined to an institution ... even if the
burden results from a rule of general applicability,’ unless the
government demonstrates that the burden is ‘in furtherance of a
11

(1) that he is not on the Ramadan list, and (2) his isolation in
the jail prevents him from practicing his religion.
“When a prisoner asserts a First Amendment free exercise
claim that ‘a prison policy is impinging on [his] constitutional
rights,’ the court must then apply the four factor test set
forth in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96
L.Ed.2d 64 (1987), to determine whether the curtailment at issue
is ‘reasonably related to penological interests.’”

Garraway v.

Lapin, 490 F. App’x 440, 443-44 (3d Cir. 2012) (quoting DeHart
v. Horn, 227 F.3d 47, 51 (3d Cir.2000) (citing Turner, 482 U.S.
at 89, 107 S.Ct. 2254).
Plaintiff’s claim is deficient because he has not alleged
any policy that prevents him from being on the Ramadan list, or
even that he requested to be on the list and was refused (or by
whom).

Nor has Plaintiff alleged any policy that causes his

isolation or how that precludes his practice of religion.

In

short, Plaintiff has not alleged sufficient facts to state a
First Amendment Free Exercise Claim.
III. CONCLUSION
For

the

Plaintiff’s
reopen

this

reasons

IFP

stated

application

matter

by

above,

without

filing

a

the

Court

prejudice.
properly

will

Plaintiff
completed

deny
may
IFP

compelling governmental interest’ and is ‘the least restrictive
means of furthering that ... interest.’”) (quoting 42 U.S.C. §
2000cc–1(a)).
12

application; however, the Complaint would not survive screening
pursuant to §§ 1915(e)(2)(B) and 1915A(b).

If Plaintiff can

correct

he

the

deficiencies

in

his

Complaint,

may

file

amended complaint within the allotted time.

An appropriate order follows.
DATE: October 23, 2017
s/Renée Marie Bumb__________
RENÉE MARIE BUMB
United States District Judge

13

an