United States District Court, D. New Jersey
B. KUGLER, U.S.D.J.
Tony Fisher, also known as Kellie Rehanna (hereinafter
referred to in the feminine at Plaintiff's request), a
prisoner confined at Elkton-Federal Correctional Institution,
Elkton, Ohio, is proceeding pro se with a proposed
amended civil rights complaint (“Amended
Complaint”) and motion to appoint counsel. (ECF Nos. 8,
9). For the reasons stated in this Opinion, the Court will
dismiss Plaintiff's Amended Complaint without prejudice
for failure to state a claim, deny Plaintiff's motion to
amend as futile, and deny without prejudice her motion to
Court will construe the allegations of the Amended Complaint
as true for the purpose of this Opinion. Plaintiff names the
United States of America, Jordan Hollingsworth, Warden Doe,
Unit Doe, Ms. Fischer, Mr. Williams, N. Watkins Ward, Anna
Morfe, and Stacie D. Marantz-Tattersdi as Defendants in this
case arises from a number of incidents in which Plaintiff was
the victim of sexual assaults from a fellow inmate, during
her incarceration at FCI Fort Dix, on July 11 and 13, 2013.
(ECF No. 9-1, at 6). Prior to transferring Plaintiff to FCI
Fort Dix, officials improperly assessed Plaintiff's risk
of victimization. (Id. at 12).
arrived at FCI Fort Dix on July 2, 2013. (Id.).
Shortly after her arrival, Defendant Ward evaluated Plaintiff
for her risk of victimization, but erroneously assessed
Plaintiff as having only one risk of victimization factor.
(Id.). Upon entry into general population, Plaintiff
began receiving verbal invitations, demands, and threats for
sex from other inmates. (Id.). In particular,
“inmate C” made a number of these threats and
informed Plaintiff that he “was incarcerated because of
a high profile, violent, sexual assault charge.”
about July 9, 2013, Plaintiff reported these threats to the
unit counselor, Defendant Fischer, who indicated that she
would “look into it.” (Id. at 13). The
day after, a staff psychologist evaluated Plaintiff and
identified five risk of victimization factors but concluded
that it was not necessary to raise Plaintiffs
“at-risk” level “significantly above any
other inmates.” (Id.).
identifying these risk factors, officials did not separate
Plaintiff from potentially dangerous inmates, and on July 11
and 13, 2013, “inmate C” sexually assaulted
Plaintiff on three separate occasions. (Id. at
15-16). Plaintiff reported the sexual assaults, on July 24,
2013. (Id. at 16). Thereafter, Plaintiff received
medical and psychological treatment, as well as a transfer to
FCI Forrest City in Arkansas. (Id. at 17).
September of 2017, Plaintiff requested her psychological
records and received them on October 3, 2017. (Id.
at 9). After receiving those records, Plaintiff realized
“that her rapes were substantiated.”
(Id.). Plaintiff then filed administrative remedies
regarding these sexual assaults, seeking monetary and
injunctive relief, and appeals thereof, on October 8, 2017,
November 3, 2017, and December 13, 2017. (ECF No. 9-6. at
79-87). Plaintiff received a denial at each institutional
level and received the last of which on January 17, 2018.
(ECF No. 9-1, at 17-18).
December 4, 2018, Plaintiff filed her initial Complaint in
this matter, and then on February 19, 2019, filed the instant
Amended Complaint, raising Eighth Amendment claims against
all Defendants. Plaintiff seeks monetary compensation and
nationwide injunctive relief to address a number of issues
related to vulnerable inmates. (ECF No. 9-1, at 19).
STANDARD OF REVIEW
Standard for Sua Sponte Dismissal
courts must review complaints in civil actions in which a
plaintiff is proceeding in forma pauperis. See 28
U.S.C. § 1915(e)(2)(B). District courts may sua
sponte dismiss any claim that is frivolous, is
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is
immune from such relief. See Id. According to the
Supreme Court's decision in Ashcroft v. Iqbal,
“a pleading that offers ‘labels or
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'” 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
survive sua sponte screening for failure to state a
claim,  the complaint must allege
“sufficient factual matter” to show that the
claim is facially plausible. See Fowler v. UPMC
Shadyside,578 F.3d 203, 210 (3d Cir. 2009). “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 [alleged]
misconduct.” Iqbal, 556 U.S. at 678. Moreover,
while courts liberally construe pro se pleadings,
“pro se litigants still must ...