SMITH v. COHEN et al
Filing
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OPINION. Signed by Judge Renee Marie Bumb on 10/25/2018. (rss, n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
MARK T. SMITH,
Plaintiff
v.
GERALDINE COHEN, et al.,
Defendants
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CIV. NO. 18-7 (RMB)
OPINION
BUMB, DISTRICT JUDGE
Plaintiff Mark T. Smith, also known as Mark El, is a pretrial
detainee who was confined at Atlantic County Justice Facility at
the time he filed this civil rights complaint under 42 U.S.C. §
1983. (Compl., ECF No. 1.) Plaintiff also filed an application to
proceed in forma pauperis (“IFP”) (ECF No. 1-1), which establishes
his eligibility to proceed without prepayment of fees under 28
U.S.C. § 1915.
When a prisoner is permitted to proceed without prepayment of
the filing fee or when the prisoner pays the filing fee for a civil
action and seeks redress from a governmental entity, officer or
employee of a governmental entity, 28 U.S.C. § 1915(e)(2)(B), §
1915A(b) and 42 U.S.C. § 1997e(c)(1) require courts to review the
complaint 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 who is
immune
from
such
relief.
For
the
reasons
discussed
below,
Plaintiff’s complaint is dismissed without prejudice for failure
to state a claim.
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)). Thus, “a pro se complaint,
however
inartfully
standards
than
pleaded,
formal
must
pleadings
be
held
to
drafted
by
‘less
stringent
lawyers.’”
Id.
(internal quotation marks omitted). “Court personnel reviewing pro
se pleadings are charged with the responsibility of deciphering
why the submission was filed, what the litigant is seeking, and
what claims she may be making.” See Higgs v. Atty. 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)).
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). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quotingll Atlantic Corp. v. Twombly, 550
2
U.S. 544, 570 (2007)). “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.” Id. (quoting Twombly, 550 U.S. at 556.) 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, are not entitled to the assumption of truth.” Id. at
679. “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 alleged the following facts in his complaint.
Geraldine Cohen is the Warden of the Atlantic
County
Justice
Facility.
Defendant
is
responsible for the safety of the orderly
running of the institution as well as being
responsible for my health an[d] well being,
while incarcerated in this county jail. …
(Compl., ¶3B, ECF No. 1.)
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Warden Geraldine Cohen of her order of
[illegible] Pod (B.Right) with mold growing on
the walls of the shower is subjecting me to
breathing mold, which is not just hazardous to
my health but dangerous to my health because
mold is an airborne contagious breathing dust.
I’m starting to notice I’m becoming short of
breath, coughing more than usual. On Wednesday
the 30th of November, I put in for sick call,
I was seen on Friday the 1st for sick call,
an[d] was told by the doctor that she could
only prescribe me cough medicine even after I
explain to her I was exposed to the mold that
is growing on the inner shower’s walls. At
this time I filed a grievance on 12-5-2017,
an[d] I came on this pod 5-12-2017 to the
present, that I’m still being exposed to this
mold.
(Compl., ¶4, ECF No. 1.)
Mrs. Cheryl Dubose Head of Medical. I have
filled out sick call, complaining about me
getting short of breath and that I am coughing
more than normal. I have explain to her that
I have been here (6) six months an[d] that its
excessive mold on the walls of the bathroom
shower and I’ve been breathing in the mold the
whole six (6) or (7) months I’ve been here.
Her response was I can only offer you cough
medication. As of this date an[d] time, no one
from the Medical department has call me for a
chest x-ray or to check my lungs to see if the
mold is affecting my lungs.
. . .
By not checking to see if I am not exposed to
this mold, by not ordering x-ray etc or for
not ordering the facility to clean the mold on
the shower walls in pod (B-Right). They are
neglecting not just me but everybody being
expose to this airborne mold that’s hazardous
to my health. I also grievance this in my
grievance dated 12-5-17.
B.
Claims Under 42 U.S.C. § 1983
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A plaintiff may assert a cause of action under 42 U.S.C. §
1983 for violations of his constitutional rights. 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....
42 U.S.C. § 1983.
To state a claim for relief under § 1983, a plaintiff must
allege the violation of a right secured by the Constitution or
laws of the United States, and that the constitutional deprivation
was caused by a person acting under color of state law. West v.
Atkins, 487 U.S. 42, 48 (1998); Malleus v. George, 641 F.3d 560,
563 (3d Cir. 2011).
C.
Analysis
1.
Fourteenth
Claim
Amendment
Conditions
of
Confinement
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
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forth a two-step test to analyze the claim. Hubbard v. Taylor
(“Hubbard I”), 399 F.3d 150, 159-60 (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).
Id.
Unconstitutional punishment under the Fourteenth Amendment
has objective and subjective components. Stevenson v. Carroll, 295
F.3d 62, 68 (3d Cir. 2007). The subjective component, whether the
defendant prison official acted with a sufficiently culpable state
of mind, is met where the condition is arbitrary or purposeless or
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excessive, even if it would accomplish a legitimate governmental
objective. Stevenson, 295 F.3d at 68. The objective component is
met where the prison conditions cause inmates to “endure genuine
privations and hardship over an extended period of time.” Bell,
441 U.S. at 542.
Petitioner’s exposure to mold in the shower stalls for a
period of six months, in which time he noticed having shortness of
breath and coughing more than usual does not rise to the level of
a genuine privation and hardship over an extended period of time.
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 confinement”) (citing Hudson v.
McMillian, 503 U.S. 1, 8-9 (1992)).
To state a constitutional violation, Plaintiff must allege
facts suggesting the conditions of confinement were severe enough
to deprive him of a basic human need. Wilson v. Seiter, 501 U.S.
294, 305 (1991). If Plaintiff can meet this standard by describing
the frequency and severity of his shortness of breath and his
cough, and why he believes the symptoms are caused by the mold,
Plaintiff may file an amended complaint.
2.
Fourteenth Amendment Inadequate Medical Care Claim
Plaintiff
alleges
Cheryl
DuBose,
head
of
the
medical
department at Atlantic County Justice Facility, failed to order a
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chest x-ray based on his complaint of exposure to mold. The Court
construes this as a Fourteenth Amendment claim based on inadequate
medical care.1
A pretrial detainee’s claim of inadequate medical care is
adjudicated
under
the
Due
Process
Clause
of
the
Fourteenth
Amendment. Edwards v. Northampton County, 663 F. App’x 132, 136
(3d Cir. 2016). The Third Circuit has determined that “pretrial
detainees are entitled to at least as much protection as convicted
prisoners and that decisions interpreting the Eighth Amendment
serve as ‘useful analogies.’” Id. (quoting Boring v. Kozakiewicz,
833 F.2d 468, 472 (3d Cir. 1987) (quoting Hampton v. Holmesburg
Prison Officials, 546 F.2d 1077, 1080 (3d Cir. 1976.))
“Delay or denial of medical care violates the Eighth Amendment
where defendants are deliberately indifferent to a prisoner’s
serious medical need.” Montgomery v. Aparatis Dist. Co., 607 F.
App’x 184, 187 (3d Cir. 2015) (citing Rouse v. Plantier, 182 F.3d
192, 197 (3d Cir. 1999)). Negligence by governmental actors is
insufficient
to
support
a
constitutional
claim.
Id.
(citing
Daniels v. Williams, 474 U.S. 327, 333 (1986)). Allegations of
1
If Plaintiff wishes to bring a medical malpractice claim under
New Jersey state law, he must first meet the procedural
requirements of the New Jersey Tort Claims Act, including filing
a Notice of Claim with the correct agency prior to filing a
complaint in a court of law. See N.J.S.A. §§59:8-1 through 59:811.
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medical malpractice or disagreement as to proper medical care are
insufficient to show deliberate indifference. Navolio v. Lawrence
County, 406 F. App’x 619, 623 (3d Cir. 2011) (citing Spruill v.
Gillis, 372 F.3d 218, 235 (3d Cir. 2004)). A prison official is
deliberately indifferent when she “‘knows of and disregards an
excessive risk to inmate health or safety.’” Id. (quoting Natale
v. Camden County Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003)
(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
Here,
Plaintiff
admits
that
Cheryl
DuBose
treated
his
condition with cough medicine. His complaint is that she did not
do more to determine if his increased cough and shortness of breath
are caused by exposure to mold in the shower stalls. Plaintiff’s
claim rises only to the level of disagreement with the medical
provider’s treatment decisions, which is insufficient to state a
constitutional claim.
It is not clear from the complaint that Plaintiff’s cough and
shortness of breath are severe enough to pose an excessive risk to
his health. Therefore, the Court will deny this claim without
prejudice. Plaintiff may file an amended complaint if he can allege
additional facts that indicate deliberate indifference to his
serious medical need. Plaintiff should note that when an amended
complaint is filed, it should be complete in itself because it
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replaces the original complaint. See 6 Wright, Miller & Kane,
Federal Practice and Procedure 1476 (2d ed. 1990).
III. CONCLUSION
For the reasons stated above, the Court grants Plaintiff’s
IFP application and dismisses the complaint without prejudice
pursuant to 28 U.S.C. § 1915(e)(2)(B); § 1915A(b) and 42 U.S.C.
1997e(c)(1).
An appropriate order follows.
DATE: October 25, 2018
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
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