SMART v. SANTIAGO et al

Filing 3

OPINION. Signed by Judge Freda L. Wolfson on 5/11/2015. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SALAHUDDIN F. SMART,

Civil Action No. 15-1065

Plaintiff,
v.

OPINION

ANGEL SANTIAGO, ADMINISTRATOR,
et al.,
Defendants.

WOLFSON, District Judge:
I.

INTRODUCTION
Plaintiff, who was released from prison on November 11, 2014, brings this § 1983 action

in forma pauperis. Based on his affidavit of indigence, the Court granted Plaintiff’s application
to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) and ordered the Clerk of the Court
to file the Complaint. (No. 3.) At this time, the Court must review the Complaint, pursuant to
28 U.S.C. §§ 1915(e)(2) 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. As explained below, the Complaint proceeds
in part and is dismissed in part.
II.

FACTUAL BACKGROUND
Plaintiff alleges that, on October 4, 2014, two unnamed corrections officers performed

what is commonly termed a visual body cavity strip search on Plaintiff prior to his visit to the
infirmary. (No, 1, Compl. at 6.) Plaintiff was required to remove his clothing, “swipe through
his ear, manipulate his ears, open his mouth, move his tongue around, grab his genitals, lift up
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his testicles, turn around [and] face the wall[,] l[i]ft up his left foot, th[e]n his right foot[,] and
th[e]n bend over spread[ing] his buttocks[,] th[e]n squat and cough.” (Id.) He was then given
back his clothing to get dressed, handcuffed, and escorted to and from the infirmary by the two
officers. (Id.) Because he was shackled and under continuous escort, Plaintiff contends that it
was impossible for any contraband to have been transferred to him during this time. (Id.) He
alleges that upon his return to the close custody unit, he was nevertheless subjected to a second
visual body cavity strip search. (Id.) Plaintiff contends that the second strip search violated his
Fourth Amendment right to be free of unreasonable searches. He has sued the unnamed
corrections officers (“John Doe corrections officers”) in their individual capacities, and has also
sued Administrator Angel Santiago and Commissioner Gary M. Lanigan (“supervisory
Defendants”) for allegedly failing to train and/or supervise their subordinates regarding visual
body cavity strip searches. Plaintiff additionally alleges state-law claims for intentional
infliction of emotional distress against all Defendants, and states in his Complaint that “a notice
of tort claim was sent and filed with the State of New Jersey.” (Compl. at 3.) He seeks varying
amounts of damages from all Defendants.
III.

ANALYSIS
a. Standard for Sua Sponte Dismissal under the Prison Litigation Reform Act
Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321-

66 to 1321-77 (April 26, 1996) (“PLRA”), district courts must review complaints in those civil
actions in which a prisoner is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B),
seeks redress against a governmental employee or entity, see 28 U.S.C. § 1915A(b), or brings a
claim with respect to prison conditions, see 42 U.S.C. § 1997e. The PLRA directs district courts
to sua sponte dismiss any claim that is frivolous, is malicious, fails to state a claim upon which
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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. Seana, 506 F. App'x 120, 122 (3d Cir. 2012) (per
curiam) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)). Under Fed. R. Civ. P.
12(b)(6), the court must “accept all factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief.” Fleisher v. Standard Ins. Co., 679 F.3d 116,
120 (3d Cir. 2012). The complaint must contain “sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks 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.” Id. Allegations that are no more than legal conclusions are not
entitled to the same assumption of truth. Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). To
determine if a complaint meets the pleading standard, the Court must strip away conclusory
statements and “look for well-pled factual allegations, assume their veracity, and then determine
whether they plausibly give rise to an entitlement of relief.” Id. (internal quotation marks
omitted). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.
A complaint filed by a pro se litigant is to be liberally construed and held to a less
stringent standard than formal complaints drafted by a lawyer. Erickson v. Pardus, 551 U.S. 89,
94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, “pro se litigants

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still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay
Marina, Inc., 10–4710, 2013 WL 57895 at *4 (3d Cir. Jan. 7, 2013).
b. Plaintiff’s Fourth Amendment Claim Arising from the Second Strip Search
i. Claims Against the Individual John Doe Officers
Plaintiff’s Complaint focuses narrowly on the second visual body cavity strip search
performed by the John Doe officers and contends that this second search violated his Fourth
Amendment right to be free from unreasonable searches. Inmates do not have a Fourth
Amendment right to be free of strip searches under all circumstances. See Bell v. Wolfish, 441
U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979); see also Watson v. Secretary Pennsylvania
Dept. of Corrections, 436 F. App’x. 131, 136 (3d Cir. Jul. 8, 2011). Although strip searches
constitute a “significant intrusion on an individual's privacy,” see United States v. Whitted, 541
F.3d 480, 486 (3d Cir. 2008), where officials conduct such searches in a reasonable manner to
maintain security and to prevent the introduction of contraband or weapons in the facility, strip
searches do not violate the Fourth Amendment. See Florence v. Bd. of Chosen Freeholders of
Cty. of Burlington, 621 F.3d 296, 309–311 (3d Cir. 2010), affirmed ––– U.S. ––––, 132 S.Ct.
1510, 1516–17, 182 L.Ed.2d 566 (2012).
“The Supreme Court has held that visual body cavity searches may be conducted by
prison officials without probable cause, but that they must be conducted in a reasonable manner.”
Brown v. Blaine, 185 F. App'x 166, 169 (3d Cir. 2006) (citing Bell, 441 U.S. at 559–60); see also
Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (a prison regulation which
infringes upon an inmate's constitutionally recognized right is valid only if it is reasonably
related to a legitimate penological interest). When determining the reasonableness of a search,
courts must balance “the need for the particular search against the invasion of personal rights that
the search entails” and consider “the scope of the particular intrusion, the manner in which it is
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conducted, the justification for initiating it, and the place in which it is conducted.” Bell, 441
U.S. at 558-59 (holding that the prison’s policy of strip and visual body cavity searches,
requiring inmates to stand naked, lift their genitals and bend over and spread their buttocks for
visual inspection, did not violate an inmate's Fourth Amendment rights); see also Brown v.
Blaine, 185 F. App'x at 169–70 (finding no constitutional violation where inmate was required to
lift his penis and testicles, spread his buttocks and then place his hands on his head and sweep his
mouth with his fingers).
The Supreme Court recently held that it is constitutional to conduct a full strip search of
an individual detained in the general population of a jail, regardless of the reason for detention or
the existence of reasonable suspicion that the individual is concealing something. Florence, 132
S.Ct. at 1516–17 (explaining that “correctional officials must be permitted to devise reasonable
search policies to detect and deter the possession of contraband in their facilities . . . . The task of
determining whether a policy is reasonably related to legitimate security interests is peculiarly
within the province and professional expertise of corrections officials,” so that, “in the absence
of substantial evidence in the record to indicate that the officials have exaggerated their response
to these considerations[,] courts should ordinarily defer to their expert judgment in such
matters.”); see also Small v. Wetzel, 528 F. App’x. 202, 207 (3d Cir. 2013) (“it is constitutional
to conduct a full strip search of an individual detained in the general population of a jail,
regardless of the reason for detention or the existence of reasonable suspicion that the individual
is concealing something”) (citing Florence, 132 S.Ct. 1510).
The visual body cavity search at issue here was conducted after Plaintiff returned to a
close custody area of the prison. The Third Circuit Court of Appeals has held that prison
officials may conduct visual body cavity searches when an inmate enters and exits his cell in a

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restricted housing unit, if such searches are performed in a reasonable manner. Millhouse v.
Arbasak, 373 F. App’x. 135, 137 (3d Cir. 2010) (citing Bell, 441 U.S. at 559–60); see also
Brown, 185 F. App’x at 169-70 (upholding the constitutionality of a visual body cavity search
performed on a prisoner upon his reentry into a restricted housing unit where the plaintiff did not
“challeng[e] the need for the search, but rather, the manner in which it was performed”).
Here, Plaintiff challenges the reasonableness of performing a second visual body cavity
strip search because he was stripped searched in the same manner prior to leaving the close
custody area and was shackled and escorted by officers for the entire period between the two
searches. Accepting plaintiff’s factual allegations as true, see Fleisher, 679 F.3d at 120, but
disregarding his legal conclusions, see Bistrian, 696 F.3d at 365, the Court finds that Plaintiff’s
Fourth Amendment claim against the individual John Doe officers is not subject to dismissal
pursuant to 28 U.S.C. § 1915(e)(2)(B) at this time.
ii. Supervisory Liability
Plaintiff has also sued Defendants Santiago and Lanigan alleging that they failed to
train/supervise their subordinates regarding constitutionally permissible strip searches. Because
Plaintiff fails to allege facts supporting his claims for relief against Defendants Santiago and
Lanigan, the Court dismisses without prejudice the failure to train and/or supervise claims
against the supervisory Defendants.
Courts do not recognize § 1983 liability on a theory of respondeat superior; instead, a
plaintiff is required to allege that the defendant, through defendant's own actions, violated the
Constitution. See Iqbal, 129 S.Ct. at 1948; see also Jordan v. Cicchi, 428 F. App’x 195, 198-99
(3d Cir. 2011) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). The Third
Circuit has identified two general ways in which a supervisor-defendant may be liable for

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unconstitutional acts undertaken by subordinates: (1) “liability may attach if they, with deliberate
indifference to the consequences, established and maintained a policy, practice or custom which
directly caused [the] constitutional harm”; or (2) “a supervisor may be personally liable under §
1983 if he or she participated in violating the plaintiffs rights, directed others to violate them, or,
as the person in charge, had knowledge of and acquiesced in the subordinate's unconstitutional
conduct.” Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014) (internal citations
and quotations omitted). “Failure to” claims—failure to train, failure to discipline, or, as is the
case here, failure to supervise—are generally considered a subcategory of policy or practice
liability. Id. at 316-17 (citing Rosalie Berger Levinson, Who Will Supervise the Supervisors?
Establishing Liability for Failure to Train, Supervise, or Discipline Subordinates in a Post–
Iqbal/Connick World, 47 Harv. C.R.-C.L. L.Rev. 273, 280 (2012)). 1
To hold an official liable on a claim for failure to supervise based on a policy or practice,
a plaintiff “must identify a supervisory policy or practice that the supervisor failed to employ,
and then prove that: (1) the policy or procedures in effect at the time of the alleged injury created
an unreasonable risk of a constitutional violation; (2) the defendant-official was aware that the
policy created an unreasonable risk; (3) the defendant was indifferent to that risk; and (4) the
constitutional injury was caused by the failure to implement the supervisory practice or
procedure.” Barkes, 766 F.3d at 317; Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir.1989).
As currently pleaded, Plaintiff’s Complaint appears to focus on the alleged inadequacy of
the Defendants’ supervision and/or training. Plaintiff’s claims against Defendants Santiago and

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In Sample v. Diecks, the Third Circuit explained that “‘supervision’ entails, among other things,
training, defining expected performance by promulgating rules or otherwise, monitoring
adherence to performance standards, and responding to unacceptable performance whether
through individualized discipline or further rulemaking.” 885 F.2d 1099, 1116 (3d Cir. 1989).
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Lanigan are identical. In Counts one and two of his Complaint, he alleges that each of the
supervisory Defendants
failed to train/supervise his subordinates in regards to when it is
constitutionally required to perform a strip search within the
Garden State Youth Correctional Facility. . . . The defendant
failed to equip his subordinates with the tools to handle the
recurrent situation in particular when after a segregated inmate is
moved in the prison while under continuous escort and
observation, that there is no state int[erest] for this particular
search. There was a likelihood that the situation will recur and the
predictability that an officer lacking specific tools to handle the
situation will violate citizens’ rights against unreasonable searches.
Therefore the defendants as policymaker made a decision not to
train the officer reflected “deliberate indifference” to the obvious
consequence of the policymaker’s choice – namely, a violation of a
[F]ourth [A]mendment constitutional or section 1983 statutory
right.
(No. 1, Compl. at 1-2.) Although Plaintiff makes general allegations that the supervisory
Defendants failed to supervise and/or train subordinates “in regards to when it is constitutionally
required to perform a strip search within the Garden State Youth Correctional Facility,”
Plaintiff’s factual recitation does include any facts about the roles played by Defendants Santiago
and/or Lanigan and makes only the following general allegations regarding unspecified
Defendants:
The actions of defendants demonstrate that they believe it is in
essence per se reasonable to conduct a strip search whenever a
prisoner leaves the close custody unit of the [prison] and comes
back while under con[tinuous] escort by two officers while
shackled in the facility because of the state’s overriding interest in
not permitting contraband to move throughout the facility.
(Id. at 6.) Plaintiff further maintains that “[t]he current training on strip searches alerted the
individual defendants that the second strip search under the circumstances must require
individu[alized] reasonable suspicion.” (Id. at 7.) Based on Plaintiff’s allegations, it is unclear
what role, if any, the supervisory Defendants played in the alleged violation of Plaintiff’s rights

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and whether the second strip search comported with prison policy and/or training or contravened
current prison policy and/or training.
The Court finds that the Complaint as currently pleaded is conclusory and does not
contain sufficient facts for the Court to assess whether Plaintiff states a claim for supervisory
liability against Defendants Santiago and Lanigan for their alleged failure to train and/or
supervise their subordinates. And although Plaintiff strings together legal standards relevant to
failure to train and/or supervise claims, these bare allegations, “because they are no more than
conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Accordingly,
this Court will dismiss without prejudice the Complaint against Defendants Santiago and
Lanigan, and Plaintiff may replead these allegations in an amended complaint. To state a claim
for relief against the supervisory Defendants, Plaintiff must pleads facts (1) identifying the
specific supervisory policy, practice or procedure that the supervisor failed to employ, and
showing that (2) the existing practice without the identified, absent custom or procedure created
an unreasonable risk of the ultimate injury, (3) the supervisor was aware that this unreasonable
risk existed, (4) the supervisor was indifferent to the risk; and (5) the subordinate’s violation
resulted from the supervisor's failure to employ that supervisory practice or procedure. See
Barkes, 766 F.3d at 317. 2

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Generally, in failure to train cases, deliberate indifference can be shown only by demonstrating
“[a] pattern of similar constitutional violations by untrained employees,” though a single incident
can suffice in the rare case where the unconstitutional consequence of the failure to train is
patently obvious. Connick v. Thompson, 131 S.Ct. 1350, 1360 (2011) (quoting Bd. of Cnty.
Comm'rs v. Brown, 520 U.S. 397, 409 (1997)).
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iii. Intentional Infliction of Emotional Distress
Plaintiff’s state-law claim for intentional infliction of emotional distress (“IIED”), which
he alleges against all Defendants, is also insufficiently pleaded and barred by the verbal
threshold requirement of the New Jersey Tort Claims Act (“NJTCA”). A claim of IIED requires
a plaintiff to plead intentional and outrageous conduct by the defendant, proximate cause, and
distress that is severe. Taylor v. Metzger, 152 N.J. 490, 509 (N.J. 1998). Furthermore, the New
Jersey Tort Claims Act, which applies to claims for IIED, see Lascurain v. City of Newark, 349
N.J. Super. 251, 281 (App. Div. 2002), does not permit damages for pain and suffering unless
there is a permanent injury where medical expenses exceed $3,600:
No damages shall be awarded against a public entity or public
employee for pain and suffering . . . ; provided, however, that this
limitation . . . shall not apply in cases of permanent loss of a bodily
function, permanent disfigurement or dismemberment where the
medical treatment expenses are in excess of $3,600.00.
N.J. Stat. Ann. § 59:9–2(d); see also Gretzula v. Camden County Technical Schools Bd. of Educ.,
965 F.Supp.2d 478, 490-91 (D.N.J. 2013) (applying N.J. Stat. Ann. § 59:9–2(d) to IIED claim). 3
Here, Plaintiff has sued all four Defendants for IIED but alleges no facts whatsoever to
suggest that Defendants Santiago and Lanigan, who did not participate in the strip search,
engaged in any conduct that amounts to intentional and outrageous behavior. Furthermore, even
assuming that Plaintiff has alleged intentional and outrageous conduct by the two John Doe
officers who conducted the second strip search, Plaintiff fails to allege any facts showing that he
suffered severe emotional distress as a result of the second strip search or to plead facts meeting
the specific requirements of N.J. Stat. Ann. § 59:9–2(d). As such, Plaintiff’s claims for

3

At this time, the Court does not address whether Plaintiff has otherwise met the substantive or
procedural requirements of the NJTCA.
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intentional infliction of emotional distress are dismissed against all Defendants. Because it is
conceivable that Plaintiff may be able to plead facts to overcome these deficiencies with respect
to some or all of the Defendants, the dismissal is without prejudice.
IV.

CONCLUSION
For the reasons stated above, Plaintiff’s Fourth Amendment claim against the John Doe

Defendant officers proceeds at this time. The remainder of the Complaint is dismissed for failure
to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
However, because it is conceivable that Plaintiff may be able to supplement his pleading with
facts sufficient to overcome the deficiencies noted herein, the Court will grant Plaintiff leave to
file an amended complaint. An appropriate order follows.

__/s/ Freda L. Wolfson
Freda L. Wolfson
United States District Judge

Date: May 11, 2015

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