access to the courts. Plaintiff's complaint is defective, however, because plaintiff failed to name Officer Eckert as a defendant. For this reason, defendants have not addressed this claim in their motion to dismiss.
A district court should grant a party leave to amend a pleading "when justice so requires." Fed. R. Civ. P. 15(a). Since the failure to name Officer Eckert as a defendant appears to be an inadvertent error by a pro se plaintiff, this seems to be a situation where justice requires leave to amend. The U.S. Supreme Court has made clear that leave to amend should only be denied for reasons such as undue delay, bad faith, dilatory motive, repeated failures to correct deficiencies, undue prejudice to the defendant, or futility. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); see also Harrison Beverage Co. v. Dribeck Importers, Inc., 133 F.R.D. 463, 468 (D.N.J. 1990). The court finds no evidence of undue delay, bad faith, dilatoriness, repeated failure to correct defects, or undue prejudice to the defendants, leaving futility as the only appropriate grounds for denying leave to amend in this case.
An amendment is futile when the amended complaint would not survive a motion to dismiss. Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir.), cert. denied, 464 U.S. 937, 78 L. Ed. 2d 314, 104 S. Ct. 348 (1983). At this juncture, the court cannot conclude that plaintiff's claim against Officer Eckert would be susceptible to a motion to dismiss. Accordingly, the court will grant plaintiff leave to amend his complaint within thirty days solely to name Officer Eckert as a defendant.
H. Plaintiff's Excessive Noise Claim
Plaintiff claims that the noise levels in the units at Riverfront where he was housed were excessive and that defendants failed to take action to reduce the noise level, thereby violating his Eighth Amendment right to be free from cruel and unusual punishments. Defendants have moved to dismiss on the grounds that plaintiff's allegations are not sufficiently specific.
The U.S. Supreme Court has observed that the Eighth Amendment's prohibition of cruel and unusual punishments forbids not only torture and other physically barbarous punishments, but also "embodies broad and idealistic concepts of dignity, civilized standards, humanity and decency." Estelle v. Gamble, 429 U.S. 97, 102, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976) (citations omitted). Thus, a court confronted with a prisoner's Eighth Amendment challenge to the conditions of his confinement should measure the challenged conditions against "'the evolving standards of decency that mark the progress of a maturing society.'" Rhodes v. Chapman, 452 U.S. 337, 346, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981) (quoting Trop v. Dulles, 356 U.S. 86, 101, 2 L. Ed. 2d 630, 78 S. Ct. 590 (1958).
However, "not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny." Whitley v. Albers, 475 U.S. 312, 319, 89 L. Ed. 2d 251, 106 S. Ct. 1078 (1985). "To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner's interests or safety." Id. "It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock." Id.
The court is aware of several cases where excessive noise was one of a number of conditions of confinement that, taken as a whole, were held to have violated the Eighth Amendment, including Inmates of Occoquan v. Barry, 650 F. Supp. 619 (D.D.C. 1986), and Palmigiano v. Garrahy, 443 F. Supp. 956 (D.R.I. 1977), cited by plaintiff in his reply memorandum. In these cases, it was the overall deplorable living conditions in the prisons that failed to comport with contemporary standards of decency and revealed the "obduracy and wantonness" of the prison officials. The court is unaware, however, of any case where a high noise level alone was held to have violated the Eighth Amendment.
Moreover, plaintiff does not allege that the high noise level at Riverfront was caused by defendants in any way. In fact, plaintiff observes that the loud conditions at Riverfront were not surprising, since a large number of people confined in a small space usually will make a lot of noise. This observation, which applies to an apartment building as readily as it applies to a prison, undermines plaintiff's claim by demonstrating that the noise level at Riverfront in and of itself does not violate contemporary standards of decency and does not reflect "obduracy or wantonness" on the part of defendants. Accordingly, the court will grant defendants' motion to dismiss this claim for failure to state a claim upon which relief can be granted.
An appropriate order will be entered.
JOSEPH H. RODRIGUEZ
Dated: March 31, 1995
For the reasons set forth in this court's opinion filed even date,
IT IS ORDERED on this 31st day of March, 1995 that the motion of defendants New Jersey Department of Corrections and William Fauver to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted is GRANTED except as to plaintiff's claim that defendants were deliberately indifferent to plaintiff's serious medical needs as a result of plaintiff's exposure to second-hand smoke.
IT IS FURTHER ORDERED that the motion of defendants DOC, Fauver, Donald Lewis, Gregory Riggs, David Kershaw, William Varell, Anthony Muns, Linda Lingo, Jeffrey Fowler, Ricky Santos, Blaine Dawson and Andy Jiminez to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted and/or for summary judgment is GRANTED except as to plaintiff's claim that defendants were deliberately indifferent to plaintiff's serious medical needs as a result of plaintiff's exposure to second-hand smoke.
IT IS FURTHER ORDERED that plaintiff shall have thirty days from receipt of this Order to amend his complaint solely to name Officer Eckert as a defendant.
IT IS FURTHER ORDERED that plaintiff shall have thirty days from the receipt of this Order to demonstrate to the court that good cause exists for his failure to serve defendants Schley and Williams within 120 days after filing his complaint, as required by Fed. R. Civ. P. 4(m). Plaintiff's failure to demonstrate good cause will result in the dismissal of the complaint as against defendants Schley and Williams on the court's own motion, pursuant to Fed. R. Civ. P. 4(m).
JOSEPH H. RODRIGUEZ