HARLEY v. WARREN et al
OPINION. Signed by Judge John Michael Vazquez on 10/20/16. (DD, ) N/M
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
COREY IZEIL HARLEY,
CHARLES E. WARREN, et al.,
Civil Action No. 13-7656(JMV)
Corey Izeil Harley, #576446/221018C
Northern State Prison
168 Frontage Rd.
P.O. Box 2300
Newark, NJ 07114
Plaintiff pro se
VAZQUEZ, District Judge
Plaintiff Corey Izeil Harley, an inmate presently confined in Northern State Prison in
Newark, New Jersey, filed this civil rights action on December 16, 2013. (ECF No. 1.) The case
was administratively terminated because Plaintiff failed to pay the filing fee or submit a properly
completed application to proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915. (ECF No. 2.)
On February 6, 2014, Plaintiff filed an IFP application, which was granted. (ECF Nos. 4, 6.)
Plaintiff filed an Amended Complaint on October 30, 2014. (ECF No. 7.)
On July 22, 2016, this Court dismissed the [First] Amended Complaint without prejudice,
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), for failure to state a claim upon which
relief may be granted. (ECF No. 10.) This matter comes before the Court upon Plaintiff’s motion
to amend the complaint. (ECF No. 12.) Plaintiff’s motion to amend the complaint will be granted,
but the Court must review the Second Amended Complaint1 pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b).
BACKGROUND AND SECOND AMENDED COMPLAINT
Plaintiff alleges the following in the “Statement of Facts” of his Second Amended
Complaint. (ECF No. 12-2, ¶¶10-33.) Plaintiff’s brother was murdered in July 2011. (Id., ¶10.)
Plaintiff and the individual, named Maurice, charged and convicted for his brother’s murder were
inmates in New Jersey State Prison. (Id., ¶¶11, 12.) Plaintiff’s mother and other family members
discovered that Plaintiff was housed in the same prison as Maurice, and they notified prison
authorities about their concerns. (Id., ¶13.) As a result, a “Keep Separate” notification was placed
in the classification files of both inmates, indicating that the two prisoners were to have no contact
with each other. (Id., ¶14.)
Despite the “Keep Separate” notification in the files, on July 26, 2013, Lt. Kennedy
assigned Maurice to the same housing unit as Plaintiff. (Id., ¶15.) When they encountered each
other, Maurice made a threatening gesture at Plaintiff. (Id.) The next morning, while Plaintiff was
in the shower, Maurice entered, “and a major fight ensued.” (Id., ¶¶15-16.)
After a code was alerted, staff arrived and took both inmates to the medical department.
(Id., ¶19.) Plaintiff suffered a badly injured hand, which was examined but not treated by L. Carver
The Second Amended Complaint consists of the proposed amended complaint (ECF No. 12-2)
and the addendum (ECF No. 12-1) attached to Plaintiff’s motion to amend complaint (ECF No.
in the infirmary. (Id., ¶20.) Plaintiff’s request to see a doctor due to the pain and condition of his
hand was denied. (Id.) Plaintiff was not prescribed antibiotics for the injury to his hand, which was
caused by contact with Maurice’s teeth. (Id., ¶21.) Carver glued Plaintiff’s wound shut but did not
provide Plaintiff with any medication. (Id., ¶22.)
Back in his cell, Plaintiff complained “to anyone who would listen” that he was in pain and
needed treatment. (Id., ¶23.) He submitted requests for medical treatment from July 27 through
July 29, because his hand was badly swollen and discolored. (Id., ¶24.) Plaintiff was admitted to
the infirmary for x-rays on July 29, 2013. (Id., ¶25.) He was diagnosed with an infection in the
bone, and the wound had to be reopened and cleaned. (Id., ¶26.)
For twenty days, Plaintiff complained about his medical treatment until he was taken to St.
Francis Medical Center on August 16, 2013. (Id., ¶¶27-28.) There, he was prescribed antibiotics,
and surgery was performed on August 19, 2013. (Id., ¶29.) Plaintiff was returned to New Jersey
State Prison on August 23, 2014. (Id., ¶30.)
In the prison infirmary, Plaintiff complained to all medical personnel that a Dr. Shakir had
ordered physical therapy for his hand, but physical therapy was not being provided to him at the
prison. (Id., ¶¶30-32.) Plaintiff did not have physical therapy until he was transferred to Northern
State Prison on October 11, 2013. (Id.) By that time, Plaintiff’s hand was disfigured, and the
physical therapist told him there was little that could be done due to the delay in treatment. (Id.,
For his first cause of action against Defendants Warren, Nelsen, Barnes, Lawrence and
Kennedy, Plaintiff asserts that they failed to monitor the classification process and failed to observe
active “Keep Separates.” (Id., ¶35.) This resulted in their failure to protect Plaintiff, in violation of
the Eighth Amendment, the State Constitutional prohibition of cruel and unusual punishment, and
the New Jersey Civil Rights Act, N.J.S. 10:6-1 and 2. (Id.)
For his second cause of action against Defendants Warren, Nelsen, Barnes, Lawrence and
Kennedy, Plaintiff asserts that they failed to:
appropriately address communications received from Plaintiff’s
mother, family member, and other departmental officials, were
deliberately indifferent to a dangerous condition within the confines
of the prison facility and as a result, plaintiff suffered irreparable
injury in violation of the State and Federal Constitutions, 42 U.S.C.
§1983 and, the New Jersey Civil Rights Act, N.J.S. 10:6-1 and 2.
In the Supplement to Plaintiff’s Second Amended Complaint, Plaintiff alleges that Warren,
Nelson, Barnes, Lawrence and Kennedy, in their respective roles as the Administrator of New
Jersey State Prison, the Associate Administrator of New Jersey State Prison, the Assistant
Administrator of New Jersey State Prison, and Supervising Custody Officer, “failed to assure the
proper management and conduct of the prison facility, including the implementation and
exercising of policy, rule or regulatory directives.” (ECF No. 12-1, ¶¶41-43.) As to each of these
defendants, Plaintiff also alleges that “this duty also included the construction and administration
of the classification of prisoners assigned to the facility.” (ECF No. 12-2, ¶¶4-7.) In addition,
Plaintiff alleges that Kennedy’s actions of providing housing assignments and “other security
related activities” violated Plaintiff’s rights and under the Eighth Amendment. (ECF No. 12-1,
Sua Sponte Dismissal
Under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), district courts must screen complaints
filed by prisoners 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.
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 true all of the allegations contained in a complaint” but need not
accept legal conclusions as true. Id. 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).
Section 1983 claims
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 . . . .
42 U.S.C. § 1983.
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).
1. Failure to Protect
The Eighth Amendment requires prison officials to take reasonable measures “to protect
prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833
(1994) (internal quotations omitted). To state a claim against a prison official for failure to protect
from inmate violence, an inmate must plead facts that show (1) he was incarcerated under
conditions posing a substantial risk of serious harm, (2) the official was deliberately indifferent to
that substantial risk to his health and safety, and (3) the official’s deliberate indifference caused
the inmate harm. Farmer, 511 U.S. at 834; Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997).
To meet the required subjective standard of deliberate indifference, “the prison officialdefendant must actually have known or been aware of the excessive risk to inmate safety.” Bistrian
v. Levy, 696 F.3d at 367 (quoting Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001)).
Actual knowledge can be shown by circumstantial evidence where (1) “̔a substantial risk of inmate
attacks was longstanding, pervasive, well-documented, or expressly noted by prison officials in
the past,’ and (2) where ‘circumstances suggest that the defendant-official being sued had been
exposed to information concerning the risk and thus must have known about it.’” Counterman v.
Warren County Correctional Facility, 176 F. App’x 234, 238 (3d Cir. 2006) (quoting BeersCapitol, 256 F.3d at 131 (quoting Farmer, 511 U.S. at 837)).
Negligent failure to prevent an attack by an inmate is insufficient to establish violation of
the Eighth Amendment. Davidson v. Cannon, 474 U.S. 344, 345-49 (1986) (finding failure to heed
prisoner’s notification of threats from another inmate, followed by an assault, is not a constitutional
violation); Schwartz v. Cnty of Montgomery, 843 F.Supp. 962 (E.D. Pa.) aff’d 37 F.3d 1488 (3d
Cir. 1994) (stating failure to observe institutional policies regarding supervision of dangerous
inmates constitutes negligence and does not support a § 1983 action for violation of the Eighth or
In the Second Amended Complaint, Plaintiff alleges that Kennedy failed to monitor the
classification process, and his “other security related activities” violated Plaintiff’s rights. These
allegations suggest negligence because if Kennedy failed to monitor the classification process, he
was unaware of the “Keep Separate” classifications when he assigned Maurice to Plaintiff’s
housing unit, and therefore not deliberately indifferent. Furthermore, Plaintiff’s allegation that
Kennedy’s “other security related activities” violated his rights is too vague to state a claim. The
Court will dismiss the failure to protect claim against Kennedy without prejudice.
To state a claim of deliberate indifference by a supervisor, a plaintiff:
must first identify “specific supervisory practice or procedure” that
the defendant supervisor failed to employ, and then prove the
following: “(1) the existing custom and practice without that
specific practice or procedure created an unreasonable risk ...”
Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989); “(2) the
supervisor was aware that the unreasonable risk was created; (3) the
supervisor was indifferent to that risk; and (4) the injury resulted
from the policy or practice.” Beers-Capitol, 256 F.3d at 134 (citing
Sample, 885 F.2d at 1118). The simplest way for a plaintiff to make
out such a claim is to demonstrate a supervisor's failure to respond
appropriately when confronted by a pattern of injuries similar to the
plaintiff's, thereby suggesting deliberate indifference on the part of
the supervisor. Sample, 885 F.2d at 1118. However, “there are
situations in which the risk of constitutionally cognizable harm is so
great and so obvious that the risk and the failure of supervisory
officials to respond will alone support findings of the existence of
an unreasonable risk, of knowledge of that unreasonable risk, and of
indifference to it.” Id.
Counterman, 176 F. App’x at 240-41.
By Order dated July 22, 2016, this Court dismissed, without prejudice, Plaintiff’s failure
to protect claims under 42 U.S.C. § 1983 against Defendants Warren, Nelsen, Barnes and
Lawrence because Plaintiff failed to allege facts suggesting their personal involvement in a
constitutional violation. (ECF No. 10 at 7.) Section 1983 liability cannot be predicated solely upon
the operation of respondeat superior. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005)(quoting
Rode v. Dellaciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)).
Plaintiff added allegations to the Second Amended Complaint that Warren, Nelsen, Barnes,
and Lawrence, in their roles as administrators of New Jersey State Prison, failed to assure the
proper management and conduct of the prison facility, including the implementation and
exercising of policy, rule or regulatory directives, and the construction and administration of the
classification of prisoners assigned to the facility.
In other words, Plaintiff alleges these defendants failed to employ an adequate
classification policy or practice to actually keep separate those inmates who were designated as
“Keep Separate.” Plaintiff’s allegations fall short of stating a supervisory claim under the Eighth
Amendment. Once a plaintiff alleges the failure to employ a specific policy, practice or procedure,
he must allege facts suggesting the existing practice created an unreasonable risk of harm; the
supervisor was aware that the unreasonable risk was created; the supervisor was indifferent to that
risk; and the injury resulted from the policy or practice.
Plaintiff has not alleged facts describing the existing practice with respect to monitoring
and enforcing “Keep Separate” classifications. Nor has Plaintiff alleged that Warren, Nelsen,
Barnes or Lawrence failed to respond appropriately when confronted by a pattern of injuries related
to failure to enforce “Keep Separate” classifications, as would support a finding of deliberate
indifference. Furthermore, Plaintiff failed to allege facts suggesting these supervisory defendants
were aware of a risk that the policies and practices regarding “Keep Separate” classifications were
so inadequate that they were unlikely to protect Plaintiff against an attack by Maurice unless they
took additional steps. For these reasons, the Court will dismiss, without prejudice, Plaintiff’s
Eighth Amendment failure to protect claims against Warren, Nelsen, Barnes and Lawrence.
Inadequate Medical Care
The Eighth Amendment’s prohibition against cruel and unusual punishment requires that
inmates be provided with adequate medical care. Estelle v. Gamble, 429 U.S. 97, 103-04 (1976);
Rouse v. Plantier, 182 F.3d 192 (3d Cir. 1999). To state a claim of inadequate medical care in
violation of the Eighth Amendment, an inmate must set forth: (1) a serious medical need; and (2)
a prison official’s deliberate indifference to that serious medical need. Estelle, 429 U.S. at 106. A
serious medical need includes a need for which “denial of treatment would result in the
unnecessary and wanton infliction of pain” or a “life-long handicap or permanent loss.” Atkinson
v. Taylor, 316 F.3d 257, 273 (3d Cir. 2003) (internal quotations and citations omitted).
The second element of the Estelle test is subjective and requires an inmate to show that a
prison official acted with deliberate indifference to a serious medical need. Natale v. Camden
County Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003). Conduct that constitutes
malpractice or negligence does not rise to the level of deliberate indifference; deliberate
indifference is a reckless disregard of a known risk of harm. Farmer v. Brennan, 511 U.S. 825,
836 (1994). Courts will not second guess “the adequacy a particular course of treatment” in the
exercise of sound professional judgment. Inmates v. Allegheny County Jail v. Pierce, 612 F.2d
754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)).
A non-physician defendant is not deliberately indifferent to a prisoner’s serious medical
needs in violation of the Eighth Amendment if she fails to respond to an inmate’s administrative
complaint regarding medical treatment while the inmate is already receiving treatment by the
prison doctor. Durmer v. O’Caroll, 991 F.2d 64, 69 (3d Cir. 1993). Non-medical personnel are
entitled “to presume the competence of medical staff in treating a prisoner . . .” Davis v.
Superintendent of Somerset SCI, No. 14-3746, 2015 WL 75260, at *2 (3d Cir. Jan 7, 2015) (citing
Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)).
Eighth Amendment claims against non-medical personnel based on an unmet need for
medical care are limited to circumstances where the non-medical personnel had “a reason to
believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating)
a prisoner.” Spruill, 372 F.3d at 236. If non-medical staff were justified in believing the prisoner
was “in capable hands” with medical experts, dismissal of the Eighth Amendment claim is proper.
Id.; Mines v. Levi, Civil Action No. 07-1739, 2009 WL 839011, at *6 (E.D. Pa. March 26, 2009)
(failing to respond to a grievance sent by a prisoner is not sufficient to demonstrate personal
involvement of a prison supervisor) (citation omitted)).
Upon screening Plaintiff’s First Amended Complaint, this Court dismissed Plaintiff’s
Eighth Amendment inadequate medical care claim against Defendant Carver because Plaintiff’s
allegation that Carver did not provide additional treatment to the cut on his hand when Plaintiff
complained amounted only to a claim of negligence. (ECF No. 10 at 11.) In the Second Amended
Complaint, Plaintiff alleged that Carver, as an employee of the University of Medicine and
Dentistry of New Jersey, contracted by the New Jersey Department of Corrections to provide
health services and medical treatment for prisoners, failed to provide the additional treatment.
(ECF No. 12-1, ¶45.) As with the First Amended Complaint, Plaintiff’s disagreement with the
treatment provided by Carver sounds in malpractice, and fails to state an Eighth Amendment claim
of deliberate indifference to his medical care.
As to the remaining medical defendants, Plaintiff did not identify a particular person who
ignored Plaintiff’s pleas for further evaluation and treatment for pain in his hand. In fact, Plaintiff
did not make any specific factual allegations against Defendants Niery, Chase, Galligher, Ahsan,
or John and Jane Doe, beyond that they were employed by a private contractor to provide medical
treatment to prisoners, and failed to treat Plaintiff.
Generally, when using a fictitious name for a defendant, the complaint must contain a
sufficient description to identify the defendant. Rutkowski v. Liberty Mut. Ins., Co., 209 N.J. Super
140, 146-47 (N.J. Super. Ct. App. Div. 1986); DeRienzo v. Harvard Industries, Inc., 357 F.3d 348,
353 (3d Cir. 2004). Here, Plaintiff has only alleged that John and Jane Doe provide medical
services to New Jersey State Prison, and generally that Plaintiff pleaded with anyone who would
listen that he required additional treatment. The Court will dismiss, without prejudice, Plaintiff’s
Eighth Amendment inadequate medical care claims against Carver, Niery, Chase, Galligher,
Ahsan, John and Jane Doe.
In the Second Amended Complaint, Plaintiff also alleged that Defendant Warren, the
administrator of the prison, violated his Eighth Amendment rights by encouraging and failing to
correct the misconduct by the medical defendants. Plaintiff has not alleged how Warren
encouraged the alleged misconduct. A non-medical prison official is liable under the Eighth
Amendment where the official had “a reason to believe (or actual knowledge) that prison doctors
or their assistants are mistreating (or not treating) a prisoner.” Spruill, 372 F.3d at 236. Plaintiff
has not alleged sufficient facts to suggest Warren knew anyone in the medical department was
mistreating or not treating Plaintiff. “Once a prison grievance examiner becomes aware of possible
mistreatment, the Eighth Amendment does not require him or her to do more than ̔review[ ] ... [the
prisoner's] complaints and verif[y] with the medical officials that [the prisoner] was receiving
treatment.’” Glenn v. Barua, 252 F. App’x 493, 498 (3d Cir. 2007) (quoting Greeno v. Daley, 414
F.3d 645, 655–56 (7th Cir. 2005) (citing Spruill, 372 F.3d at 236). Therefore, the Court will dismiss
the Eighth Amendment inadequate medical care claim against Warren.
Claims under the New Jersey State Constitution and New Jersey Civil Rights Act
The NJCRA provides, in part:
Any person who has been deprived of any substantive due process
or equal protection rights, privileges or immunities secured by the
Constitution or laws of the United States, or any substantive rights,
privileges or immunities secured by the Constitution or laws of this
State ... may bring a civil action for damages and or injunctive or
other appropriate relief.
N.J. Stat. Ann. §10:6-2.
The New Jersey Civil Rights Act is analogous to 42 U.S.C. § 1983 in that it creates a private
right of action for violation of civil rights secured by the New Jersey Constitution, the laws of the
tate of New Jersey, and the Constitution and laws of the United States. See Gormley v. Wood-El,
218 N.J. 72, 97 (N.J. 2014) (“Section 1983 applies only to deprivations of federal rights, whereas
N.J.S.A. 10:6–1 to 2 applies not only to federal rights but also to substantive rights guaranteed by
New Jersey's Constitution and laws.”)
New Jersey Constitution Article 1, paragraph 12 provides that cruel and unusual
punishments shall not be inflicted. A claim of deliberate indifference to a prisoner’s serious
medical needs is cognizable under Article 1, paragraph 12 of the New Jersey Constitution, and
such a claim is “̔analyzed identically to a deliberate indifference claim under the Eighth
Amendment.’” Ramirez v. Nugent, Civ. Action No. 12-6781(JBS), 2014 WL 7404048, at *6 n.4
(D.N.J. Dec. 30, 2014)(quoting Davis v. N.J. Dep’t of Corrs., No. 10-6439, 2011 WL 5526081, at
*4 (citations omitted); Szemple v. Corr. Med. Servs., Inc., No. 07–4809, 2012 WL 161798, at *8
(D.N.J. Jan. 19, 2012)(citations omitted)(noting that courts have “‘repeatedly construed’” Article
I, paragraph 12 of the New Jersey Constitution “‘in terms nearly identical to its federal
counterpart’”) (citations omitted). Therefore, because he fails to adequately plead an Eighth
Amendment claim, Plaintiff also fails to state an inadequate medical care claim under the New
Jersey Constitution and the New Jersey Civil Rights Act.
Plaintiff’s failure to protect claims under the New Jersey Constitution and NJRCA suffer
the same fate. “The NJCRA and § 1983, when pled together, are analyzed under the same standard;
first, the Defendant must have acted under color of state law, and second, the Defendant must have
violated a constitutional right.” Hottenstein v. City of Sea Isle City, 977 F.Supp.2d 353, 365 (D.N.J.
2013) (citing Pettit v. New Jersey, Civ. Action No. 09-cv-3735(NLH), 2011 WL 1325614 at *4
(D.N.J. Mar. 30, 2011); see also Hottenstein v. Sea Isle City, 793 F.Supp.2d 688, 695 (D.N.J.
2011)). “To date, [the New Jersey] Supreme Court has not held that Article I, paragraph 12 of the
New Jersey Constitution should be construed more broadly than the counterpart Eighth
Amendment . . . in the realm of non-capital cases.” State v. Zarate, 2016 WL 1079462, at *15 (N.J.
Super. Ct App. Div. Mar. 21, 2016). As a result, because Plaintiff’s claims are insufficient
pursuant to Section 1983, they also fall short vis-à-vis the New Jersey Constitution and NJCRA.
For the reasons discussed above, Plaintiff’s Second Amended Complaint will be dismissed
without prejudice for failure to state a claim, pursuant to 28 U.S.C. §1915(e)(2)(B)(ii) and
1915A(b)(1). If Plaintiff can supplement his pleading with facts sufficient to overcome the
deficiencies noted herein, Plaintiff may seek to reopen this case and file a Third Amended
An appropriate order follows.
s/ John Michael Vazquez
JOHN MICHAEL VAZQUEZ
United States District Judge
At Newark, New Jersey
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