The opinion of the court was delivered by: Hillman, District Judge
This matter has come before the Court on defendant's motion for summary judgment. Also before the Court is plaintiff's motion for leave to file an amended complaint. For the reasons expressed below, defendant's motion will be granted, and plaintiff's motion will be denied as moot.
On September 12, 2005, plaintiff, William C. Severs, Jr., filed a complaint with this Court requesting that defendant, Cumberland County Jail, provide him with an immediate hernia operation, as well as compensate him for his pain and suffering due to defendant's violation of his Eighth Amendment right to be free from cruel and unusual punishment. Plaintiff also requested that the Court investigate defendant's opening of his legal mail outside his presence, as well as defendant's restriction of his access to the jail's law library.
On September 22, 2005, pursuant to the pro se complaint screening process required by 28 U.S.C. § 1915A, the Court dismissed plaintiff's claim regarding access to the law library, but permitted plaintiff's claims concerning his medical care and legal mail to proceed.
After being found guilty following a jury trial in New Jersey State Court that began on August 15, 2005, plaintiff was sentenced on October 21, 2005. He was then transferred from Cumberland County Jail to New Jersey State Prison in Trenton on November 10, 2005. It appears that plaintiff filed his complaint following his trial, but prior to his sentencing and transfer to the state prison.
Defendant has moved for summary judgment on both of plaintiff's claims. Plaintiff has opposed this motion, and he has also sought to amend his complaint to remove his requests for immediate relief, and to add specific dollar amount damages for his alleged constitutional violations.
Because plaintiff has brought claims pursuant to 42 U.S.C. § 1983 for alleged violations of his constitutional rights, this Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1331.
B. Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c).
An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
1. Whether Plaintiff has Sued the Proper Defendant
Before plaintiff's substantive claims are analyzed, it must first be determined whether plaintiff has sued the proper defendant. Plaintiff has asserted his 42 U.S.C. § 1983 claims against Cumberland County Jail. Plaintiff has not brought his action against any other defendant. Plaintiff only suing Cumberland County Jail is a problem because a county jail cannot be sued under § 1983 since it is not a "person." Harvey v. Ridge, 2007 WL 674710, *6 n.7 (D.N.J. Feb. 28, 2007) (citing Fischer v. Cahill, 474 F.2d 991, 992 (3d Cir. 1973); McLeod v. Monmouth County Correctional Institution, 2006 WL 572346, No. 05-4710 (AET) at * 4 (D.N.J. Mar. 8, 2006) (collecting cases holding county jail not an entity amenable to suit under § 1983)). Consequently, a strict reading of plaintiff's complaint warrants the dismissal of the action. Because, however, (1) plaintiff is proceeding pro se, and pro se complaints are to be construed liberally, (2) this two and a half year-old case is at the summary judgment stage, (3) defendant did not raise this issue, and (4) this deficiency was not identified in the pro se complaint screening process, the Court will undertake the task of construing plaintiff's complaint to determine whether he has already pleaded the proper defendant or defendants.
One possible proper defendant is Cumberland County. If the Court were to determine that plaintiff's claims are against Cumberland County, the County is only amendable to suit under § 1983 if plaintiff has alleged a policy or practice of the County with regard to his medical treatment, or with regard to the opening of legal mail. Goodrich v. Clinton County Prison, 214 Fed. Appx. 105, 113 (3d Cir. 2007) (citing Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996)). Plaintiff, however, has not made any such allegations.*fn1 As a result, plaintiff's complaint cannot be construed as naming Cumberland County as a defendant.
Another possible proper defendant is the prison warden, who appears to have been Glenn Saunders during plaintiff's time at Cumberland County Jail. With regard to plaintiff's § 1983 claims, the warden cannot be liable where, as here, the inmate is already receiving treatment from the prison's medical staff. See Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993). With regard to plaintiff's claims regarding his legal mail, the warden may be a proper defendant. Plaintiff, however, cannot sue the warden in his official capacity, because a claim against a county employee is construed as one against the county, and in order to maintain a claim against the county, plaintiff must allege that the constitutional injury arose as a result of a policy or custom. Sampson v. Berks County Prison, 171 Fed. Appx. 382, 385 (3d Cir. 2006) (citing Natale v. Camden ...