MCKINNEY v. HEMSLEY et al
OPINION. Signed by Judge Kevin McNulty on 9/28/17. (DD, ) N/M
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
IVAN G. McKINNEY,
Civ. No. 14-3564 (KM) (JBC)
Plai nil IT
DR. HEMSLEY. et a!.,
KEVIN MCNULTY. U.S.D.J.
The plaintiff, Ivan 0. McKinney, is proceeding pro se with a civil rights complaint filed
pursuant to 42 U.S.C.
1983. Presently pending before this court is the motion of defendants
Davies, Bigott, Pickel, and Pawson to dismiss the complaint for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6), or for a more definite statement pursuant Rule 12(e).
For the following reasons, the motion to dismiss will be granted. Mr. McKinney’s federal claims
against these four defendants will be dismissed without prejudice and this Court will decline to
exercise supplemental jurisdiction over Mr. McKinney’s state law claims. Mr. McKinney’s
request for default judgment against Davies will also be denied, as will his request for an
Previously, this Court severed claims from Mr. McKinney’s complaint into separate
actions. The severed allegations in this action arise from Mr. McKinney’s prior incarceration at
the Bergen County Jail (he was subsequently transferred to New Jersey State Prison). This Court
initially permitted claims against Davies. Bigott, Pickel and Pawson to proceed past screening.
Mr. McKinney alleges, inter cilia, that the defendants failed to respond to his grievances with
respect to denial of medical care, and specifically that Pawson failed to respond to his letter
complaining about being refused a medical appointment by Dr. Hemsley.’
The complaint alleges that, while incarcerated at the Bergen County Jail, McKinney was
suffering from a tear in his left knee meniscus, lower back bulge, herniated neck discs, and a
hernia. Before his incarceration, in 2010. Mr. McKinney received a prescription to have hernia
surgery. His incarceration began in February 2011 without the surgery having occurred. Dr.
Hemsley (not part of this motion this dismiss) allegedly refused to authorize surgery. On
September 9,2012, McKinney wrote a letter to Pawson to complain about ilemsley’s refusal.
Defendant Pawson is alleged to be in charge of the medical department at the Bergen
County Jail. Mr. McKinney states that Pawson has never responded to his medical grievances.
Mr. McKinney also alleges that Pawson did nothing about the condition of his mattress or the
fact that he was conlined to his cell for 21 hours per day.. (See Dkt. No. 4 at p. 16)
Defendant Pickel. too, allegedly failed to respond to McKinney’s grievances, except one
the he was being double-charged for an “entrance fee of S55.00.2 (Id. at p.17)
Defendant Bigott was the warden of the Bergen County Jail when Mr. McKinney made
the complaints described above. McKinney states that he sent Bigott a request regarding his
medical issues, but that Warden Bigott chose to “turn his head” from his medical department.
(See id.) Mr. McKinney also appears to raise allegations regarding his thin mattress and his 21hour lockdown, staling that Bigott did nothing about them.
Dr. Hemsley separately answered the complaint and is not part of this motion to dismiss.
The handwriting is unclear; the fee may have been $5.00. I will assume the larger amount.
Finally, Mr. McKinney alleges that defendant Davies placed him in 21-hour lockdown.
He claims that Davies never came to where Mr. McKinney was incarcerated. (See
at p.1 8)
Mr. McKinney states that he has written Davies on several occasions to no avail.
Mr. McKinney seeks monetary damages in his complaint.
STANDARD OF REVIEW ON RULE 12(B)(6) MOTION TO DISMISS
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in
whole or in part, if it fails to state a claim upon which relief can be granted. The moving party
bears the burden of showing that no claim has been stated. See Hedges v United States, 404 F.3d
744, 750 (3d Cir. 2005). In deciding a motion to dismiss, a court must take all allegations in the
complaint as true and view them in the light most favorable to the plaintiff. See Worth v. Seldin,
422 U.S. 490, 501 (1975); Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts mc, 140 F.3d
478, 483 (3d Cir. 1998); see also Phillips v County ofAllegheny, 515 F.3d 224, 231 (3d Cir.
2008) (“reasonable inferences” principle not undermined by later Supreme Court Twombly case,
Federal Rule of Civil Procedure 8(a) does not require that a complaint contain detailed
factual allegations. Nevertheless, “a plaintiffs obligation to provide the ‘grounds’ of his
“entitlement to relief requires more than labels and conclusions, and formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twoinbly, 550 U.S. 544, 555 (2007).
Thus, the factual allegations must be sufficient to raise a plaintiffs right to relief above a
speculative level, such that it is “plausible on its face.” See id. at 570; see also Umland v.
PLANCO Fin. Sen’., Inc., 542 F.3d 59, 64 (3d Cir. 2008). 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citing Twombly, 550 U.S. at 556). While “[tjhe plausibility standard is not akin to a ‘probability
it asks for more than a sheer possibility.” Iqbal, 556 U.S. at 678 (2009).
As Mr. McKinney is proceeding pro xc, the complaint is “to be liberally construed,” and,
“however inartfully pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). Nevertheless, it must meet
some minimal standard. “While a litigant’s pro se status requires a court to construe the
allegations in the complaint liberally, a litigant is not absolved from complying with Tii’ombly
and the federal pleading requirements merely because s/he proceeds pro se” Thakar v. Tan, 372
F. App’x 325, 328 (3d Cir. 2010) (citation omitted).
A. Captain Davies and Default Judgment
Mr. McKinney has filed a request for default judgment against defendant Davies. (See
Dkt. No. 48) While it appears that Mr. McKinney requested that the Clerk enter default against
Davies prior to his request for default judgment (see Dkt. No. 29), the Clerk has not done so, for
reasons that are not clear. The Clerk’s entry of default is of course a precondition to the entry of
a default judgment. See Alfred v. New Jersey, No. 13-332, 0215 WL 3603964, at *2 (D.N.J. June
5, 2015) (noting that in determining whether to grant default judgment, court must ensure that
the entry of default under Federal Rule of Civil Procedure 55(a) was proper).
Because the lack of entry of default is easily remedied if necessary, I will set it aside and
analyze whether a default judgment would be appropriate. I conclude that it would not. The
Court has a well-established preference that cases be decided on the merits rather than by default
judgment whenever practicable. See Hill
Willianispori Police Dep’!, 69 F. App’x 49, 51 (3d
Cir. 2003). In analyzing a request for default judgment, this Court “accepts as true a plaintiffs
well-pleaded factual allegations while disregarding its legal conclusions.” Laborers In! ‘1 Union
of K rim. Local No. /99 Jh31/zrc, Pension, Apprenticeship & Training Annuity & Laborers
Employers Coop. Ethic. Trust Funds ofDeL, Inc. v.
4517935, at *3 (D.N.J .Aug. 26, 2013) (citing Directi’, Inc.
As/icr, No. 03—1 969, 2006 WI.
(D.N.J. Mar. 14, 2006) (citing I OA Ci (ARLES A. WRIGHT, ARTHUR R. MILLER &
MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE
For the reasons described in Section 8.1,
Solutions, No. 11—4976, 2013 WL
2688, at 63 (3d ed.1998m.
Mr. McKinney’s complaint fails to state a
1983 claim against Davies. his request for a default judgment against Davies is
therefore denied, and the Court will consider Davies’ response to the complaint. Accord Ron/eon
v. EIwell, No. 10-3804. 2013 \VL 5676068, at *34 (D.N.J. Oct. 17. 2013) (denying request for
default judgment on unlawful seizure claim where plaintiff failed to state a claim for unlawful
B. Federal Claims
The sole allegation against Davies is that he placed McKinney in a cell for twenty-one
hours per day. The Eighth Amendment requires prison officials to provide humane conditions of
confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter,
and medical care, and must “take reasonable measures to guarantee the safety of the inmates.”
511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526—27
(1984)). A prisoner asserting a conditions-of-confinement claim must show that the alleged
deprivation is “sufficiently serious” and that he has been deprived of the “minimal civilized
measure of life’s necessities.” Id. at 834 (citing Rhodes v. Chapman, 452 U.S. 337. 347 (1981)).
These minimal civilized measures of life’s necessities include food, clothing, shelter, sanitation,
medical care, and personal safety. See Betts v. New Castle Youth Dcv. Cm, 621 F.3d 249, 256
(3d Cir. 2010) (citations omitted). The plaintiff must also allege that the prison official acted
with deliberate indifference to the prisoners heaLth or safety. See Wilson v. Seller, 501 U.S. 294,
298—99 (1991). Thus, “the official must both be aware of facts from which the inference could
be drawn that a substantial harm exists, and he must also draw that inference.” Wilson v. Burks,
423 F. App’x 169, 173 (3d Cir. 2011) (quoting Farmer, 511 U.S. at 837). In analyzing whether
the conditions of confinement violate the Eighth Amendment, a court examines the totality of the
conditions at the institution. See Nami v. Fauver, 82 F.3d 63, 67 (3d Cir. 1996). “Relevant
considerations include the length of confinement, the amount of time prisoners must spend in
their cells each day, sanitation, lighting, bedding, ventilation, noise, education and rehabilitation
programs, opportunities for activities outside the cells, and the repair and functioning of basic
physical facilities such as plumbing, ventilation, and showers.” Id. (citing Ti/len’ v. Owens, 907
F.2d 418, 427 (3d Cir. 1990)); see also Riley
DeCarlo, 532 F. App’x 23,26 (3d Cir. 2013) (per
Mr. McKinney fails to state a conditions-of-confinement claim against Davies. The
complaint states only that Davies placed him in his cell for twenty-one hours per day and that lie
met with Davies to discuss this issue. It lacks any allegations that Davies acted with deliberate
indifference in depriving him of the minimal civilized measure of life’s necessities.3 The
allegation regarding the 21-hour lockdown, in and of itself, is insufficient to state an Eighth
Amendment claim against Davies. See Mercado
Dep’t of Corr., No. 16-1622, 2017 WL
Mr. McKinney complains elsewhere in the complaint about the mattress in his cell. However, he never
alleges that Davies had knowledge of this purported condition. Thus, Mr. McKinney’s failure to allege
that Davies had knowledge of this condition means that Davies did not act with deliberate indifference.
See Ridgeuay i’. Gityton, 663 F. App’x 203, 205 (3d Cir. 2016) (“The state of mind necessary for a viable
is ‘deliberate indifference’ to inmate health or safety[,j a standard
[conditions ofconfinementj claim
that requires actual knowledge or awareness of the risk of the condition of confinement to the prisoner.”)
(internal quotation marks and citation omitted).
1095023, at *6 (D. Conn. Mar. 23, 2017) (“Although the Plaintiff complains about confinement
in his cell at MacDougall-Walker for twenty-three hours a day, that type of confinement in and
of itself does not rise to the level of an Eighth Amendment violation. Prisoners have no right to
be housed in comfortable surroundings.”); Kinser v Oily, of San Bernardino, No. 11-0718, 2011
\VL 4801899, at *4 (C.D. Cal. Aug. 25, 2011) (“Plaintiff alleges that she has been confined to
her cell more than 22 hours a day and that she has had to eat all her meals in her cell in close
proximity to her toilet. These allegations by themselves do not state a [constitutional] conditions
of confinement claim.”) (citations omitted); 0 ‘Mara v. Hilisborough Cnty. Dept of Con.,No.
08-005 1, 2008 WL 5077001, at *7 (D.N.H. Nov. 24, 2008) (“His complaint that he was afforded
only two hours of out-of-cell time a day does not state a claim of constitutional dimension.”)
Therefore, Mr. McKinney’s claims against Davies will be dismissed without prejudice
for failure to state a claim upon which relief may be granted.
Mr. McKinney states in the complaint that he sent Warden Bigott a request to help him
with his ailments, and that Bigott is liable via respondeat superior. A
1983 plaintiff claiming
damages cannot rely on a respondeat superior theory. See Alexander v. Gennarini, 144 F. App’x
924, 925 (3d Cir. 2005) (“Section 1983 liability cannot be found solely on the basis of
respondeal superior’). Instead, a plaintiff must allege that a supervisor had personal involvement
in the alleged wrongs. See Rode
Dellaciprete. 845 F.2d 1195, 1207 (3d Cir. 1988). “Personal
involvement can be shown through allegations of personal direction or of actual knowledge and
Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (citation omitted).
With respect to supervisors, the United States Court of Appeals for the Third Circuit has
recognized that “there are two theories of supervisory liability, one
under which supervisors can be liable ifthey established and
maintained a policy, practice or custom which directly caused the
constitutional harm, and another under which they can be liable if
they participated in violating plaintiffs rights, directed others to
violate them. or, as the persons in charge, had knowledge of and
acquiesced in their subordinates violations.” Santiago v.
Wanninsler Tht’p.. 629 F.3d 121, 129 n.5 (3d Cir. 2010) (quotation
and alteration marks omitted).
Danherg. 833 F.3d 313, 330 (3d Cir. 2016): see aLco .1 .M. cx rd
Detention Cm. 372 F.3d 572, 586 (3d Cir. 2004).
Mr. McKinnev expressly slates in his complaint that he is suing Bigott under a
respondeut superior theory. As noted above, such a theory is not available in a
1983 suit for
damages. To that extent, it is dismissed.
Construing the complaint liberally, however, Mr. McKinney may also be attempting to
assert a claim against Warden Bigott based on his allegation that he sent Bigott a complaint
regarding all of his ailments, which Bigott ignored.
For the delay or denial of medical care to rise to a violation of the
Eighth Amendment’s prohibition against cruel and unusual
punishment, a prisoner must demonstrate “(1) that defendants were
deliberately indifferent to [his] medical needs and (2) that those
needs were serious.” Rouse i’. Plantier, 182 F.3d 192, 197 (3d Cir.
1999). Deliberate indifference requires proof that the official
“knows of and disregards an excessive risk to inmate health or
safety.” Natale v. Camden Cni’y. Car,’. Facilflv. 318 F.3d 575. 582
(3d Cir. 2003) (quoting Fanner i’. Brennan, 511 U.S. 825, 837
(1994)). We have found deliberate indifference where a prison
official: “(1) knows of a prisoner’s need for medical treatment but
intentionally refuses to provide it; (2) delays necessary medical
treatment based on a nonmedical reason; or (3) prevents a prisoner
from receiving needed or recommended treatment.” Rouse. 182
F.3d at 197. Deference is given to prison medical authorities in the
diagnosis and treatment of patients, and courts “disavow any
attempt to second-guess the propriety or adequacy of a particular
course of treatment (which) remains a question of sound
professional judgment.” Inmates ofAllegheny Cnty. Jail v. Pierce,
612 F.2d 754, 762 (3d Cir, 1979) (quoting Bowring v, Gothi’in, 551
F.2d 44,48 (4th Cir. 1977)). Allegations of negligent treatment or
medical malpractice do not trigger constitutional protections.
Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).
Pilkins, 520 F. App’x 64,66 (3d Cir. 2013). Deliberate indifference can also be found
“where the prison official persists in a course of treatment in the face of resultant pain and risk of
permanent injury.” See McCluskey
Vincent, 505 F. App’x 199, 202 (3d Cir. 2012) (internal
quotation marks and citation omitted). “A medical need is serious if it ‘has been diagnosed by a
physician as requiring treatment,’ or if it ‘is so obvious that a lay person would easily recognize
the necessity for a doctor’s attention.’” See Mitchell v. Beard, 492 F. App’x 230, 236 (3d Cir.
2012) (quoting Atkinson
Taylor, 316 F.3d 257, 272-73 (3d Cir. 2003) (quoting Monniouth
Oily. Inst. Inmates v. Lanzaro, 834 F.2d 326. 347 (3d Cir. 1987))).
The complaint alleges that two doctors previously told McKinney that he needed hernia
surgery and that one had actually prescribed surgery. He claims that Dr. Hcmslev refused to send
him for surgery. Thus, Mr. McKinney has potentially alleged a constitutional violation by’
[iemsley. The question is whether he has alleged that Warden Bigott played a personal role in
any such violation.
The complaint alleges that McKinney sent Warden Bigott a complaint about his ailments.
and it is inferable that Bigott has overall responsibility for prison operations. There is case law
suggesting that complaints to a supervisor regarding a constitutional violation that is ongoing
may be sufficient to support a claim of deliberate indifference. See, e.g., (‘ardona
MDC Facility, No. 12—7161, 2013 WL 6446999, at *5 (D.N J. Dec. 6,2013) (holding that
plaintiff stated a valid denial of medical services claim against the prison warden because
plaintiff alleged an ongoing constitutional violation, and alleged that the warden was made aware
of the ongoing violation through repeated written requests); Carter v. Smith, No. 08—279, 2009
WL 3088428, at *6 (ED. Pa. Sept. 23, 2009) (“Where a grievance alleges an ongoing
constitutional violation, a supervisory defendant who reviews it is personally involved in that
violation because he is confronted with a situation he can remedy directly.”) (quoting Hanwtt v
Bar,, 538 F. Supp. 2d 511, 524—25 (N.D.N.Y. 2008)).
Such deliberate indifference is far from established, but it merits exploration in discovery.
On this theory only, then, the motion to dismiss the
§ 1983 claim as against Bigott is denied.4
The complaint also alleges that Warden Bigott never ordered the replacement of what
McKinney describes as an inadequate mattress. Even assuming that this would make out a
conditions-of-confinement claim, there is no allegation of personal involvement by Bigott.
Therefore, Mr. McKinney’s claims against Warden Bigott will be permitted to proceed in
part, as to the claim that he was deliberately indifferent to the withholding of medical care.
Mr. McKinney asserts that Lieutenant Pickel is liable for failing to make any response to
his grievances, except one: that “that they [were] double charging [McKinney] a entrance fee” of
Mr. McKinney does not allege that Pickel ever received his other “grievances” or was
personally involved in any deprivation. Even if this Court were to assume that the underlying
actions rose to the level of an ongoing constitutional violation, the failure to allege such personal
involvement by Pickel is fatal to the claim. See, e.g., Thompson. 2017 WL 1536226, at *6.
The motion requests in the alternative that this Court require Mr. McKinney to provide a more
definite statement to his complaint pursuant to Federal Rule of Civil Procedure 12(e). Moving defendants
argue that they are entitled to a more definite statement because while this Court has assumed that Mr.
McKinney is asserting claims under § 1983, “[tjhere is not a single reference to § 1983 anywhere in
the Complaint.” (Dkt. No.46-2 at p.9) The complaint, however, states that jurisdiction is founded on 42
U.S.C. § 1983, and repeatedly alleges that defendants acted under color of state law. (See Dkt. No.4 at
As For the “double charge,” there is no allegation that this was an ongoing violation as to
which Pickel Failed to act, that Pickel had any responsibility for collecting or reftinding any
charge, or that McKinney pursued an administrative claim for the money. At any rate, the
allegation is that Pickel responded positively, acknowledging the charge.
Accordingly, the complaint fails to state a
1983 claim against Piekel.
4. CcipL Pcn,’son
The complaint alleges that Captain Pawson permitted the medical department to ignore
his medical needs and did not respond to his letter grievances. A separate section of the
complaint alludes to a September 19, 2012 letter to Pawson in which McKinney complained
about the denial of a medical appointment. Pawson is also blamed for the Failure to remedy
McKinney’s other complaints.
As to the mattress or the 21-hour lockdown. the complaint Fails to allege that Pawson was
personally involved or that these matters were within his area of responsibility.
It is alleged, however, that Capt. Pawson was in charge of the medical unit at the Bergen
County Jail. An allegation that he ignored medical needs, then, states a
5. Slate Lw,’ C/a/nix
No state law claim is clearly stated. Out of caution, however, I consider that one or more
‘nay have been intended. As to Davis and Pickel, whose federal claims are being dismissed, the
only possible basis for subject matterjurisdiction would be a discretionary exercise of
supplemental jurisdiction. See 28 U.S.C.
1367. However, I will decline to exercise
supplemental jurisdiction over the state law claims, if any, against Davies and Pickel .8cc FR. v.
No. 13—2931, 2013 WL 6210477, at *8 (ED. Pa. Nov. 26. 2013) (declining
supplemental jurisdiction over state law claims over one defendant where there are no viable
federal claims against that defendant, despite the fact that plaintiff may have pled plausible
claims against another defendant) (citations omitted); see also Nadal v. Christie, No. 13—5447,
2014 WL 2812164. at *8 ( D.N.J. June 23, 2014).
C. Request lbr an Injunction
On July 20, 2017, this Coun received a letter from Mr. MeKinney. Mr. MeKinney
requests an emergency injunction regarding the opening of his legal mail. (See Dkt. No. 67)
I lowever. Mr. MeKinney is now incarcerated at the New Jersey State Prison in Trenton, New
Jersey. This case relates to Mr. McKinneys treatment during a previous period of incarceration
at the Bergen County Jail. A preliminary injunction requires that a plaintiff demonstrate that (I)
he is likely to succeed on the merits; (2) denial will result in irreparable harm to the plaintiff: (3)
granting the injunction will not result in irreparable harm to the defendant; and (4) granting the
injunction is in the public interest. See Maldonado v. Houston, 157 F.3d 179. 184 (3d Cir. 1988).
Essentially the same standard applies to temporary restraining orders See Dallas v. Tedesco, 41
F.Supp.2d 531, 537 (D.N.J. 1999). Self-evidently, the claim that Mr. McKinney’s mail is being
opened cannot relate to Bergen County Jail. and there cannot be any ongoing injury. The motion
for an injunction is denied.
Mr. McKinney’s request for default judgment against Davies will be denied. Mr.
McKinncy’s federal claims against defendants Davies and Pickel will be dismissed without
prejudice for failure to state a claim and this Court will decline to exercise supplemental
jurisdiction over any state law claims against Davies and Pickel. Mr. McKinney’s request for an
emergency injunction is denied. An appropriate order will be entered.
DATED: September28, 2017
United States District Judge
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