United States District Court, D. New Jersey
TERRY J. WALKER, Plaintiff,
COUNTY OF GLOUCESTER, et al., Defendants.
B. KUGLER United States District Judge.
Terry J. Walker, a prisoner at Hudson County Correctional
Facility, filed a civil rights complaint arising out of
multiple incidents of alleged physical and sexual assault by
corrections officers while he was incarcerated at Salem
County Correctional Facility (“SCCF”). Currently
pending before this Court is Defendants Salem County (on
behalf of the County of Gloucester); SCCF Warden Raymond
Skradzinski; Salem County Board of Chosen Freeholders;
Gloucester County Board of Chosen Freeholders; the Salem
County Sheriff (as the operator of SCCF); SCCF staff members
Nelson, Shannon, Grishom, and Crawford; and SCCF supervisors
“LT” and Riley's (collectively the
“Salem County Defendants”) motion to dismiss the
complaint pursuant to Rule 12(b)(1), or for summary judgment
according to Rule 56. For the following reasons, all claims
against Defendant SCCF are dismissed with prejudice.
Court recites the facts in the light most favorable to
Plaintiff. In his amended complaint, Plaintiff alleged that
while incarcerated at SCCF, officers and staff members
physically and sexually assaulted him. Specifically,
Plaintiff alleged that on August 18, 2014, he was charged at
by SCCF Correctional Officer Elbert Johnson and physically
forced to the ground during a strip search. Shortly
thereafter, Officer Johnson and SCCF staff members Grishom,
Nelson, and Shannon slammed Plaintiff's face against a
concrete wall and physically beat Plaintiff. This physical
assault was observed or approved by SCCF supervisors
“LT” and Riley.
these incidents, Plaintiff filed a grievance against the
officers and staff members, but no responsive action was
taken. Plaintiff alleged he was placed in a detention unit as
a result of a conspiracy of silence and false testimony by
Officer Johnson and SCCF staff members Grishom, Nelson, and
Shannon. Additionally, Plaintiff claimed that Officer Johnson
verbally threatened Plaintiff and forced him to cut his
fingernails as retaliation for his bisexual orientation.
further alleged that on April 2, 2015, Officer Johnson
entered Plaintiff's cell and sexually assaulted him.
Following the assault, Plaintiff was not provided access to a
victim's advocate, rape crisis center, or forensic
medical examination. After Plaintiff reported the incident to
prison authorities, the state police conducted an
investigation and Officer Johnson was arrested and charged
with sexual assault.
Plaintiff's amended complaint alleged excessive force,
failure to protect, failure to train and supervise,
retaliation, and conspiracy in violation of Plaintiff's
federal and state constitutional rights. Plaintiff also
alleged that the Defendants discriminated against him in
violation of the New Jersey Law Against Discrimination.
Plaintiff seeks only monetary damages.
Salem County Defendants now move to dismiss the complaint
under Federal Rule of Civil Procedure 12(b)(1), or in the
alternative for summary judgment pursuant to Federal Rule of
Civil Procedure 56. The Salem County Defendants argue that
they are entitled to sovereign immunity under the Eleventh
Amendment and accordingly, Plaintiff's § 1983 claims
should be dismissed. Plaintiff opposes the Salem County
Defendants' motion, arguing that the Salem County
Defendants are not entitled to sovereign immunity because the
Eleventh Amendment only applies to state agents and
instrumentalities, not counties.
motion to dismiss on the grounds of state sovereign immunity
is properly brought pursuant to Federal Rule of Civil
Procedure 12(b)(1) because the Eleventh Amendment “is a
jurisdictional bar which deprives federal courts of subject
matter jurisdiction.” Blanciak v. Allegheny Ludlum
Corp., 77 F.3d 690, 693 n.2 (3d Cir. 1996). See also Kimel v.
Fla. Bd. of Regents, 528 U.S. 62, 73 (2000). Motions to
dismiss under Rule 12(b)(1) may be “facial” or
“factual” challenges to the court's
jurisdiction. Mortensen v. First Fed. Sav. & Loan
Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). A facial
challenge contests the sufficiency of the complaint because
of an alleged pleading deficiency, whereas a factual attack
challenges the actual failure of the plaintiff's claims
to comport with jurisdictional prerequisites. See U.S. ex
rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d
Cir. 2007); Mortensen, 549 F.2d at 891.
reviewing a facial challenge, the court must dismiss a
plaintiff's claims if “the allegations on the face
of the complaint, taken as true, [do not] allege facts
sufficient to invoke [its] jurisdiction.” Licata v.
U.S. Postal Serv., 33 F.3d 259, 260 (3d Cir. 1994). If the
moving party makes a factual challenge to the court's
jurisdiction, “no presumptive truthfulness attaches to
plaintiff's allegations” and the court may consider
and weigh evidence outside of the pleadings. Med. Soc'y
of N.J. v. Herr, 191 F.Supp.2d 574, 578 (D.N.J. 2002). When
the moving party supports its motion with evidence,
“the court should treat the ... challenge as a factual
attack on jurisdithey are entitled to sovereign ction.”
Id. Although a plaintiff generally bears the burden
of proving that the court has jurisdiction to hear the
plaintiff's claims, id., the party asserting Eleventh
Amendment immunity has the “burden of production and
persuasion.” Druz v. Noto, No. 09-5040, 2010 WL
2179550, at *5 (D.N.J. May 28, 2010).
case, the Salem County Defendants have based their motion to
dismiss on a developed factual record and a sworn
certification. The Court therefore construes the Salem County
Defendants' Rule 12(b)(1) motion as a factual attack. See
Int'l Ass'n of Machinists & Aerospace Workers v.
Nw. Airlines, Inc., 673 F.2d 700, 711 (3d Cir. 1982)
(“[Defendant's] motion was supported by a sworn
statement of facts. It therefore must be construed as a
factual, rather than a facial attack on the court's
subject matter jurisdiction under Fed.R.Civ.P.
because Plaintiff is a prisoner and names governmental
entities or employees thereof as defendants, the screening
provisions of the Prison Litigation Reform Act
(“PLRA”) found at 28 U.S.C. § 1915A apply.
In addition, because Plaintiff complains about “prison
conditions, ” the screening provisions of 42 U.S.C.
§ 1997e apply. The Court's obligation to dismiss a
complaint under the PLRA screening provisions for complaints
that fail to state a claim is not excused even after
defendants have filed a motion to dismiss. See, e.g., Lopez
v. Smith, 203 F.3d 1122, 1126 n.6 (9th Cir. 2000). Hence, if
there is a ground for dismissal which ...