GROSSY v. ESSEX COUNTY CORRECTION FACILITY et al
OPINION. Signed by Judge Kevin McNulty on 1/17/2017. (JB, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 16-4849 (KM) (JBC)
ESSEX COUNTY CORRECTIONAL FACILITY, :
KEVIN MCNULTY, U.S.D.J.
The plaintiff, Richard Grossy, is a state prisoner currently incarcerated at the Southern
State Correctional Facility in Delmont, New Jersey. He is proceeding pro se with a civil rights
complaint filed pursuant to 42 U.S.C.
At this time, this Court must screen the complaint pursuant to 28 U.S.C.
and 1915A 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 suit. For the following reasons, Mr. Grossy’s complaint will be
permitted to proceed in part.
The allegations of the complaint will be construed as true for purposes of this screening
opinion. The complaint names six defendants: (1) Essex County Correctional Facility; (2) City
of Newark; (3) County of Essex; (4) Alfred Ortiz
Facility; (5) Bryan Rodriguez
Director of Essex County Correctional
Employed at Essex County Correctional Facility; and (6) Derrick
Inmate at Essex County Correctional Facility.
Mr. Grossy’s period of incarceration at the Essex County Correctional Facility began in
December, 2014. At that time, Mr. Grossy alleges, he was assaulted by another inmate, Derrick
Thompson, whom he names as a defendant. The complaint also names defendant Rodriguez,
who, according to Grossy, was responsible for Grossy’s safety but through “negligence”
permitted Grossy to be assaulted. (Dkt. No. 1 at p. 8) Rodriguez allegedly had two
untrainedlunqualified inmates move defendant following his assault, which created further
injury. According to the investigation report attached to the complaint, Mr. Grossy was sent for
As I understand the complaint, Mr. Grossy states that the assault occurred in an area that
does not have surveillance camera coverage: the “Sally Port area.” The Essex County
Correctional Facility, he says, has an unwritten policy that correctional staff do not enter areas
that lack security cameras, leaving inmates vulnerable to assaults in those areas. Poor training, he
says, resulted in the correctional staff not understanding that they should not “order unqualified
medical personnel, ie. two inmates to move plaintiff who suffered head/neck trauma and
exacerbated plaintiff’s shoulder injuries.” (Dkt. No. 1 at p.7) Mr. Grossy further seeks to hold the
City of Newark and the County of Essex responsible for the policies and procedures within the
Essex County Correctional Facility. I construe the complaint liberally as an attempt to hold
defendant Ortiz liable as the alleged “policymaker.”
Mr. Grossy explicitly states in his complaint that he is seeking relief against the
defendants under 42 U.S.C.
1983 and under Monell v. Dep’t ofSoc. Servs. of New York, 436
U.S. 658 (1978). He seeks damages as well as injunctive relief in the form of placing
surveillance cameras at the Essex County Correctional Facility to eliminate the gaps in coverage.
Under the Prison Litigation Reform Act, Pub.L. 104-134,
801-810, 110 Stat. 1321-66
to 132 1-77 (Apr. 26, 1996) (“PLRA”), district courts must review complaints in those civil
actions in which a prisoner is proceeding informapauperis, see 28 U.S.C.
seeks redress against a governmental employee or entity, see 28 U.S.C.
claim with respect to prison conditions, see 42 U.S.C.
1915A(b), or brings a
1997e. The PLRA directs district courts
to sua ponte dismiss any claim that is frivolous, is 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, see 28 U.S.C.
“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28
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)(l)); Courteau v. United States, 287 F.
App’x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C.
1915A(b)). That standard is set forth in
Ashcroji v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
as explicated by the United States Court of Appeals for the Third Circuit. To survive the court’s
screening for failure to state a claim, the complaint must allege ‘sufficient factual matter’ to
show that the claim is facially plausible. See Fowler v. UPMCShadyside, 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.” Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)
(quoting Iqbal, 556 U.S. at 678). “[Aj pleading that offers ‘labels or 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 (1972). Nevertheless, “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
A plaintiff may have a cause of action under 42 U.S.C.
1983 for certain violations of
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 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
Thus a claim under
1983 requires 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 Harvey v. Plains Twp. Police Dep’t, 635 F.3d 606,
609 (3d Cir. 2011) (citations omitted); see also West v. Atkins, 487 U.S. 42, 48 (1988).
A. Essex County Correctional Facility
Mr. Grossy first names the Essex County Correctional Facility as a defendant in this
action. However, the Essex County Correctional Facility is not a “person” subject to 1983
liability. See Owens v. Armstrong, 171 F. Supp. 3d 316, 337 (D.N.J. 2016) (citing Grabow v.
Southern Stale Corr, Facility, 726 F. Supp. 537, 538—39 (D.N.J.1989)). Therefore, Mr. Grossy’s
claims against this defendant will be dismissed with prejudice.
B. Derrick Thompson
Derrick Thompson, a fellow inmate, allegedly assaulted Grossy while they both were
incarcerated. These allegations set forth no basis for a claim under
1983, which provides a
remedy against persons acting under color of state law. It is not alleged that Thompson acted on
behalf of the State or conspired with State actors to deny Mr. Grossy his constitutional rights. See
Simonton v. Tennis, 437 F. App’x 60, 62 (3d Cir. 2011) (fellow inmate who assaulted plaintiff
not a state actor and did not act under color of state law so cannot be liable under Section 1983).
Therefore this Court will dismiss Mr. Grosssy’s
1983 claims against Thompson with prejudice
for failure to state a claim.
C. Bryan Rodriguez
Mr. Grossy asserts that Rodriguez was directly responsible for his safety, and that
Rodriguez’s negligence permitted the assault to occur. Furthermore, Mr. Grossy states that
Rodriguez ordered untrained inmates to move him after the assauit, causing him further injury.
This Court construes these allegations against Rodriguez as raising two distinct claims: one
claim of failure to protect, and another of deliberate indifference to his serious medical needs.
Failure to Protect
To state a claim against a prison official for failure to protect, “the 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 him harm.” Bistrian v. Levi, 696 F.3d 352,
367 (3d Cir. 2012) (citing Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L .Ed. 2d
811(1994); Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997)). “Deliberate indifference” is a
subjective standard whereby “the prison official-defendant must actually have known or been
aware of the excessive risk to inmate safety.’ “Id. (citing Beers—Capitol v. Whetzel, 256 F.3d
120, 125 (3d Cir. 2001)). As noted by the Third Circuit:
It is not sufficient that the official should have known of the risk.
[Beers Capitol, 256 F.3d at] 133. A plaintiff can, however, prove
an official’s actual knowledge of a substantial risk to his safety “in
the usual ways, including inference from circumstantial evidence.”
Farmer, 511 U.S. at 842. In other words, “a factfinder may
conclude that a prison official knew of a substantial risk from the
very fact that the risk was obvious.” Id
Bistrian, 696 F.3d at 367.
The complaint does not allege that Mr. Grossy was incarcerated under conditions posing
a substantial risk of serious harm or that Rodriguez was deliberately indifferent to that risk.
Indeed, Mr. Grossy alleges only that Rodriguez was negligent. Therefore, the Court will dismiss
the failure to protect claim as against Rodriguez without prejudice for failure to state a claim
upon which relief may be granted.
Deliberate Indfference to Serious Medical Need
Rodriguez allegedly caused Grossy further injury by having two untrained inmates move
him. Such a claim of deliberate indifference to serious medical needs is analyzed under the
standards of the Eighth Amendment.
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 v. 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 Cnty. Corr. Facility, 318 F.3d 575, 582
(3d Cir. 2003) (quoting Farmer v. 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 ojAllegheny Cnty. Jail v. Pierce,
612 F.2d 754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 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).
Pierce v. Pitkins, 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 v. 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 v. Taylor, 316 F.3d 257, 272-73 (3d Cir. 2003) (quoting Monmouth
Cnty. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987))).
Rodriguez is not alleged to have ignored Mr. Grossy’s injuries after the assault. Rather,
he had two inmates help move him. At most this action is alleged to have been negligent. See
Jones v. Cnly. Jail CF CF., 610 F. App’x 167, 169 (3d Cir. 2015) (negligence is insufficient to
state an Eighth Amendment claim). Therefore, this claim against Rodriguez will be dismissed
without prejudice for failure to state a claim upon which relief may be granted.
D. City of Newark, County of Essex, Alfred Ortiz
I construe the complaint as raise two distinct Monell claims against defendants the City of
Newark, County of Essex, and Alfred Ortiz. The first is a claim that these defendants failed to
train personnel, resulting in their ordering unqualified medical personnel to move him. The
second is a claim that there was an unwritten policy that correctional facility staff would not
enter areas unmonitored by security cameras, exposing inmates to assault in those areas.
Failure to Train
To hold a city or municipality liable under
1983, the plaintiff must demonstrate that her
rights were violated by a policy or custom of the city and that such policy or custom has been
“the moving lbrce” behind the deprivation of her constitutional rights. See Monell, 436 U.S. at
694. Municipal policy generally involves a “statement, ordinance, regulation, or decision
officially adopted and promulgated by [a local governing] body’s officers.” fri at 690. A
municipal custom, although lacking the formal approval of a policy, refers to those official
practices which are “so permanent and well settled as to constitute
the force of law.” Id. at
An individual’s conduct implements official policy or practice
under several types of circumstances, including when (I) the
individual acted pursuant to a formal government policy or a
standard operating procedure long accepted within the government
entity, (2) the individual himself has final policy-making authority
such that his conduct represents official policy, or (3) a final
policy-maker renders the individual’s conduct official for liability
purposes by having delegated to him authority to act or speak for
the government, or by ratifying the conduct or speech after it has
Hill v. Borough ofKutztown, 455 F.3d 225, 245 (3d Cir. 2006) (citing Pembaur v. City of
Cincinnati, 475 U.S. 469, 478—84, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986); McGreevy v.
Stroup, 413 F.3d 359, 367; LaJ v. County ofMontgomery, 324 F.3d 123, 125—126 (3d Cir.
Under certain circumstances, a municipality’s failure to properly train its employees and
officers can amount to a “custom” that will trigger liability under
1983. See City of Canton v.
Harris, 489 U.s. 378, 388 (1989). When a plaintiff alleges that a policy “concerns a failure to
train or supervise municipal employees, liability under section 1983 requires a showing that the
failure amounts to ‘deliberate indifference’ to the rights of persons with whom those employees
will come into contact.” Thomas v. Cumberland Cnly., 749 F.3d 217, 222 (3d Cir. 2014)
(citations omitted). “A pattern of similar constitutional violations by untrained employees is
‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train.”
Connickv. Thompson, 563 U.s. 51,61 (201 1) (citations omitted). However,
in a narrow range of circumstances, a violation of federal rights
may be a highly predicable consequence of a failure to equip law
enforcement officers with specific tools to handle recurrent
situations. The likelihood that the situation will recur and the
predictability that an officer lacking specific tools to handle that
situation will violate citizens’ rights could justify a finding that
policymakers’ decision not to train the officer reflected “deliberate
indifference” to the obvious consequence of the policymakers’
choice-namely, a violation of a specific constitutional or statutory
Bd. of Cnly. Com ‘rs ofBryan Cnty., Oki. v. Brown, 520 U.S. 397, 409 (1997)).
Mr. Grossy does not allege a pattern of similar constitutional violations by untrained
employees. Nevertheless, at this early stage of the proceedings, this Court will permit Mr.
Grossy’s failure to train claim to proceed against the City of Newark, the County of Essex, and
Ortiz under the narrow circumstances described in Bryan County.
Policy that Officers Would not Enter Refrain Unmonitored Areas
I will also permit Mr. Grossy’s Monell claim to proceed with respect to the alleged policy
of having correctional officers remain outside of unsurveilled areas. That claim may proceed past
screening as to defendants the City of Newark, Essex County, and Ortiz.
E. Injunctive Relief
Mr. Grossy seeks injunctive relief in the form of a requirement that additional cameras be
placed at the Essex County Correctional Facility to eliminate the gaps in surveillance coverage.
However, Mr. Grossy is no longer incarcerated at that facility. Instead, he is now incarcerated at
the Southern State Correctional Facility. This transfer moots his request for injunctive relief. See
Abdul—Akbar v. Watson, 4 F.3d 195, 206—07 (3d Cir. 1993) (finding prisoner’s transfer or release
from prison moots claims for injunctive or declaratory relief as prisoner no longer subject to
allegedly unconstitutional conditions).
For the foregoing reasons, Mr. Grossy’s claims against the Essex County Correctional
Facility and Derrick Thompson will be dismissed with prejudice for failure to state a claim upon
which relief may be granted. Mr. Grossy’s claims against Bryan Rodriguez will be dismissed
without prejudice for failure to state a claim. Mr. Grossy’s claims for monetary relief against the
City of Newark, County of Essex and Alfred Ortiz shall be permitted to proceed under the theory
described in Bryan County. His claims for injunctive relief are denied as moot. An appropriate
order will be entered.
DATED: January !70l7
United States District Judge
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