SELIMI v. AVILES et al

Filing 2

MEMORANDUM & ORDER Granting 1 -1 Plaintiff's application to proceed in forma pauperis, and the Complaint shall be filed; For purposes of account deduction only, the Clerk shall serve a copy of this Order by regular mail upon the Attorney Genera l of the State of New Jersey and the Administrator of Hudson County Correctional Center. The Plaintiff is assessed a filing fee of $350.00 and shall pay the entire filing fee in the manner set forth in this Order, regardless of the outcome of th e litigation. The Complaint is dismissed without prejudice in its entirety against Defendant AVILES, for failure to state a claim for relief pursuant to the Court's screening authority. The Plaintiff may submit an Amended Complaint and a request to reopen this matter within 45 days to the extent he can cure the deficiencies in his claims for relief. The Clerk of the Court shall send a copy of this Order to Plaintiff by regular U.S. mail and close this matter accordingly. (n.m.). Signed by Judge Madeline Cox Arleo on 1/18/2023. (jd, )

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MAJK SELIMI,

Civil Action No. 22-5944 (MCA)

Plaintiff,
v.

MEMORANDUM & ORDER

OSCAR AVILES,
Defendant.

Plaintiff Majk Selimi (“Plaintiff”), currently confined at Hudson County Correctional
Center (“HCCC”), seeks to bring this civil action in forma pauperis, without prepayment of fees
or security, asserting claims pursuant to 42 U.S.C. § 1983. At this time, the Court grants the IFP
application. See 28 U.S.C. § 1915. Federal law requires this Court to screen Plaintiff’s 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 Fed. R. Civ. P. 12(b)(6) and/or to dismiss any defendant
who is immune from suit. See 28 U.S.C. § 1915(e)(2)(B); Tourscher v. McCullough, 184 F.3d
236, 240 (3d Cir. 1999).
In the Complaint, Plaintiff alleges he contracted COVID-19 at HCCC. Complaint at 6.
Plaintiff further alleges that he asked a unidentified nurse for medical attention, but the nurse told
him there was nothing the medical department could do and instructed him to stay in his cell for
five days. Id. Plaintiff alleges that this is the second time he has caught COVID-19, and the
medical department at the jail refuses to treat him or provide adequate medical care. Id. Plaintiff
alleges in passing that COVID-19 “almost killed him,” id. at 5, but he does not provide any other
facts about his COVID-19 symptoms, the treatment he sought to receive, or the individual or
individuals who allegedly denied him medical care.

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Plaintiff has sued only Oscar Aviles, the Warden of HCCC, and appears to blame Aviles
for failing to stop the spread of COVID-19 at HCCC. Plaintiff refers to COVID-19 as a “deadly
virus” and alleges that Aviles has not sought “help” from the Health Department or sought
“protective equipment” to stop the virus from spreading at HCCC. Complaint at 5-6. Plaintiff
also alleges that “they” are trying to keep the deaths at HCCC “hush hush” and that Aviles has
not “reached out” for hand sanitizer, or cleaning supplies. Id. at 6. Plaintiff also mentions
“protocols [for] distancing” and “policies for inmates and staff”, but he provides no other facts
about these issues. Id. Plaintiff also alleges that Aviles did not respond to Plaintiff’s three
grievances and does not answer his phone. Id. at 5.
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 the standard 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). That standard is set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007). To survive screening, Plaintiff’s Complaint must contain
“sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Iqbal, 556 U.S. at 678 (quotations omitted). Conclusory allegations do not suffice. See id.
Because Plaintiff is proceeding pro se, the Court construes his allegations liberally. See Higgs v.
Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011).
The Court construes Plaintiff to raise his claims for relief pursuant to 42 U.S.C. § 1983.1
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

1

The Court does not construe Plaintiff to raise any state law claims.

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The Court liberally construes Plaintiff to allege that his conditions of confinement amount
to punishment, see Bell v. Wolfish, 441 U.S. 520, 538 (1979), and that Aviles, as Warden of HCCC,
violated his constitutional rights by failing to stop the spread of COVID-19 at HCCC. Since
Plaintiff is a pretrial detainee, the Fourteenth Amendment governs his claim regarding his
conditions of confinement at Hudson County Jail. Hubbard v. Taylor, 399 F.3d 150, 166 (3d Cir.
2005).
There are two basic ways that a supervisors, like Aviles, may be held liable under § 1983
– through direct participation or through policymaking. With respect to direct participation, “a
supervisor may be personally liable under § 1983 if he or she participated in violating the plaintiff’s
rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced
in his subordinates’ violations.” A.M. ex rel. J.M.K. v. Luzerne County Juvenile Detention Center,
372 F.3d 572, 586 (3d Cir. 2004); see also Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.
1988) (“Personal involvement can be shown through allegations of personal direction or of actual
knowledge and acquiescence.”). A supervisor-defendant may be also liable for unconstitutional
acts undertaken by subordinates if the supervisor-defendant “with deliberate indifference to the
consequences, established and maintained a policy, practice or custom which directly caused [the]
constitutional harm.” Id. (alteration in original). Policy claims also have specific pleading
requirements. “[T]o hold a supervisor liable...for their deficient policies...the plaintiff must
identify a specific policy or practice that the supervisor failed to employ and show that: (1) the
existing policy or practice created an unreasonable risk of [a constitutional] injury; (2) the
supervisor was aware that the unreasonable risk was created; (3) the supervisor was indifferent to
that risk; and (4) the injury resulted from the policy or practice.” Beers-Capitol v. Whetzel, 256
F.3d 120, 133–34 (3d Cir. 2001) (citing Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989));

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see also Barkes v. First Corr. Med., Inc., 766 F.3d 307, 317 (3d Cir. 2014), rev’d on other grounds
by Taylor v. Barkes, 135 S. Ct. 2042, 2043 (2015) (citing Sample v. Diecks, 885 F.2d 1099 (3d
Cir. 1989)).
In addition to pleading personal involvement, a Plaintiff must also plead sufficient facts
showing that his conditions of confinement violate the Constitution.

“Unconstitutional

punishment typically includes both objective and subjective components.” Stevenson v. Carroll,
495 F.3d 62, 68 (3d Cir. 2007). “[T]he objective component requires an inquiry into whether the
deprivation was sufficiently serious and the subjective component asks whether the officials acted
with a sufficiently culpable state of mind.” Id. (internal quotations and alterations omitted). Only
conditions of confinement that “cause [detainees] to endure genuine privations and hardship over
an extended period of time” violate due process. Bell, 441 U.S. at 542. Additionally, “‘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.’”
Bistrian v. Levi, 696 F.3d 352, 373 (3d Cir. 2012) (quoting Stevenson, 495 F.3d at 68); see also
Steele v. Cicchi, 855 F.3d 494, 504 (3d Cir. 2017). Courts should consider the totality of the
circumstances in evaluating such a claim. Bistrian, 696 F.3d at 373 (“In evaluating a pretrial
detainee’s claim of unconstitutional punishment, courts must examine the totality of the
circumstances within the institution.”). Here, Plaintiff has not provided sufficient facts about the
objective or subjective components of his conditions of confinement claim.
With respect to the objective component, Plaintiff states that Aviles failed to seek help
from the Health Department, but it is unclear what “help” Aviles should have sought from the
Health Department, and how this assistance would have prevented the spread of COVID-19 at

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HCCC. Plaintiff also states that Aviles failed to obtain “protective equipment” or “reach out” for
cleaning supplies and hand sanitizer, but he does not provide sufficient facts about these or other
deprivations he experienced at HCCC. For instance, Plaintiff does not provide any facts about
duration of time inmate lacked protective equipment, cleaning supplies, and hand sanitizer,
whether inmates had access to alternatives, such as soap and masks, and whether there were other
unsanitary or dangerous conditions at HCCC during this timeframe. As such, the Court is unable
to assess whether these deprivations are serious and prolonged enough to violate the Fourteenth
Amendment.
Plaintiff also fails to provide sufficient facts showing that Aviles was on notice that inmates
lacked protective equipment, cleaning supplies, or hand sanitizer and acted with deliberate
indifference to a serious risk of harm. Although Plaintiff alleges that Aviles failed to respond to
Plaintiff’s grievances, a prison official’s failure to respond to grievances does not amount to
personal involvement or state a separate claim for relief. See Mincy v. Chmielsewski, 508 F. App’x.
99, 104 (3d Cir. 2013) (An “officer’s review of, or failure to investigate, an inmate’s grievances
generally does not satisfy the requisite personal involvement.”); see also Wilson v. Horn, 971 F.
Supp. 943, 947 (E.D. Pa.1997), aff’d, 142 F.3d 430 (3d Cir.1998) (stating prison officials’ failure
to respond to inmate’s grievance does not state a constitutional claim).
Plaintiff also briefly mentions policies and protocols at HCCC (or a lack thereof). In order
to state a claim that Aviles created deficiencies policies or protocols to prevent the spread of
COVID-19, Plaintiff would need to provide facts showing that there were specific policies or
practices that Aviles failed to employ, that the specific policies or protocols that were in place
created an unreasonable risk of injury to Plaintiff or inmates in general, and that Aviles was on
notice that the existing policies or protocols would result in such injuries, but failed to act. Beers-

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Capitol, 256 F.3d at 133–34. Here, Plaintiff does not plead any of these elements, and thus fails
to state a policy claim against Aviles.
For these reasons, Plaintiff’s Fourteenth Amendment claims about his conditions of
confinement fail to state a claim for relief as to Aviles and are dismissed without prejudice pursuant
to the Court’s screening authority.
Plaintiff also alleges that he received inadequate medical care after he contracted COVID19. The Constitution requires prison officials to provide basic medical treatment to those whom it
has incarcerated.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle v. Gamble,
429 U.S. 97 (1976)). As a pretrial detainee, Plaintiff’s right to adequate medical care also arises
under the Due Process Clause of the Fourteenth Amendment. See Natale v. Camden County
Correctional Facility, 318 F.3d 575, 581 (3d Cir. 2003). In order to state a claim for relief, Plaintiff
must show a “(i) a serious medical need, and (ii) acts or omissions by prison officials that indicate
deliberate indifference to that need.” See Natale, 318 F.3d at 582 (citation omitted).
Plaintiff has sued only Aviles, but it is well-settled that respondeat superior is not a basis
for section 1983 liability for supervisors. 2 As such, “a plaintiff must plead that each Governmentofficial defendant, through the official’s own individual actions, has violated the Constitution.”
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); see also Baraka v. McGreevey, 481 F.3d 187, 210 (3d

2

Plaintiff also alleges that the medical department and an unidentified nurse denied him
adequate care, but he has not named the medical department or the nurse as defendants. Even if
Plaintiff had sued the medical department at HCCC, this entity is not a proper defendant under
42 U.S.C. § 1983. See Fischer v. Cahill, 474 F.2d 991, 992 (3d Cir. 1973) (concluding that the
state prison medical department could not be sued under Section 1983 since it is not a person);
Gerholt v. Wetzel, 858 F. App’x 32, 34 (3d Cir. 2021) (citing Fischer and concluding the same).
Plaintiff could potentially proceed against the nurse who allegedly refused to provide him with
medical care after he contracted COVID-19. To do so, Plaintiff would need to provide more
facts about this individual (including any identifying information or characteristics and date and
time he or she denied him care) and the circumstances surrounding this alleged denial of care.

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Cir. 2007) (“A defendant in a civil rights action must have personal involvement in the alleged
wrongs to be liable and cannot be held responsible for a constitutional violation which he or she
neither participated in nor approved....”) (internal quotations, citations omitted); Innis v. Wilson,
334 F. App’x 454, 457 (3d Cir. 2009) (indicating that section 1983 plaintiff could not maintain
claim against individual defendant unless said defendant was personally involved in actions
causing the claim). As such, Plaintiff may not hold Aviles liable under a theory of respondeat
superior for his subordinates’ failure to provide Plaintiff with medical care.
Plaintiff otherwise fails to state a claim for denial of medical care against Aviles as a
supervisor. Plaintiff does not provide any facts showing that Aviles denied him medical care,
directed his subordinates to do so, or had knowledge that Plaintiff or inmates in general were being
denied medical care and failed to correct the issue. See A.M. ex rel. J.M.K., 372 F.3d at 586.
Moreover, Plaintiff fails to provide any facts to suggest that Aviles created deficient policies for
the provision of medical care at HCCC and was deliberately indifferent to the risk of constitutional
injury resulting from those deficient policies. See Beers-Capitol, 256 F.3d at 133–34. For these
reasons, Plaintiff fails to state a claim for inadequate medical care claim against Aviles, and the
Court dismisses without prejudice this claim for relief pursuant to its screening authority.
For the reasons explained in this Memorandum and Order, the Complaint is dismissed
without prejudice in its entirety as to Oscar Aviles. Plaintiff may file an Amended Complaint
within 45 days if he can cure the deficiencies in his claims for relief.
IT IS THEREFORE, on this 18th day of January 2023,
ORDERED that Plaintiff’s application to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915 (ECF Nos. 1-1) is hereby GRANTED; and it is further
ORDERED that the Complaint shall be filed; and it is further

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ORDERED that, pursuant to 28 U.S.C. § 1915(b) and for purposes of account deduction
only, the Clerk shall serve a copy of this Order by regular mail upon the Attorney General of the
State of New Jersey and the Administrator of Hudson County Correctional Center; and it is further
ORDERED that Plaintiff is assessed a filing fee of $350.00 and shall pay the entire filing
fee in the manner set forth in this Order pursuant to 28 U.S.C. § 1915(b)(1) and (2), regardless of
the outcome of the litigation, meaning that if the Court dismisses the case as a result of its sua
sponte screening, or Plaintiff’s case is otherwise administratively terminated or closed, § 1915
does not suspend installment payments of the filing fee or permit refund to the prisoner of the
filing fee, or any part of it, that has already been paid; and it is further
ORDERED that pursuant to Bruce v. Samuels, 136 S. Ct. 627, 632 (2016), if Plaintiff owes
fees for more than one court case, whether to a district or appellate court, under the Prison
Litigation Reform Act (PLRA) provision governing the mandatory recoupment of filing fees,
Plaintiff’s monthly income is subject to a simultaneous, cumulative 20% deduction for each case
a court has mandated a deduction under the PLRA; i.e., Plaintiff would be subject to a 40%
deduction if there are two such cases, a 60% deduction if there are three such cases, etc., until all
fees have been paid in full; and it is further
ORDERED that pursuant to 28 U.S.C. § 1915(b)(2), in each month that the amount in
Plaintiff’s account exceeds $10.00, the agency having custody of Plaintiff shall assess, deduct from
Plaintiff’s account, and forward to the Clerk of the Court payment equal to 20% of the preceding
month’s income credited to Plaintiff’s account, in accordance with Bruce, until the $350.00 filing
fee is paid. Each payment shall reference the civil docket numbers of the actions to which the
payment should be credited; and it is further

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ORDERED that the Complaint is dismissed without prejudice in its entirety against
Defendant Aviles for failure to state a claim for relief pursuant to the Court’s screening authority
under § 1915(e); and it is further
ORDERED that Plaintiff may submit an Amended Complaint and a request to reopen this
matter within 45 days to the extent he can cure the deficiencies in his claims for relief; and it is
further
ORDERED that the Clerk of the Court shall send a copy of this Order to Plaintiff by
regular U.S. mail and CLOSE this matter accordingly.

__________________________
Hon. Madeline Cox Arleo
United States District Judge