ABUBAKAR V. COUNTY OF ESSEX
Filing
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OPINION. Signed by Judge John Michael Vazquez on 08/21/2018. (ek)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ALHASSAN ISSIFU ABUBAKAR,
Plaintiff,
v.
COUNTY OF ESSEX,
Defendant.
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Civil Action No. 18-150 (JMV/SCM)
OPINION
VAZQUEZ, District Judge:
I.
INTRODUCTION
This matter comes before the Court upon Defendant County of Essex’s (“Essex County”
or “Defendant”) unopposed motion to dismiss Plaintiff Alhassan Issifu Abubakar’s pro se
Complaint for failure to state a claim upon which relief can be granted. 1 (Feb. 2, 2018 Mot., ECF
No. 4.) For the reasons set forth below, the Court will grant Defendant’s motion without
prejudice.
II.
BACKGROUND
Plaintiff initiated this action on or about November 2, 2017 by filing his Complaint against
Essex County2 in the Superior Court of New Jersey. (See Pl.’s Compl., ECF No. 1 at PageID: 51
Although Defendant’s motion fails to refer to any specific provision within the Federal Rules of
Civil Procedure (see, generally, ECF No. 4-1), it is clear that Defendant is moving under Rule
12(b)(6). (See id. at Page ID: 21 (“[P]laintiff’s [C]omplaint fails to state a claim for relief.”).)
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While the caption of that pleading identifies Defendant as “County of Essex,” the body of
Plaintiff’s pleading sometimes refers to Defendant as “Essex County Correctional Facility.” (See,
e.g., ECF No. 1 at PageID: 5). Defendant has proceeded in this matter as if Essex County and
Essex County Correctional Facility are one and the same. Thus, when Defendant removed this
matter to federal court, it identified County of Essex as the lone defendant in this matter. (ECF
8.) Essex County removed the matter to this Court on January 5, 2018 “because the cause of
action brought by [P]laintiff involve[s] a federal question.” (See Def.’s Notice of Removal, ECF
No. 1 at PageID: 2, ¶ 2.) In so doing, it identified itself as the lone defendant in this action.
Plaintiff has never challenged the propriety of that removal.
Plaintiff’s Complaint details several distinct incidents that occurred while Plaintiff was
confined at Essex County Correctional Facility 3 (“ECCF”) in the summer of 2016 prior to
Plaintiff’s transfer out of ECCF on or about August 9, 2016. (ECF No. 1, at PageID: 6-7.)
Plaintiff seeks monetary damages as relief. (Id. at Page ID: 7.)
Plaintiff claims that on June 10, 2016, “a female Correction Officer [named] Abdulah used
excessive force [by] violently hitting me in my chest to push me[.]” (Id. at ¶ 10.) Plaintiff
indicates that Officer Abdulah’s actions did not cause “physical injury.” (Id.) Plaintiff has not
listed Officer Abdulah as a defendant, and there is nothing in the record to suggest that Plaintiff’s
failure to do so was inadvertent. 4 Plaintiff additionally claims that various unnamed ECCF staff
members improperly refused to release him from ECCF in spite of Plaintiff twice presenting those
unnamed individuals with a court order requiring his release. (Id. at PageID: 6, ¶¶ 3, 4.) Plaintiff
No. 1.) Plaintiff has never suggested that the manner in which Defendant removed this matter to
federal court was improper. The Court is likewise unable to find fault with Defendant’s approach.
See Harris v. Hudson Cnty. Jail, No. 14-6284, 2015 WL 1607703, at *5 (D.N.J. April 8, 2015)
(“The correct entity subject to suit under § 1983 for claims against [a county] jail [is] the county
which operates the facility.”) (citations omitted). To the extent Plaintiff intended to pursue
separate Section 1983 claims against Essex County Correctional Facility, those claims would be
dismissed. Id. (“A County jail . . . is not a person amenable to suit under [42 U.S.C. § 1983].”)
(citations omitted). The Court will therefore address Plaintiff’s claims as they apply to Essex
County only.
3
These allegations are construed as true for purposes of this Opinion.
4
For this reason, and in light of the additional considerations detailed below, the Court will not
construe Plaintiff’s Complaint as asserting separate claims against Officer Abdullah. The Court
will, however, afford Plaintiff the opportunity to amend his pleading to formally assert a separate
Section 1983 excessive force claim against Officer Abdullah, if he wishes to do so.
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also avers that unidentified ECCF staff members refused to transport him to court hearings on
August 1 and 9, 2016. (Id. at ¶¶ 7, 8.)
Plaintiff also details several issues related to the conditions of his confinement at ECCF.
Plaintiff asserts that he was deprived of adequate recreation. (Id. at ¶ 6.) Plaintiff avers that the
water in his cell was improperly turned off. (Id.) Plaintiff also alleges that he was unlawfully
deprived of access to showers, drinking water, and meals. (Id.) Plaintiff fails to attribute these
alleged deprivations to any particular individual.
Plaintiff’s Complaint fails to connect any of the foregoing incidents and grievances to any
specific actions or policies of Essex County, who is presently the only Defendant in this action.
The Court is also unable to conclude that Plaintiff intends to pursue claims against anyone other
than Defendant at this time because (1) Essex County is the only party in Plaintiff’s Complaint
formally identified as a Defendant, (2) it does not appear that Plaintiff has attempted to serve his
Complaint on any other individual or entity, (3) Plaintiff has never challenged Essex County’s
assertion that it is the lone Defendant in this action, (4) in Plaintiff’s most recent filing in this
matter, he refers to this matter as “the civil suit [he] filed against . . the [County] of Essex” and
does not refer to any other defendants (see Aug. 3, 2018 Letter, ECF No. 11 at Page ID: 60), and
(5) Plaintiff has not proceeded in a manner which suggests that he is pursuing claims against any
individual or entity other than Essex County.
Defendant filed the present motion to dismiss Plaintiff’s Complaint on February 2, 2018.
(ECF No. 4.) Defendant asserts that dismissal is appropriate because Plaintiff “fails to state a
claim for relief.” (ECF No. 4-1 at PageID: 21.) Plaintiff has not filed opposition.
III.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), courts may dismiss a complaint for failure
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to state a claim upon which relief can be granted. For a complaint to survive Rule 12(b)(6)
dismissal, it must contain sufficient factual matter to state a claim that is plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id.; accord Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 483 n.17 (3d Cir. 2012)).
“Determining whether a complaint states a plausible claim for relief [is] a context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal,
556 U.S. 662, 679 (2009).
In evaluating the sufficiency of a complaint, district courts must separate the factual and
legal elements.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009).
Restatements of the elements of a claim are legal conclusions, and therefore, not entitled to a
presumption of truth. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). A
court, however, “must accept all of the complaint’s well-pleaded facts as true.” Fowler, 578 F.3d
at 210. 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).
IV.
ANALYSIS
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
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proceeding for redress[.]
42 U.S.C. § 1983. To state a claim for relief under Section 1983, a plaintiff must allege the
violation of a 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 West v.
Atkins, 487 U.S. 42, 48 (1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
Based on the limited factual allegations detailed in Plaintiff’s Complaint, it appears that
Plaintiff may be attempting to claim that his constitutional rights were violated as a result of (1)
his purported false imprisonment at ECCF when he was not released in spite of a court order
requiring his release, (2) Officer Abdulah’s alleged use of excessive force against him, and (3) the
conditions of Plaintiff’s confinement at ECCF, i.e., insufficient recreation, lack of shower access,
and deprivation of drinking water and food. In general, where an individual is falsely imprisoned,
is the victim of excessive force, or is subject to inhumane conditions while imprisoned, he may
have a viable claim under Section 1983. The Court recognizes – without deciding – that Plaintiff
may ultimately be able to sufficiently plead Section 1983 claims against Officer Abdulah and other
unnamed ECCF staff based on the facts alleged in the Complaint.
That said, the only party formally identified as a Defendant in this action at present is Essex
County. Neither Plaintiff nor Defendant claims that there are additional defendants who were
improperly excluded when Plaintiff’s Complaint was removed to federal court. In light of these
considerations, and because the factual allegations set forth in Plaintiff’s Complaint are limited,
the Court finds that Plaintiff’s Complaint as currently pled does not assert causes of action against
any entity or individual other than Essex County. The Court will afford Plaintiff leave to amend
his pleading to clarify which additional specific claims, if any, he wishes to pursue and to clearly
identify the additional specific persons, if any, he wishes to pursue those claims against.
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Turning to Essex County, in Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658
(1978), the Supreme Court established that municipalities and other government entities were
“persons” subject to liability under 42 U.S.C. § 1983 for constitutional rights violations, but that
they were not liable under the doctrine of respondeat superior for the misconduct of their
employees. Monell, 436 U.S. at 690-92; see also City of Oklahoma City v. Tuttle, 471 U.S. 808,
810 (1985). To prevail on a Monell claim, a plaintiff must first establish that the municipality had
a policy or custom that deprived him of his constitutional rights. McTernan v. City of York, 564
F.3d 636, 657 (3d Cir. 2009) (quoting Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996)).
In other words, the plaintiff must show that the municipality, through one of its policymakers,
affirmatively proclaimed the policy or acquiesced in the widespread custom that caused the
violation. Watson v. Abington Twp., 478 F.3d 144, 155-156 (3d Cir. 2007).
A plaintiff may show the existence of a policy when a decision-maker with final authority
issues an official proclamation, policy, or edict. Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir.
1990). Custom may be established by showing that a given course of conduct, “although not
specifically endorsed or authorized by law, is so well-settled and permanent as virtually to
constitute law.” Id.; see also Watson, 478 F.3d at 155-56; Natale v. Camden Cnty. Corr. Fac.,
318 F.3d 575, 584 (3d Cir. 2003) (defining “custom” as “‘an act that has not been formally
approved by an appropriate decisionmaker,’ but that is ‘so widespread as to have the force of law.’”
(quoting Bd. of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 404 (1997))).
Once a Section 1983 plaintiff identifies a municipal policy or custom, he must
“demonstrate that, through its deliberate conduct, the municipality was the ‘moving force’ behind
the injury alleged.” Brown, 520 U.S. at 404; see also Losch v. Borough of Parkesburg, 736 F.2d
903, 910 (3d Cir. 1984) (holding that proof of the existence of an unlawful policy or custom is not
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enough to maintain a § 1983 action; instead a plaintiff must additionally prove that the policy or
custom was the proximate cause of the injuries suffered); Watson, 478 F.3d at 156 (same). If the
policy or custom does not facially violate federal law, causation can be established only by
“demonstrat[ing] that the municipal action was taken with ‘deliberate indifference’ as to its known
or obvious consequences. A showing of simple or even heightened negligence will not suffice.”
Id. at 407 (citations omitted); Berg v. Cnty. of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000).
Plaintiff has not alleged sufficient facts that support a finding of liability against Essex
County under the foregoing standards. Plaintiff’s Complaint does not suggest that Essex County
is responsible for implementing policies, procedures, or customs which violated Plaintiff’s
constitutional rights. Plaintiff’s Complaint, as pled, fails to allege sufficient facts demonstrating
that Essex County violated his constitutional rights. Plaintiff therefore has failed to adequately
state a federal claim for relief. Any remaining potential basis for this Court to consider Plaintiff’s
state law claims – to the extent he is attempting to assert any – would lie within the Court’s
supplemental jurisdiction pursuant to 28 U.S.C. § 1367. However, when a court has dismissed
all claims over which it had federal question jurisdiction, it has the discretion to decline to exercise
supplemental jurisdiction over the remaining state law claims. See id. at § 1367(c)(3). The Court
will exercise its discretion to decline supplemental jurisdiction over the state law claims Plaintiff
may be pursuing in his Complaint.
V.
CONCLUSION
For the foregoing reasons, Plaintiff’s Complaint will be dismissed without prejudice.
Because it is conceivable that Plaintiff may be able to amend his Complaint with facts sufficient
to overcome the deficiencies noted herein, Plaintiff shall be given the opportunity to file a proposed
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amended complaint in this Court, should he elect to do so. 5 An appropriate Order accompanies
this Opinion.
Date: August 21, 2018
At Newark, New Jersey
s/ John Michael Vazquez
JOHN MICHAEL VAZQUEZ
United States District Judge
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Plaintiff should note that when an amended complaint is filed, it supersedes the original and
renders it of no legal effect, unless the amended complaint specifically refers to or adopts the
earlier pleading. See West Run Student Housing Associates, LLC v. Huntington National Bank,
712 F.3d 165, 171 (3d Cir. 2013) (collecting cases); see also 6 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1476 (3d ed. 2008). To avoid confusion, the safer
practice is to submit an amended complaint that is complete in itself. Wright & Miller, supra, at
§ 1476. In addition, to the extent Plaintiff wishes to proceed in this matter in forma pauperis, i.e.,
without prepayment of fees, he will need to file a separate application with the Court in support of
that request. The Court will therefore direct the Clerk to provide Plaintiff with the appropriate
blank application form.
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