ROMAN v. DEMARCO et al

Filing 3

MEMORANDUM OPINION filed. Signed by Judge Freda L. Wolfson on 2/05/2019. (jem)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
JESUS E. ROMAN,
:
:
Plaintiff,
:
Civ. No. 18-8010 (FLW) (TJB)
:
v.
:
:
:
MEMORANDUM OPINION
J. DEMARCO et al.,
:
Defendants.
:
_________________________________________ :

I. INTRODUCTION
Plaintiff, Jesus E. Roman (“Roman” or “Plaintiff”), is presently held at the Ocean County
Jail, in Toms River, New Jersey. He is proceeding pro se with this Complaint asserting
violations of his civil rights under 42 U.S.C. § 1983. (See Compl., ECF No. 1.) The Court now
screens the Complaint under 28 U.S.C. § 1915(e), 28 U.S.C. § 1915A, and 42 U.S.C. § 1997e.
For the reasons stated herein, Roman’s claim against defendant J. Haberbush is dismissed
without prejudice, but the remainder of the Complaint is permitted to proceed.
II. THE COMPLAINT
Roman initially filed his Complaint on April 18, 2018. (ECF No. 1.) Roman alleges that
defendants Sergeant E. Clark (“Clark”) and Sergeant J. Donato (“Donato”) left him overnight in
a cell that had been flooded with raw sewage. (ECF No. 1 at ECF p. 5.) He contends that
defendant Sergeant J. DeMarco (“DeMarco”) refused to move him out of the cell flooded with
sewage when Roman received breakfast, and that Roman “was forced to eat in my cell flooded
with human wast[e] with no running water in my cell to wash the raw sewage off my hands.”
(Id.) Roman further alleges that defendant Lieutenant K. Stuart (“Stuart”) refused to move him

to another cell when Roman complained of the “constant illumination in [his] cell for weeks,”
even after he filed a grievance in this regard. (Id.) Roman explains that “lights never dimmed at
night time was enduring torture for weeks.” (Id.) Finally, Roman alleges that, despite his
grievances, Captain J. Haberbush (“Haberbush”) “sat back and did nothing to prevent these cruel
and unusual punishments and reckless neglectments [sic] his co-workers subjected me too [sic].”
(Id.)
Roman raises all of his claims under the Cruel and Unusual Punishment Clause of the
Eighth Amendment. (See ECF No. 1.) He asserts that these incidents occurred on November 12,
2016. (Id. at ECF pp. 6, 8.) Roman alleges that exposure to the sewage caused him to contract
Hepatitis A and that the constant illumination in his cell resulted in sleep deprivation, migraine
headaches, and stress. (Id. at ECF p. 8.) He seeks compensatory and punitive damages. (Id.)
III. THE SCREENING STANDARD
Under the Prison Litigation Reform Act, Pub. L. 104-134, §§ 801–810, 110 Stat. 1321-66
to 1321-77 (Apr. 26, 1996) (“PLRA”), district courts must review prisoner complaints when the
prisoner (1) is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B), (2) seeks redress
against a governmental employee or entity, see 28 U.S.C. § 1915A, or (3) asserts a claim
concerning prison conditions, see 42 U.S.C. § 1997e(c). The PLRA directs district courts to sua
sponte dismiss claims that are frivolous or malicious, that fail to state a claim upon which relief
may be granted, or that seek monetary relief from a defendant who is immune from such relief.
See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); 42 U.S.C. § 1997e(c).
“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);

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see also Mitchell v. Beard, 492 F. App’x 230, 232 (3d Cir. 2012) (discussing 42 U.S.C. §
1997e(c)(1)); Courteau v. United States, 287 F. App’x 159, 162 (3d Cir. 2008) (discussing 28
U.S.C. § 1915A(b)). 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 the Court’s screening for
failure to state a claim, the complaint must allege “sufficient factual matter to show that the
claim is facially plausible.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 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.” Iqbal, 556 U.S. at 678; see also Fair Wind Sailing, Inc. v.
Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014). “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).
Pro se pleadings, as always, will be liberally construed. See Haines v. Kerner, 404 U.S.
519, 520 (1972); Glunk v. Noone, 689 F. App’x 137, 139 (3d Cir. 2017). Nevertheless, “pro se
litigants still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown
Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
IV. ANALYSIS
A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of
his constitutional rights. That section provides,
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, 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, except that in any action brought against a
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judicial officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was
unavailable.
42 U.S.C. § 1983. To state a claim 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. See Harvey v.
Plains Twp. Police Dep’t, 635 F.3d 606, 609 (3d Cir. 2011); see also West v. Atkins, 487 U.S. 42,
48 (1988).
Roman specifically alleges that the defendants’ conduct violated the Cruel and Unusual
Punishment Clause of the Eighth Amendment. (See ECF No. 1.) The Eighth Amendment
requires that prison officials provide humane conditions of confinement. Betts v. New Castle
Youth Dev. Ctr., 621 F.3d 249, 256 (3d Cir. 2010); see also Farmer v. Brennan, 511 U.S. 825,
832 (1994). “For the conditions of confinement to rise to the level of an Eighth Amendment
violation, they must deny the ‘minimal civilized measure of life's necessities.’” Betts, 621 F.3d at
256 (quoting Farmer, 511 U.S. at 835). Unsanitary conditions can be cruel and unusual. Young
v. Quinlan, 960 F.2d 351, 364 (3d Cir.1992), superseded by statute, Prison Litigation Reform
Act of 1996, Pub. L. No. 104–134, 110 Stat. 1321.
The Court notes that it is not clear from Roman’s Complaint whether, at the time of the
alleged incident, he was being held in the Ocean County Jail as part of a sentence for a criminal
conviction or if, instead, he was there as a pretrial detainee, in which case the Eighth
Amendment is inapplicable. City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). For
this analysis, however, the question is moot. The Due Process Clause of the Fourteenth
Amendment prohibits the State from imposing punishment on persons who have not yet been
convicted of a crime. See Bell v. Wolfish, 441 U.S. 520, 535–39 (1979); Bistrian v. Levi, 696
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F.3d 352, 373 (3d Cir. 2012); Hubbard v. Taylor, 538 F.3d 229, 231–32 (3d Cir. 2008). The Due
Process Clause has been found to afford protections to pretrial detainees “at least as great as the
Eighth Amendment protections available to a convicted prisoner.” City of Revere, 463 U.S. at
244; see also Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003). Thus, the
Eighth Amendment sets the floor for the standard applicable to pre-trial detainees’ claims. Bell,
441 U.S. at 544. A failure to provide minimally civil conditions of confinement to pre-trial
detainees violates their rights against punishment without due process of law. Reynolds v.
Wagner, 128 F.3d 166, 173–74 (3d Cir. 1997).
I conclude that Roman’s allegations against Clark, Donato, and DeMarco, to the extent
that they left him overnight in a cell flooded with raw sewage and served him breakfast there,
while Roman was deprived of any way to clean his soiled hands, are sufficient to state a claim
that Roman was deprived of the “minimal civilized measure of life's necessities” under either the
Eighth or the Fourteenth Amendment. See DeSpain v. Uphoff, 264 F.3d 965, 974–75 (3d Cir.
2001) (“Exposure to human waste, like few other conditions of confinement, evokes both the
health concerns emphasized in Farmer and the more general standards of dignity embodied in
the Eighth Amendment.”); see also Moore v. Giorla, 302 F. Supp. 3d 700, 705–06 (E.D. Pa.
2018) (denying summary judgment on merits of Eighth Amendment claim where the plaintiff
alleged “that he was covered in raw sewage for approximately eight hour,” but ultimately
granting summary judgment on timeliness). I also conclude that Roman has sufficiently stated a
claim against Stuart for keeping him in a cell for weeks where the lights never dimmed.
“Constant illumination may, under certain circumstances, amount to a constitutional violation.”
Spencer v. Sec’y Dep’t of Corr., 618 F. App’x 85, 87 (3d Cir. 2015).

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Roman’s claim against Haberbush relies on a theory of supervisory liability. Generally,
personal involvement by the defendant in the alleged constitutional violation is central to a §
1983 claim, and liability cannot rest on a theory of respondeat superior. See Chavarriaga v. N.J.
Dep’t of Corr., 806 F.3d 210, 222 (3d Cir. 2015). Supervisory liability generally requires some
affirmative conduct by the supervisor, such as a supervisor’s implementation or maintenance of a
policy, practice, or custom that caused the plaintiff constitutional harm. Parkell v. Danberg, 833
F.3d 313, 330 (3d Cir. 2016); Santiago v. Warminster Township, 629 F.3d 121, 129 n.5 (3d Cir.
2010). Hence, there are two potential theories of supervisory liability. See A.M. ex rel. J.M.K. v.
Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004). Under the first theory,
defendants may be sued as policy makers “if it is shown that such defendants, ‘with deliberate
indifference to the consequences, established and maintained a policy, custom, or practice which
directly caused [the] constitutional harm.’” Id. (quoting Stoneking v. Bradford Area Sch. Dist.,
882 F.2d 720, 725 (3d Cir. 1989)). The second theory of liability provides that 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. See Baker v. Monroe Township, 50 F.3d 1186, 1190–91 (3d Cir.
1995). Knowledge in a “failure to supervise” claim must consist of either “contemporaneous
knowledge of the offending incident or knowledge of a prior patter of similar incidents.” 1 C.H.
ex. rel. Z.H. v. Oliva, 226 F.3d 198, 202 (3d Cir. 2000).

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The Third Circuit has expressed doubt as to whether this theory of supervisory liability
survived the Supreme Court’s decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), which held that
“purpose rather than knowledge is required to impose Bivens liability . . . for an official charged
with violations arising from his or her superintendent responsibilities.” Id. at 677; see Jankowski
v. Lellock, 649 F. App’x 184, 187 (3d Cir. 2016.)
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Roman’s Complaint does not sufficiently state a claim against Haberbush for supervisory
liability. He alleges simply that “Haberbush sat back and did nothing to prevent these cruel and
unusual punishments and reckless neglectments [sic].” (ECF No. 1 at ECF p. 5.) He further
contends that Haberbush “never did nothing about both incidents” and that he “had the authority
to do something to prevent this incidents, but didn’t.” (Id. at ECF p. 7.) These allegations do not
suffice to plead affirmative conduct by Haberbush, even under a theory of knowledge and
acquiescence. Accordingly, the claim against Haberbush is dismissed.
V. CONCLUSION
For the reasons explained above, upon screening the Complaint, the claim against
Haberbush is dismissed without prejudice, for failure to state a claim upon which relief may be
granted. Roman may, if he so desires, seek leave to file an amended complaint within 30 days.
The remainder of the Complaint is permitted to proceed, and it shall be served upon the
remaining defendants. An appropriate order follows.

/s/ Freda L. Wolfson
FREDA L. WOLFSON
United States District Judge

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