United States District Court, D. New Jersey
September 19, 2005.
MWALIMU BEKTEMBA, Plaintiff,
JIM McGREEVEY, et al. Defendants.
The opinion of the court was delivered by: STANLEY CHESLER, Magistrate Judge
Plaintiff Mwalimu Becktemba ("Bektemba"), a prisoner confined
at New Jersey State Prison in Trenton, New Jersey ("NJSP"), has
submitted a Complaint purporting to raise claims under
42 U.S.C. § 1983. Plaintiff has paid the filing fee.
Pursuant to 28 U.S.C. § 1915A, the Court has reviewed the
Complaint to identify cognizable claims. The Court will dismiss
the Complaint as against Defendant McGreevey, dismiss all damages
claims as against Defendant Brown, permit the Complaint to
proceed as against the remaining Defendants, and deny Plaintiff's
motion for appointment of counsel at this time without prejudice. I. BACKGROUND
Plaintiff alleges violations of his rights secured by the
Constitution and laws of the United States in an action brought
under 42 U.S.C. § 1983.*fn1 Defendants are James McGreevey,
former Governor of New Jersey; Devon brown, Commissioner of the
New Jersey Department of Corrections; Roy L. Hendricks,
Administrator of N.J.S.P.; N.J.S.P. corrections officers Damore
and Johnson; and John/Jane Doe Defendants. (Compl., Caption and
Plaintiff asserts the following facts: On June 26, 2004, he was
housed in Unit 4c (North Compound) at N.J.S.P. (Compl., ¶ 4.)
According to Plaintiff, 48 prisoners were housed in the Unit and
were guarded by two corrections officers, one in a guard booth
and one on the Unit floor. (Id.) Defendants Damore and Johnson
were the corrections officers on duty that day. (Id.) As
Plaintiff was cleaning the outside of his cell door, he was
assaulted and stabbed by another inmate. (Id.) Plaintiff
required 15 surgical staples and 20 stitches to close his back
and neck wounds from the attack. (Id.) Plaintiff asserts that Defendants Damore and
Johnson failed to prevent the assault; specifically, they "failed
to maintain a visual surveillance." (Id.) This failure
allegedly led to either of them not pressing an emergency alarm
that would have summoned help in terminating the assault. (Id.)
In addition, the remaining defendants are said to have acted or
failed to act with deliberate indifference to Plaintiff's safety
in not providing adequate staffing at N.J.S.P., which Plaintiff
alleges contributed to the slow response to the assault and his
The Prison Litigation Reform Act, Pub.L. No. 104-134, §§
801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 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 is proceeding in forma pauperis or 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)); Eli Lily & Co. v. Roussel Corp.,
23 F. Supp.2d 460, 474 (D.N.J. 1998) (citing Nami and Holder). "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.'" Milhouse v. Carlson, 652 F.2d 371, 373 (3d Cir. 1981)
(quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)).
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); Then v. I.N.S., 58 F. Supp.2d 422, 429 (D.N.J. 1999),
aff'd sub nom. Then v. Quarantino, 208 F.3d 206 (3d Cir. 2000).
"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). But a court need not
credit a complaint's "bald assertions" or "legal conclusions"
when deciding whether dismissal is appropriate. Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997); see also
Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th
Cir. 1993) ("[C]onclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to prevent a
motion to dismiss."). "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)).
To establish a violation of 42 U.S.C. § 1983, the 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. See West v.
Atkins, 487 U.S. 42, 48-49 (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).
Plaintiff 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)). See also Nami, 82 F.3d at 67
(allegations that prison officials and Commissioner of
Corrections were on actual notice of violations through letters
written to them by inmates and failed to remedy the situation
were sufficient to state a claim under 42 U.S.C. § 1983); White v.
Fauver, 19 F. Supp.2d 305, 319 (D.N.J. 1998) (complaint alleging
that Commissioner was given notice of violations and failed to
respond stated claim).
The Court will construe the Complaint as raising the claim of
deliberate indifference to Plaintiff's safety by the failure to
protect him from physical injury by another inmate, in violation
of the Eighth Amendment. The Court will now analyze Plaintiff's
claim to determine whether dismissal pursuant to
28 U.S.C. §§ 1915(e)(2)(B) and 1915A is warranted.
B. Failure to Protect
Plaintiff seeks both damages and that Defendants be ordered to
immediately "curtail their further lack of maintaining constant
surveillance of the prison housing units." (Compl., Conclusion.)
As Plaintiff seeks to change the conditions of his present
confinement through an Order of this Court, sovereign immunity
does not bar his § 1983 action. See Will v. Michigan Dept. of
State Police, 491 U.S. 58, 71 n. 10 (injunctive relief is
available under § 1983 against a state official in his or her
official capacity); Kerns v. Dukes, 153 F.3d 96, 111 (3d Cir.
Plaintiff's factual recital raises a failure to protect claim
in violation of the Eighth Amendment. Under the Eighth Amendment,
prison officials have a duty to provide humane conditions of
confinement, including personal safety. Farmer v. Brennan, 511 U.S. 825, 832 (1994). Prison officials must take
reasonable measures "to protect prisoners from violence at the
hands of other prisoners." Id. at 833 (internal quotations
omitted). "Being violently assaulted in prison is simply `not a
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 (1981)). Negligence, or a lack of due
care under the circumstances, is insufficient to support a
cognizable failure to protect claim under § 1983. Davidson v.
Cannon, 474 U.S. 344, 347 (1986).
In order to state a viable claim for a failure to protect a
prisoner from harm, Plaintiff must show that he faced a pervasive
risk of harm from other prisoners or guards and that the prison
officials displayed deliberate indifference to this danger. See
Riley v. Jeffes, 777 F.2d 143, 147 (3d Cir. 1985).
Plaintiff must first satisfy an objective requirement under the
aforesaid standard by showing that he was "incarcerated under
conditions posing a substantial risk of serious harm." Farmer v.
Brennan, 511 U.S. 825, 835 (1994). Plaintiff must then satisfy a
subjective element and show that a prison official "knows of and
disregards an excessive risk to inmate health or safety." Id.
at 837. "The official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference." (Id.) "[A]n
Eighth Amendment claimant need not show that a prison official acted or failed to act believing that
harm actually would befall an inmate; it is enough that the
official acted or failed to act despite his knowledge of a
substantial risk of serious harm." Id. at 842. An inmate is not
required to give advance notice to officials of the risk of harm,
and actual knowledge of the risk can be inferred from
circumstantial evidence of the obviousness of the risk. Id. In
addition, "[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, 777 F.2d at 147 (citation omitted). See
also Ingalls v. Florio, 968 F.Supp. 193, 199 (D.N.J. 1997).
A prison official or corrections officer, when faced with the
knowledge of a substantial risk of serious harm to a prisoner,
must take "reasonable measures to abate it" or his inaction will
constitute deliberate indifference to that risk. Farmer,
511 U.S. at 847. See also Alford v. Owen, 2005 WL 2033685, *6
(D.N.J. Aug. 23, 2005)
Plaintiff simply has not set forth facts sufficient to support
a failure to protect claim with respect to Defendants McGreevey
or Brown. Cf. Taylor v. Plousis 101 F.Supp.2d 255, 269
(D.N.J. 2000) (no suggestion that any defendant knew the
plaintiff would be at risk by placing him in contact with other
inmates). The Complaint fails to indicate that these Defendants knew that Plaintiff would be assaulted and deliberately allowed
the assault to occur, or allowed repeated attempts to continue.
It cannot reasonably be inferred from the Complaint that either
of these Defendants knew that Plaintiff faced an excessive risk
of attack and nevertheless deliberately failed to act.*fn2
Plaintiff obviously disagrees with these Defendants concerning
their approach to the problem. However, the Complaint identifies,
at most, negligence in the provision of protection to the
Plaintiff, which simply is not actionable under 42 U.S.C. § 1983.
See Farmer, 511 U.S. at 835; Davidson v. Cannon,
474 U.S. 344, 347-348 (1986). Moreover, as Defendant McGreevey is no
longer the Governor of New Jersey, and thus not able to comply
with any order for injunctive relief, the Court will dismiss the
Complaint as against him. All claims for damages as against
Defendant Brown also will be dismissed.*fn3 With respect to
the remaining Defendants and in view of the legal principles
discussed above, this Court will permit the Complaint to proceed
in order further to develop the facts in this matter.
Finally, Plaintiff's motion for appointment of counsel will be
denied without prejudice at this time; should circumstances warrant, the Court will not hesitate to appoint counsel in the
future. See Tabron v. Grace, 6 F.3d 147, 156 (3d cir. 1993);
cert. denied, 510 U.S. 1196 (1994) (appointment of counsel may
be made at any point in the litigation and may be made by the
Court sua sponte).
Based on the foregoing discussion, the Court will dismiss the
Complaint as against Defendant McGreevey, dismiss all damages
claims as against Defendant Brown, permit the Complaint to
proceed as against the remaining Defendants, and deny Plaintiff's
motion for appointment of counsel without prejudice.
An appropriate Order accompanies this Opinion.
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