JOHNSON v. NEW JERSEY STATE PRISON et al

Filing 5

MEMORANDUM ORDER that all claims against Defendant New Jersey State Prison are dismissed with prejudice. All claims against Defendant Steven Johnson are dismissed without prejudice. The Clerk shall mail to Plaintiff a transmittal letter explaining th e procedure for completing United States Marshal ("Marshal") 285 Forms. Once the Marshal receives the USM-285 Form(s) from Plaintiff and the Marshal so alerts the Clerk, the Clerk shall issue summons in connection with each USM-285 Form tha t has been submitted by Plaintiff, and the Marshal shall serve summons, the Complaint and this Order to the address specified on each USM-285 Form. The Clerk shall notify Plaintiff of the opportunity to apply for the appointment of pro bono counsel. The Clerk of the Court shall serve Plaintiff with copies of this Order via regular mail. Signed by Judge Peter G. Sheridan on 2/5/2019. (mps)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

BYAER JOHNSON,
Civil Action Nos. 17-1567 (PGS-LGH)
Plaintiff,

MEMORANDUM ORDER

:

v.
NEW JERSEY STATE PRISON, et a!,

Defendants.

Plaintiff is proceeding informapauperis with a civil rights complaint filed pursuant to 42
U.S.C.

§ 1983. (ECF No. 1). At this time, the Court must review the complaint pursuant to 28

U.S.C.

§ 1915(e)(2)(B) 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 suit. Having completed this screening, the Court will permit the
complaint to proceed in part.
1.

Plaintiff alleges he was assaulted by Officers Miles and Priebs in New Jersey State

Prison on December 11, 2016. Specifically, he alleges the officers handcuffed him and proceeded
to kick and punch him about the face and body. (ECF No. 1
2.

He then alleges Officers Miles and Priebs conspired with others to write fraudulent

disciplinary charges to conceal the assault. (Id.
3.

¶ 4-6).

¶ 7).

Plaintiff alleges Warden Steven Johnson refused to punish defendants after being

informed of the assault. (Id.

¶ 8).

4.

Defendant New Jersey State Prison is dismissed from this case. A state prison is

not a “person” subject to suit under

§

1983. See Will v. Mich. Dep ‘t ofState Police, 491 U.S. 58,

71(1989); Fischer v. Cahill, 474 F.2d 991, 992 (3d Cir. 1973).
5.

Plaintiffs excessive force and conspiracy complaint shall be permitted to proceed

against Officers Miles and Priebs. The Court shall exercise supplemental jurisdiction over any
state assault claims. 28 U.S.C.
6.

§

1367(c).

Plaintiffs claims against Warden Johnson are dismissed without prejudice. His sole

allegation against the Warden is that he failed to discipline Officers Miles and Priebs after the
assault. “Failure to’ claims

.

.

.

are generally considered a subcategory of policy or practice

liability.” Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev’d on other
grounds sub nom. Taylor v. Barkes, 135 S. Ct. 2042 (2015). A supervisor’s failure to discipline
subordinates requires “both contemporaneous knowledge of the offending incident or knowledge
of a prior pattern of similar incidents and circumstances under which the supervisor’s actions or
inaction could be found to have communicated a message of approval to the offending
subordinate” in order to impose

§

1983 liability. Montgomery v. De Simone, 159 F.3d 120, 127,

(3d Cir. 1998).
7. Plaintiff has not presented any facts suggesting Warden Johnson knew of the assault prior
to its occurrence or that Officers Miles and Priebs had a history of excessive force and had
somehow approved of their actions. Because Plaintiff may be able to correct these deficiencies,
the claims against Warden Johnson are dismissed without prejudice. Plaintiff may move to amend
his claims against Warden Johnson in accordance with Fed. R. Civ. P. 15.

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IT IS on this

day of February, 2019,

ORDERED that all claims against Defendant New Jersey State Prison are hereby
DISMISSED WITH PREJUDICE; it is further
ORDERED that all claims against Defendant Steven Johnson are hereby DISMISSED
WITHOUT PREJUDICE; it is further
ORDERED that the excessive force and conspiracy claims against Officers Miles and

Priebs shall proceed. The Court will exercise supplemental jurisdiction over any state law claims,
28 U.S.C.

§

1367(c); and it is further,

ORDERED that, the Clerk shall mail to Plaintiff a transmittal letter explaining the

procedure for completing Unites States Marshal (“Marshal”) 285 Forms (“USM-285 Forms”); and
it is further
ORDERED that, once the Marshal receives the USM-285 Form(s) from Plaintiff and the
Marshal so alerts the Clerk, the Clerk shall issue summons in connection with each USM-285
Form that has been submitted by Plaintiff, and the Marshal shall serve summons, the Complaint
and this Order to the address specified on each USM-285 Form, with all costs of service advanced
by the United States’; and it is further
ORDERED that Defendant(s) shall file and serve a responsive pleading within the time

specified by Federal Rule of Civil Procedure 12; and it is further

Alternatively, the U.S. Marshal may notify Defendant(s) that an action has been commenced
and request that the defendant(s) waive personal service of a summons in accordance with Fed.
R. Civ. P. 4(d).
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ORDERED that, pursuant to 28 U.S.C.

§ 1915(e)(1) and § 4(a) of Appendix H of the Local

civil Rules, the clerk shall notify Plaintiff of the opportunity to apply in writing to the assigned
judge for the appointment of pro bono counsel; and it is further
ORDERED that, if at any time prior to the filing of a notice of appearance by Defendant(s),
Plaintiff seeks the appointment of pro bono counsel or other relief, pursuant to Fed. R. Civ. P. 5(a)
and (d), Plaintiff shall (1) serve a copy of the application by regular mail upon each party at his
last known address and (2) file a Certificate of Service2; and it is finally
ORDERED that the Clerk of the Court shall serve Plaintiff with copies of this Order via
regular mail.

(L
Peter G. Sheridan, U.S.D.J.

After an attorney files a notice of appearance on behalf of a Defendant, the attorney will
automatically be electronically served all documents that are filed in the case.

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