United States District Court, D. New Jersey
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.
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
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.
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,  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
No. 1.) The complaint used virtually identical wording to
allege liability against the County. (Id.)
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.)
THE CITY'S MOTION TO DISMISS
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.)
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).
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