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May 3, 2005.


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 this review.

  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., ¶¶ 27-31).

  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 Relief").


  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 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, 48 (1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994).

  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 ...

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