ROSE JR. v. S.C.O. et al

Filing 5

MEMORANDUM AND ORDER all claims against Defendants New Jersey Department of Corrections and East Jersey State Prison are DISMISSED WITH PREJUDICE, all claims against Defendants Patrick Nogan, Gary Lanigan, Major Jones, Sgt. Dunmar, and S.C.O. Pate lla are DISMISSED WITHOUT PREJUDICE, Defendants New Jersey Department of Corrections, East Jersey State Prison, Patrick Nogan, Gary Lanigan, Major Jones, Sgt. Dunmar, and S.C.O. Patella are DISMISSED from this CASE, and Plaintiffs claims against Defendant S.C.O. (Unknown Attacker) are permitted to proceed. The clerk shall issue summons and the United States Marshal shall serve summons, the Complaint and this Order upon the remaining Defendant, with all costs of service advanced by the United States; etc. Signed by Judge Claire C. Cecchi on 8/25/16. (sr, )(N/M)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

TROYR.ROSEJR.,
Civil Action No. 16-3100 (CCC) (JBC)
Plaintiff,
v.

:

MEMORANDUM AND ORDER

S.C.O., et al.,
Defendants.

Plaintiff is proceeding, in forma pauperis (“IFP”), with a civil rights complaint filed
pursuant to 42 U.S.C.

§ 1983, alleging that his constitutional rights have been violated by

Defendants through the use of excessive force. federal law requires this Court to screen the
Complaint for sua sponte dismissal prior to service, and to dismiss any claim if that claim fails to
state a claim upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6)
and/or to dismiss any defendant who is immune from suit. See 28 U.S.C.

§ 1915(e)(2)(B). It

appearing:
1. All claims against Defendant New Jersey Department of Corrections (“NJDOC”) are
dismissed, with prejudice, from this case.

The Eleventh Amendment to the United States

Constitution provides that, “[tjhe Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against one of the United States by
citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI.
As such, the Eleventh Amendment protects states and their agencies and departments from suit in
federal court regardless of the type ofreliefsought. Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 100 (1984); see P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139,

146 (1993) (holding that the Ex parte Young exception to Eleventh Amendment immunity is
inapplicable to “the States or their agencies, which retain their immunity against all suits in federal
court”). Section 1983 does not override a state’s Eleventh Amendment immunity. Quern v.
Jordan, 440 U.S. 332, 338 (1979). Courts have repeatedly held that NJDOC is a state agency
entitled to immunity. See, e.g., Chavarriaga v. N.J Dep ‘t of Corr., 806 F.3d 210, 224 n.9 (3d Cir.
2015) (“[T]he Court correctly dismissed the NJDOC from this case on Eleventh Amendment
grounds.”); Bell v. Holmes,No. 13-6955, 2015 WL 851804, at *3 (D.N.J. Feb. 23, 2015); Homan
v. Ni Dep’t of Corr., No. 13-1466 (MAS), 2014 WL 4273304, at *3 (D.N.J. Aug. 28, 2014);
Wimbush v. Jenkins, No. 13-4654, 2014 WL 1607354, at *4 (D.N.J. Apr. 22, 2014); Love v. Dep ‘t
of Corr., No. 13-1050, 2014 WL 46776, at *2 (D.N.J. Jan. 6, 2014). As such, all claims against
NJDOC are dismissed with prejudice.
2. Furthermore, all claims against Defendant East Jersey State Prison are dismissed, with
prejudice, from the case. To state a claim for relief under

§ 1983, a plaintiff must establish, 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. Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50-5 1 (1999); Morrow v. Balaski, 719 F.3d 160, 1667 (3d Cir. 2013). However, a jail is not a “person” subject to suit under

§ 1983. Boomer v. Lewis,

541 F. App’x 186, 192 (3d Cir. 2013) (“PCCF, [a correctional facility,] to the extent Boomer was
suing the facility, is not a ‘person’ within the meaning of 42 U.S.C.

§ 1983” (citing Wilt v. Much.

Dep ‘t ofState Police, 491 U.S. 58, 71(1989)), Fischer v. Cahitt, 474 F.2d 991, 992 (3d Cir. 1973));
Stevenson v. Cnty. Sheriff’s Office ofMonmouth, No. 13-5953 (MAS), 2015 WL 512423, at *12
(D.N.J. Feb. 6, 2015); Tremper v. Correct Care Solutions, No. 13-3626, 2014 WL 320338, at *2
(D.N.J. Jan. 29, 2014); Antoine v. Belteville Mun. Ct., No. 10-1212, 2010 WL 2989991, at *3

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(D.N.J. July 27, 2010). Accordingly, the Court dismisses all claims against East Jersey State
Prison with prejudice.
3. The Court also dismisses all claims against Defendants Patrick Nogan, Gary Lanigan,
Major Jones, and $gt. Dunmar from this case. For each of these four defendants, Plaintiff’s theory
of liability is that they are supervisors of Defendant $.C.O. (Unknown Attacker) (“Attacker”), who
was the person that actually assaulted Plaintiff. (See ECF No. 1 at 4-5 (stating that each of the
four defendants had a supervisory and/or disciplinary position over the Attacker)). However, there
is no respondeat superior liability in

§ 1983 suits. In a § 1983 claim, “[g]overnment officials may

not be held liable for the unconstitutional conduct of their subordinates.” Ashcroft v. Iqbat, 556
U.S. 662, 676 (2009). “[A] plaintiff must plead that each Government-official defendant, through
the official’s own individual actions, has violated the Constitution.” Id. While affirmative action
by a supervisory official is not required to state a
supervisor

.

.

.

§ 1983 claim, Plaintiff must still show that “a

had knowledge and acquiesced in the subordinate’s unconstitutional conduct.”

Barkes v. first Corr. Med. Inc., 766 F.3d 307, 316 (3d Cir. 2014) (rev’d on other grounds); see
Evancho v. fisher, 423 f.3d 347, 353 (3d Cir. 2005) (“Personal involvement can be shown through
allegations of personal direction or of actual knowledge and acquiescence.”). “[A]llegations [that]
merely assert their involvement in the post-incident grievance process” are insufficient to
establish liability. Alexander v. Gennarini, 144 F. App’x 924, 925 (3d Cir. 2005). “Merely
responding to or reviewing an inmate grievance does not rise to the level of personal involvement
necessary to allege an Eighth Amendment deliberate indifference claim.” Tenon v. Dreibelbis,
606 F. App’x 681, 688 (3d Cir. 2015). Here, the fact that these four defendants were supervisors,
alone, is insufficient to establish the personal involvement necessary to state a claim under

§ 1983;

there are no allegations whatsoever explaining how each of these defendants may have been

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personally involved in the violation, nor any allegations to support actual knowledge and
acquiescence.’
4. The Court is mindful that Plaintiff is also asserting a policy claim against these four
defendants. In order to state such a claim, the plaintiff must identify an official custom or policy
that caused a constitutional deprivation. Caidwell v. Egg Harbor Police Dep ‘t, 362 F. App’x 250,
25 1-52 (3d Cir. 2010). It is not enough that a plaintiff alleges his constitutional rights have been
violated by some unidentified policy or custom—the plaintiff must point to a specific policy or
custom that caused the alleged violation. Wood v. Williams, 568 F. App’x 100, 104 (3d Cir. 2014).
“Simply paraphrasing

§ 1983” is insufficient to “satisfy the ‘rigorous standards of culpability and

causation’ required to state a claim for

.

.

.

liability [based on policy or custom].” Id. (quoting

McTernan v. City of York, 564 F. 3d 636, 658-59 (3d Cir. 2009)).
5. Here, the Complaint alleges there was a “code of silence” among the prison officials, which
discouraged reporting and investigation of actions that violate prisoners’ rights. However, that is
not enough to state a claim against these four defendants. Plaintiff does not allege sufficient facts
The Court recognizes there is case law stating that repeated written complaints to a
supervisory defendant of an ongoing constitutional violation may be sufficient to establish the
deliberate indifference by circumstantial evidence. See, e.g., Cardona v. Warden MDC Facility,
No. 12-7161, 2013 WL 6446999, at *5 (D.N.J. Dec. 6, 2013) (holding that plaintiff has 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 (E.D. 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.”). But, these cases require the plaintiff to
establish an ongoing violation that can be remedied by the supervisory official. Grievances of past
violations will not do because the supervisor’s actions, or lack thereof, would not have caused the
plaintiff additional injury. See Robinson v. Ricci, No. 08-2023, 2012 WL 1067909, at *10 (D.N.J.
Mar. 29, 2012) (finding no personal involvement when a supervisory official was made aware of
a constitutional violation after it had already occurred); Carter, 2009 WL 3088428, at *6
(distinguishing allegations of ongoing violations from those that already occurred). Here,
Plaintiffs alleged violation is not ongoing—Plaintiff does not allege that he is being subjected to
repeated use of excessive force, nor that he is in imminent danger of such use of force.
—

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to show, beyond a speculative level, that the alleged “code of silence” policy actually caused the
Attacker to assault him—there are no allegations of past assaults that occurred as a result of the
alleged “code of silence,” nor are there allegations that the “code of silence” had a chilling effect
on prisoners, preventing them from otherwise asserting their rights. Without more, even if the
Court accepts as true the allegation that there was such a “code of silence” policy in the prison,
that is not enough to state a claim against these four supervisory defendants. See Rodriguez v.
Town of West New York, 191 F. App’x 166, 168 (3d Cir. 2006) (finding plaintiffs theory, that
defendants were deliberately indifferent to a policy of “code of silence,” which permitted officers
to act unconstitutionally, was insufficient to establish liability for excessive force claims against
supervisory officials, because plaintiff did not establish that “they were aware of any previous
cases of excessive use of force or malicious prosecution and acquiesced in such conduct”). Thus,
Plaintiffs claims against Nogan, Lanigan, Jones, and Dunmar are dismissed without prejudice.
6. Moreover, the Court dismisses all claims against Defendant S.C.O. Patella from the case.
In the Complaint, Plaintiff does not allege that Patella participated in the alleged assault; in fact,
the Complaint alleges the exact opposite: that Patella was the officer who arrived at the scene after
the alleged assault, and that Patella removed Plaintiffs handcuffs because he determined that
Plaintiff “had done nothing wrong.” (ECF No. 1 at 9.) Instead, Plaintiffs claim against Patella
stems from Patella’s refusal to provide Plaintiff the name of the Attacker, and Patella’s failure to
report the incident to supervisory officials. However, Plaintiff cites to no case, nor does the Court’s
research reveal any, that places a constitutional duty on a prison official to affirmatively report a
past violation of constitutional rights, once he or she becomes aware of such violation. In addition,
there is no allegation that this failure to report actually caused Plaintiff any injury—whatever
injuries Plaintiff suffered from the assault had already occurred by the time Patella arrived at the

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scene, and there is no allegation that this failure to report exacerbated any injury or caused any
additional injury. As such, the Court dismisses all claims against Patella without prejudice.
7. Plaintiff additionally alleges that the “code of silence” policy in general, and Patella’s
refusal to provide the Attacker’s actual name in particular, were denials of access to the courts.
However, to state a denial of access to the courts claim, Plaintiff must assert actual injury; that is,
he actually lost a legal claim he could have otherwise asserted. See Schreane v. Holt, 482 F. App’x
674, 676 (3d Cir. 2012) (citing Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008)). Given that
Plaintiff is filing this lawsuit and asserting claims against the Attacker, and the Court is allowing
those claims to proceed, infra, there can be no denial of access to the courts claims.
8. Lastly, the balance of the Complaint is allowed to proceed past screening.

More

specifically, Plaintiffs claims against the Attacker are the only claims permitted to proceed.
IT IS therefore on this

2

day of________

‘J

,

2016,

ORDERED all claims against Defendants New Jersey Department of Corrections and East
Jersey State Prison are hereby DISMISSED WITH PREJUDICE; it is further
ORDERED all claims against Defendants Patrick Nogan, Gary Lanigan, Major Jones, Sgt.
Dunmar, and S.C.O. Patella are hereby DISMISSED WITHOUT PREJUDICE; it is further
ORDERED Defendants New Jersey Department of Corrections, East Jersey State Prison,
Patrick Nogan, Gary Lanigan, Major Jones, $gt. Dunmar, and S.C.O. Patella are hereby
DISMISSED from this case; it is further
ORDERED Plaintiffs claims against Defendant S.C.O. (Unknown Attacker) are
permitted to proceed; it is further

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ORDERED pursuant to 28 U.S.C.

§ 1915(d), the clerk shall issue summons and the

United States Marshal shall serve summons, the Complaint and this Order upon the remaining
Defendant, with all costs of service advanced by the United States2; it is further
ORDERED pursuant to 42 u.s.c.
answer, see Fed. R.

§ 1997e(g)(2), Defendant shall file and serve an

civ. P. 12(a)(l)(A); it is further

ORDERED pursuant to 28 u.s.c.

§ 1915(e)(1) and § 4(a) of Appendix H of the Local

Civil Rules, the Clerk shall notify Plaintiff of the opportunity to apply in writing to the assigned
judge for the appointment of pro bono counsel; and it is further
ORDERED if at any time prior to the filing of a notice of appearance by Defendant,
Plaintiff files an amended complaint, or seeks the appointment of pro bono counsel or other relief,
pursuant to Fed. R. Civ. P. 5(a) and (d), Plaintiff shall (1) serve a copy of the filing by regular mail
upon each party at his last known address and (2) file a Certificate of Service.3
SO ORDERED.

Claire C. Cecchi, U.S.D.J.

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Alternatively, the U.S. Marshal may notify defendants that an action has been commenced
and request that the defendant waive personal service of a summons in accordance with Fed. R.
Civ. P. 4(d).
Afier an attorney files a notice of appearance on behalf of a Defendant, the attorney will
automatically be electronically served all documents that are filed in the case.
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