ABDULLAH v. COHEN et al
OPINION. Signed by Judge Renee Marie Bumb on 10/23/2017. (rtm, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 17-4006 (RMB)
WARDEN, GERALDINE D. COHEN, et
BUMB, District Judge
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.)
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.
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)
relief may be granted; or (3) seek monetary relief against a
screening pursuant to §§ 1915(e)(2)(B) and 1915A(b).1
Sua Sponte Dismissal
Courts must liberally construe pleadings that are filed pro
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle
v. Gamble, 429 U.S. 97, 106 (1976)).
(internal quotation marks omitted).
Thus, “a pro se complaint,
“Court personnel reviewing
deciphering why the submission was filed, what the litigant is
seeking, and what claims she may be making.”
See Higgs v. Atty.
This Court’s conclusive screening of Plaintiff’s claims is
reserved until he obtains in forma pauperis status.
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).
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
review complaints filed by persons proceeding in forma pauperis
in civil actions, and dismiss any claim that is frivolous or
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
Fed. R. Civ. P. 8(a)(2).
“To survive a motion to
accepted as true, to ‘state a claim to relief that is plausible
on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
“A claim has facial plausibility when the plaintiff
Id. (quoting Twombly, 550 U.S. at 556.)
contained in a complaint[.]”
Legal conclusions, together
with threadbare recitals of the elements of a cause of action,
conclusions, are not entitled to the assumption of truth.”
“While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.”
If a complaint can be remedied by an amendment, a district court
may not dismiss the complaint with prejudice, but must permit
Grayson v. Mayview State Hospital, 293 F.3d 103,
108 (3d Cir. 2002).
which are accepted as true for purposes of this screening only.
Plaintiff is not on a “Ramadan list” because he is receiving a
(Compl., ECF No. 1, ¶4.)
He receives the same
food as the General Population, but no sweets.
Plaintiff states that he reported his “condition” to a POD
Officer on May 27, 2017, but he does not explain what condition
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.
overcrowding and retaliation claims:
From being constantly being moved from one
place to another, deriving from retaliation
because I wouldn’t stay put under the
unknowingly to many live in.
confined here in the “A.J.C.F.” since 4-6 what I have feared all along in
regard to the conditions of this jail has
contracting a desease [sic] I didn’t come
here with, more important in this jail,
which is not, which is negligence and a
(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”.
He claims that the conditions of the showers, the
(Id., ¶5.) Finally, he states “Religious.
from since I came to Atl. Co.”
I am kept isolated
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.”
Plaintiff also includes the following defendants in the
caption, without making any further reference to them in the
Levinson (Exec); Atl. Co. Freeholder Frank Formica (Chairman);
and State of New Jersey Risk Management, Trenton N.J.
Failure to State a Claim Against Defendants Deboise,
Levinson, Formica and State of New Jersey Risk
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.”)
Levinson and Formica, referred to by their titles as Freeholders
of the County, appear to be sued in their official capacities.2
capacities are viewed as suits against the local government, an
entity that can be sued under 42 U.S.C. § 1983.
Monell v. Dep’t
Thus, the proper defendant to the § 1983 claim is
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
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
Personal involvement can be established through
allegations of personal direction or actual knowledge of the
violation and acquiescence in it. Id.
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.”
not alleged any local government policy or custom that caused
the conditions in Atlantic County Justice Facility of which he
Therefore, the claims against Atlantic County would
not survive screening pursuant to §§ 1915(e)(2)(B) and 1915A(b).
Management” as a defendant to this action.
not a person subject to suit under § 1983.
A state agency is
See Will v. Michigan
Dept. of State Police, 491 U.S. 58, 71 (1989).
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).
Fourteenth Amendment Conditions
Inadequate Medical Care Claims
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.
Taylor (“Hubbard I”), 399 F.3d 150, 159-60 (3d Cir. 2005).
same test applies to a pretrial detainee’s claims of inadequate
Montgomery v. Ray, 145 F. App’x 738, 739-40 (3d
[W]e must ask, first, whether any legitimate
purposes are served by these conditions, and
rationally related to these purposes. In
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
, 992 [3d Cir. 1983] (citing Bell [v.
Wolfish], 441 U.S.  542, 99 S.Ct. 1861
) (internal quotation marks omitted).
Our inquiry into whether given conditions
within an institution. Id. at 996; see also
Jones v. Diamond, 636 F.2d 1364, 1368 (5th
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).
Hubbard I, 399 F.3d at 159-60.
Unconstitutional punishment under the Fourteenth Amendment
has objective and subjective components.
Stevenson v. Carroll,
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
objective component is met where the prison conditions cause
extended period of time.”
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
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
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.
App’x 123, 127 (3d Cir. 2013) (“[o]nly extreme deprivations are
sufficient to present a claim for unconstitutional conditions of
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
enough to deprive him of a basic human need.
501 U.S. 294, 305 (1991).
Wilson v. Seiter,
If Plaintiff can meet this standard
dismissal of this action upon screening.
Plaintiff should also
indicate how the warden became aware of the conditions, and how
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
Amendment conditions of confinement claims against Warden Cohen
would not survive screening pursuant to §§ 1915(e)(2)(B) and
Plaintiff alleges he was retaliated against by constantly
moving him from place to place.
(Compl, ECF No. 1, ¶4.)
asserts this was done because “I wouldn’t stay put under the
conditions the facility inforces [sic].”
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).
Plaintiff’s behavior of
This claim would not survive screening pursuant to §§
1915(e)(2)(B) and 1915A(b).
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:
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
(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.’”
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
Nor has Plaintiff alleged any policy that causes his
isolation or how that precludes his practice of religion.
short, Plaintiff has not alleged sufficient facts to state a
First Amendment Free Exercise Claim.
compelling governmental interest’ and is ‘the least restrictive
means of furthering that ... interest.’”) (quoting 42 U.S.C. §
application; however, the Complaint would not survive screening
pursuant to §§ 1915(e)(2)(B) and 1915A(b).
If Plaintiff can
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
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