PEARSON v. SWEENEY et al

Filing 14

OPINION. Signed by Judge Renee Marie Bumb on 2/16/2021. (dmr)(n.m.)

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NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
______________________________
COREY PEARSON,

:
:
Plaintiff
:
v.
:
:
DONNA SWEENEY, et al.,
:
:
Defendants
:
______________________________:

Civ. No. 20-2065 (RMB-JS)
OPINION

BUMB, District Judge
This matter comes before the Court upon the filing of an
amended

complaint under 42 U.S.C. § 1983 by

Plaintiff Corey

Pearson, an inmate presently incarcerated in Bayside State Prison
in Leesburg, New Jersey. (Am. Compl., Dkt. No. 13.) On July 27,
2020, the Court granted Plaintiff’s application to proceed in forma
pauperis under 28 U.S.C. § 1915, but dismissed his civil rights
complaint without prejudice for failure to state a claim, pursuant
to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b), and 42 U.S.C. § 1997e(c).
(Order,

Dkt.

No.

4.)

The

Court

also

dismissed

Plaintiff’s

supplemental complaint by Order dated November 24, 2020. (Order,
Dkt. No. 8.) The Court must review the amended complaint for
possible dismissal under 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b), and
42 U.S.C. § 1997e(c). The Court will dismiss the claims against

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Marcus O-Hicks without prejudice and permit the remainder of the
claims to proceed.
I.

Sua Sponte Dismissal
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) and 42 U.S.C. § 1997e(c) 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.
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
2

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(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.

DISCUSSION
A.

Amended Complaint

Plaintiff

brings

his

claims

against

defendants

under

42

U.S.C. § 1983 for violating the Eighth Amendment by failing to
protect him from assault on May 12, 2019 by another inmate who
heard that Plaintiff was designated as a sex offender. (Am. Compl.,
Dkt. No. 13.) A Court must liberally construe a pro se complaint.
Therefore, the Court construes the Amended Complaint as raising a
Fourteenth Amendment Due Process claim that “the sex offender
3

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designation caused ‘severe changes in conditions of confinement
[that amounted] to a grievous loss that should not be imposed
without the opportunity for notice and an adequate hearing,’”
McIntosh v. United States, No. 19-2018, 2021 WL 392828, at *2 (3d
Cir. Feb. 4, 2021) (quoting Renchenski v. Williams, 622 F.3d 315,
325 (3d Cir. 2010.) The Amended Complaint alleges Defendants Donna
Sweeney, Detective Tabolsky and Senior Classifications Officer S.
Bailey at South Woods State Prison failed to correct Plaintiff’s
alleged erroneous sex offender classification upon his transfer to
a prison in New Hampshire, resulting in an assault on Plaintiff by
an inmate who learned Plaintiff was classified as a sex offender.
The

Court

will

permit

the

Due

Process

claims

against

Defendants Sweeney, Tabolski and Bailey to proceed, pursuant to
McIntosh, 2021 WL 392828, at *2. The Court will dismiss without
prejudice the Due Process claim against Marcus O’Hicks because
liability is premised on his supervisory role over Interstate
Transfers and alleged failure to investigate Plaintiff’s claims
and take action after the assault occurred. Supervisory liability
under 42 U.S.C. § 1983 must be supported by factual allegations
that the supervisor “established and maintained a policy, practice
or custom which directly caused [the] constitutional harm,” or the
supervisor “participated in violating plaintiff's rights, directed
others to violate them, or, as the person[s] in charge, had
knowledge of and acquiesced in [their] subordinates' violations.”
4

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Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010)
A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d
572, 586 (3d Cir.2004) (second alteration in original). Plaintiff
has not alleged a policy or custom maintained by O’Hicks that
caused Plaintiff’s misclassification as a sex offender, nor has he
alleged

that

O’Hicks

had

knowledge

misclassification, resulting in the

of

or

acquiesced

in

the

alleged assault.

III. CONCLUSION
The Court will permit the amended complaint to proceed in
part

and

dismiss

without

prejudice

the

claim

against

O’Hicks.

An appropriate Order follows.

DATE:

February 18, 2021
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

5

Marcus