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.
1). 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.
1. Plaintiff alleges he was assaulted by Officers Miles and
Priebs in New Jersey State Prison on December 11, 2016.
Specifically, he alleges the officers handcuffed him and
proceeded to kick and punch him about the face and body. (ECF
No. 1 ¶¶ 4-6).
2. He then alleges Officers Miles and Priebs conspired with
others to write fraudulent disciplinary charges to conceal
the assault. (Id. ¶ 7).
3. Plaintiff alleges Warden Steven Johnson refused to punish
defendants after being informed of the assault. (Id.
4. Defendant New Jersey State Prison is dismissed from this
case. A state prison is not a "person" subject to
suit under § 1983. See 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).
5. Plaintiffs excessive force and conspiracy complaint shall
be permitted to proceed against Officers Miles and Priebs.
The Court shall exercise supplemental jurisdiction over any
state assault claims. 28 U.S.C. § 1367(c).
6. Plaintiffs claims against Warden Johnson are dismissed
without prejudice. His sole allegation against the Warden is
that he failed to discipline Officers Miles and Priebs after
the assault. "'Failure to' claims ... are
generally considered a subcategory of policy or practice
liability." Barkes v. First Corr. Med, Inc.,
766 F.3d 307, 316 (3d Cir. 2014), rev'd on other
grounds sub nom. Taylor v. Barkes, 135 S.Ct. 2042
(2015). A supervisor's failure to discipline subordinates
requires "both contemporaneous knowledge of the
offending incident or knowledge of a prior pattern of similar
incidents and circumstances under which the supervisor's
actions or inaction could be found to have communicated a
message of approval to the offending subordinate" in
order to impose § 1983 liability. Montgomery v. De
Simone, 159 F.3d 120, 127, (3d Cir. 1998).
7. Plaintiff has not presented any facts suggesting Warden
Johnson knew of the assault prior to its occurrence or that
Officers Miles and Priebs had a history of excessive force
and had somehow approved of their actions. Because Plaintiff
may be able to correct these deficiencies, the claims against
Warden Johnson are dismissed without prejudice. Plaintiff may
move to amend his claims against Warden Johnson in accordance
with Fed.R.Civ.P. 15.
IS on this 5th day of February, 2019,
ORDERED that all claims against Defendant
New Jersey State Prison are hereby DISMISSED WITH
PREJUDICE; it is further
that all claims against Defendant Steven Johnson are hereby
DISMISSED WITHOUT PREJUDICE; it is further
that the excessive force and conspiracy claims against
Officers Miles and Priebs shall proceed. The
Court will exercise supplemental jurisdiction over any state
law claims, 28 U.S.C. § 1367(c); and it is further,
ORDERED that, the Clerk shall mail to
Plaintiff a transmittal letter explaining the procedure for
completing Unites States Marshal ("Marshal") 285
Forms ("USM-285 Forms"); and it is further
that, once the Marshal receives the USM-285 Form(s) from
Plaintiff and the Marshal so alerts the Clerk, the Clerk
shall issue summons in connection with each USM-285 Form that
has been submitted by Plaintiff, and the Marshal shall serve
summons, the Complaint and this Order to the address
specified on each USM-285 Form, with all costs of service
advanced by the United States; and it is further
that Defendant(s) shall file and serve a responsive pleading
within the time specified by Federal Rule of ...