COLBERT v. HENDRICKS et al

Filing 3

OPINION. Signed by Judge Esther Salas on 9/2/2015. (anr)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

________________________
JUSTIN COLBERT,
Plaintiff,
v.
ROY HENDRICKS, et al.,
Defendants.

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Civil Action No. 14-4457 (ES)

OPINION

________________________:
SALAS, DISTRICT JUDGE
Plaintiff Justin Colbert (“Plaintiff”), a pre-trial detainee 1 confined at Essex County Jail in
Newark, New Jersey at the time of filing, seeks to bring this action in forma pauperis. Based on
his affidavit of indigence, the Court previously granted Plaintiff’s application to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915(a) and ordered the Clerk of the Court to file the Complaint.
(D.E. No. 2).
At this time, the Court must review the Complaint, pursuant to 28 U.S.C. § 1915(e)(2), to
determine whether it should be dismissed as frivolous or malicious, for failure to state a claim
upon which relief may be granted, or because it seeks monetary relief from a defendant who is
immune from such relief. For the reasons set forth below, the Court concludes that the Complaint
should be dismissed.

1

Plaintiff identifies himself as a “pre-trial detainee,” however based on his inmate number, J2013-23954, it appears that he might be an immigration detainee.

I. BACKGROUND
Plaintiff brings this civil rights action, pursuant to 42 U.S.C. § 1983, against Defendants
Roy L. Hendricks, Alfaro Ortiz, and Essex County Jail. 2 The following factual allegations are
taken from the Complaint, and are accepted for purposes of this screening only. The Court has
made no findings as to the veracity of Plaintiff’s allegations.
Plaintiff alleges that Defendants “knowingly and deliberately” permit usage of the
“extremely loud” employee Public Announcement (“PA”) System on a twenty-four hour basis,
which causes sleep deprivation among the inmate population. (D.E. No. 1, Compl. ¶ 1). The PA
System is only used for employees, who could also be located via telephone, walkie-talkies, or the
hallway loudspeaker system. (Id.). Plaintiff further alleges that Defendants “knowingly and
deliberately” refuse to provide the inmate population with updated legal materials and deliberately
removed the New Jersey Administrative Code and New Jersey Statute Annotated Title 59:1-1 from
the library to prevent inmates from challenging institutional policies or filing a Tort Claim against
the facility. (Id. at ¶ 2). Defendants also allegedly failed to provide the New Jersey Lawyers
Diary in the Electronic Law Library (ELL) Premise System. (Id.).
Plaintiff further alleges that Defendants failed to monitor and abide by the terms of the
inmate grievance system. (Id. at ¶ 5). Specifically, Defendants fail to process and respond to
grievances because the grievance coordinator fails to collect the grievances on a daily basis. (Id.
at ¶ 7). Finally, Plaintiff alleges that Defendants “failed to install a filtering system within the
institutional ventilation system, or moniter [sic] and replace the system’s filter on a regular basis,

2

A jail is not a “person” amenable to suit under § 1983. See, e.g., Parrish v. Aramark Foods,
Inc., No. 11–5556, 2012 WL 1118672, at *3 (D.N.J. Apr. 2, 2012) (collecting cases). Accordingly,
this Court will dismiss with prejudice all claims asserted against Essex County Jail.
2

to prevent dust particles, from emitting from the system, causing Plaintiff to inhale same, which
subjects the Plaintiff to health problems.” (Id. at ¶ 10). Defendants are “well aware” of the dust
problem caused by the ventilation system, but are only concerned with complying with fire codes.
(Id. at ¶ 11).
In a supplement to his original Complaint, Plaintiff further alleges that:
[t]he water from Essex county correctional facility has been causing
[him] complications to [his] health since [his] incarceration on
11/2013. [He is] constantly throwing up, [has] sore throats and
noticed blood in [his] feces. [He is] breaking out with skin rashes
from the showers and [he has] filled out numerous sick call slips to
no avail to date 6.24.14, still have not been saw [sic]. Proof can be
provided.
(D.E. No. 1-3, Supplement to Compl. (“Suppl.”) ¶ 6).
Plaintiff is seeking injunctive, declaratory, and monetary relief. (Compl. ¶ 7).
II. DISCUSSION
A. Legal Standard
1. Standards for a Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321-66
to 1321-77 (April 26, 1996) (“PLRA”), district courts must review complaints in those civil actions
in which a prisoner is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B), seeks redress
against a governmental employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim with
respect to prison conditions, see 28 U.S.C. § 1997e. The PLRA directs district courts to sua
sponte dismiss any claim that is frivolous, 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. This
action is subject to sua sponte screening for dismissal under 28 U.S.C. § 1915(e)(2)(B) because
Plaintiff is proceeding as an indigent.
3

According to the Supreme Court’s decision in Ashcroft v. Iqbal, “a pleading that offers
‘labels or conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’”
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
To survive sua sponte screening for failure to state a claim, 3 the complaint must allege “sufficient
factual matter” to show that the claim is facially plausible. Fowler v. UPMS Shadyside, 578 F.3d
203, 210 (3d Cir. 2009) (citation omitted). “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.” Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 483 n.17 (3d
Cir. 2012) (quoting Iqbal, 556 U.S. at 678). Moreover, while pro se pleadings are liberally
construed, “pro se litigants still must allege sufficient facts in their complaints to support a claim.”
Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted) (emphasis
added).
2. Section 1983 Actions
A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain 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 . . . .

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“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012) (citing Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App’x 230, 232 (3d Cir.
2012) (discussing 42 U.S.C. § 1997e(c)(1)); Courteau v. United States, 287 F. App’x 159, 162 (3d
Cir. 2008) (discussing 28 U.S.C. § 1915A(b)).
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Thus, to state a claim for relief under § 1983, a plaintiff must allege, first, the violation of a right
secured by the Constitution or laws of the United States and, second, that the alleged deprivation
was committed or caused by a person acting under color of state law. See West v. Atkins, 487
U.S. 42, 48 (1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
B. Analysis
1. Conditions-of-Confinement Claims
In his Complaint, Plaintiff raises three conditions-of-confinement claims: (1) sleep
deprivation due to the PA system; (2) inadequate ventilation system; and (3) tainted water.
Whether Plaintiff is an immigration detainee or a pre-trial detainee, his conditions-ofconfinement claims are evaluated under the Fourteenth Amendment. See Adekoya v. Chertoff,
431 F. App’x 85, 88 (3d Cir. 2011) (per curiam) (stating that an immigration detainee is entitled
to the same protections as a pretrial detainee and when pretrial detainees challenge their conditions
of confinement, a court considers “whether there has been a violation of the Due Process Clause
of the Fourteenth Amendment”). In Bell v. Wolfish, the Supreme Court held that “under the Due
Process Clause . . . a detainee may not be punished prior to an adjudication of guilt in accordance
with due process of law.” 441 U.S. 520, 535 (1979). Still, “[n]ot every disability imposed during
pretrial detention amounts to ‘punishment’ in the constitutional sense . . . .” Id. at 537. Under
Bell, a “particular measure amounts to punishment when there is a showing of express intent to
punish on the part of detention facility officials, when the restriction or condition is not rationally
related to a legitimate non-punitive government purpose, or when the restriction is excessive in
light of that purpose.” Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007). “In evaluating a
pretrial detainee’s claim of unconstitutional punishment, courts must examine the totality of the
circumstances within the institution.” Id.
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It is well settled that in a § 1983 action, “a plaintiff must plead that each Governmentofficial defendant, through the official’s own individual actions, has violated the Constitution.”
Iqbal, 556 U.S. at 675–76. In his Complaint, Plaintiff names Warden Roy Hendricks and Director
Alfaro Ortiz as defendants. Plaintiff alleges that Defendants Hendricks and Ortiz “knowingly and
deliberately” permit the use of the Public Announcement System, but he does not provide any facts
to support this claim. Specifically, he does not state how he knows that these Defendants permit
the use of the PA system in the inmate housing units twenty-four hours a day.

Instead, he merely

alleges in a conclusory manner that Defendants deliberately permit the usage. These allegations,
with no factual support to show their involvement, are insufficient to allow the PA system
conditions-of-confinement claim against Defendants Hendricks and Ortiz to proceed at this time.
See Sutton v. Rasheed, 323 F.3d 236, 249–50 (3d Cir. 2003); Rode v. Dellarciprete, 845 F.2d 1195,
1207 (3d Cir. 1987); Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir. 2012).
Plaintiff’s ventilation system conditions claim suffers from similar deficiencies. Plaintiff
states that Defendants are “well aware” of the problems with the current system, however he
provides no information as to how he knows that Defendants are aware of any problems with the
system. These allegations, without more, fail to show any personal involvement by Defendants
and this claim must also be dismissed under Iqbal.
Finally, Plaintiff also fails to allege personal involvement with regard to the tainted water
issue as well. Plaintiff alleges that Defendant Hendricks is “aware of the tainted water in this
facility and [they] are still made to drink and bath and are [sic] food is made and pre-pared [sic]
with. Causing complications to [his] health.” (Suppl. ¶ 4(b)). However, Plaintiff fails to
provide any facts to support his claim that Defendant Hendricks is aware of the situation. He does
not state how he knows that Defendant Hendricks is aware of the tainted water. Instead, he merely
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alleges in a conclusory manner that Defendant Hendricks is aware. With regard to Defendant
Ortiz, Plaintiff alleges that he is “aware of how the drinking water is supposed to be treated 2 times
a week and blatantly disregards this falt [sic].” (Id. at ¶ 5(c)). As with Defendant Hendricks,
Plaintiff does not provide any facts to support his allegations that Defendant Ortiz is aware that
the water is supposed to be treated and disregards that fact. Moreover, he does not allege that
Defendant Ortiz is even aware that the water is tainted. Plaintiff has failed to allege sufficient
facts under Iqbal to allow his tainted water claim to proceed against either Defendant at this time.
See Rode, 845 F.2d at 1207.
2. Law Library
Plaintiff alleges that Defendants have failed to provide him with access to an updated and
complete law library.
“Under the First and Fourteenth Amendments, prisoners retain a right of access to the
courts.” Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008) (citing Lewis v. Casey, 518 U.S. 343,
346 (1996)). “Where prisoners assert that defendants’ actions have inhibited their opportunity to
present a past legal claim, they must show (1) that they suffered an ‘actual injury’—that they lost
a chance to pursue a ‘nonfrivolous’ or ‘arguable’ underlying claim; and (2) that they have no other
‘remedy that may be awarded as recompense’ for the lost claim other than in the present denial of
access suit.” Id. (citing Christopher v. Harbury, 536 U.S. 403, 415 (2002)). Thus, to satisfy the
requisite pleading requirements, “[t]he complaint must describe the underlying arguable claim well
enough to show that it is ‘more than mere hope,’ and it must describe the ‘lost remedy.’” Id. at
205–06 (citing Christopher, 536 U.S. at 416–17) (footnote omitted).
In this case, Plaintiff has failed to state an access to courts claim against Defendants
Hendricks and Ortiz. As with the conditions-of-confinement claims, Plaintiff has failed to allege
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with any specificity how these two Defendants were personally involved in depriving Plaintiff of
access to an updated copy of the New Jersey Administrative Code and New Jersey Lawyer’s Diary.
See Iqbal, 556 U.S. at 675–76. Moreover, the allegations of the Complaint do not state the
arguable legal claim that Plaintiff has lost as a result of his purported lack of access to the courts.
Thus, he fails to identify any “actual injury” he has suffered to adequately state an access to courts
claim. See Aruanno v. Main, 467 F. App’x 134, 137 (3d Cir. 2012) (per curiam) (agreeing with
District Court’s dismissal of an access to courts claim where the plaintiff did not identify an actual
injury he suffered).
3. Grievance System
Plaintiff alleges that Defendants have failed to provide an adequate grievance system
because the grievance coordinator fails to collect the grievances on a daily basis and submit them
to the administration.
At the outset, the Court notes that again Plaintiff does not allege any personal involvement
by either Defendant. Iqbal, 556 U.S. at 675–76. Moreover, even if he had alleged such personal
involvement, “[p]risoners do not have a constitutional right to prison grievance procedures.”
Heleva v. Kramer, 214 F. App’x 244, 247 (3d Cir. 2007) (citing Massey v. Helman, 259 F.3d 641,
647 (7th Cir. 2001)); Pressley v. Johnson, 268 F. App’x 181, 184 (3d Cir. 2008) (“Pressley also
complained about the investigation and processing of his inmate grievances. Because there is no
due process right to a prison grievance procedure, Pressley’s allegations did not give rise to a
Fourteenth Amendment violation.”); Stringer v. Bureau of Prisons, 145 F. App’x 751, 753 (3d Cir.
2005) (same). Because inmate grievance procedures do not give rise to a liberty interest protected
by the Due Process Clause, see Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Buckley
v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (per curiam); Mann v. Adams, 855 F.2d 639 (9th Cir.
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1988) (per curiam), any failure to properly process and address Plaintiff’s grievances is not
actionable under § 1983. This claim will be dismissed for failure to state a claim upon which
relief may be granted.
III. CONCLUSION
For the reasons stated above, the Complaint will be dismissed in its entirety for failure to
state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
However, because it is conceivable that Plaintiff may be able to supplement his pleading with facts
sufficient to overcome the deficiencies noted herein, the Court will grant Plaintiff leave to move
to re-open this case and to file an amended complaint. 4 An appropriate order follows.

s/Esther Salas
Esther Salas, U.S.D.J.

4

Plaintiff should note that when an amended complaint is filed, the original complaint no longer
performs any function in the case and “cannot be utilized to cure defects in the amended
[complaint], unless the relevant portion is specifically incorporated in the new [complaint].” 6
Wright, Miller & Kane, Federal Practice and Procedure § 1476 (2d ed. 1990) (footnotes omitted).
An amended complaint may adopt some or all of the allegations in the original complaint, but the
identification of the particular allegations to be adopted must be clear and explicit. Id. To avoid
confusion, the safer course is to file an amended complaint that is complete in itself. Id.
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