United States District Court, D. New Jersey
May 2, 2005.
JAMES FISH, Plaintiff,
GATEWAY FOUNDATION PIER PROGRAMS, et al., Defendants.
The opinion of the court was delivered by: JOSEPH IRENAS, District Judge
Plaintiff James Fish, a prisoner currently confined at Southern
State Correctional Facility in Delmont, New Jersey, seeks to
bring this action in forma pauperis pursuant to
42 U.S.C. § 1983, alleging violations of his constitutional rights. Based on
his affidavit of indigence and the absence of three qualifying
dismissals within 28 U.S.C. § 1915(g), the Court will grant
Plaintiff's application to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915(a) and order the Clerk of the Court
to file the Complaint. At this time, the Court must review the Complaint 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.
The following factual allegations are taken from Plaintiff's
Complaint and are accepted as true for purposes of this review.
On May 16, 2004, while Plaintiff was attending a T.P.R. meeting
of the Gateway Foundation Pier Program, fellow prisoner Joseph
Sharp was acting out a part and crashed into Plaintiff with
enough force to slam him into a stainless steel table, causing
him pain to his lower and upper back. A correctional officer then
sent him to the nurse.
Petitioner seeks compensatory damages from Defendants New
Jersey Department of Corrections, the Gateway Foundation Pier
Program, and Joseph Sharp.
This Court construes the Complaint as alleging an Eighth
Amendment failure-to-protect claim against the New Jersey
Department of Corrections and the Gateway Foundation Pier
Program, and as alleging a pendent state law negligence claim
against Joseph Sharp. II. STANDARDS FOR A SUA SPONTE DISMISSAL
This Court must dismiss, at the earliest practicable time,
certain in forma pauperis and prisoner actions that are
frivolous, malicious, fail to state a claim, or seek monetary
relief from a defendant who is immune from such relief. See
28 U.S.C. § 1915(e)(2) (in forma pauperis actions);
28 U.S.C. § 1915A (actions in which prisoner seeks redress from a
governmental defendant); 42 U.S.C. § 1997e (prisoner actions
brought with respect to prison conditions).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court
must "accept as true all of the allegations in the complaint and
all reasonable inferences that can be drawn therefrom, and view
them in the light most favorable to the plaintiff." Morse v.
Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). The
Court need not, however, credit a pro se plaintiff's "bald
assertions" or "legal conclusions." Id.
A pro se complaint may be dismissed for failure to state a
claim only if it appears "`beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief.'" Haines, 404 U.S. at 521 (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)); Milhouse v. Carlson, 652 F.2d 371, 373 (3d Cir. 1981). Where a complaint can be remedied by an
amendment, a district court may not dismiss the complaint with
prejudice, but must permit the amendment. Denton v. Hernandez,
504 U.S. 25, 34 (1992); Grayson v. Mayview State Hospital,
293 F.3d 103, 108 (3d Cir. 2002) (dismissal pursuant to
28 U.S.C. § 1915(e)(2)); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir.
2000) (dismissal pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia
v. Harrisburg County Police Dept., 91 F.3d 451, 453 (3d Cir.
III. SECTION 1983 ACTIONS
A plaintiff may have a cause of action under 42 U.S.C. § 1983
for certain violations of his constitutional rights. 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
(1988); Piecknick v. Pennsylvania, 36 F.3d 1250
, 1255-56 (3d
Cir. 1994). IV. ANALYSIS
A. The Eighth Amendment Claim
Under the Eighth Amendment, prison officials have a duty to
provide humane conditions of confinement, including adequate
food, clothing, shelter, medical care, and personal safety.
Farmer v. Brennan, 511 U.S. 825, 832 (1994); Young v.
Quinlan, 960 F.2d 351, 364 (3d Cir. 1992). Accordingly, prison
officials must take reasonable measures "to protect prisoners
from violence at the hands of other prisoners." Farmer,
511 U.S. at 833 (1994) (internal quotations omitted). "Being
violently assaulted in prison is simply `not part of the penalty
that criminal offenders pay for their offenses against society.'"
Id. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 347
To successfully state a claim for violation of the Eighth
Amendment, an inmate must satisfy both the objective and
subjective components of such a claim. The inmate must allege a
deprivation which was "sufficiently serious," and that in their
actions or omissions, prison officials exhibited "deliberate
indifference" to the inmate's health or safety. See Farmer,
511 U.S. at 834; Wilson v. Seiter, 501 U.S. 294, 305 (1991);
Nami v. Fauver, 82 F.3d 63, 67 (3d Cir. 1996).
In the context of a failure-to-protect claim, the inmate must
show that he is "incarcerated under conditions posing a
substantial risk of harm," Farmer, 511 U.S. at 833, and that prison officials knew of and disregarded the excessive risk to
inmate safety, Id. at 837. "A pervasive risk of harm may not
ordinarily be shown by pointing to a single incident or isolated
incidents, but it may be established by much less than proof of a
reign of violence and terror." Riley v. Jeffes, 777 F.2d 143,
147 (3d Cir. 1985). "Whether . . . prison official[s] had the
requisite knowledge of a substantial risk is a question of fact
subject to demonstration in the usual ways, including inference
from circumstantial evidence, and a fact finder may conclude that
. . . prison official[s] knew of a substantial risk from the very
fact that the risk was obvious." Farmer, 511 U.S. at 842.
Deliberate indifference is more than a mere lack of ordinary due
care, however; it is a state of mind equivalent to a reckless
disregard of a known risk of harm. Farmer, 511 U.S. at 834.
Applying Farmer to the instant action, the first question is
whether Plaintiff has alleged facts showing that inmates, or
Plaintiff in particular, faced a substantial risk of assault. The
second question is whether Plaintiff has alleged facts from which
it could be inferred that defendants were aware of and
disregarded that risk.
It cannot be inferred from the facts alleged by Plaintiff that
prison officials were aware of and disregarded any substantial
risk of assault from fellow prisoners. Plaintiff has alleged
merely that a fellow prisoner threw himself against Plaintiff during the course of role play in a therapy program.
Plaintiff does not allege facts which suggest that defendants
were informed of a specific risk of harm to himself or other
inmates, Nami, 82 F.3d at 67-68; Young, 960 F.2d at 362, or
that "a substantial risk of inmate attacks was longstanding,
pervasive, well-documented" or otherwise obvious to them,
Farmer, 511 U.S. at 842; accord Hamilton v. Leavy,
117 F.3d 742, 747-48 (3d Cir. 1997); Ingalls v. Florio, 968 F.Supp. 193,
199-200 (D.N.J. 1997). While defendants may not have exercised
due care in failing to prevent the incident, such negligence is
insufficient to establish a violation of the Eighth Amendment.
Davidson v. Cannon, 474 U.S. 344, 345-48 (1986) (finding that
prison officials' negligent failure to heed prisoner's
notification of threats from another inmate, followed by an
assault, is not a deprivation of constitutional rights); see
also Schwartz v. County of Montgomery, 843 F.Supp. 962 (E.D.
Pa.), aff'd, 37 F.3d 1488 (3d Cir. 1994) (stating that
corrections officers' failure to observe institutional policies
regarding the supervision of dangerous inmates constitutes
negligence, which cannot support a § 1983 action for violation of
the Eighth or Fourteenth Amendments). Because negligence is not
actionable under § 1983 as a constitutional violation, Plaintiffs
failureto-protect claim will be dismissed for failure to state a
The claim against the New Jersey Department of Corrections also
is subject to dismissal with prejudice pursuant to the Eleventh
Amendment.*fn2 The Eleventh Amendment to the United States
Constitution provides that, "The Judicial power of the United
States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States
by citizens of another State, or by Citizens or Subjects of any
As a general proposition, a suit by private parties seeking to
impose a liability which must be paid from public funds in a
state treasury is barred from federal court by the Eleventh
Amendment, unless Eleventh Amendment immunity is waived by the
state itself or by federal statute. See, e.g., Edelman v.
Jordan, 415 U.S. 651, 663 (1974). The Eleventh Amendment
protects states and their agencies and departments from suit in
federal court regardless of the type of relief sought. Pennhurst
State School and Hospital v. Halderman, 465 U.S. 89, 100 (1984). Similarly, absent consent by a state, the Eleventh Amendment bars
federal court suits for money damages against state officers in
their official capacities. See Kentucky v. Graham,
473 U.S. 159, 169 (1985). Section 1983 does not override a state's
Eleventh Amendment immunity. Quern v. Jordan, 440 U.S. 332
In addition, neither states, nor governmental entities that are
considered arms of the state for Eleventh Amendment purposes, nor
state officers sued in their official capacities for money
damages are persons within the meaning of § 1983. Will v.
Michigan Dept. of State Police, 491 U.S. 58, 64, 70-71 and n. 10
(1989); Grabow v. Southern State Correctional Facility,
726 F.Supp. 537, 538-39 (D.N.J. 1989) (the New Jersey Department of
Corrections is not a person under § 1983).
For the foregoing reasons, all claims against the New Jersey
Department of Corrections must be dismissed with prejudice.
B. The Pendent State-Law Claim
The Complaint also may be construed as asserting a state-law
negligence claim against Defendant Joseph Sharp.
Pursuant to 28 U.S.C. § 1367(c)(3), where a district court has
dismissed all claims over which it has original jurisdiction, it
may decline to exercise supplemental jurisdiction over a related
state law claim. The Court of Appeals for the Third Circuit has
held that, where all federal claims are dismissed before trial,
"the district court must decline to decide the pendent state claims unless considerations of judicial economy,
convenience, and fairness to the parties provide an affirmative
justification for doing so." Hedges v. Musco, 204 F.3d 109, 123
(3d Cir. 2000) (citations omitted). As no such extraordinary
circumstances appear to be present, this Court will dismiss the
state law claim without prejudice.
For the reasons set forth above, the Complaint must be
dismissed. It does not appear that the deficiencies of the
Complaint could be cured by amendment. An appropriate order