ABDULLAH v. COHEN et al
Filing
2
OPINION. Signed by Judge Renee Marie Bumb on 18-1157. (rss,n.m. )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
ABDUL-WALI ABDULLAH,
Plaintiff
Civ. No. 18-1157 (RMB)
v.
GERALINDEN COHEN, Warden of
Atlantic County Justice
Facility, et al.,
OPINION
Defendants
BUMB, District Judge
Plaintiff Abdul-Wali Abdullah, a pretrial detainee confined
at Atlantic County Justice Facility, brings this civil rights
complaint under 42 U.S.C. § 1983, alleging unlawful exposure to
mold and failure to evaluate his medical symptoms. (Compl., ECF
No. 1, ¶¶3, 4.) Plaintiff has filed an application to proceed in
forma pauperis under 28 U.S.C. § 1915(“IFP”) and has established
his financial eligibility to proceed without prepayment of the
filing fee. (IFP App., ECF No. 1-1.)
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) and
1915A(b) 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, the Complaint is dismissed without
prejudice.
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)).
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.
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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) (quoting Bell Atlantic Corp. v. Twombly, 550
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.)
“[A]
court
must
accept
as
contained in a complaint[.]” Id.
true
all
of
the
allegations
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).
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II.
DISCUSSSION
A.
The Complaint
Plaintiff
alleges
the
following
facts
in
his
Complaint,
accepted as true for purposes of this screening only. Warden
Geraldine Cohen assigned Plaintiff to live in housing unit Pod 4Right, where there was mold growing in the showers. (Compl., ECF
No. 1, ¶4.) Cohen then moved Plaintiff to housing unit B-Right,
which also had mold growing in the showers. (Id.) Plaintiff
complained through the inmate grievance system to Warden Cohen
that he is in a room next to the bathroom and he is breathing in
mold on a daily basis, which is dangerous to his health. (Id.,
¶3B.) Warden Cohen did nothing in response. (Id.)
Plaintiff noticed he is short of breath and coughing more
than usual. (Id., ¶4.) On December 9, 2017, he requested a sick
call and was seen the next day by Cheryl DuBose, head of the
medical department at Atlantic County Justice Facility. (Id., ¶¶
3C, 4.) Plaintiff told DuBose that he had been exposed to excessive
mold in the showers in both housing units for the last seven
months. (Id., ¶4.) He told her that his room in B-Right is next to
the bathroom. (Id.) DuBose told Plaintiff she could only prescribe
cough medicine. (Id.) No one from the medical department has taken
a chest X-ray to see if Plaintiff’s lungs were affected by the
mold. (Id.) Plaintiff also complains that DuBose did not order
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anyone to clean the mold on the shower walls. (Id.) Plaintiff seeks
monetary damages for relief. (Id., ¶5.)
B.
Claims under 42 U.S.C. § 1983
A plaintiff may have a cause of action under 42 U.S.C. § 1983
for violations of his constitutional rights by a state official or
employee. 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.
To state a claim for relief under § 1983, a plaintiff must
first allege the violation of a right secured by the Constitution
or
laws
of
the
United
States
and,
second,
that
the
alleged
deprivation was committed or caused by a person acting under color
of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Piecknick v.
Pennsylvania, 36 F.3d 1250, 1255–56 (3d Cir. 1994).
C.
When
Fourteenth Amendment Conditions of Confinement Claim
pretrial
confinement,
courts
detainees
must
challenge
determine
their
whether
conditions
there
has
been
of
a
violation of the Due Process Clause of the Fourteenth Amendment.
Hubbard v. Taylor, 538 F.3d 229, 231 (3d Cir. 2008) “[U]nder the
Due Process Clause, a detainee may not be punished prior to an
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adjudication of guilt in accordance with due process of law. Id.,
quoting (Bell v. Wolfish, 442 U.S. 520, 535 (1979)).
Unconstitutional punishment under the Fourteenth Amendment
has objective and subjective components. Stevenson v. Carroll, 495
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
the condition is excessive. Id. 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.
To state a constitutional violation, a plaintiff must allege
facts suggesting the conditions of confinement were severe enough
to deprive him of a basic human need, such as food, warmth or
exercise.
Wilson v. Seiter, 501 U.S. 294, 305 (1991). Exposure to
a condition that presents an unreasonable risk of serious damage
to an inmate’s future health states a cause of action under the
Eighth and the Fourteenth Amendments. Helling v. McKinney, 509
U.S. 25, 35 (1993) (plaintiff stated an Eighth Amendment claim for
exposure to excessive environmental tobacco smoke); Ford v. Mercer
County Correctional Center, 171 F. App’x 416, 420 (3d Cir. 2006)
(finding the plaintiff did not submit sufficient evidence that a
jury could reasonably return a verdict in his favor that the air
quality in Mercer County Correctional Center posed an unreasonable
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risk
of
harm
to
his
health
in
violation
of
the
Fourteenth
Amendment.)
Plaintiff alleges he was exposed to mold for seven months and
he has symptoms of shortness of breath and increased coughing.
Plaintiff did not allege facts indicating the severity or frequency
of his respiratory symptoms. He did not allege that the mold is
toxic. In sum, he has not alleged sufficient facts to suggest his
exposure to mold in the showers in Atlantic County Justice Facility
presents an unreasonable risk of harm to his health. See e.g. Forde
v. Fischer, Civ. Action No. 08-5026 (JAG), 2009 WL 5174650 (D.N.J.
Dec. 16, 2009) (dismissing Eighth Amendment claim where prisoner
did not allege that mold was toxic); see Patterson v. Quigley,
Civ. Action No. 16-1604, 2018 WL 1566793, at *5 (E.D. Pa. Mar. 30,
2018) (“Numerous courts have also recognized mold in a prison does
not automatically violate an inmate’s constitutional rights.”)
Dismissal of this claim is without prejudice. Plaintiff,
therefore, may allege additional facts in an amended complaint, if
he can allege any facts to establish that his mold exposure
presents an unreasonable risk of harm to his health.
D.
Fourteenth Amendment Inadequate Medical Care Claim
A pretrial detainee’s claims of inadequate medical care arise
under the Due Process Clause of the Fourteenth Amendment. Natale
v. Camden County Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003).
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For a denial of medical care to constitute a
violation
of
the
Fourteenth
Amendment,
[plaintiffs] must demonstrate: “(i) a serious
medical need, and (ii) acts or omissions by
[the Named Officers] that indicate deliberate
indifference to that need.” Natale v. Camden
Cty. Corr. Facility, 318 F.3d 575, 582 (3d
Cir. 2003) (citing Rouse v. Plantier, 182 F.3d
192, 197 (3d Cir. 1999)).
Mattern v. City of Sea Isle, 657 F. App’x 134, 138 (3d Cir. 2016).
“[A] medical need is “serious” for purposes of a denial of
medical care claim if it is either ‘one that has been diagnosed by
a physician as requiring treatment or one that is so obvious that
a lay person would easily recognize the necessity for a doctor's
attention.’” Id. at 139 (quoting Monmouth Cty. Corr. Inst. Inmates
v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quoting Pace v.
Fauver, 479 F.Supp. 456, 458 (D.N.J. 1979), aff'd, 649 F.2d 860
(3d Cir. 1981)).
The second requirement of a Fourteenth Amendment inadequate
medical care claim is that the defendant acted with deliberate
indifference, in other words, “he or she “knows of and disregards
an excessive risk to [a complainant's] health or safety.” Id. at
140
(quoting
Natale,
318
F.3d
at
582)
(additional
citations
omitted)). Deliberate indifference is a “subjective standard of
liability” and thus a defendant cannot be held liable unless he or
she “knows of and disregards an excessive risk to [a complainant's]
health or safety.” Id. (quoting Nicini v. Morra, 212 F.3d 798, 811
(3d Cir. 2000) (quoting Farmer v. Brennan, 511 U.S. 825, 837
8
(1994)). Deliberate indifference is “evident” where: “(i) the
denial of reasonable requests for medical treatment [] expose the
complainant to undue suffering; (ii) knowledge of the need for
medical care and the intentional refusal to provide such care; or
(iii) the delay of necessary medical treatment for non-medical
reasons.” Mattern, 657 F. App’x at 140 (citing Lanzaro, 834 F.2d
at 346–47).
Plaintiff alleges DuBose failed to order a chest X-ray to
evaluate whether his symptoms of shortness of breath and increased
cough were related to his mold exposure, and instead told him she
could only prescribe cough medication. A prisoner’s disagreement
with the medical treatment provided does not state a constitutional
violation. Pierce v. Pitkins, 520 F. App’x 64, 66 (3d Cir. 2013)
(prisoner’s
disagreement
with
his
medical
treatment
did
not
establish a constitutional violation); Rhines v. Bledsoe, 388 F.
App’x 225, 227 (3d Cir. 2010) (per curiam) (where medical staff
evaluated and treated Plaintiff on each visit, the plaintiff could
not show deliberate indifference based on his disagreement with
the medical care provided). Dismissal of this Fourteenth Amendment
claim is without prejudice.
III. CONCLUSION
For the reasons stated above, the Court grants Plaintiff’s
IFP application but dismisses the Complaint without prejudice.
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An appropriate order follows.
s/Renée Marie Bumb__________
RENÉE MARIE BUMB
United States District Judge
Dated: August 23, 2018
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