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August 11, 2005.

ROGER KELLY, Plaintiff,
DEVON BROWN, et al., Defendants.

The opinion of the court was delivered by: WILLIAM J. MARTINI, District Judge


Plaintiff Roger Kelly, confined at East Jersey State Prison in Rahway, New Jersey ("EJSP"), seeks to bring this action in forma pauperis pursuant to 28 U.S.C. § 1915 (1998). Based upon Plaintiff's affidavit of indigence and six-month prison account statement, this Court will (1) grant Plaintiff's application to proceed in forma pauperis; (2) direct the Clerk of the Court to file the Complaint without pre-payment of the filing fee; (3) assess the $250.00 filing fee against the Plaintiff; (4) direct the New Jersey Department of Corrections ("NJDOC") to deduct an initial partial filing fee payment of $37.20 from Plaintiff's prison account and forward same to the Clerk of the Court, when funds exist in Plaintiff's account; and (5) direct the NJDOC to forward payments from Plaintiff's prison account to the Clerk of the Court each month the amount in the account exceeds $10.00, until the $250.00 filing fee is paid in full, regardless of the outcome of the litigation. See 28 U.S.C. § 1915(a), (b)(1), (b)(2), (b)(4).

  Pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A the Court has reviewed the Complaint to identify cognizable claims. The Court will dismiss the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim upon which relief may be granted. I. BACKGROUND

  Plaintiff brings this action pursuant to 42 U.S.C. § 1983*fn1 seeking injunctive relief and damages for alleged violations of his rights secured by the Constitution and laws of the United States. Defendants are Devon Brown, Commissioner of the NJDOC; Terrance Moore, Administrator of EJSP; S.C.O. Siluar; and John Doe Defendants. (Compl., Caption and ¶ 4.)

  Plaintiff asserts the following facts in support of his claims: On February 25, 2004, while sleeping in his cell in a six-wing trailer at EJSP, he was awakened by an electrical fire, which allegedly started while Defendant S.C.O. Siluar, who was in charge of Plaintiff's unit at the time, was sleeping on duty. (Compl., ¶ 6.) Plaintiff further asserts that Siluar was in such a state of shock that he neglected to use a fire extinguisher located on his desk. (Id.) Plaintiff inhaled smoke while following Silaur out of the unit; according to Plaintiff, Silaur was trying to save himself and was abandoning the inmates in the unit. (Id.) Plaintiff adds that he was trapped inside an area surrounded by a padlock fence after leaving the unit, and received no immediate medical treatment for his smoke inhalation, treatment which "should have been available" at the time. (Id.) According to Plaintiff, he did not receive medical treatment for smoke inhalation until some three hours later. (Id.) Plaintiff and approximately 100 other prisoners were confined within the area bounded by the padlock fence while John Doe Defendants searched for a key. (Id.) Moreover, because of the failure to have certain safety features in place as required by New Jersey law, there allegedly was inadequate provision to allow outside fire department help into the prison to fight the fire. (Id.)


  The Prison Litigation Reform Act, Pub.L. No. 104-134, §§ 801-810, 110 Stat. 1321-66, 1321-77 (1996), requires the Court, prior to docketing or as soon as practicable after docketing, to review a complaint in a civil action in which a prisoner seeks redress against a governmental entity or employee. 28 U.S.C. §§ 1915(e)(2)(B), 1915A. The Act requires the Court to identify cognizable claims and to 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. Id. A. Standard for Dismissal

  Rule 8(a)(2) requires a complaint to include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2); accord Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993). The Court "must determine whether, under any reasonable reading of the pleadings, the plaintiff? may be entitled to relief, and . . . must accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom." Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (citing Holder v. Allentown, 987 F.2d 188, 194 (3d Cir. 1993)).

  A pro se complaint is held to less stringent standards than formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). "Under our liberal pleading rules, during the initial stage of litigation, a district court should construe all allegations in a complaint in favor of the complainant" and give "credit to the allegations of the complaint as they appear? in the complaint." Gibbs v. Roman, 116 F.3d 83, 86 (3d Cir. 1997); see also Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992). "When it appears beyond doubt that no relief could be granted under any set of facts which could be proved consistent with the allegations of the complaint, a dismissal pursuant to Rule 12(b)(6) is proper." Robinson v. Fauver, 932 F. Supp. 639, 642 (D.N.J. 1996) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

  The Court will liberally construe Plaintiff's Complaint as raising the following claims: (1) failure to protect him from harm caused by the fire, including the failure to train prison personnel; (2) prison conditions, including inadequate medical treatment, violating the Eighth Amendment; and (3) violations of New Jersey law.

  To establish a violation of 42 U.S.C. § 1983, a plaintiff must demonstrate that the challenged conduct was committed by a person acting under color of state law and that the conduct deprived him of rights, privileges, or immunities secured by the Constitution or laws of the United States. West v. Atkins, 487 U.S. 42, 48 (1988); Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994); Shaw v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir. 1990). Section 1983 does not confer substantive rights, but provides a remedy for the deprivation of rights protected by federal law. Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985); see also Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 590 (3d Cir. 1998). Plaintiffs also must assert and prove some causal connection between a Defendant and the alleged wrongdoing in order to recover against that Defendant. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Lee-Patterson v. New Jersey Transit Bus Operations, Inc., 957 F. Supp. 1391, 1401-02 (D.N.J. 1997). "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." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing Parratt, 451 U.S. at 537 n. 3). Causal connection is shown where a Defendant (1) participated in violating Plaintiff's rights; (2) directed others to violate them; (3) as the person in charge, had knowledge of and acquiesced in his subordinates' violations; or (4) tolerated past or ongoing misbehavior. Friedland v. Fauver, 6 F. Supp.2d. 292, 302-03 (D.N.J. 1998) (citing Baker v. Monroe Tp., 50 F.3d 1186, 1190-91 & n. 3 (3d Cir. 1995)). The Court will now analyze Plaintiff's claims to determine whether dismissal pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A is warranted.

  B. Eighth Amendment

  Plaintiff asserts several Eighth Amendment claims with respect to prison conditions and his treatment with respect to the fire. Specifically, he states that he experienced a delay in medical treatment for smoke inhalation. (Compl., ¶ 6.) Plaintiff also appears to assert violations of the Eighth Amendment with respect to a lack of provision of fire safety in the housing unit, and a failure to protect him from harm. (Compl., ¶ 6.)

  In order to state a claim for violation of the Eighth Amendment, Plaintiffs must allege both an objective and subjective element. Ingalls v. Florio, 968 F. Supp. 193, 198 (D.N.J. 1997). He must first demonstrate the serious deprivation of a basic human need. See Wilson v. Seiter, 501 U.S. 294, 308 (1991); Young v. Quinlan, 960 F.2d 351, 365 (3d Cir. 1992). "[T]he deprivation caused by the prison official's act or omission [must be] sufficiently serious to result in the denial of the minimal civilized measure of life's necessities." Ingalls, 968 F. Supp. at 198 (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994); Wilson, 501 U.S. at 304 (1991); Nami v. Fauver, 82 F.3d 63, 67 (3d Cir. 1996)). They must also show that an official "acted or failed to act with deliberate indifference to a substantial risk of harm to inmate health or safety." Ingalls, 968 F. Supp. at 198 (citing Farmer, 511 U.S. at 834; Wilson, 501 U.S. at 305; Nami, 82 F.3d at 67). With respect to his claim of lack of safety conditions, Plaintiff must show that he faces a pervasive risk of harm. See Riley v. Jeffes, 777 F.2d 143, 147 (3d Cir. 1985); see also Ingalls, 968 F. Supp. at 198 (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994); Wilson, 501 U.S. at 305). In addition to producing evidence of seriously inadequate, indecent, or pervasively harmful surroundings, Plaintiff must also establish that such conditions are the result of recklessness or deliberate indifference by prison officials and not mere negligence or oversight. Whitley ...

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