VIOLETTE v. ORTIZ et al

Filing 3

OPINION. Signed by Judge Jerome B. Simandle on 9/13/17. (jbk, )

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

GREGORY PAUL VIOLETTE,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 17-5030 (JBS-AMD)

v.
WARDEN DAVID E. ORTIZ; GENERAL
COUNSEL, FEDERAL BOP; US
DEPARTMENT OF JUSTICE,

OPINION

Defendants.

APPEARANCES:
Gregory Paul Violette, Plaintiff Pro Se
Two Route 3
Palermo, ME 04354-0212
SIMANDLE, District Judge:
INTRODUCTION
Before the Court is Plaintiff Gregory Paul Violette’s
(“Plaintiff”) submission of a civil rights complaint pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). 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 be dismissed without
prejudice.
II. BACKGROUND
Plaintiff brings this civil rights action against David
Ortiz, warden of FCI Fort Dix, the Bureau of Prisons’ (“BOP”)
General Counsel, and the U.S. Department of Justice. 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’s complaint states in its entirety:
The Building I lived in at Fort Dix Prison was a health
risk, inadequate ventilation in the bathroom, polluted
water, toxic or noxious fumes in the bathroom, exposure
to sewage leads [sic] from sewage pipes while using
bathroom, inadequate lighting in rooms, hallways, and
bathroom. Black Mold in bathroom, smoking in hallways
and bathroom, exposure to second-hand smoke, excessive
heat in building 5751 and bedroom while staff alley and
CO’s office had A/C.
Complaint § III. He seeks relief in the form of $2,000,000.
Id. ¶ IV.
III. STANDARD OF REVIEW
Section § 1915(e)(2)(B) requires a court to screen
complaints filed by in forma pauperis plaintiffs and 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.
28 U.S.C. § 1915.
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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,1 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) (emphasis added).

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“The legal standard for dismissing a complaint for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the
same as that for dismissing a complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x
120, 122 (3d Cir. 2012) (citing Allah v. Seiverling, 229 F.3d
220, 223 (3d Cir. 2000)).
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IV. ANALYSIS
A. Conditions of Confinement
Plaintiff alleges unconstitutional conditions of
confinement in violation of the Eighth Amendment. To the extent
Plaintiff is able to bring this claim pursuant to Bivens,2 the
Department of Justice must be dismissed from the case as a
Bivens action cannot be brought against a federal agency.
F.D.I.C. v. Meyer, 510 U.S. 471 (1994). The complaint itself
shall be dismissed without prejudice, and Plaintiff shall be
given leave to amend his complaint.
“The Eighth Amendment requires prison officials to provide
‘humane conditions of confinement.’” Smith v. Bolava, 632 F.
App'x 683, 686–87 (3d Cir. 2015) (quoting Betts v. New Castle
Youth Dev. Ctr., 621 F.3d 249, 256 (3d Cir. 2010)).
“[D]eficiencies and inadequacies in prison conditions do not
necessarily violate the Eighth Amendment. The amendment is
violated only where an inmate is deprived of ‘the minimal
civilized measure of life's necessities.’” Tillery v. Owens, 907
F.2d 418, 426 (3d Cir. 1990) (quoting Rhodes v. Chapman, 452
U.S. 337, 347 (1981)). In making this determination, the Court
must consider the totality of the circumstances. Id.

2

See discussion of Ziglar v. Abbasi infra.
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Plaintiff’s one-paragraph complaint does not provide the
Court with enough facts to determine whether Plaintiff has
stated a plausible claim for relief. The complaint only makes
cursory allegations regarding the conditions, which “are not
entitled to the assumption of truth.” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009). Plaintiff has not set forth any specific
information regarding the conditions or defendants’ personal
involvement in the alleged violations. See id. at 676
(“Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of
respondeat superior ”). Iqbal’s “‘plausibility’ standard does
not require probability, but it does demand more than a sheer
possibility that the defendant acted unlawfully.” Argueta v.
U.S. Immigration & Customs Enf't, 643 F.3d 60, 72 (3d Cir. 2011)
(citing Iqbal, 556 U.S. at 678). More information is needed
regarding Plaintiff’s conditions of confinement in order for
there to be a plausible claim.
As Plaintiff may be able to provide facts supporting this
claim, this claim is dismissed without prejudice. Plaintiff may
move for leave to amend his complaint.
B. Leave to Amend
As Plaintiff may be able to allege facts that would address
the deficiencies of his claims as noted by the Court, Plaintiff
may move for leave to file an amended complaint. Any motion to
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amend the complaint must be accompanied by a proposed amended
complaint.
Plaintiff should note that when 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. 6 Wright, Miller & Kane,
Federal Practice and Procedure 1476 (2d ed. 1990) (footnotes
omitted). An amended complaint may adopt 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. The amended
complaint may not adopt or repeat claims that have been
dismissed with prejudice by the Court.
C. Ziglar v. Abbasi
In the event Plaintiff elects to move for leave to amend
his complaint, he should consider the Supreme Court’s recent
decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). The Court
held in Ziglar that federal courts should exercise caution
before extending the Bivens remedy to claims that are
meaningfully different than “the three Bivens claims the Court
has approved in the past: a claim against FBI agents for
handcuffing a man in his own home without a warrant; a claim
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against a Congressman for firing his female secretary; and a
claim against prison officials for failure to treat an inmate's
asthma.” Id. at 1860 (citing Carlson v. Green, 446 U.S. 14
(1980); Davis v. Passman, 442 U.S. 228 (1979); Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971)). If the
instant matter is meaningfully different from those cases,3
courts must determine if special factors counsel against
judicial extension of the Bivens remedy. Id. at 1857 (“The
Court's precedents now make clear that a Bivens remedy will not
be available if there are special factors counselling hesitation
in the absence of affirmative action by Congress.” (internal
quotation marks omitted)).
Plaintiff’s complaint does not provide enough facts for the
Court to determine whether his claims are within the realm of
the Supreme Court’s Bivens precedents. Therefore, the Court
expresses no opinion at this time whether a Bivens remedy is
available to Plaintiff.

3

“A case might differ in a meaningful way because of the rank of
the officers involved; the constitutional right at issue; the
generality or specificity of the official action; the extent of
judicial guidance as to how an officer should respond to the
problem or emergency to be confronted; the statutory or other
legal mandate under which the officer was operating; the risk of
disruptive intrusion by the Judiciary into the functioning of
other branches; or the presence of potential special factors
that previous Bivens cases did not consider.” Ziglar, 137 S. Ct.
at 1860.
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V.

CONCLUSION
For the reasons stated above, the claims against the

Department of Justice are dismissed with prejudice. The
complaint is dismissed without prejudice, and Plaintiff may move
to amend his complaint within 30 days of this Opinion and Order.
An appropriate order follows.

September 13, 2017
Date

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

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