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 ...