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Grossy v. City of Newark

United States District Court, D. New Jersey

December 7, 2017

RICHARD GROSSY, Plaintiff,
v.
CITY OF NEWARK et al. Defendants.

          OPINION

          KEVIN MCNULTY. U.S.D.J.

         I. INTRODUCTION

         Plaintiff, Richard Grossy, was a state inmate incarcerated at Southern State Correctional Facility, in Delmont, New Jersey, when he commenced this action. He is proceeding pro se and in forma pauperis with a civil rights complaint under 42 U.S.C. § 1983.

         Now before the Court are two motions. Defendant the City of Newark ("the City") moves to dismiss Mr. Grossy's complaint under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 13.) Mr. Grossy moves for the appointment of pro bono counsel to assist him. (ECF No. 16.) No party has filed papers in opposition to either motion. I nevertheless review the merits. The Court having reviewed the parties' filings on these motions, and for the reasons stated below, the City's motion to dismiss will be granted and Mr. Grossy's motion for appointment of pro bono counsel will be denied.

         II. BACKGROUND

         Mr. Grossy commenced this action with a complaint filed August 9, 2016, which alleges civil rights claims arising from a December 28, 2014 incident in the Essex County Correctional Facility. (Complaint, ECF No. 1.) Mr. Grossy alleges that another inmate, Derrick Thompson, assaulted him in an area of the facility that lacked security cameras. Mr. Grossy asserts that his harm resulted from both the absence of cameras and an unwritten policy that barred facility staff from entering areas lacking cameras. Mr. Grossy further alleges that a decision to have two inmates move him after he suffered a head and neck injury exacerbated his injuries.

         The complaint alleges that Mr. Grossy's harm was caused or worsened by facility policies and failure to properly train staff. It asserted claims under 42 U.S.C. § 1983 against the Essex County Correctional Facility, the City, the County of Essex ("the County"), Essex County Department of Corrections Director Alfaro Ortiz, [1] Corrections Officer Bryan Rodriguez, and inmate Derrick Thompson. The full extent of the allegations against the City are as follows:

On December 28, 2014 the City of Newark was liable/responsible for the Essex County Correction Facilitys [sic] fitness for operation, training of personnel, supervision of staff and inmates, safety of the same, and overall security of all persons in or on the property of the Essex County Correction Facility. The City is ultimately responsible for the approval of policy and procedure within the facility.

         (ECF No. 1.) The complaint used virtually identical wording to allege liability against the County. (Id.)

         This Court issued an opinion and order on January 17, 2017 screening the complaint under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. (ECF Nos. 4, 5.) The Court dismissed the claims as against defendants the Essex County Correctional Facility, Rodriguez, and Thompson, for failure to state a claim upon which relief could be granted. The claims against the other defendants were permitted to proceed under theories of supervisory and municipal liability. Defendants Ortiz and the County filed a timely answer to the complaint on March 29, 2017. (ECF No. 10.)

         III. THE CITY'S MOTION TO DISMISS

         The City now moves to dismiss the complaint as against it for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 13.) It asserts that it does not set policy or procedure for, or train staff at, the Essex County Correctional Facility, which "is a separate entity from the City." (ECF No. 13-1 at 5, 9.) Accordingly, the City argues that it could not be held liable for any failure in policies or training at that facility. (Id. at 9.)[2]

         The standard of review on a motion to dismiss for failure to state a claim under Rule 12(b)(6) is set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). To survive such a motion, the complaint must allege "sufficient factual matter to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (internal quotation marks omitted); see also Iqbal, 556 U.S. at 678-79; Twombly, 550 U.S. at 555-56. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678; see also Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014). "A pleading that offers Mabels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

         Pro se pleadings, as always, will be liberally construed. See Haines v. Kerner,404 U.S. 519, 520 (1972); Glunk v. Noone,689 Fed.Appx. 137, 139 (3d Cir. 2017). Nevertheless, "pro se litigants still must allege sufficient facts in their complaints to support a ...


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