United States District Court, D. New Jersey, Camden Vicinage
MARK T. SMITH, Plaintiff
GERALDINE COHEN, et al., Defendants
RENÉE MARIE BUMB UNITED STATES DISTRICT JUDGE.
Mark T. Smith, also known as Mark El, is a pretrial detainee
who was confined at Atlantic County Justice Facility at the
time he filed this civil rights complaint under 42 U.S.C.
§ 1983. (Compl., ECF No. 1.) Plaintiff also filed an
application to proceed in forma pauperis (“IFP”)
(ECF No. 1-1), which establishes his eligibility to proceed
without prepayment of fees under 28 U.S.C. § 1915.
prisoner is permitted to proceed without prepayment of the
filing fee or when the prisoner pays the filing fee for a
civil action and seeks redress from a governmental entity,
officer or employee of a governmental entity, 28 U.S.C.
§ 1915(e)(2)(B), § 1915A(b) and 42 U.S.C. §
1997e(c)(1) require courts to review the complaint and sua
sponte dismiss any claims that are (1) frivolous or
malicious; (2) fail to state a claim on which relief may be
granted; or (3) seek monetary relief against a defendant who
is immune from such relief. For the reasons discussed below,
Plaintiff's complaint is dismissed without prejudice for
failure to state a claim.
must liberally construe pleadings that are filed pro se.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Thus,
“a pro se complaint, however inartfully pleaded, must
be held to ‘less stringent standards than formal
pleadings drafted by lawyers.'” Id.
(internal quotation marks omitted). “Court personnel
reviewing pro se pleadings are charged with the
responsibility of deciphering why the submission was filed,
what the litigant is seeking, and what claims she may be
making.” See Higgs v. Atty. Gen. of the U.S.,
655 F.3d 333, 339-40 (3d Cir. 2011) (quoting Jonathan D.
Rosenbloom, Exploring Methods to Improve Management and
Fairness in Pro Se Cases: A Study of the Pro Se Docket in the
Southern District of New York, 30 Fordham Urb. L.J. 305, 308
pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). “To survive a
motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotingll Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “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.” Id. (quoting
Twombly, 550 U.S. at 556.) Legal conclusions,
together with threadbare recitals of the elements of a cause
of action, do not suffice to state a claim. Id.
“a court considering a motion to dismiss can choose to
begin by identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Id. at 679. “While legal
conclusions can provide the framework of a complaint, they
must be supported by factual allegations.” Id.
If a complaint can be remedied by an amendment, a district
court may not dismiss the complaint with prejudice, but must
permit the amendment. Grayson v. Mayview State
Hospital, 293 F.3d 103, 108 (3d Cir. 2002).
alleged the following facts in his complaint.
Geraldine Cohen is the Warden of the Atlantic County Justice
Facility. Defendant is responsible for the safety of the
orderly running of the institution as well as being
responsible for my health an[d] well being, while
incarcerated in this county jail. …
(Compl., ¶3B, ECF No. 1.)
Warden Geraldine Cohen of her order of [illegible] Pod
(B.Right) with mold growing on the walls of the shower is
subjecting me to breathing mold, which is not just hazardous
to my health but dangerous to my health because mold is an
airborne contagious breathing dust. I'm starting to
notice I'm becoming short of breath, coughing more than
usual. On Wednesday the 30th of November, I put in
for sick call, I was seen on Friday the 1st for
sick call, an[d] was told by the doctor that she could only
prescribe me cough medicine even after I explain to her I was
exposed to the mold that is growing on the inner ...