PFEIFFER v. HUTLER et al
Filing
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OPINION. Signed by Judge Anne E. Thompson on 10/1/2012. (gxh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TIMOTHY PFEIFFER,
Plaintiff,
v.
WARDEN THEODORE HUTLER,
et al.,
Defendants.
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Civil No. 12-1335 (AET)
OPINION
APPEARANCES:
TIMOTHY PFEIFFER, Plaintiff pro se
18 Queen Ann Road
Brick, New Jersey 08723
THOMPSON, District Judge
Plaintiff, Timothy Pfeiffer, a state inmate confined at the
Ocean County Jail in Toms River, New Jersey, at the time he filed
this Complaint, seeks to bring this action in forma pauperis.
Based on his affidavit of indigence, the Court will grant
plaintiff’s application to proceed in forma pauperis (“IFP”)
pursuant to 28 U.S.C. § 1915(a) (1998) and order the Clerk of the
Court to file the Complaint.
At this time, the Court must review the Complaint, pursuant
to 28 U.S.C. §§ 1915(e)(2)(B) 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 such
relief.
For the reasons set forth below, the Court concludes
that the Complaint should proceed in part.
I.
BACKGROUND
Plaintiff, Timothy Pfeiffer (“Pfeiffer” or “Plaintiff”),
brings this civil action, pursuant to 42 U.S.C. § 1983, against
the following defendants: Warden Theodore Hutler at the Ocean
County Jail (“OCJ”); Chief Mueller at OCJ; Officer DeMarco at
OCJ; Officer Brown at OCJ; and Lieutenant Kenny Martin at OCJ.
(Complaint, Caption, ¶¶ 4b-g).
The following factual allegations
are taken from the Complaint, and are accepted for purposes of
this screening only.
The Court has made no findings as to the
veracity of plaintiff’s allegations.
Plaintiff alleges that, on or about September 9, 2010,
defendant Officer DeMarco disclosed Plaintiff’s criminal charges
to the nursing staff at OCJ for no reason other than to defame
Plaintiff and cause him harm.
At or about the same time, other
unknown correctional officers at OCJ “maliciously” disclosed
Plaintiff’s criminal charges to other inmates on his dorm unit
for the purpose of causing Plaintiff harm, and called Plaintiff
derogatory names and other verbal abuse because of Plaintiff’s
criminal charges.
On or about September 27, 2010, defendant
Officer Brown also disclosed Plaintiff’s criminal charges to
other inmates in the dorm units for the purpose of causing
2
Plaintiff harm.
In particular, Officer Brown paid another inmate
in extra food trays to assault Plaintiff.
Plaintiff alleges that
he was assaulted by the inmate and incurred serious injuries
requiring medical attention, namely, bruised ribs and lacerations
to his face and body.
(Compl., ¶ 6).
Plaintiff further alleges that defendant Lt. Martin, a
classification/housing officer at OCJ, purposely placed Plaintiff
in a hostile dorm unit because of Plaintiff’s criminal charges so
as to expose Plaintiff to serious harm.
(Compl., ¶ 4f).
Plaintiff alleges that Warden Hutler and Chief Mueller are
responsible for the policies and customs at OCJ and the conduct
of the correctional officers under their charge.
Plaintiff
contends that Warden Hutler and Chief Mueller were fully aware of
the wrongful actions of the defendant officers in disclosing the
sexual orientation and sex crime charges of certain inmates, such
as Plaintiff, for the purpose of causing these particular inmates
harm.
Plaintiff alleges that, despite this knowledge, Warden
Hutler and Chief Mueller failed to take corrective action or
appropriate measures to stop the defendant officers from causing
such harm.
(Compl., ¶¶ 4b, 4c and 6).
Plaintiff seeks compensatory and punitive damages in excess
of $5,000.00 and an injunction against defendants compelling them
3
to cease causing harm to Plaintiff.1
(Compl., ¶ 7).
Because
Plaintiff has since been released from Ocean County Jail, (see
Docket entry no. 3), his request and motion for injunctive relief
is rendered moot and will be dismissed accordingly.
II.
STANDARDS FOR A SUA SPONTE DISMISSAL
The Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996),
requires a district court to review a complaint in a civil action
in which a prisoner is proceeding in forma pauperis or seeks
redress against a governmental employee or entity.
The Court is
required to identify cognizable claims and to 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.
1915(e)(2)(B) and 1915A.
28 U.S.C. §§
This action is subject to sua sponte
screening for dismissal under both 28 U.S.C. § 1915(e)(2)(B) an
§ 1915A.
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff.
See Erickson v. Pardus, 551 U.S. 89, 93–94 (2007)
1
Plaintiff filed a motion for injunctive relief asking
that Warden Hutler and Chief Mueller reprimand and discipline
Officer Brown, and to have Officer Brown cease from paying
inmates to assault Plaintiff because of his sex crime charges.
(Docket entry no. 2).
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(following Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
The Supreme Court refined the standard for summary dismissal
of a complaint that fails to state a claim in Ashcroft v. Iqbal,
556 U.S. 662 (2009).
The Court examined Rule 8(a)(2) of the
Federal Rules of Civil Procedure which provides that a complaint
must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2).
Citing its opinion in Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007) for the proposition that “[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), the Supreme Court held
that, to prevent a summary dismissal, a civil complaint must now
allege “sufficient factual matter” to show that the claim is
facially plausible.
This then “allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”
Fowler v. UPMC Shadyside, 578 F.3d 203 (3d
Cir. 2009)(citing Iqbal, 556 U.S. at 676).
The Supreme Court’s
ruling in Iqbal emphasizes that a plaintiff must demonstrate that
the allegations of his complaint are plausible.
See id. at 678-
79; see also Twombly, 505 U.S. at 555, & n. 3; Warren Gen. Hosp.
v.. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011).
“A complaint
must do more than allege the plaintiff’s entitlement to relief.
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A complaint has to ‘show’ such an entitlement with its facts.”
Fowler, 578 F.3d at 211 (citing Phillips v. County of Allegheny,
515 F.3d 224, 234–35 (3d Cir. 2008).
III.
SECTION 1983 ACTIONS
Plaintiff brings this action pursuant to 42 U.S.C. § 1983.
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 proceeding for redress ... .
Thus, to state a claim for relief under § 1983, a plaintiff must
allege, 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.
West v. Atkins, 487 U.S. 42, 48
(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.
1994).
See also Malleus v. George, 641 F.3d 560, 563 (3d Cir.
2011).
III.
A.
ANALYSIS
Harassment Claim
Because it appears that Plaintiff was confined as a pretrial
detainee at the time of the alleged conduct, the Court will
examine Plaintiff’s allegations under the test applicable to the
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Fourteenth Amendment Due Process Clause claims.
Generally, “the
Due Process rights of a [pretrial detainee] are at least as great
as the Eighth Amendment protections available to a convicted
prisoner.”
Reynolds v. Wagner, 128 F.3d 166, 173 (3d Cir.
1997)(citation omitted); see also Bell v. Wolfish, 441 U.S. 520,
544 (1979); City of Revere v. Massachusetts, 463 U.S. 239, 244
(1983); accord Natale v. Camden Cnty. Corr. Facility, 318 F.3d
575, 581 (3d Cir. 2003)(citations omitted).
The Eighth Amendment
sets forth the floor for the standard applicable to the claims of
such litigants.
See Bell, 441 U.S. at 544.
Thus, a failure of
prison officials to provide minimally civil conditions of
confinement to such individuals violates their right not to be
punished without due process of law.
See Reynolds, 128 F.3d at
173-74.
Allegations of verbal abuse or threats, unaccompanied by
injury or damage, are not cognizable under § 1983, regardless of
whether the inmate is a pretrial detainee or sentenced prisoner.
See Jean-Laurent v. Wilkerson, 438 F. Supp.2d 318, 324-25
(S.D.N.Y. 2006)(pretrial detainee’s claim of verbal abuse not
cognizable under § 1983 because verbal intimidation did not rise
to the level of a constitutional violation); Ramirez v. Holmes,
921 F. Supp. 204, 210 (S.D.N.Y. 1996)(threats and verbal
harassment without physical injury or damage not cognizable in
claim filed by sentenced inmate under § 1983).
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See also Price v.
Lighthart, 2010 WL 1741385 (W.D. Mich. Apr. 28, 2010); Glenn v.
Hayman, 2007 WL 894213, *10 (D.N.J. Mar. 21, 2007); Stepney v.
Gilliard, 2005 WL 3338370 (D.N.J. Dec. 8, 2005)(“[V]erbal
harassment and taunting is neither ‘sufficiently serious’ nor ‘an
unnecessary and wanton infliction of pain’ under the common
meaning of those terms. ‘Verbal harassment or profanity alone ...
no matter how inappropriate, unprofessional, or reprehensible it
might seem,’ does not constitute the violation of any federally
protected right and therefore is not actionable under [Section]
1983”) (quoting Aziz Zarif Shabazz v. Pico, 994 F. Supp. 460, 474
(S.D.N.Y. 1998), and citing Collins v. Graham, 377 F. Supp.2d
241, 244 (D.Me. 2005)).
See also Moore v. Morris, 116 Fed. Appx.
203, 205 (10th Cir. 2004)(mere verbal harassment does not give
rise to a constitutional violation, even if it is inexcusable and
offensive, it does not establish liability under section 1983),
cert. denied, 544 U.S. 925 (2005); Collins v. Cundy, 603 F.2d
825, 827 (10th Cir. 1979) (dismissing prisoner’s claim that
defendant laughed at prisoner and threatened to hang him);
Prisoners’ Legal Ass’n v. Roberson, 822 F. Supp. 185, 187-89
(D.N.J. 1993)); Abuhouran v. Acker, 2005 WL 1532496 (E.D. Pa.
June 29, 2005)(“It is well established ... that ... verbal
harassment, ... standing alone, do[es] not state a constitutional
claim”)(citing Dewalt v. Carter, 224 F.3d 607, 612 (7th Cir.
1999); Williams v. Bramer, 180 F.3d 699, 706 (5th Cir. 1999);
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Maclean v. Secor, 876 F. Supp. 695, 698 (E.D.Pa. 1995)).
See
also Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987)
(holding that verbal harassment and abuse are not recoverable
under § 1983); Patton v. Przybylski, 822 F.2d 697, 700 (7th Cir.
1987)(holding that racially derogatory remarks, although
“unprofessional and inexcusable,” are not “a deprivation of
liberty within the meaning of the due process clause”).
Here, with respect to the unnamed correctional officers,
Officer DeMarco and Lt. Martin, Plaintiff alleges that these
defendants verbally abused Plaintiff and disclosed his sex crime
charges to other inmates at OCJ.
However, Plaintiff does not
allege an accompanying violation that might allow the disclosure
of Plaintiff’s sex crime charges to state a separate due process
violation, other than that it generally or potentially exposed
Plaintiff to potential physical harm.
These general allegations
of potential injury are nothing more than the mere recitation of
a legal conclusion without factual allegations sufficient at this
time to support a claim that the defendants were verbally
harassing plaintiff as an intended form of punishment.
Consequently, because the alleged verbal harassment of Plaintiff
was not accompanied by any injurious actions - or physical
actions of any kind - by the correction officials, Plaintiff
fails to state a cognizable § 1983 claim for a violation of his
Fourteenth Amendment due process rights, and his claim will be
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dismissed without prejudice as against the unnamed correctional
officers, Officer DeMarco and Lt. Martin accordingly.
The alleged verbal harassment by defendant Officer Brown,
however, would appear to be actionable based on Plaintiff’s
allegations of resulting physical harm.
Namely, Plaintiff
alleges that Brown told other inmates of Plaintiff’s sex crime
charges and in particular, paid another inmate with extra food
trays to physically assault Plaintiff, which said inmate did.
Based on these allegations, if true, this Court will allow this
claim to proceed against defendant Officer Brown at this time.2
B.
Supervisor Liability
Finally, it would appear from the allegations in the amended
Complaint that Plaintiff’s claims against defendants, Warden
2
Plaintiff’s allegations against Officer Brown also may be
construed as asserting a failure to protect claim. Correctional
officers and prison officials have a duty “to take reasonable
measures to protect prisoners from violence at the hands of other
prisoners.” Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir.
1997)(citations and internal quotations omitted); see also Burton
v. Kindle, 401 Fed. Appx. 635, 637-38 (3d Cir. 2010)(the same
deliberate indifference standard applies to failure to protect
claims under either the Eighth Amendment or Fourteenth
Amendment). For a failure to protect claim, Plaintiff must
provide evidence establishing that: (a) “the conditions in which
he was detained entailed a sufficiently serious risk of harm,”
(b) the defendants acted with “deliberate indifference” to
Plaintiff’s health and safety; and (c) causation, i.e., a showing
that Plaintiff was harmed or was in imminent danger of harm as a
result of deliberate indifference. See Farmer v. Brennan, 511
U.S. 825, 834 (1994); Hamilton, 117 F.3d at 746. Here, the
factual allegations set forth in the Complaint, if true, may be
sufficient to state a cognizable failure to protect claim against
defendant Officer Brown at this time.
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Hutler and Chief Mueller, are based on supervisor liability
alone.
As a general rule, government officials may not be held
liable for the unconstitutional conduct of their subordinates
under a theory of respondeat superior.
See Iqbal, 129 S.Ct. at
1948; Monell v. New York City Dept. Of Social Servs., 436 U.S.
658, 691 (1978)(finding no vicarious liability for a municipal
“person” under 42 U.S.C. § 1983); Robertson v. Sichel, 127 U.S.
507, 515-16 (1888)(“A public officer or agent is not responsible
for the misfeasances or position wrongs, or for the nonfeasances,
or negligences, or omissions of duty, of subagents or servants or
other persons properly employed by or under him, in discharge of
his official duties”).
In Iqbal, the Supreme Court held that
“[b]ecause vicarious or supervisor liability is inapplicable to
Bivens3 and § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official’s own
individual actions, has violated the Constitution.”
S.Ct. at 1948.
Iqbal, 129
Thus, each government official is liable only for
his or her own conduct.
The Court rejected the contention that
supervisor liability can be imposed where the official had only
“knowledge” or “acquiesced” in their subordinates conduct.
Id.,
129 S.Ct. at 1949.
3
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971)
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Under pre- Iqbal Third Circuit precedent, “[t]here are two
theories of supervisory liability,” one under which supervisors
can be liable if they “established and maintained a policy,
practice or custom which directly caused [the] constitutional
harm,” and another under which they can be liable if they
“participated in violating plaintiff’s rights, directed others to
violate them, or, as the person[s] in charge, had knowledge of
and acquiesced in [their] subordinates’ violations.”
Santiago v.
Warminster Twp., 629 F.3d 121, 127 n. 5 (3d Cir. 2010)(internal
quotation marks omitted).
“Particularly after Iqbal, the
connection between the supervisor’s directions and the
constitutional deprivation must be sufficient to demonstrate a
plausible nexus or affirmative link between the directions and
the specific deprivation of constitutional rights at issue.”
Id.
at 130.
The Third Circuit has recognized the potential effect that
Iqbal might have in altering the standard for supervisory
liability in a § 1983 suit but, to date, has declined to decide
whether Iqbal requires narrowing of the scope of the test.
See
Santiago, 629 F.3d 130 n. 8; Bayer v. Monroe County Children and
Youth Servs., 577 F.3d 186, 190 n. 5 (3d Cir. 2009)(stating in
light of Iqbal, it is uncertain whether proof of personal
knowledge, with nothing more, provides sufficient basis to impose
liability upon supervisory official).
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Hence, it appears that,
under a supervisory theory of liability, and even in light of
Iqbal, personal involvement by a defendant remains the touchstone
for establishing liability for the violation of a plaintiff’s
constitutional right.
Williams v. Lackawanna County Prison, 2010
WL 1491132, at *5 (M.D.Pa. Apr. 13, 2010).
Facts showing personal involvement of the defendant must be
asserted; such assertions may be made through allegations of
specific facts showing that a defendant expressly directed the
deprivation of a plaintiff’s constitutional rights or created
such policies where the subordinates had no discretion in
applying the policies in a fashion other than the one which
actually produced the alleged deprivation; e.g., supervisory
liability may attach if the plaintiff asserts facts showing that
the supervisor’s actions were “the moving force” behind the harm
suffered by the plaintiff.
See Sample v. Diecks, 885 F.2d 1099,
1117–18 (3d Cir. 1989); see also Iqbal, 129 S.Ct. at 1949–54.
Here, Plaintiff provides no facts describing how the
supervisory defendants, Warden Hutler and Chief Mueller, actively
or affirmatively violated his constitutional rights, i.e., he
fails to allege facts to show that these defendants expressly
directed the deprivation of his constitutional rights, or that
they created policies which left subordinates with no discretion
other than to apply them in a fashion which actually produced the
alleged deprivation.
In short, Plaintiff has alleged no facts to
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support personal involvement by the supervisory defendants, and
simply relies on recitations of legal conclusions such that they
failed to supervise, oversee or correct the alleged custom by
some correction officers at OCJ to verbally abuse and disclose
gay inmates or inmates confined on sex crime charges in violation
of Plaintiff’s constitutional rights.
These bare allegations,
“because they are no more than conclusions, are not entitled to
the assumption of truth.”
Iqbal, 129 S.Ct. at 1950.
Accordingly, this Court will dismiss without prejudice the
Complaint, in its entirety, as against the defendants, Warden
Hutler and Chief Mueller, because it is based on a claim of
supervisor liability, which is not cognizable in this § 1983
action, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1) .
Nevertheless, if Plaintiff believes that he can assert facts
to show more than supervisor liability, or if he can assert facts
to cure the deficiencies of his claims against the other unnamed
correction officers, Officer DeMarco and Lt. Martin, then he may
move to file an amended complaint accordingly.4
4
Plaintiff should note that when an amended complaint is
filed, the original complaint no longer performs any function in
the case and “cannot be utilized to cure defects in the amended
[complaint], unless the relevant portion is specifically
incorporated in the new [complaint].” 6 Wright, Miller & Kane,
Federal Practice and Procedure § 1476 (2d ed.1990)(footnotes
omitted). An amended complaint may adopt some or all of the
allegations in the original complaint, but the identification of
the particular allegations to be adopted must be clear and
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IV.
CONCLUSION
Therefore, for the reasons set forth above, the Complaint
will be dismissed without prejudice, in its entirety as against
defendants, Warden Hutler, Chief Mueller, Officer DeMarco, Lt.
Martin, and the unnamed correctional officers at OCJ, pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(B)(1), for failure to
state a cognizable claim at this time.
Plaintiff may seek leave
to amend his Complaint to cure the deficiencies in his claims
against these defendants.
Further, the Complaint will be allowed
to proceed at this time against defendant Officer Brown.
Finally, Plaintiff’s request for injunctive relief (Docket entry
no. 2) will be dismissed as moot since Plaintiff is no longer
confined at OCJ.
An appropriate order follows.
/s/Anne E. Thompson
ANNE E. THOMPSON
United States District Judge
Dated: October 1, 2012
explicit. Id. To avoid confusion, the safer course is to file
an amended complaint that is complete in itself. Id.
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