COOPER v. SHARP et al
Filing
23
OPINION fld. Signed by Judge Faith S. Hochberg on 12/13/13. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ELY COOPER,
Plaintiff,
v.
KENNETH SHARP, et al.,
Defendants.
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Civil Action No. 10-5245 (FSH)
OPINION
APPEARANCES:
ELY COOPER, Plaintiff pro se
# 193
East Jersey State Prison/Special Treatment Unit
8 Production Way, CN 905
Avenel, New Jersey 07001
LUCY ELIZABETH FRITZ, ESQ.
OFFICE OF THE N.J. ATTORNEY GENERAL
Department of Law & Public Safety – Division of Law
R.J. Hughes Justice Complex
25 Market Street
Trenton, New Jersey 08625
Counsel for Defendants
HOCHBERG, District Judge
This matter is before the Court pursuant to a motion to dismiss
Plaintiff’s Amended Complaint, under Federal Rule of Civil Procedure
12(b)(6), (ECF No. 19), filed on behalf of the remaining Defendants,
Steven Johnson, Merrill Main, Jennifer Velez, Shantay Adams, and
Jacquelyn
Ottino,
officials
and
employees
of
the
New
Jersey
Department of Human Services (“NJDHS”) and the Department of
Corrections (“NJDOC”).
Plaintiff has not filed any opposition or
response to Defendants’ motion.
This motion is decided on the
papers, without oral argument, pursuant to Fed. R. Civ. P. 78.
For
the reasons set forth below, the Court will grant Defendants’ motion
and dismiss the Amended Complaint.
I.
A.
BACKGROUND
Procedural History
Plaintiff filed his initial Complaint in this matter on October
12, 2010.
(ECF No. 1.)
In an Opinion and Order issued on March 23,
2011, this Court dismissed the Complaint without prejudice, as to
all named defendants, pursuant to 28 U.S.C. § 1915(e)(2)(B)(II).
(ECF Nos. 3, 4.)
Plaintiff thereafter filed an Amended Complaint
on April 4, 2011.
(ECF No. 6.)
On January 31, 2012, the Court
re-opened the case and dismissed with prejudice the Amended Complaint
in its entirety as against named Defendants, Marc Singer and David
DaCosta. 1
(ECF Nos. 7, 8.)
The Court also dismissed with prejudice,
as against all named Defendants, Plaintiff’s claims asserting
unconstitutional conditions of confinement and unconstitutional
strip searches.
(Id.)
However, Plaintiff’s claim alleging denial
of all group and therapy treatment from May 12, 2010 to April 30,
Previously named Defendants, Kenneth Sharp, Debbie Hasting and John
Main were terminated from this action on April 7, 2011.
1
2
2011, in violation of his Fourteenth Amendment rights, was allowed
to proceed against the remaining Defendants, Steven Johnson, Merrill
Main, Jennifer Velez, Shantay Adams, and Jacquelyn Ottino.
Defendants requested and were granted several extensions to
file an answer or otherwise respond to the Amended Complaint.
On
May 10, 2013, Defendants filed this motion to dismiss the Amended
Complaint, pursuant to Fed. R. Civ. P. 12(b)(6).
(ECF No. 19.)
Plaintiff has not filed any response or opposition to Defendants’
motion.
B.
Statement of Facts
Plaintiff filed his Amended Complaint against the remaining
Defendants, as follows:
East
Jersey
State
Merrill Main, NJDHS Clinical Director at
Prison/Special
Treatment
Unit
(“EJSP/STU”);
Shantay Adams, NJDHS Unit Director at EJSP/STU; Jacquelyn Ottino,
NJDHS Program Director at EJSP/STU; Jennifer Velez, Commissioner of
the NJDHS; and Steven Johnson, NJDOC Assistant Superintendent at
EJSP/STU.
(ECF No. 6, Amended Complaint at ¶ 4.)
The Amended
Complaint
generally
denied
alleges
that
Plaintiff
“was
group/therapy” from May 12, 2010 to April 30, 2011.
all
(Id. at ¶ 7.)
The Amended Complaint further alleges that Plaintiff had complained
to NJDHS and NJDOC administrators about the cancelation of group
sessions and the NJDOC officers dictating therapy group movements,
but nothing was done.
(Id.)
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II. STANDARD OF REVIEW
“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 Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)); see also Phillips v. County of Allegheny, 515 F.3d 224,
234 (3d Cir.2008) (“[S]tating ... a claim requires a complaint with
enough factual matter (taken as true) to suggest the required
element.
This does not impose a probability requirement at the
pleading stage, but instead simply calls for enough facts to raise
a reasonable expectation that discovery will reveal evidence of the
necessary element.”) (internal quotations omitted).
When considering a motion to dismiss under Iqbal, the Court must
conduct a two-part analysis.
“First, the factual and legal elements
of a claim should be separated.
The District Court must accept all
of the complaint’s well-pleaded facts as true, but may disregard any
legal conclusions.
Second, a District Court must then determine
whether the facts alleged in the complaint are sufficient to show
that the plaintiff has a plausible claim for relief.”
Fowler v. UPMC
Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009) (internal citations
and
quotations
omitted).
“A
pleading
that
offers
labels
and
conclusions or a formulaic recitation of the elements of a cause of
action will not do.
Nor does a complaint suffice if it tenders naked
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assertions devoid of further factual enhancement.”
Iqbal, 556 U.S.
at 678 (internal quotations and alterations omitted).
III. DISCUSSION
A.
Eleventh Amendment Immunity
Defendants first note that the Amended Complaint does not
indicate whether the Defendants are being sued in their individual
or official capacities or both.
To the extent that Plaintiff sues
Defendants in their official capacities, Defendants contend that the
Amended Complaint must be dismissed with prejudice because it is
barred by the Eleventh Amendment.
The Eleventh Amendment bars suits by individuals against states
or their agencies unless immunity has been waived.
See Pennsylvania
Fed’n of Sportsman's Club, Inc. v. Hess, 297 F.3d 310, 323–24 (3d
Cir. 2002).
Sovereign immunity “also bars a suit against a state
official in his or her official capacity because it ‘is not a suit
against the official but rather is a suit against the official’s
office.’”
Garden State Elec. Inspection Servs., Inc. v. Levin, 144
F. App’x 247, 251 (3d Cir. 2005) (quoting Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989)).
Accordingly, any claims against Defendants in their official
capacities will be dismissed with prejudice. 2
2
However, to the extent
The Court notes that Plaintiff’s claim against these Defendants
5
that Plaintiff intended to sue Defendants in their individual
capacities, the Court will analyze Plaintiff’s claims to the extent
that they are brought against Defendants individually since the
Eleventh Amendment does not bar a suit against a state official acting
in his or her individual capacity, even if the actions which are the
subject of the suit were part of their official duties.
See Hafer
v. Melo, 502 U.S. 21, 31 (1991).
B.
Respondeat Superior
Defendants next argue that Plaintiff’s claims against them in
the Amended Complaint are based solely on the impermissible theory
of respondeat superior because Plaintiff does not allege facts to
establish that the Defendants were personally involved in the alleged
wrongdoings (namely, denial of group and therapy sessions).
“In order for liability to attach under § 1983, a plaintiff must
show that a defendant was personally involved in the deprivation of
his federal rights.”
Fears v. Beard, No. 12–4564, 2013 WL 3834399,
*2 (3d Cir. July 25, 2013) (per curiam) (citing Rode v. Dellaciprete,
845 F.2d 1195, 1207 (3d Cir. 1988)).
“[L]iability cannot be
predicated solely on 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
does not seek prospective relief, but rather involves alleged denial
of treatment for a specific period of time that has now ended.
6
F.3d 347, 353 (3d Cir. 2005) (citation omitted).
See also Walsifer
v. Borough of Belmar, 262 F. App’x 421, 425 (3d Cir. 2008).
Allegations of personal direction or of actual knowledge and
acquiescence by a plaintiff can show personal involvement by an
individual defendant.
These allegations, however, “must be made
with appropriate particularity.”
Rode, 845 F.2d at 1207.
In his Amended Complaint, Plaintiff fails to make specific
allegations that the Defendants had any personal involvement in
denying him group and other therapy sessions.
The Court observes
that the named Defendants are all administrators with the NJDHS or
NJDOC.
Thus, it appears that Plaintiff’s allegations are conclusory
in nature and are limited to Defendants’ supervisory roles.
For instance, Plaintiff merely alleges that Defendant Velez
“know[s] that civilly committed residents are placed in a prison
facility, with no proper treatment, no modules, no outside programs
or anything, that will show advancement in treatment.”
Am. Compl. at 4.)
(ECF No. 6,
Plaintiff further alleges that Defendant Adams
“[k]now[s] that being moved onto prison property is non-therapeutic,
because of conditions.
And treatment can never be properly given
due to prison policy and rules.”
(Id.)
Indeed, throughout the
Amended Complaint, Plaintiff’s allegations generally contend that
civilly committed residents cannot receive proper treatment in a
prison facility due to prison policies regulations and rules.
7
He
does not make any allegations that the NJDHS Defendants have denied
or
curtailed
treatment
inconsistent
with
prison
policies
and
regulations.
Rather, Plaintiff alleges only that treatment has been denied
because of the prison setting and control by NJDOC officials over
movements and conduct of the residents.
Consequently, Plaintiff
fails to make any allegations “with appropriate particularity”
concerning the NJDHS Defendants sufficient to give rise to a
plausible claim for relief under § 1983.
See Rode, 845 F.2d at 1207.
Moreover, Plaintiff makes no specific allegations against NJDOC
Defendant Johnson other than generally asserting that Plaintiff is
a
civilly
regulations.
committed
resident
subject
to
prison
policy
and
This general claim that it is unconstitutional to be
placed in a prison facility and be subject to prison policies intended
for the orderly operation and security of a prison facility has been
dismissed with prejudice.
(ECF No. 3, March 23, 2011 Opinion at
12-14; ECF No. 7, January 31, 2012 Opinion at 10-11.)
Therefore,
this
Court
concludes
that
Plaintiff’s
general
allegations against the remaining Defendants are based on an
impermissible theory of respondeat superior.
As these are the only
allegations asserted against Defendants, 3 the Amended Complaint will
3
The Court need not address Defendants’ last argument that Plaintiff
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be dismissed without prejudice accordingly. 4
IV. CONCLUSION
For the foregoing reasons, the Court will grant Defendants’
motion to dismiss the Amended Complaint.
This action will be
dismissed without prejudice in its entirety accordingly.
An
accompanying Order is filed herewith.
s/ Faith S. Hochberg ______
FAITH S. HOCHBERG
United States District Judge
Dated:
December 13, 2013
has failed to exhaust administrative remedies as required under 42
U.S.C. § 1997e, et seq.
The Court does note, however, that
Defendants’ argument is misplaced because Plaintiff is not a prisoner
subject to the requirements under § 1997e.
While Plaintiff has not filed any opposition to Defendants’ motion,
the Court recognizes that Plaintiff may still be able to cure the
deficiencies of his Amended Complaint by pleading facts of personal
involvement by the supervisory Defendants with the requisite
particularity under Rode, supra. Plaintiff should note that an
amended complaint supersedes prior complaints.
See Snyder v.
Pascack Valley Hosp., 303 F.3d 271, 276 (3d Cir. 2003). Accordingly,
an amended complaint must name all defendants, assert facts stating
a claim against each defendant, and must otherwise be complete in
and of itself.
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