WILSON v. NEW JERSEY DEPARTMENT OF CORRECTION et al

Filing 22

OPINION. Signed by Judge Renee Marie Bumb on 8/6/2020. (tf, n.m.)

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NOT FOR PUBLICATION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

BUMB, DISTRICT JUDGE
This matter comes before the Court upon Plaintiff’s motion to
amend the complaint (Mot. to Amend, Dkt. No. 20) and motion for
injunctive relief. (Mot for Inj., Dkt. No. 21.) For the reasons
discussed below, the Court will dismiss Plaintiff’s motions as
moot, direct the Clerk to file Plaintiff’s amended complaint, and
dismiss the complaint for failure to state a claim pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii).
When a prisoner is permitted to proceed without prepayment of
the filing fee, “[n]otwithstanding any filing fee … that may have
been paid, the court shall dismiss the case at any time if the
court determines that-- (B) the action or appeal-- (ii) fails to
state a claim on which relief may be granted[.]”) 28 U.S.C. §
1915(e)(2)(B)(ii).

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I.

BACKGROUND
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 and permitted other claims to proceed.
(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.) The Court granted the State Defendants’
motion to dismiss, dismissed the complaint without prejudice, and
permitted Plaintiff to file an amended complaint. (Order, Dkt. No.
18.) Plaintiff has shown good cause why the amended complaint was
not timely filed in compliance with the Order granting Plaintiff
permission to file an amended complaint. (Letter, Dkt. No. 19.)
Therefore, Plaintiff’s motion to amend the complaint is moot and
the Court will direct the Clerk to file the amended complaint.

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In the Opinion dated September 18, 2019, the Court pointed
out the following pleading deficiencies for Plaintiff to address
in an amended complaint:
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. (Compl., ¶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 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.
(Opinion, Dkt. No. 17 at 10-11.)

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II.

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). 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.) Legal conclusions, together
with threadbare recitals of the elements of a cause of action, do
not suffice to state a claim. Iqbal, 556 U.S. at 678.
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
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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).
III. DISCUSSION
A.

The Amended Complaint

Plaintiff alleges John Powell, the warden of Bayside State
Prison,

Gary

Lanigan,

Commissioner

of

the

Department

of

Corrections during the relevant time period, and John Does 1-3
subjected him to conditions of confinement that violate the Eighth
Amendment. (Am. Compl., Dkt No. 20 at 7-13.) Jurisdiction is
asserted under 42 U.S.C. § 1983. Plaintiff alleges that he suffers
from a breathing condition and coughing attacks, which he relates
to asbestos and dirty air in the prison. He alleges that the
ventilation system is old and broken, spreading dirty air and
precluding the prison from maintaining an “adequate temperature.”
Plaintiff alleges that he made numerous complaints about the
hazardous air and inadequate ventilation system but the defendants
refused to act. Specifically, he alleges that “the defendants John
Doe 1 to 3 personally examined each housing unit in accordance
with his job d[e]scription” and ignored the unsafe environment.
(Am. Compl., ¶, Dkt. No. 7 at 7.) According to Plaintiff, “the
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defendants John Doe 1 to 3 are responsible for the safety of the
Bayside State Prison housing units that [were] built with a[n]
exhaust and ventilation system to circulate, filter and manage the
air flow in the cells to maintain a safe housing unit” and they
have witnessed “the dirt piling up on top of dirt in the cell on
the housing unit where plaintiff Wilson is being housed (Id., ¶¶
10, 11.) Plaintiff further alleges that John Does 1-3 are the
persons who “inherited the defendants Powell and Lanigan’s job to
protect

the

plaintiff

Wilson

from

hazardous

prison

living

conditions….” (Id., ¶11.) In his motion for injunctive relief,
Plaintiff alleges there are new signs in B-Unit that state “Caution
X119 Insulation.” (Mot. for Inj., Dkt. No. 21 at 2.) For relief,
Plaintiff seeks attorney fees and injunctive relief of transfer to
another prison.
B.

Eighth Amendment Conditions of Confinement Claims

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). 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
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based on 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

hazardous 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 harmful substance. 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 a risk to his or her health. Id. “‘A[n individual
government] defendant in a civil rights action must have personal
involvement
predicated

in

the

solely

alleged
on

the

wrongdoing;
operation

of

liability
respondeat

cannot

be

superior.

Personal involvement can be shown through allegations of personal
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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)).
C.

Analysis

Plaintiff has not alleged sufficient facts to establish that
he has been exposed to an unreasonably high level of harmful
substances

in

the

air

at

Bayside

State

Prison

that

pose

a

substantial risk to his present or future health. Plaintiff’s
claims

against

Powell

and

Lanigan

are

based

solely

on

his

complaints to them about fearing that he is breathing asbestos and
dirty air. The amended complaint contains new allegations that
John Does 1-3 examined the housing units and that they witnessed
dirt

piling

up

on

Plaintiff’s

housing

unit

over

his

cell.

Plaintiff, however, does not allege that these unnamed defendants
discovered exposed asbestos or any other harmful substance or
dysfunction of the ventilation system.
Plaintiff also alleges there are new caution signs in his
housing unit for “X119 insulation.” Plaintiff, however, does not
allege that the insulation contained asbestos and was exposed.
Although Plaintiff has alleged having symptoms that he contends
are caused by breathing harmful substances, he does not allege
that he has not been medically evaluated or treated for his medical
complaints. Plaintiff also alleges that the ventilation system
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does not maintain an “adequate temperature.” This allegation is
insufficient to establish a serious risk to Plaintiff’s health
based on exposure to high or low temperatures.
In sum, Plaintiff has failed to allege sufficient facts
supporting his conclusion that he was exposed to a serious risk to
his health or that any defendant was aware of and failed to protect
him from a serious risk of present or future injury from breathing
a hazardous substance or exposure to temperature extremes. See
e.g. Carter v. Owens, No. 17CV00182JBSAMD, 2017 WL 3107204, at *9–
10 (D.N.J. July 21, 2017) (dismissing complaint for failure to
allege

lack

of

ventilation

was

sufficiently

serious

or

that

defendants were deliberately indifferent); Riley v. DeCarlo, 532
F. App'x 23, 26 (3d Cir. 2013) (affirming dismissal of claims where
the

plaintiff

failed

to

establish

prison

officials

were

deliberately indifferent to poor air quality that caused the
plaintiff’s ailments).
IV.

CONCLUSION
For the reasons stated above, the Court will dismiss the

amended complaint without prejudice for failure to state a claim.
An appropriate order follows.

DATE: August 6, 2020
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
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