United States District Court, D. New Jersey
G. SHERIDAN, U.S.D.J.
is proceeding, in forma pauperis, with a civil
rights complaint filed pursuant to 42 U.S.C. § 1983.
(ECF No. 3). He has also moved for the appointment of pro
bono counsel. (ECF No. 9). At this time, the Court must
review the complaint pursuant to 28 U.S.C. §
1915(e)(2)(B) to determine whether it should be dismissed as
frivolous or malicious, for failure to state a claim upon
which relief may be granted, or because it seeks monetary
relief from a defendant who is immune from suit. Having
completed this screening, the Court will permit the complaint
to proceed in part.
Plaintiff states that he hit his attorney in the Mercer
County Courthouse on June 29, 2017. He waited to be
handcuffed but was instead tackled by law enforcement
Plaintiff alleges they slammed him onto the ground, breaking
a bone in his hand. He was taken out of the courtroom in
handcuffs and thrown up against the wall. One of the sheriffs
kept tightening the handcuffs and "twisting and jerking
[his] hand up to [his] back" in order to inflict pain on
Plaintiff in retaliation for assaulting his public defender.
Plaintiff states this was caught on the courthouse cameras.
arriving back at the Mercer County Correctional Center,
Plaintiff told Sergeant Friel that he needed to go to the
hospital for his injured hand. Sergeant Friel took Plaintiff
to the nurse, but told Plaintiff that they did "not send
inmates to the hospital anymore we can give you ice that is
it." When Plaintiff tried to tell Sergeant Friel that
his hand was broken, Sergeant Friel told Plaintiff that he
was refusing medical care and took Plaintiff back to his
x-ray taken of Plaintiffs hand on July 6, 2017 confirmed it
was broken. He alleges he was not given any pain medication.
He received another x-ray on July 25, 2017, which indicated
the break was serious. Plaintiff had surgery on his hand on
August 2, 2017 to insert a pin and screw. He did not receive
any pain medication between July 25 and August 2. The pin and
screw in Plaintiffs hand are there permanently.
Plaintiff alleges Sergeant Friel ordered him not to be taken
to the hospital "because he has to work in the jail with
the two supervisors, Lt. Zegarski, and Lt. Lyszczak."
Compl. at 1 He further alleges the Warden knew all about his
injury and the failure to provide medical attention but did
Defendant Mercer County Correctional Center is dismissed from
this case. A county jail is not a "person" subject
to suit under § 1983. Boomer v. Lewis, 541
Fed.Appx. 186, 192 (3d Cir. 2013) ("PCCF, [a
correctional facility, ] to the extent Boomer was suing the
facility, is not a 'person' within the meaning of 42
U.S.C. § 1983") (citing Will v. Mich. Dep't
of State Police, 491 U.S. 58, 71 (1989), Fischer v.
Cahill, 474 F.2d 991, 992 (3d Cir. 1973)); Tremper
v. Correct Care Solutions, No. 13-3626, 2014 WL 320338,
at *2 (D.N.J. Jan. 29, 2014); Antoine v. Belleville Mun.
Ct., No. 10-1212, 2010 WL 2989991, at *3 (D.N.J. July
27, 2010); McLeod v. Monmouth Cnty. Corr. Inst., No.
05-4710, 2006 WL 572346, at *4 (D.N.J. Mar. 8, 2006).
claims against Lieutenant Zegarski and Lieutenant Lyszczak
are also dismissed. Plaintiff does not make any factual
allegations against these individuals other than they are
supervisors. Liability under § 1983 "cannot be
predicated solely on the operation of respondeat superior.
Personal involvement can be shown through allegations of
personal direction or of actual knowledge and acquiescence.
Allegations of participation or actual knowledge and
acquiescence, however, must be made with appropriate
particularity." Rode v. Dellarciprete, 845 F.2d
1195, 1207 (3d Cir. 1988). Vague allegations that they may
have been the reason Plaintiff was not taken to the hospital
are insufficient to state a claim.
claims against the Mercer County Sheriff shall also be
dismissed. A city or county police department is not a proper
party to a § 1983 action because police departments are
"governmental sub-unit[s] that [are] not distinct from
the municipality of which it is a part." Mikhaeil v.
Santos, 646 Fed.Appx. 158, 163 (3d Cir. 2016) (per
curiam). Plaintiff has not stated sufficient facts to infer a
municipal liability claim against Mercer County for an
unconstitutional policy or practice.
Plaintiffs excessive force complaint shall be permitted to
proceed against the individual John Doe Mercer County
Sheriffs Officers. The Court shall direct the Clerk to add
them to the caption.
Plaintiffs denial of medical care claim shall be permitted to
proceed against Sergeant Friel, Warden Ellis, and Mercer
County Correctional Center Employees.
Plaintiffs motion for the appointment of counsel is denied
without prejudice. Indigent persons raising civil rights
claims have no absolute right to counsel. See Parham v.
Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997). As a
threshold matter, there must be some merit in fact or law to
the claims the plaintiff is attempting to assert. See
Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). As the
Court is permitting the complaint to proceed, it will analyze
the remaining Tabron factors.
determining whether to appoint counsel, a court considers the
following: (1) the plaintiffs ability to present his or her
own case; (2) the complexity of the legal issues; (3) the
degree to which factual investigation will be necessary and
the ability of the plaintiff to pursue such investigation;
(4) the amount a case is likely to turn on credibility
determinations; (5) whether the case will require the
testimony of expert witnesses; and (6) whether the plaintiff
can attain and afford counsel on his own behalf. ...