WILSON v. NEW JERSEY DEPARTMENT OF CORRECTION et al

Filing 17

OPINION. Signed by Judge Renee Marie Bumb on 9/18/2019. (tf, n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
DAVID WILSON,
Plaintiff
v.
NEW JERSEY DEP’T OF CORR.,
et al.,
Defendants

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CIV. NO. 18-9591 (RMB)

OPINION

APPEARANCES:
DAVID WILSON
Plaintiff Pro Se
NICHOLAS SULLIVAN, Esq.
Deputy Attorney General
Office of the Attorney General of New Jersey
Richard J. Hughes Justice Complex
25 Market Street, P.O. Box 112
Trenton, NJ 08625-0112
On behalf of Defendants Gary Lanigan and John Powell
BUMB, DISTRICT JUDGE
This matter comes before the Court upon the State Defendants’1
First Motion to Dismiss in Lieu of an Answer. (Mot. to Dismiss,
ECF No. 14; State Defs’ Brief, ECF No. 14-3.) Plaintiff filed a
brief in opposition to the motion to dismiss. (Pl’s Brief in Opp.,

The State Defendants are Gary Lanigan, Commissioner of the
Department of Corrections and John Powell, Warden of Bayside State
Prison. (State Defs’ Brief, ECF No. 14-3 at 13.)
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ECF No. 15.) The State Defendants filed a reply brief. (State
Defs.’ Reply Brief, ECF No. 16). The Court will decide the motion
on the briefs, without oral hearing, pursuant to Federal Rule of
Civil Procedure 78(b).
I.

BACKGROUND
A.

Procedural History

Plaintiff David Wilson, a prisoner confined at Bayside State
Prison in Leesburg, New Jersey filed this civil rights complaint
under 42 U.S.C. § 1983 on May 22, 2018. (Compl., ECF No. 1.) The
Court granted Plaintiff’s application to proceed in forma pauperis
(“IFP”) under 28 U.S.C. § 1915 and screened the complaint pursuant
to

28

U.S.C.

§§

1915(e)(2)(B);

1915A(b)

and

42

U.S.C.

§

1997e(c)(1). (Opinion, ECF No. 3; Order, ECF No. 4.) The Court
dismissed

with

prejudice

the

claim

against

the

New

Jersey

Department of Corrections. (Id.)
Summonses were returned executed as to Gary Lanigan and John
Powell in February 2019, and the State Defendants filed a timely
motion to dismiss in lieu of an answer on March 14, 2019. (Mot. to
Dismiss, ECF No. 14.) Plaintiff filed a brief in opposition to the
motion to dismiss on March 15, 2019, and the State Defendants filed
a reply brief on April 25, 2019. (Pl’s Opp. Brief, ECF No. 15;
State Defs’ Reply Brief, ECF No. 16.)

2

B.

The Complaint

Plaintiff alleges that when he was transferred to Bayside
State Prison on June 26, 2017, he was in good health. (Compl., ECF
No. 1, ¶2.) After two months, he developed a cough and went to the
medical department. (Id.) He noticed there were signs posted on
the doors leading to the plumbing of each cell on his unit that
read “caution do not enter.” (Id., ¶3.) Upon information and
belief, Plaintiff alleged there is asbestos in the prison, which
was why caution signs were posted on Units A, B, C, D, E, and F.
(Id., ¶4.) Plaintiff had been housed in Units B, E and D. (Id.)
Plaintiff also noticed that the ventilation system was not working,
and upon information and belief, it had been out of order for close
to a decade. (Id., ¶5.)
Plaintiff

asked

to

be

tested

for

asbestos

on

or

about

September or October 2017, but his request was denied. (Id., ¶6.)
In May 2018, Plaintiff asked Defendant Powell if the asbestos was
life threatening and Powell answered in the negative. (Id., ¶7.)
During the summer in 2017, numerous inmates were passing out in
their cells from lack of ventilation. (Id., ¶8.) Plaintiff alleges
Defendants Lanigan, Powell and John Does 1-10 refused to take
corrective action because they are protecting the reputation of
the jail against claims that it is a hazardous environment. (Id.,
¶10.) Plaintiff further alleges the defendants have failed to
3

remove

him

from

the

hazardous

environment

“even

after

acknowledging the threat and risk the jail poses to the plaintiff
Wilson’s health and life.” (Compl., ECF No. 1, ¶14.)
In response to Plaintiff’s grievances, Defendant Powell told
Plaintiff to address his concerns with the medical department and
refused to answer questions about the caution signs posted on the
door to the plumbing of his cell. (Id., ¶¶16-17.) Plaintiff
suffered from inhaling thick clouds of dust in his cell in the B,
E and D housing wings. (Id., ¶18.) The kitchen and shop areas of
Bayside prison have been closed down on occasion “due to strong
systems of asbestos.” (Id., ¶20.) Plaintiff informed Defendant
Lanigan and his office about the problem and Lanigan refused to
take corrective action. (Id., ¶22.) For relief, Plaintiff seeks
compensatory and punitive damages. (Id. at 8.) It is not clear
whether Plaintiff seeks injunctive relief. Plaintiff wrote the
words “Injunctive Relief” in his complaint, but he did not describe
any injunctive relief that he seeks.
C.

The State Defendants’ Motion to Dismiss

The State Defendants assert Plaintiff’s § 1983 claims against
them in their official capacities are barred by the Eleventh
Amendment and because they are not “persons” amenable to suit under
§ 1983 in their official capacities. (State Defs’ Brief, ECF No.
14-3 at 6-9.) The State Defendants recognize that prospective
4

injunctive relief may be sought against state officials acting in
their official capacities under § 1983, but here Plaintiff seeks
monetary relief. (State Defs’ Brief, ECF No. 14-3 at 8.)
The

State

Defendants

also

seek

dismissal

of

Plaintiff’s

claims against them in their individual capacities, contending
that Plaintiff failed to allege specific facts of their personal
involvement in his claims. (Id. at 10-14.) The State Defendants
maintain that Plaintiff’s threadbare allegation that he asked
Defendant Powell whether the asbestos posed a risk to his health,
and Powell said it did not, is insufficient to impute actual
knowledge of asbestos or a broken ventilation system. (Id. at 13.)
Similarly, the State Defendants argue Plaintiff’s allegation that
he informed Defendant Lanigan and his office of the issue and
Lanigan failed to act is insufficient to state a claim. (Id.)
D.

Plaintiff’s Opposition Brief

In opposition to the motion to dismiss, Plaintiff points out
that the parties have not yet engaged in discovery. (Pl’s Opp.
Brief, ECF No. 15 at 1.) He alleges that there are caution signs
on more than fifty closet doors in the prison. (Id.) He fears he
will develop cancer. (Id.)
E.

State Defendants’ Reply Brief

In reply, the State Defendants argue that Plaintiff failed to
address their legal claims. (State Defs’ Reply Brief, ECF No. 16
5

at 2.) Further, they claim it is illogical to assume that caution
signs indicate the presence of asbestos. (Id. at 2-3.)
II.

DISCUSSION
A.

Standard of Review

Under Federal Rule of Civil Procedure 12(b)(6), courts may
dismiss a complaint for failure to state a claim upon which relief
may be granted. A plaintiff need only present a “short and plain
statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8. A complaint must “ʽgive the defendant
fair notice of what the . . . claim is and the grounds upon which
it rests.’” Palakovic v. Wetzel, 854 F.3d 209, 219 (3d Cir. 2017)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (alteration in
original)).
“ʽ[A]

complaint

must

contain

sufficient

factual

matter,

accepted as true, to state a claim to relief that is plausible on
its face.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
S.Ct. 1937 (2009) (citation and internal quotation marks omitted).
A claim is facially plausible if the factual content “ʽallows the
court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.’” Id.
Courts assessing the sufficiency of a complaint on a motion
to dismiss under Fed. R. Civ. P. 12(b)(6) should first determine
6

the elements a plaintiff must plead to state a claim, and second
identify allegations that are no more than conclusions, which are
not entitled to the assumption of truth. Palakovic, 854 F.3d at
220 (citing Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d
Cir. 2011)(internal quotation marks omitted) (quoting Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). Third, courts
should assume well-pleaded factual allegations are true and “then
determine whether they plausibly give rise to an entitlement for
relief.’” Id.
B.

Eighth Amendment Conditions of Confinement Claim Under
42 U.S.C. § 1983

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....
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
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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).
a.

Official Capacity Claims

The Eleventh Amendment provides, in relevant part, “[t]he
Judicial Power of the United States shall not be construed to
extend to any suit in law or equity commenced or prosecuted against
one of the United States by Citizens of another State...” The
Eleventh Amendment bars § 1983 claims for monetary damages against
state officials in their official capacities. Kentucky v. Graham,
473 U.S. 159, 169 (1985). Claims for prospective injunctive relief
are not barred by the Eleventh Amendment. Green v. Mansour, 474
U.S. 64, 68 (1985) (citing Ex Parte Young, 208 U.S. 123, 155-56,
159 (1908)).
Plaintiff seeks monetary damages against the State Defendants
in their official capacities and has not clearly sought prospective
injunctive relief. The Court will dismiss the official capacity
claims against the State Defendants without prejudice.
b.

Personal Involvement
violation

in

an

Eighth

Amendment

The treatment a prisoner receives and his conditions of
confinement are subject to scrutiny under the Eighth Amendment.
Farmer v. Brennan, 511 U.S. 825, 832 (1994). For a claim based on
8

failure

to

prevent

harm,

“the

inmate

must

show

that

he

is

incarcerated under conditions posing a substantial risk of serious
harm.” Farmer, 511 U.S. at 834 (citing Helling v. McKinney, 509
U.S. at 25, 35 (1993)); see Fontroy v. Owens, 23 F.3d 63, 65 (3d
Cir. 1994) (“Helling permits a plaintiff to proceed on a cause of
action alleging an unreasonable risk of future injury from present
exposure to asbestos.”)
A prisoner states an Eighth Amendment claim by alleging the
defendants, “with deliberate indifference,” exposed him to a toxic
environment that poses an unreasonable risk of serious damage to
his future health. Helling, 509 U.S. at 35. Objectively, the
plaintiff must show he is being exposed to an unreasonably high
level

of

a

toxic

substance,

in

this

case,

asbestos.

(Id.)

Additionally, a court must assess whether “society considers the
risk that the prisoner complains of to be so grave that it violates
contemporary standards of decency to expose anyone unwillingly to
such a risk.” Id. at 36.
A plaintiff must also establish the defendants’ deliberate
indifference to the risk of injury to the plaintiff’s health, which
should be judged by the defendants’ attitude and conduct. Id. “‘A[n
individual government] defendant in a civil rights action must
have personal involvement in the alleged wrongdoing; liability
cannot

be

predicated

solely

on
9

the

operation

of

respondeat

superior. Personal involvement can be shown through allegations of
personal

direction

or

of

actual

knowledge

and

acquiescence.”

Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode
v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)).
To establish that he is exposed to asbestos at a level that
poses an unreasonable risk of serious damage to his future health,
Plaintiff must plead additional facts. Plaintiff alleged that upon
information and belief, there is asbestos in the prison, which was
why caution signs were posted on Units A, B, C, D, E, and F. (Id.,
¶4.) Plaintiff must allege what information he relies on to form
his belief that there is asbestos present, and that the asbestos
is present at a level that poses an unreasonable risk to his future
health. Plaintiff should also elaborate on his claim that the
kitchen and shop areas of Bayside prison have been closed down on
occasion “due to strong systems of asbestos.” (Id., ¶20.) For
example, when did this occur and how did Plaintiff learn asbestos
was the cause for closing the kitchen and shop?
Plaintiff also alleged that upon information and belief, the
ventilation system has been out of order for close to a decade.
Plaintiff should describe the information upon which he draws this
conclusion. Plaintiff further alleges the defendants have failed
to

remove

him

from

the

hazardous

environment

“even

after

acknowledging the threat and risk the jail poses to the plaintiff
10

Wilson’s health and life.” (Compl., ECF No. 1, ¶14.) Plaintiff
should elaborate on how and when each defendant acknowledged the
threat and risk the jail poses to Plaintiff.
These

additional

facts

are

needed

to

determine

whether

Plaintiff’s allegation that asbestos in Bayside State Prison poses
an unreasonable risk of serious damage to his future health states
a plausible claim for relief. Therefore, the Court grants the State
Defendants’ motion to dismiss the Eighth Amendment claims under §
1983 against Defendants Powell and Lanigan in their individual
capacities and the claims are dismissed without prejudice.
III. CONCLUSION
For the reasons stated above, the Court grants the State
Defendants’ motion to dismiss.

An appropriate order follows.

DATE: September 18, 2019
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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