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Mays v. Untig

March 12, 2010


The opinion of the court was delivered by: William J. Martini Judge



Dear Litigants:

This matter comes before the Court on the Motion to Dismiss by Defendants Robert E. Untig ("Untig"), John G. Armeno ("Armeno"), Virgil R. Rome, Jr. ("Rome"), Sussex County Free Holders (the "Freeholders"), and David DiMarco ("DiMarco") (collectively, "Defendants") and on the motions to amend and for pro bono counsel by Plaintiff Glen Mays ("Mays"). There was no oral argument. Fed. R. Civ. P. 78. For the reasons set forth below, Defendants' Motion to Dismiss is GRANTED, Plaintiff's motions to amend are denied as futile, and Plaintiff's motion for pro bono counsel is also denied.


Plaintiff Glen Mays ("Mays") was a pre-trial detainee confined at the Sussex County Jail, also known as the Keogh Dwyer Correctional Facility, in Newton, New Jersey beginning in December 2006. (Complaint ("Compl.") at 4). Defendants are county sheriffs and undersheriffs affiliated with the jail. (Id. at 4-5). On January 21, 2007, Plaintiff complains that he was attacked by another inmate, Jose Lewis ("Lewis") and suffered injuries to the nose and hand. (Id. at 6-7). Specifically, Plaintiff alleges that Lewis hit him in the nose with a wooden scrub brush and bit him on the hand, breaking the skin, revealing the bone, and possibly infecting him with Hepatitis-C. (Id.; Plaintiff's Opposition Brief ("Pl. Opp. Br.") at 13). It is unclear who instigated the fight. (Id. at 6-7, 12; Defendants' Brief ("Dft. Br.") at 4). Plaintiff was subsequently taken to an outside hospital, where he received stitches and was tested for Hepatitis-C, although he does not know if he contracted the disease. (Compl. at 6-7, 14-15; Pl. Opp. Br. at 13, 20). After Plaintiff returned to the jail following his hospital visit, he was placed in lockdown because fighting with another inmate violated jail policy. (Pl. Opp. Br. at 9, 12). Lewis faced similar consequences. (Id. at 21).

In August 2008, Plaintiff filed the instant complaint with the district court pursuant to 42 U.S.C. § 1983. The gravamen of Plaintiff's complaint is that inmate Lewis was psychotic and violent, that jailhouse officials knew this, and that by housing Lewis in the jail's general population, Defendants failed to protect Plaintiff's civil rights in violation of the due process clause of the Fourteenth Amendment.*fn1 (Compl. at 6-7). In support of his contention that jailhouse officials knew Lewis was psychotic, Plaintiff points out numerous instances of Lewis's erratic conduct and the fact that he took "phsychotic [sic] patient meds." (Compl. at 6; Pl. Opp. Br. at 3, 14). Plaintiff also alleges that he filed numerous internal grievances pertaining to this incident, although he has not provided the Court with any copies of them and does not describe their contents with any degree of specificity. (Pl. Opp. Br. at 10). Defendants deny the existence of any filed grievances related to this incident and have submitted a certification to this effect. (Dft. Br. at 7; Certification of Undersheriff David DiMarco ("DiMarco Certif.") ¶ 6).

The Court performed an initial screening of the complaint pursuant to the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915(a), and allowed Plaintiff's § 1983 failure to protect claim to proceed. Presently, Defendants move to dismiss the claims against them pursuant to Fed. R. 12(b)(6) on the grounds that (1) Plaintiff has failed to exhaust his administrative remedies, a requirement imposed on him by the PLRA, and (2) Plaintiff's claim fails to state a plausible claim for relief. (Dft. Br. at 3, 5). Plaintiff opposes the motion to dismiss, seeks appointment of pro bono counsel, and seeks leave to amend to include monetary damages and to sue Defendants in their individual capacities.


A. Standard of Review

In evaluating a motion to dismiss under Fed. R. Civ. P. 12(b), all allegations in the complaint must be taken as true and viewed in the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975); Trump Hotels & Casino Resorts, Inc., v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998). When deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim, a court may consider only the complaint, exhibits attached to the complaint, matters of public record, and undisputedly authentic documents if the plaintiff=s claims are based upon those documents. See Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). If, after viewing the allegations in the complaint in the light most favorable to the plaintiff, it appears that no relief could be granted Aunder any set of facts that could be proved consistent with the allegations,@ a court may dismiss a complaint for failure to state a claim. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

Although a complaint does not need to contain detailed factual allegations, Athe >grounds= of [the plaintiff=s] >entitlement to relief= requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.@ Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007). Thus, the factual allegations must be sufficient to raise a plaintiff=s right to relief above a speculative level. See id. at 1964-65. Furthermore, although a court must view the allegations as true in a motion to dismiss, it is Anot compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions disguised as factual allegations.@ Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007).

B. Failure to Exhaust Administrative Remedies

Defendants argue that the complaint must be dismissed because Plaintiff has failed to exhaust his administrative remedies as required by the PLRA. (Dft. Br. at 5). Defendants are correct that the PLRA applies to Plaintiff and that the statute requires exhaustion of the Sussex County Jail's internal administrative grievance procedures before he can pursue litigation. 42 U.S.C. ยง 1997e(a). This is true even if Plaintiff seeks relief beyond that which the jail's internal policies permit or if Plaintiff believes that compliance with the internal procedures will be futile. Id; ...

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