United States District Court, D. New Jersey
May 3, 2005.
JUAN MANUEL GONZALEZ-CIFUENTES, Plaintiff,
U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
The opinion of the court was delivered by: WILLIAM H. WALLS, District Judge
Plaintiff, Juan Manuel Gonzalez-Cifuentes, confined at the
Bergen County Jail in Hackensack, New Jersey, at the time this
action was submitted for filing, seeks to bring this action in
forma pauperis pursuant to 28 U.S.C. § 1915.*fn1 Based
on plaintiff's affidavit of indigence, the Court grants the
application to proceed in forma pauperis and directs the
Clerk of the Court to file the Complaint without pre-payment of
the filing fee.
Having reviewed the Complaint, and plaintiff's amended
Complaint submitted on or about February 28, 2005, to identify cognizable claims pursuant to 28 U.S.C. § 1915(e)(2), the Court
concludes that the Complaint should proceed in part.
Plaintiff is an immigration detainee presently confined at the
Bergen County Jail. He brings this civil rights action against
the following defendants: the United States Department of
Homeland Security ("DHS"); the Bureau of Immigration and Customs
Enforcement ("BICE"); BICE Deportation Officer Diaz; Wanda
Royall, Assistant Chief of the BICE; Joel G. Trella, Sheriff of
Bergen County; Bergen County Jail Corrections Officer ("C.O.") B.
Ciliento; Bergen County Jail Lieutenant Hook; Sergeant Ryan; and
John Duffy, Warden at the Bergen County Jail. (Complaint,
Caption, ¶¶ 4-12). The amended Complaint adds the following
defendants: Edward J. McElroy, BICE District Director; Greg
Kendrick, BICE Field Office Director; John P. Carbone, BICE Field
Office Director; Mark Stokes, BICE Assistant Chief; Wilfredo
Diaz, BICE Deportation Officer; BICE Lieutenant T. Boyce; Jerry
Speziale, Passaic County Sheriff; and Charles Meyer, Warden of
the Passaic County Jail. (Amended Complaint, Caption, ¶¶ 6-14).
The following factual allegations are taken from the Complaint
and Amended Complaint and are accepted as true for purposes of
On January 15, 2004, at about 9:30 p.m., plaintiff was sitting
at a table in the all-purpose area of housing unit S-8 at the Bergen County Jail, when an alarm rang and several
corrections officers ran into the area. (Compl., ¶¶ 17-18). The
detainees were ordered to lock-up in their cells. One of the
officers, defendant C.O. Ciliento, yelled at plaintiff to sit on
his bunk, and plaintiff complied. Ciliento returned to the cell
and began screaming obscenities and racial slurs at plaintiff.
Ciliento also threatened plaintiff with physical harm and punched
plaintiff in the side of plaintiff's head. (Compl., ¶¶ 20-26).
After Ciliento and the other corrections officer left the
housing unit, plaintiff asked to go to the infirmary. He was
examined by a nurse, who told him a physician would see him the
following day. Plaintiff was examined by the facility doctor on
January 16, 2004, and was treated for abrasions and contusions to
his face and neck. He was prescribed pain medication for several
days, and complains that he suffered "excruciating" pain with
difficulty chewing and swallowing food for several days. (Compl.,
After the assault, plaintiff requested a grievance form, but
was told that his unit did not have any such forms. He wrote a
grievance on the back of another form and also called his family
to have them report the assault incident to the BICE and the
Bergen County Jail. Plaintiff's sister-in-law reported the
assault, and on January 21, 2004, plaintiff was interviewed by
defendant Hook in the jail chapel. Hook gave plaintiff a grievance form to complete. While plaintiff was filling in the
form, Deportation Officer Diaz and two other BICE officers
arrived to take plaintiff's sworn statement about the incident.
Plaintiff was told that an investigation would be conducted.
Months afterward, plaintiff had not heard anything about his
grievance and the investigation. (Compl., ¶¶ 32-44).
On or about June 18, 2004, plaintiff sent a certified letter to
Sheriff Trella complaining about the Bergen County Jail grievance
system and about the incident involving defendant Ciliento.
Plaintiff alleges that the defendants entered into a conspiracy
to cover-up the assault in violation of his constitutional rights
to seek redress. (Compl., ¶¶ 45-47).
In his amended Complaint, plaintiff adds the following
allegations. On October 21, 2003, plaintiff was detained by BICE
agents and placed in the Passaic County Jail pending removal
proceedings. Upon admission, he was given a Passaic County Jail
Handbook, which plaintiff contends was in conflict with the
standards specified by the manual, a detention operations manual
to be followed by all contract detention facilities.*fn2 For
instance, plaintiff did not receive t-shirts, underwear, socks, a
pillow, shampoo and skin lotion as required by the Manual,
(Amended Compl., ¶¶ 24-32).
Plaintiff also complains about the conditions of his
confinement at the Passaic County Jail. He claims that the immigration detainee dormitory is overcrowded. The detainees have
only three tables to eat their food, forcing many of them to eat
their meals in their cells. The dining tables are also placed in
close proximity to the toilets and urinals. He further alleges
general unsanitary conditions. The toilets and urinals are not
adequately cleaned. The dormitory is infested with roaches and
vermin. The ceilings leak water and falling plaster.
Plaintiff also alleges that he was denied a diabetic diet, and
was subjected to terrorization and intimidation by the jail staff
who used attack dogs to search the detainees' cells. Plaintiff
did not receive dental care, eye and other exams to monitor the
progression of his diabetes. He and other detainees suffered from
conjunctivitis due to the filthy living conditions. Finally,
plaintiff alleges that the jail law library did not have the
legal books and materials required by the Manual, and that only
five computers were accessible and they did not have access to
the forms and statutes needed by immigration detainees. Plaintiff
was detained at Passaic County Jail from October 21, 2003 to
January 9, 2004 and from June 29, 2004 to August 25, 2004. He
states that he filed grievances about the living conditions. (Am.
Compl., ¶¶ 29-61).
Plaintiff also complains that he did not receive the necessary
hygiene products and a pillow when he was transferred to the
Bergen County Jail on January 9, 2004. He was not given a diabetic diet, and did not receive dental care or eye exams. The
law library did not have the necessary law books and materials
and he was charged 10 cents per copy even though the Manual
indicates that photocopies of legal documents are to be provided
to immigration detainees without payment. Further, plaintiff's
cell was searched without justification, his legal mail was
returned to sender without reason on three occasions, and he was
told to buy hygiene products and laundry detergent from the
commissary rather than have the jail provide them to him as
stated in the Manual.
Plaintiff complained about these conditions to visiting BICE
Deportation officers, but they declined to do anything unless it
related to immigration concerns. On December 6, 2004, plaintiff
personally handed grievances to defendant Boyce about the lack of
dental and medical care, the failure to pay him one dollar a day,
and the jail's failure to follow the Manual. A month later, when
plaintiff asked Boyce about his grievances, Boyce became
belligerent and verbally abused him. (Am. Compl., ¶¶ 97-115).
Plaintiff seeks both punitive and compensatory damages in
excess of $1 million. (Compl. and Am. Compl., "Prayer for
II. STANDARDS FOR A SUA SPONTE DISMISSAL
The Court is required to identify cognizable claims and to
sua sponte dismiss any claim that is frivolous, malicious,
fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief,
where the plaintiff is proceeding in forma pauperis.
28 U.S.C. § 1915(e)(2)(B).
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 complaint is frivolous if it "lacks an arguable basis either
in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325
(1989) (interpreting the predecessor of § 1915(e)(2), the former
§ 1915(d)). The standard for evaluating whether a complaint is
"frivolous" is an objective one. Deutsch v. United States,
67 F.3d 1080, 1086-87 (3d Cir. 1995).
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); Alston v. Parker, 363 F.3d 229 (3d Cir. 2004)
(complaint that satisfied notice pleading requirement that it
contain short, plain statement of the claim, but lacked
sufficient detail to function as a guide to discovery, was not
required to be dismissed for failure to state a claim; district
court should permit a curative amendment before dismissing a
complaint, unless an amendment would be futile or inequitable);
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. 1996). III. SECTION 1983 and BIVENS LIABILITY
Plaintiff brings this action pursuant to 42 U.S.C. §§ 1983,
1985 alleging violations of his constitutional rights under the
Fifth and Fourteenth Amendments. Section 1983 provides in
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
Here, plaintiff's civil rights claims against the state
officials, Sheriff Trella, Warden Duffy, Sheriff Speziale, Warden
Meyer, and Corrections Officers Ciliento, Hook, and Ryan, would
fall under § 1983. However, plaintiff's claims against the
federal defendants: the DHS, the BICE, and the BICE officials,
District Director McElroy, Field Office Directors Kendrick and
Carbone, Assistant Chiefs Royall and Stokes, and deportation officers Diaz and Boyce, are not cognizable under § 1983. The
claims against these federal defendants would be governed under
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 389 (1971).
In Bivens, the Supreme Court held that one is entitled to
recover monetary damages for injuries suffered as a result of
federal officials' violations of the Fourth Amendment. In doing
so, the Supreme Court created a new tort as it applied to federal
officers, and a federal counterpart to the remedy created by
42 U.S.C. § 1983.*fn3 The Supreme Court has also implied
Bivens damages remedies directly under the Eighth Amendment,
see Carlson v. Green, 446 U.S. 14 (1980), and the Fifth
Amendment, see Davis v. Passman, 442 U.S. 228 (1979). But
"the absence of statutory relief for a constitutional violation
does not necessarily mean that courts should create a damages
remedy against the officer responsible for the violation."
Schreiber v. Mastrogiovanni, 214 F.3d 148, 152 (3d Cir. 2000)
(citing Schweiker v. Chilicky, 487 U.S. 412 (1988)).
In order to state a claim under Bivens, a claimant must show
(1) a deprivation of a right secured by the Constitution and laws
of the United States; and (2) that the deprivation of the right
was caused by an official acting under color of federal law. See
Mahoney v. Nat'l Org. For Women, 681 F. Supp. 129, 132 (D. Conn.
1987) (citing Flagg Brothers, Inc. v. Brooks, 436 U.S. 149,
The United States has sovereign immunity except where it
consents to be sued. United States v. Mitchell, 463 U.S. 206,
212 (1983). In the absence of such a waiver of immunity,
plaintiff cannot proceed in an action for damages against the
United States or an agency of the federal government for alleged
deprivation of a constitutional right, see FDIC v. Meyer,
510 U.S. 471, 484-87 (1994), or against any of the individual
defendants in their official capacities, see Kentucky v.
Graham, 473 U.S. 159, 166 (1985) (a suit against a government
officer in his or her official capacity is a suit against the
government). Plaintiff cites no authority, and the Court has
located no such authority, to suggest that the United States has
waived its sovereign immunity with respect to the sort of claim
for damages that plaintiff seeks to assert against the DHS and
the BICE. Therefore, plaintiff's Bivens' claim against these
defendants in their official capacities must be dismissed.
IV. SUPERVISOR LIABILITY
Local government units and supervisors typically are not liable
under § 1983 solely on a theory of respondeat superior. See
City of Oklahoma City v. Tuttle, 471 U.S. 808, 824 n. 8 (1985);
Monell v. Dep't of Soc. Servs. Of City of New York,
436 U.S. 658, 690-91 (1978) (municipal liability attaches only "when
execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury" complained of).
"A defendant in a civil rights action must have personal
involvement in the alleged wrongs, liability cannot be predicated
solely on the operation of respondeat superior. Personal
involvement can be shown through allegations of personal
direction or of actual knowledge and acquiescence." Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations
omitted). Accord Robinson v. City of Pittsburgh,
120 F.3d 1286, 1293-96 (3d Cir. 1997); Baker v. Monroe Twp.,
50 F.3d 1186, 1190-91 (3d Cir. 1995).
A § 1983 action brought against a person in his or her official
capacity "generally represent(s) only another way of pleading an
action against an entity of which an officer is an agent."
Monell, 436 U.S. at 690 n. 55. "[I]n an official-capacity
action, . . . a governmental entity is liable under § 1983 only
when the entity itself is a `moving force' behind the
deprivation; thus, in an official capacity suit the entity's
`policy or custom' must have played a part in the violation of
federal law." Kentucky v. Graham, 473 U.S. 159, 166 (1985)
(internal quotation marks and citations omitted).
Here, plaintiff asserts the personal involvement, knowledge and
acquiescence of the supervisory officials, namely, the BICE
officials, Sheriff Trella, Warden Duffy, Sheriff Speziale, and Warden Meyer, either through allegations of actual participation
and personal direction, or of actual knowledge and acquiescence
of a policy, plan or procedure. See Rode, 845 F.2d at 1207.
His claims against these defendants are not predicated solely on
the basis of supervisor liability. Accordingly, the Court will
examine the various allegations asserted by plaintiff to
determine if he states cognizable claims to withstand summary
Plaintiff alleges the following claims: (1) denial of medical
care; (2) excessive force; (3) verbal racial harassment; (4)
denial of access to the courts; (5) unconstitutional conditions
of confinement; (6) lack of a grievance procedure; (7) unlawful
searches; (8) interference with the mail; (9) denial of equal
protection; (10) failure to train and supervise; and (11) a state
law claim of assault and battery.
A. Denial of Medical Care Claim
Plaintiff is an immigration detainee now and at the time of the
alleged incidents. As a person detained for deportation,
plaintiff's status is equivalent to a pretrial detainee, whose
constitutional claims are considered under the due process clause
(under the Fifth and/or Fourteenth Amendments) instead of the
Eighth Amendment. See Hubbard v. Taylor, 399 F.3d 150, 158
(3d Cir. 2005); See also Edwards v. Johnson, 209 F.3d 772,
778 (5th Cir. 2000) (citing Bell v. Wolfish, 441 U.S. 520, 535 n. 16
(1979)); Despaigne v. Crolew, 89 F. Supp.2d 582, 585 (E.D.Pa.
In City of Revere v. Massachusetts General Hospital,
463 U.S. 239 (1983), the Supreme Court held that, for pretrial detainees,
the Due Process Clause of the Fourteenth Amendment, rather than
the Eighth Amendment, controls the issue of whether prison
officials must provide medical care to those confined in jail
awaiting trial. 463 U.S. at 243-45. See also Fuentes v.
Wagner, 206 F.3d 335, 341 n. 9 (3d Cir.), cert. denied,
531 U.S. 821 (2000); Monmouth County Correctional Institutional
Inmates v. Lanzaro, 834 F.2d 326, 346 n. 31 (3d Cir. 1987),
cert. denied, 486 U.S. 1006 (1988). However, the Third Circuit
has held that the deliberate indifference" standard employed in
Eighth Amendment cases also applies to pretrial detainees under
the Fourteenth Amendment. See Simmons v. City of
Philadelphia, 947 F.2d 1042, 1067 (3d Cir. 1991), cert.
denied, 503 U.S. 985 (1992); Brown v. Borough of
Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990); Taylor v.
Plousis, 101 F. Supp.2d 255, 262 n. 3 (D.N.J. 2000).
Accordingly, since the Fourteenth Amendment in this context
incorporates the protections of the Eighth Amendment, the Court
will apply the standards of both the Eighth (deliberate
indifference) and Fourteenth (due process) Amendments in
analyzing plaintiff's denial of medical care claim. See
Simmons, 947 F.2d at 1067 (the rights of a detainee are at least as great
as those of a convicted prisoner).
The Eighth Amendment's proscription against cruel and unusual
punishment requires that prison officials provide inmates with
adequate medical care. Estelle v. Gamble, 429 U.S. 97, 103-04
(1976). In order to set forth a cognizable claim for a violation
of his right to adequate medical care, an inmate must satisfy an
objective component and a subjective component. He must allege:
(1) a serious medical need; and (2) behavior on the part of
prison officials that constitutes deliberate indifference to that
need. Id. at 106.
When pleading an Eighth Amendment claim for denial of medical
care, it is crucial for a prisoner to show that his medical need
was serious. "Because society does not expect that prisoners will
have unqualified access to health care, deliberate indifference
to medical needs amounts to an Eighth Amendment violation only if
those needs are `serious.'" Hudson v. McMillian, 503 U.S. 1, 9
(1992). See also Boring v. Kozakiewicz, 833 F.2d 468, 473
(3d Cir. 1987) (due process clause does not require that pretrial
detainees receive hospital care for minor injuries), cert.
denied, 485 U.S. 991 (1988). A medical need is serious where it
has been diagnosed by a physician as requiring treatment, is "so
obvious that a lay person would recognize necessity for doctor's
attention," or "where denial or delay causes an inmate to suffer a life-long handicap or permanent
loss." Lanzaro, 834 F.2d at 347. When evaluating the first or
objective element under Estelle, whether a plaintiff's medical
need is serious, "a court should consider such factors as the
severity of the medical problems, the potential for harm if the
medical care is denied or delayed and whether any such harm
actually resulted from the lack of medical attention." Maldonado
v. Terhune, 28 F. Supp.2d 284, 289 (D.N.J. 1998).
Here, plaintiff alleges that he sustained abrasions and
contusions to his head and neck as a result of a physical attack
by CO Ciliento. He also states that he suffered "excruciating"
pain when he chewed and swallowed, but was only prescribed pain
medication for several days. However, plaintiff does not allege
that he suffered any significant or permanent effects as a result
of his injuries. On these facts, plaintiff does not establish a
serious medical need that required more medical attention than he
admittedly received, a necessary precondition to triggering the
defendants' obligation to provide plaintiff with care.
It also does not appear from the allegations in the Complaint
that plaintiff can satisfy the second element of the Estelle
test. This requires an inmate to show that prison officials acted
with deliberate indifference to his serious medical need.
"Deliberate indifference" is more than mere malpractice or
negligence; it is a state of mind equivalent to reckless disregard of a known risk of harm. Farmer v. Brennan,
511 U.S. 825, 837-38 (1994). Furthermore, a prisoner's subjective
dissatisfaction with his medical care does not in itself indicate
deliberate indifference. Andrews v. Camden County, 95 F.
Supp.2d 217, 228 (D.N.J. 2000); Peterson v. Davis,
551 F. Supp. 137, 145 (D. Md. 1982), aff'd, 729 F.2d 1453 (4th Cir. 1984).
Similarly, "mere disagreements over medical judgment do not state
Eighth Amendment claims." White v. Napoleon, 897 F.2d 103, 110
(3d Cir. 1990). "Courts will disavow any attempt to second-guess
the propriety or adequacy of a particular course of treatment . . .
[which] remains a question of sound professional judgment."
Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762
(3d Cir. 1979) (internal quotation and citation omitted). Even if
a doctor's judgment concerning the proper course of a prisoner's
treatment ultimately is shown to be mistaken, at most what would
be proved is medical malpractice and not a constitutional
violation. Estelle, 429 U.S. at 105-06; White,
897 F.3d at 110.
"Where prison authorities deny reasonable requests for medical
treatment, however, and such denial exposes the inmate to undue
suffering or the threat of tangible residual injury,' deliberate
indifference is manifest. Similarly, where `knowledge of the need
for medical care [is accompanied by the] . . . intentional
refusal to provide that care,' the deliberate indifference standard has been met. . . . Finally, deliberate
indifference is demonstrated `[w]hen . . . prison authorities
prevent an inmate from receiving recommended treatment for
serious medical needs or deny access to a physician capable of
evaluating the need for such treatment." Lanzaro,
834 F.2d at 346 (citations omitted).
Here, plaintiff admits that he received medical treatment and
pain medication for his injuries. He does not allege any
deliberate refusal by defendants to provide medical care for his
injuries. Therefore, the denial of medical care claim will be
dismissed for failure to state a claim.
B. Excessive Force Claim
Plaintiff next alleges that defendant C.O. Ciliento used
excessive force by punching plaintiff in the head without
provocation on January 15, 2004. Excessive force cases fall into
three categories: (1) those involving the use of force to
effectuate an arrest; (2) those against a person in police
custody and/or pretrial detention; and (3) those involving the
use of force against a convicted person. Graham v. Connor,
490 U.S. 386, 394 (1989). The Fourth Amendment standard is applied to
those cases specifically directed to the method of arrest and
seizure. Custody and detention cases are subject to the
Fourteenth Amendment substantive due process analysis; and cases
involving the use of force against convicted individuals are examined under the Eighth Amendment's proscription against cruel
and unusual punishment. Id. at 392-394. As an immigration
detainee at the time of the incident, plaintiff's excessive force
claim is examined under the Fourteenth Amendment's substantive
due process standard.
"A detainee may not be punished prior to an adjudication of
guilt in accordance with due process of law." Bell v. Wolfish,
441 U.S. 520, 535 (1979). However, there exists a minimum degree
of "punishment" which must be exceeded before a constitutional
violation may be found; "de minimis" punishment does not offend
the Constitution. Id. at 539 n. 21.
In Bell v. Wolfish, the Supreme Court set forth the standard
to be applied in analyzing whether a detainee has been deprived
of liberty without due process:
In evaluating the constitutionality of conditions or
restrictions of pretrial detention that implicate
only the protection against deprivation of liberty
without due process of law, we think that the proper
inquiry is whether those conditions amount to
punishment of the detainee. For under the Due Process
Clause, a detainee may not be punished prior to an
adjudication of guilt in accordance with due process
of law. . . .
Not every disability imposed during pretrial
detention amounts to "punishment" in the
constitutional sense, however. Once the government
has exercised its conceded authority to detain a
person pending trial, it obviously is entitled to
employ devices that are calculated to effectuate this
detention. . . .
A court must decide whether the disability is imposed
for the purpose of punishment or whether it is but an
incident of some other legitimate governmental
purpose. Absent a showing of an expressed intent to
punish on the part of detention facility officials,
that determination generally will turn on "whether an
alternative purpose to which [the restriction] may
rationally be connected is assignable for it, and
whether it appears excessive in relation to the
alternative purpose assigned [to it]." Thus, if a
particular condition or restriction of pretrial
detention is reasonably related to a legitimate
governmental objective, it does not, without more,
amount to "punishment." Conversely, if a restriction
or condition is not reasonably related to a
legitimate goal if it is arbitrary or purposeless
a court permissibly may infer that the purpose of the
governmental action is punishment that may not
constitutionally be inflicted upon detainees qua
detainees. . . .
Bell, 441 U.S. at 535-39 (citations omitted); see also
Fuentes, 206 F.3d at 341-42. The Supreme Court further
explained that the government has legitimate interests that stem
from its need to maintain security and order at the detention
facility." Restraints that are reasonably related to the
institution's interest in maintaining jail security do not,
without more, constitute unconstitutional punishment, even if
they are discomforting and are restrictions that the detainee
would not have experienced had he been released while awaiting
trial." Id. at 540. Retribution and deterrence, however, are
not legitimate nonpunitive governmental objectives. Id. at 539
n. 20. Nor are grossly exaggerated responses to genuine security
considerations. Id. at 539 n. 20, 561-62.
Under this standard, plaintiff appears to have adequately
alleged that defendant Ciliento used excessive force against him
in violation of his constitutional rights under the due process clause of the Fourteenth Amendment. The allegations plainly infer
that defendant's action in assaulting plaintiff in the manner
alleged was meant to "punish" him without provocation. Plaintiff
contends that he did nothing to warrant the assault and was not
resisting or defying the correctional officers when the defendant
"attacked" him. Under these circumstances, if true, plaintiff may
be able to demonstrate that the defendant's assault on January
15, 2004 was a grossly exaggerated response.
Moreover, it may be said that the alleged blow to plaintiff's
head, which caused bruising and lacerations, is more than a de
minimis injury. This is a factual question that is not amenable
to summary disposition at this early stage of litigation.
Therefore, plaintiff's excessive force claim, based on the Due
Process Clause of the Fourteenth Amendment, will be allowed to
proceed. C. Verbal Harassment
Next, plaintiff alleges that he was subjected to verbal
harassment and racial slurs. "Intentional harassment of even the
most hardened criminals cannot be tolerated by a civilized
society." Hudson v. Palmer, 469 U.S. 517, 528 (1984).
Generally, mere verbal harassment does not give rise to a
constitutional violation. See McBride v. Deer, 240 F.3d 1287,
1291 (10th Cir. 2001) (taunts and threats are not an Eighth
Amendment violation); Oltarzewski v. Ruggiero, 830 F.2d 136
(9th Cir. 1987); Rivera v. Goord, 119 F. Supp.2d 327, 342
(S.D.N.Y. 2000) (verbal harassment does not violate inmate's
constitutional rights); Prisoners' Legal Ass'n v. Roberson,
822 F. Supp. 185 (D.N.J. 1993); Murray v. Woodburn,
809 F. Supp. 383 (E.D. Pa. 1993); Douglas v. Marino, 684 F. Supp. 395
(D.N.J. 1988). Racially discriminatory statements, racial slurs
and epithets, without more, also do not establish liability under
§ 1983. See Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir.
1997) (verbal abuse directed at religious and ethnic background
does not state a cognizable constitutional violation); Black
Spotted Horse v. Else, 767 F.2d 516, 517 (8th Cir. 1985);
Shabazz v. Cole, 69 F. Supp. 2d 177, 200-01 (D. Mass. 1999)
("without even a suggestion of physical injury, [defendants']
verbal abuse and racial epithets, although continuing for a long
period of time, fall short of conscience shocking
conduct");*fn4 Haussman v. Fergus, 894 F. Supp. 142, 149 (S.D.N.Y. 1995); Prisoners' Legal
Association, 822 F. Supp. at 187-189 & n. 3 (corrections
officer's use of racial slurs did not amount to constitutional
violation); Wright v. Santoro, 714 F. Supp. 665, 667 (S.D.N.Y.
1989), aff'd., 891 F.2d 278 (2d Cir. 1989); Knop v. Johnson,
667 F. Supp. 467 (W.D. Mich. 1987), appeal dismissed,
841 F.2d 1126 (6th Cir. 1988). Allegations that prison personnel have
used threatening language and gestures also are not cognizable
claims under § 1983. Collins v. Cundy, 603 F.2d 825 (10th Cir.
1979) (defendant laughed at prisoner and threatened to hang him).
However, threatening language coupled with the threatening use of
a weapon and outrageous conduct by prison personnel may indicate
a constitutional deprivation. Douglas, 684 F. Supp. at 398 (the
court determined that brandishing a butcher knife in close
proximity to prisoner and threatening to kill him may amount to a
constitutional violation); see also Northington v. Jackson,
973 F.2d 1518 (10th Cir. 1992) (gun was put to prisoner's head);
Burton v. Livingston, 791 F.2d 97 (8th Cir. 1986) (guard
threatened to shoot prisoner).
In the instant action, plaintiff alleges little more than that
defendant Ciliento verbally abused him by directing racial slurs
at him, and that defendant Boyce became belligerent and verbally
abusive when plaintiff complained about lack of dental and
medical care. There are no allegations of physical threats coupled with these derogatory slurs and harassment; nor does
plaintiff claim that the harassing conduct occurred over a long
period of time, or that physical injury occurred as a result of
the racially-based or belligerent remarks. Therefore, this claim
will be dismissed for failure to state a claim.
D. Access to Courts Claim
Plaintiff also claims that he has been denied access to the
courts because defendants have failed to provide an adequate law
library with relevant legal materials. He further objects to
paying photocopy fees.
Courts have recognized different constitutional sources for the
right of access to the courts. Principally, the right of access
derives from the First Amendment's right to petition and the due
process clauses of the Fifth and Fourteenth Amendments.*fn5
The right of access to the courts requires that "adequate,
effective, and meaningful" access must be provided inmates who
wish to challenge their criminal charge, conviction, or
conditions of confinement. Bounds v. Smith, 430 U.S. 817, 822
(1977). In other words, prison officials must "give prisoners a
reasonably adequate opportunity to present claimed violations of
fundamental constitutional rights to the Courts." Id. at 825.
"`[T]he touchstone . . . is meaningful access to the courts.'"
Peterkin v. Jeffes, 855 F.2d 1021, 1037 (3d Cir. 1988)
(quoting Bounds, 430 U.S. at 823) (internal quotation
omitted). In Bounds, the Supreme Court held that "the fundamental
constitutional right of access to the courts requires prison
authorities to assist inmates in the preparation and filing of
meaningful legal papers by providing prisoners with adequate law
libraries or adequate assistance from persons trained in the law.
"The right of access to the courts is not, however, unlimited.
"The tools [that Bounds] requires to be provided are those that
the inmates need in order to attack their sentences, directly or
collaterally, and in order to challenge the conditions of their
confinement. Impairment of any other litigating capacity is
simply one of the incidental (and perfectly constitutional)
consequences of conviction and incarceration." Lewis v. Casey,
518 U.S. 343, 355 (1996) (emphasis in original). Similarly, a
pretrial detainee has a right of access to the courts with
respect to legal assistance and participation in one's own
defense against pending criminal charges. See, e.g., May v.
Sheahan, 226 F.3d 876, 883-84 (7th Cir. 2000); Caldwell v.
Hall, 2000 WL 343229 (E.D. Pa. March 31, 2000). But see
United States v. Byrd, 208 F.3d 592, 593 (7th Cir. 2000)
(pretrial detainee who rejects an offer of court appointed
counsel in satisfaction of the Sixth Amendment right to counsel
has no alternative right to access to a law library); Wilson v.
Blankenship, 163 F.3d 1284, 1290-91 (11th Cir. 1998) (same);
United States v. Walker, 129 F.3d 1266, 1997 WL 720385, **4
(6th Cir. 1997) (same). Moreover, a prisoner alleging a violation of his right of
access must show that prison officials caused him past or
imminent "actual injury" by hindering his efforts to pursue such
a claim or defense. See Lewis, 518 U.S. at 348-51, 354-55
(1996); Oliver v. Fauver, 118 F.3d 175, 177-78 (3d Cir. 1997)."
He might show, for example, that a complaint he prepared was
dismissed for failure to satisfy some technical requirement
which, because of deficiencies in the prison's legal assistance
facilities, he could not have known. Or that he had suffered
arguably actionable harm that he wished to bring before the
courts, but was so stymied by inadequacies of the law library
that he was unable to file even a complaint." Lewis,
518 U.S. at 351.
In describing the scope of services which must be provided by
the state to indigent prisoners, the Supreme Court has stated,
"[i]t is indisputable that indigent inmates must be provided at
state expense with paper and pen to draft legal documents, with
notarial services to authenticate them, and with stamps to mail
them. . . . This is not to say that economic factors may not be
considered, for example, in choosing the methods used to provide
meaningful access. But the cost of protecting a constitutional
right cannot justify its total denial." Bounds,
430 U.S. at 824-25, clarified on other grounds, Lewis, 518 U.S. 343.
Here, plaintiff alleges that the jail facilities do not provide current immigration law materials in their law libraries.
He does not allege that he has suffered an actual injury from the
alleged inadequacy of the law library. It is further noted that
plaintiff is not precluded from filing lawsuits as this action is
demonstrative of his ability to access the courts. Thus, without
allegations of an actual injury, this claim will be dismissed
E. Conditions of Confinement
As noted above with respect to medical care, pretrial detainees
retain at least those constitutional rights enjoyed by
convicted prisoners. This applies as well to claims regarding
jail conditions. Bell v. Wolfish, 441 U.S. at 545; Hubbard,
399 F.3d at 165-66; Natale v. Camden County Correctional
Facility, 318 F.3d 575, 581-82 (3d Cir. 2003); Kost v.
Kozakiewicz, 1 F.3d 176, 187-88 (3d Cir. 1993). Analysis of
whether a pre-trial detainee has been deprived of liberty without
due process is governed by the standards set out by the Supreme
Court in Bell v. Wolfish, 441 U.S. 520 (1979). Fuentes,
206 F.3d at 341-42. See also this Opinion at pages 19-21.
A conditions of confinement claim is a constitutional attack on
the general conditions, practices, and restrictions of pretrial
or other detainee confinement. See Scott v. Moore,
114 F.3d 51, 53 (5th Cir. 1997). A constitutional violation exists if
the court finds that the conditions of confinement are not reasonably related to a legitimate, non-punitive governmental
objective. See Bell v. Wolfish, 441 U.S. at 538-39.
Here, at this stage of the proceedings, it would appear that
plaintiff's allegations are sufficient to state a claim for
"punishment" in violation of the Fourteenth Amendment. Plaintiff
claims that he has been denied basic hygiene products and
clothing that are mandated by the detention manual to be followed
by detention facilities in contract with the BICE. He also
contends that the conditions of severe overcrowding, the failure
to provide medically-necessary diets, lack of adequate medical
and dental care, sleeping and eating in close proximity to dirty
toilets and urinals, vermin-infested cells, and leaky and falling
plaster are unconstitutional conditions of confinement. As the
requirements of the Eighth Amendment set a "floor" for analysis
of Fourteenth Amendment due process claims, it is worth noting
that denial of the "minimal civilized measure of life's
necessities", Rhodes v. Chapman, 452 U.S. 337, 347 (1981),
which would include basic sanitary conditions obviously lacking
above, would be sufficient to state an actionable constitutional
deprivation. Further, these unsafe, unsanitary and inadequate
conditions do not appear reasonably related to a legitimate,
non-punitive governmental objective. Therefore, this claim will
be allowed to proceed as against all named defendants.*fn6
F. Lack of Grievance Procedure Plaintiff next claims that he has been denied due process in
attempting to file grievances against jail officials for the
alleged conditions of confinement and for the assault that
occurred on January 15, 2004. He states that he filed a grievance
with both the BICE and the Bergen County Jail administrators, and
his family complained to the BICE. An interview was conducted
regarding the assault incident and plaintiff gave a sworn
statement to two BICE officers. He was told that an investigation
would be conducted, but he has not heard anything about his
grievance. He claims that he is being denied his right to seek
Inmates are not constitutionally entitled to a grievance
procedure, and the state creation of a grievance procedure does
not create a liberty interest requiring procedural protections
under the Fourteenth Amendment. See Booth v. King, 346 F.
Supp.2d 751, 761 (E.D.Pa. 2004); Wilson v. Horn,
971 F. Supp. 943, 947 (E.D. Pa. 1997), aff'd, 142 F.3d 430 (3d Cir. 1998).
See also Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994),
cert. denied, 514 U.S. 1022 (1995); Flick v. Alba,
932 F.2d 728, 729 (8th Cir. 1991); Mann v. Adams, 855 F.2d 639, 640
(9th Cir. 1988); Brown v. G.P. Dodson, 863 F. Supp. 284,
285 (W.D. Va. 1994)." When the claim underlying the
administrative grievance involves a constitutional right, the
prisoner's right to petition the government for redress is the
right of access to the courts, which is not compromised by the prison's refusal to entertain his
grievance." Flick, 932 F.2d at 729.
Here, plaintiff has taken advantage of his right to petition
the court for redress of his many grievances, including his
claims of excessive force and the conditions of his confinement.
Even if this Court were to accept the assertion that the
defendants have not investigated plaintiff's grievance, as a
matter of law, plaintiff does not have a valid claim for
violation of his constitutional rights based on the allegation
that there is a lack of grievance procedure for him in this
matter. Thus, plaintiff's claim that his procedural due process
rights were violated when the defendants failed to respond to his
grievances fails as a matter of law. G. Unlawful Search of Cell
Plaintiff claims that the use of attack dogs to search
detainees' cells violates his constitutional rights. He complains
that such searches are conducted to intimidate and terrorize the
detainees. He does not allege that any detainee has been harmed
by the dogs during these routine searches.
Institutional security may necessitate the limitation of
inmates' constitutional rights. Bell v. Wolfish,
441 U.S. at 545-46. For this reason, decisions by prison administrators
regarding matters of security, discipline, and administration are
accorded great deference. Id. at 547. Thus, when a prison
regulation or practice impinges on an inmate's constitutional
rights, that regulation or practice is valid if it is reasonably
related to legitimate penological interests such as institutional
security. Lewis v. Casey, 518 U.S. 343, 361-62 (1996);
Washington v. Harper, 494 U.S. 210, 223-24 (1990) (citing
Turner v. Safley, 482 U.S. 78, 89 (1987)).
Here, the searches at issue are conducted in the cells and do
not involve any physically invasive procedure. They are clearly
related to security concerns with respect to contraband and
dangerous items that may be concealed by inmates (including
detainees) in a confined institution. Thus, the jail has a
legitimate security concern in conducting routine searches that
clearly outweighs the individual safety concern by plaintiff, especially where the searches are not intrusive and have not
caused any actual harm towards the detainees. This claim will be
dismissed for failure to state a claim of a constitutional
H. Interference with Legal Mail
Next, plaintiff alleges that Bergen County Jail officials
interfered with his legal mail on three occasions. Inmates have a
limited liberty interest in their mail under the First and
Fourteenth Amendments; thus, an inmate's constitutional right to
send and receive mail may be restricted only for legitimate
penological interests. See Thornburgh v. Abbott,
490 U.S. 401, 407 (1989); Turner v. Safley, 482 U.S. 78, 89 (1987).
However, a single interference with the delivery of an inmate's
personal mail, without more, does not rise to the level of a
constitutional deprivation. Morgan v. Montayne, 516 F.2d 1367
(2d Cir. 1975), cert. denied, 424 U.S. 973 (1976).
Plaintiff also alleges that his legal mail has been returned to
him without reason on three occasions since he arrived at the
Bergen County Jail in January 2004. These are specific instances
which may demonstrate a pattern of actual and deliberate
interference with plaintiff's mail. Consequently, at this early
stage of the proceeding, the Court will allow this claim to
proceed. I. Equal Protection Claim
Next, plaintiff argues a general claim that he has been denied
his right to equal protection under the law, as guaranteed by the
Fifth and Fourteenth Amendments, as an immigration detainee.
The Equal Protection Clause of the Fourteenth Amendment
commands that no State shall "deny to any person within its
jurisdiction the equal protection of the laws," which is
essentially a direction that all persons similarly situated
should be treated alike. City of Cleburne, Texas v. Cleburne
Living Center, 473 U.S. 432, 439 (1985) (citing Plyler v. Doe,
457 U.S. 202, 216 (1982); Artway v. Attorney General of New
Jersey, 81 F.3d 1235, 1267 (3d Cir. 1996). Despite its sweeping
language, though, "[t]he Equal Protection Clause does not forbid
classifications. It simply keeps governmental decisionmakers from
treating differently persons who are in all relevant respects
alike." Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).
Proof of disparate impact alone, however, is not sufficient to
succeed on an equal protection claim; a plaintiff also must prove
that the defendant intended to discriminate. Village of
Arlington Heights v. Metropolitan Housing Development Corp.,
429 U.S. 252, 264-66 (1977); Washington v. Davis, 426 U.S. 229,
242, 244-45 (1976). Thus, discriminatory intent must be a
motivating factor in the decision, but it need not be the sole
motivating factor. Village of Arlington Heights,
429 U.S. at 265-66. Under this standard, the Court finds that plaintiff has failed
to articulate an equal protection violation. Plaintiff has not
alleged that he was singled out for discriminatory treatment
different from other similarly situated prisoners. Moreover,
inmates are not members of a suspect class, and plaintiff was not
denied a fundamental right. See Hodges v. Klein, 562 F.2d 276
(3d Cir. 1977); Myrie v. Comm'r, N.J. Dept. Of Corrections,
267 F.3d 251, 263 (3d Cir. 2001) (noting that inmates, as a class, do
not constitute a "discrete and insular" minority); Abdul-Akbar
v. McKelvie, 239 F.3d 307 (3d Cir.), cert. denied
533 U.S. 953 (2001). Therefore, the Court concludes that plaintiff has
failed to demonstrate any equal protection violation and his
claim will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
for failure to state a claim upon which relief may be granted.
J. Failure to Train and Supervise
Plaintiff also generally alleges that the named Defendants
failed to train and supervise persons working in detention
facilities as to the proper procedures and conditions for
detaining immigration detainees consistent with the BICE manual.
In general, where a plaintiff seeks to establish liability based
on a supervisor's (or municipality's) failure to train or
supervise adequately, the plaintiff must show that a need for
more or different training or supervision is so obvious, and the inadequacy so likely to result in constitutional violations, that
the failure to train or supervise can fairly be said to represent
official policy. City of Canton v. Harris, 489 U.S. 378, 388-92
(1989); Stoneking v. Bradford Area School Dist., 882 F.2d 720,
724-26 (3d Cir. 1989), cert. denied, 493 U.S. 1044 (1990).
In resolving the issue of municipal or supervisory liability,
the focus must be on adequacy of the training program
in relation to the tasks the particular officers must
perform. That a particular officer may be
unsatisfactorily trained will not alone suffice to
fasten liability on the [supervisor], for the
officer's shortcomings may have resulted from factors
other than a faulty training program. . . . Neither
will it suffice to prove that an injury or accident
could have been avoided if an officer had had better
or more training. . . . Moreover, for liability to
attach . . . the identified deficiency in a city's
training program must be closely related to the
City of Canton, 489 U.S. at 390-91.
Here, Plaintiff contends that the named supervisory officials,
both at the Bergen and Passaic County Jails and at the BICE, bear
responsibility for training and supervising the conditions and
treatment of immigration detainees. Because plaintiff's
conditions of confinement claim is proceeding, plaintiff's
allegations for failure to train and supervise with respect to
the egregious conditions in the jails, should be sufficient to
avoid dismissal at this preliminary stage of the litigation.
K. State Law Claim Finally, plaintiff asserts an assault and battery claim against
CO Ciliento with respect to the assault incident of January 15,
2004. There is no original jurisdiction over this claim because
diversity between the parties under 28 U.S.C. § 1332(a) does not
exist. However, even if there is no original jurisdiction based
on diversity of citizenship, the Court would be inclined to grant
supplemental jurisdiction over the state law assault and battery
claim, pursuant to 28 U.S.C. § 1367(a), because the claim is
related to the excessive force claim over which the Court has
original jurisdiction under 42 U.S.C. § 1983. Therefore, this
claim will be allowed to proceed past the screening stage.
For the reasons stated above, the Court will dismiss the
Complaint in its entirety, for failure to state a claim, as
against the defendants the United States Department of Homeland
Security and the Bureau of Immigration and Customs Enforcement.
As to the remaining defendants, the Court will dismiss with
prejudice plaintiff's claims alleging denial of medical care,
verbal harassment, denial of grievance procedure, unlawful
searches, and denial of equal protection, pursuant to
28 U.S.C. § 1915(e) (2) (B) (ii), for failure to state a claim. Plaintiff's
claim asserting denial of access to the courts will be dismissed
without prejudice. The remaining claims alleging excessive force, conditions of confinement, interference with the mail,
failure to train and supervise, and the common law claim of
assault and battery will be allowed to proceed. An appropriate