GROSSY v. ESSEX COUNTY CORRECTION FACILITY et al
OPINION. Signed by Judge Kevin McNulty on 12/7/17. (cm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 16-4849 (KM) (JBC)
CITY OF NEWARK et al..
KEVIN MCNULTY, U.S.D.J.
Plaintiff, Richard Grossy, was a state inmate incarcerated at Southern State Correctional
Facility, in Delmont, New Jersey, when he commenced this action. He is proceeding pro se and
informapauperis with a civil rights complaint under 42 U.S.C.
Now before the Court are two motions. Defendant the City of Newark (“the City”) moves
to dismiss Mr. Grossy’s complaint under Federal Rule of Civil Procedure 12(b)(6). (ECF No.
13.) Mr. Grossy moves for the appointment of pro bono counsel to assist him. (ECF No. 16.) No
party has filed papers in opposition to either motion. I nevertheless review the merits. The Court
having reviewed the parties’ filings on these motions, and for the reasons stated below, the City’s
motion to dismiss will be granted and Mr. Grossy’s motion for appointment of pro bono counsel
will be denied.
Mr. Grossy commenced this action with a complaint filed August 9, 2016, which alleges
civil rights claims arising from a December 28, 2014 incident in the Essex County Correctional
Facility. (Complaint, ECF No. I.) Mr. Grossy alleges that another inmate, Derrick Thompson,
assaulted him in an area of the facility that lacked security cameras. Mr. Grossy asserts that his
harm resulted from both the absence of cameras and an unwritten policy that bared facility staff
from entering areas lacking cameras. Mr. Grossy further alleges that a decision to have
inmates move him after he suffered a head and neck injury exacerbated his injuries.
The complaint alleges that Mr. Grossy’s harm was caused or worsened by facility
policies and failure to properly train staff. It asserted claims under 42 U.S.C.
1983 against the
Essex county Correctional Facility, the City, the County of Essex (“the County”), Essex County
Department of Corrections Director Alfaro Ortiz,’ Corrections Officer Bryan Rodriguez, and
inmate Derrick Thompson. The full extent of the allegations against the City are as follows:
On December 28, 2014 the City of Newark was liable/responsible
for the Essex County Correction Facilitys [sic] fitness for
operation, training of personnel, supervision of staff and inmates,
safety of the same, and overall security of all persons in or on the
property of the Essex County Correction Facility. The City is
ultimately responsible for the approval of policy and procedure
within the facility.
(ECF No. 1.) The complaint used virtually identical wording to allege liability against the
This Court issued an opinion and order on January 17, 2017 screening the complaint
under 28 U.S.C.
l915(e)(2)(B) and 19 ISA. (ECF Nos. 4, 5.) The Court dismissed the claims
as against defendants the Essex County Correctional Facility, Rodriguez, and Thompson, for
failure to state a claim upon which relief could be granted. The claims against the other
defendants were permitted to proceed under theories of supervisory and municipal liability.
Defendants Ortiz and the County filed a timely answer to the complaint on March 29, 2017.
Impleaded as “Alfred Ortiz.” (ECF No. 1.)
THE CITY’S MOTION TO DISMISS
The City now moves to dismiss the complaint as against it for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 13.) It asserts that it does not set
policy or procedure for, or train staff at, the Essex County Correctional Facility, which “is a
separate entity from the City.” (ECF No. 13-1 at 5, 9.) Accordingly, the City argues that it could
not be held liable for any failure in policies or training at that facility. (Id at
The standard of review on a motion to dismiss for failure to state a claim under Rule
I 2(b)(6) is set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v.
550 U.S. 544 (2007). To survive such a motion, the complaint must allege “sufficient
factual matter to show that the claim is facially plausible.” Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009) (internal quotation marks omitted); see also Iqbal, 556 U.S. at 678—79;
Twombly, 550 U.S. at 555—56. “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.” Iqbal, 556 U.S. at 678; see also Fair Wind Sailing, Inc. v. Demps/er, 764
F.3d 303, 308 n.3 (3d Cir. 2014). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555).
Pro se pleadings, as always, will be liberally construed. See Haines v Kerner, 404 U.S.
519, 520 (1972); Glunkv. Noone, 689 F. App’x 137, 139 (3d Cir. 2017). Nevertheless, “prose
The City includes with its motion a declaration of Sergeant Keith Jones of the City’s
Department of Public Safety, who avers that the City is not responsible for policies, training, or
supervision at the Essex County Correctional Facility. (ECF No. 13-2.) Consideration of this
declaration, which contradicts the allegations in Mr. Grossy’s complaint, would exceed the
proper boundaries of a motion to dismiss. See United States at reL Customs Fraud
Investigations, LLC v. Victaulic Co., 839 F.3d 242, 256 (3d Cir. 2016), cerL denied_ S. Ct.
,2017 WL 2266457 (Oct. 2,2017). Although I could convert the motion to one for summary
judgment upon proper notice, see Fed. R. Civ. P. 12(d), it is not necessary to do so, see infra.
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).
As a general matter, a plaintiff may have a cause of action under 42 U.S.C.
certain violations of his constitutional rights. That section provides as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of columbia, 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, except that in any action brought against a
judicial officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was
1983. To state a claim under
1983, a plaintiff must allege the violation ofa right
secured by the Constitution or laws of the United States and that the alleged deprivation was
committed or caused by a person acting under color of state law. See Harvey v. Plains
Police Dep ‘t, 635 F.3d 606, 609 (3d Cir. 2011); see also West v. Atkins, 487 U.S. 42,48 (1988).
Municipal liability under
1983, as permitted by Alone/i v. Depanment ofSocial
Services of New York, 436 U.S. 658 (1978), requires affirmative conduct by the municipality and
cannot accrue based solely on vicarious liability. See LosAngeles Cty.
Thnnphries, 562 U.S.
29, 35—36 (2010); Mann v. PahnertonAreaSch. Dist., 872 F.3d 165, 174—75 (3d Cir. 2017);
Thomas v. CzonberlandCty., 749 F.3d 217, 222 (3d Cir. 2014). “A municipality is liable under
1983 when a plaintiff can demonstrate that the municipality itself, through the implementation of
a municipal policy or custom, causes a constitutional violation.” Mann, 872 F.3d at 175; see also
Thomas, 749 F.3d at 222; McTernan
City of York, 564 F.3d 636, 657 (3d Cir. 2009). Liability
may also exist on a Monell claim based on a municipal defendant’s failure to properly train
employees to avoid violating constitutional rights. See Connickv Thompson, 563 U.S. 51,61
The Court here takes judicial notice of 2-75 of the Code of the County of Essex.3 Essex
This section creates the Essex County Department of Corrections and directs
that department, “under the direction and supervision of [its] Director” to “[o]perate and
maintain in a safe, sanitary and humane manner the County jail and jail annex as required by
federal and state laws, rules and regulations.”4 Id. In short, as a matter of law, the County
Department of Corrections operates county correctional facilities. To survive this motion to
dismiss, Mr. Grossy would have to plead facts adequate to allege a plausible claim that, in this
case, the City was responsible for policies, supervision, or training at the Essex County
Correctional Facility. The complaint merely presents a conclusory statement that the City “is
ultimately responsible for the approval of policy and procedure within the facility.” Because that
statement is legally erroneous on its face, at least some factual support for it would be required to
push it over the plausibility threshold. No such facts are pled. Accordingly, the City’s motion to
dismiss the complaint as against itself will be granted.
THE MOTION TO APPOINT PRO BONO COUNSEL
Mr. Grossy now moves for an order appointing him pro bono counsel. (ECF No. 16.) He
asserts that he cannot present an effective case, lacks knowledge of procedural rules, and is
unable to pursue a necessary investigation. (Id.)
In deciding a motion to dismiss under Rule 12(b)(6), a court may consider, among other
things, matters of public record, of which it may take judicial notice. Schmidt v. S/colas, 770 F.3d
241, 249 (3d Cir. 2014); Bzeckv. Hampton Twp. Sch. Dist, 452 F.3d 256, 260 (3d Cir. 2006).
The Court additionally notes that the State of New Jersey has set guidelines and
minimum standards for adult county correctional facilities under title I OA, chapter 31, of the
New Jersey Administrative Code. See N.J. Admin. Code § IOA:31-1.1 through -30.5.
Generally, civil litigants have no constitutional or statutory right to counsel, See United
Zoebisch, 586 F. App’x 852, 856 (3d Cir. 2014). In some cases, the need for
representation is great, and thus 28 U.S.C.
1915(e)(1) grants district courts broad discretion to
request the appointment of attorneys to represent indigent civil litigants in appropriate
circumstances. The Court recognizes, however, that “volunteer lawyer time is extremely
valuable” and, for that reason, that “district courts should not request counsel
Grace, 6 F.3d 147, 157 (3d Cir. 1993). The Court must bear in mind
“the significant practical restraints on the district court’s ability to appoint counseF
of funding to pay appointed counsel[j and the limited supply of competent lawyers who are
willing to undertake such representation without compensation.” Id.
When evaluating an application for the appointment of pro bono counsel, the Court
assesses seven factors originally identified by the United States Court of Appeals for the Third
Circuit in Tabron v. Grace, 6 F.3d 147:
I. the potential merit of the applicant’s legal position;
2. the applicant’s ability to present the case without counsel;
3. the complexity of the legal issues involved;
4. the extent of factual discovery and the applicant’s ability to investigate and to comply
with discovery rules;
5. the extent to which the case may turn on credibility determinations;
6. whether expert testimony will be needed; and
7. whether the applicant can afford paid counsel.
See Pricaspian Dcv Corp. v. Martucci, No. 11-1459,2011 WL 2429315, at *2 (D.N.J. June 13,
2011) (citing Tabron, 6 F.3d at 155, 158); Prudential Ins. Co. ofArn. v. Dobson, No. 08-3951,
2009 WL 115966, at *1_2 (D.N.J. Jan. 16, 2009) (same). A finding of potential merit of the
applicant’s arguments is a threshold determination that must be established before considering
any other factors. See Dobson, 2009 WL 115966 at 2; Protameen Chems., Inc. v. Chinchilla,
No. 05-3383, 2007 WL 174163, at *1 (D.N.J. Jan. 22, 2007).
As against certain other defendants, I have found Mr. Grossy’s claims possess enough
merit to survive the initial screening process. (See ECF no. 4) His informapaziperis would
suggest that he is unable to pay for counsel. Nonetheless, on balance of the Tabron factors,
appointment of pro bono counsel does not appear warranted in this case. We are at an early
stage, and the merits of the claims, while not lacking, have not been established, either. It does
not look as if the legal issues or needed discovery will be complex, and Mr. Grossy has
demonstrated an adequate ability to present issues to the Court. There may or may not be
credibility issues that would defeat summary judgment; it is too early to tell. At least at this
stage, I see no pressing need for expert testimony, although it may be more necessary if the case
should proceed to the damages phase. Accordingly, Mr. Grossy’s motion for appointment of pro
bono counsel will be denied without prejudice to renewal if and as appropriate.
For the foregoing reasons, defendant the City of Newark’s motion to dismiss the
complaint (ECF No. 13) will be granted, and the claims as against the City of Newark will be
dismissed without prejudice. Mr. Grossy’s motion for appointment of pro bono counsel (ECF
No. 16) will be denied without prejudice.
DATED: December 7,2017
United States District Judge
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