DEMBY v. NOGAN et al

Filing 3

OPINION. Signed by Judge Susan D. Wigenton on 11/13/2023. (lag, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JAMOR J. DEMBY,

Civil Action No. 23-21725 (SDW-LDW)

Plaintiff,

MEMORANDUM OPINION

v.
PATRICK NOGAN, et al.,
Defendants.

IT APPEARING THAT:
1. On or about October 30, 2023, Plaintiff Jamor J. Demby, a former prisoner in East
Jersey State Prison in Rahway, New Jersey, filed a pro se civil rights complaint under 42 U.S.C. §
1983. (ECF No. 1).
2. Plaintiff also filed an application to proceed in forma pauperis ("IFP") under 28 U.S.C.
§ 1915(a). (ECF No. 1-1). Plaintiff's IFP application is properly completed and establishes his
financial eligibility to proceed without payment of the filing fee. Therefore, Plaintiff's IFP
application will be granted.
3. Because Plaintiff is granted in forma pauperis status, this Court is required to screen his
complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), and sua sponte dismiss any claim that is
frivolous, 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. “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 that
for dismissing a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).” Schreane v.

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Seana, 506 F. App’x 120, 122 (3d Cir. 2012) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d
Cir. 2000)).
4. In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a district court is
“required to accept as true all factual allegations in the complaint and draw all inferences in the
facts alleged in the light most favorable to the [Plaintiff].” Phillips v. Cnty. of Allegheny, 515 F.3d
224, 228 (3d Cir. 2008). “[A] complaint attacked by a . . . motion to dismiss does not need detailed
factual allegations.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). However, a plaintiff’s
“obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (citing
Papasan v. Allain, 478 U.S. 265, 286 (1986)). A court is “not bound to accept as true a legal
conclusion couched as a factual allegation.” Papasan, 478 U.S. at 286. Instead, assuming the
factual allegations in the complaint are true, those “[f]actual allegations must be enough to raise a
right to relief above the speculative level.” Twombly, 550 U.S. at 555.
5. “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable inference that the defendant is
liable for misconduct alleged.” Id. “Determining whether the allegations in a complaint are
plausible is a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679. “[W]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has
not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. (citing Fed. R. Civ. P. 8(a)(2)).
Moreover, while pro se pleadings are liberally construed, “pro se litigants still must allege

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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) (emphasis added).
6. The defendants to the complaint are Patrick Nogan, Administrator of East Jersey State
Prison and New Jersey Department of Law and Public Safety. (ECF No. 1.) Plaintiff alleges that,
on August 22, 2022, he contracted COVID-19 while confined in East Jersey State Prison. He
alleges that he contracted the virus based on the abdication of responsibilities and the customs,
practices, policies and procedures of the defendants, in violation of the Eighth and Fourteenth
Amendments.
7. "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)
(citations omitted).
8. New Jersey Department of Law and Public Safety is an arm of the State that his immune
from suit for damages under the Eleventh Amendment. Allen v. New Jersey State Police, 974 F.3d
497, 506-07 (3d Cir. 2020). Plaintiff’s claim that he contracted COVID-19 due to Defendant
Patrick Nogan’s abdication of his responsibilities or his customs, practices, policies and procedures
is conclusory. First, “a failure to eliminate all risk [does not] establish that the [defendant] was
deliberately indifferent to [detainees’] serious medical needs.” Hope v. Warden York Cnty. Prison,
972 F.3d 310, 330 (3d Cir. 2020). Second,
to hold a supervisor liable because his policies or practices led to an
Eighth Amendment violation, 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 the
Eighth Amendment 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.

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Beers-Capitol v. Whetzel, 256 F.3d 120, 134 (3d Cir. 2001) (citing Sample v. Diecks, 885 F.2d
1099, 1118 (3d Cir. 1989). Plaintiff failed to allege such facts.
9. In conclusion, this Court will grant Plaintiff's IFP application and dismiss his complaint
without prejudice for failure to state a claim upon which relief may be granted. Plaintiff is granted
leave to file an amended complaint.

An appropriate order follows.

November 13
Dated:_________________,
2023
Hon. Susan D. Wigenton,
United States District Judge

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