NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

 :

JASON ROBERT WAGNER, :

 :

Plaintiff, :

 :

v. :

 :

 :

A.C.J.F., et al., : 

 :

 :

Defendants. :

 :

Civil No. 11-1422 (NLH)

O P I N I O N

APPEARANCES:

Jason Robert Wagner, Pro Se

192646AR

Atlantic County Justice Facility

5060 Atlantic Avenue

Mays Landing, NJ 08330

HILLMAN, District Judge

Plaintiff, Jason Robert Wagner, currently confined at the

Atlantic County Justice Facility, Mays Landing, New Jersey, has

submitted this civil complaint, which alleges violations of his

constitutional rights and seeks relief pursuant to 42 U.S.C. §

1983. Plaintiff has not paid the filing fee, and seeks

permission to proceed in forma pauperis (“IFP”). Based on

Plaintiff’s affidavit of indigence, this Court will grant his

request.1

 Plaintiff’s case was previously administratively 1

terminated for failure to pay the filing fee or submit a complete

application to proceed IFP. Plaintiff has since submitted a

complete application, and the case will be reopened for purposes

of this screening.

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At this time, the Court must review the complaint 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 such relief, pursuant to 28 U.S.C. §§ 1915(e)(2)

and 1915A(b). For the following reasons, the complaint will be

dismissed, without prejudice.

BACKGROUND

Plaintiff names as defendants the Atlantic County Justice

Facility (“ACJF”), Officer Hoban and Officer Roeder, employed at

the ACJF. Plaintiff states that while housed at the ACJF he had

a “no contact” with another inmate and on four occasions, came

into direct contact with him. Plaintiff states that on February

4, 2011, the inmate “demanded I hit Steven the hallway runner

[and] I felt I had no choice. He is a know[n] shooter with open

gun charges and threatened my mother and he knows where she

lives.” (Complt., ¶ 4).

Plaintiff reported the incident to Lt. Trout, who told him

to “leave out that [the inmate] had threatened [him] and ordered

[him] to hit him cause then [the inmate] would think that I was a

snitch again.” (Id.). Lt. Trout then advised Plaintiff to

“leave out” that he hit Steven and just to say he hit a wall. 

(Id.).

Although not named in Plaintiff’s Statement of Claims,

defendants Hoban and Roeder are named in the complaint as

2

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defendants because they “failed many times on keeping us

sep[arate].” (Complt., ¶3B).

Plaintiff asks for monetary and other relief.

DISCUSSION

A. Standard of Review

The Prison Litigation Reform Act ("PLRA"), Pub.L. No. 104-

134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996),

requires a district court to review a complaint in a civil action

in which a prisoner is proceeding in forma pauperis or seeks

redress against a governmental employee or entity. The Court is

required to identify cognizable claims and to sua sponte dismiss

any claim that is frivolous, 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 28 U.S.C. §§

1915(e)(2)(B) and 1915A. This action is subject to sua sponte

screening for dismissal under both 28 U.S.C. §§ 1915(e)(2)(B) and

1915A(b) because plaintiff is a prisoner and is proceeding as an

indigent.

Recently, in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the

Supreme Court refined the standard for summary dismissal of a

complaint that fails to state a claim. The Court examined Rule

8(a)(2) of the Federal Rules of Civil Procedure which provides

that a complaint 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). Citing its recent opinion in Bell Atlantic

3

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Corp. v. Twombly, 550 U.S. 544 (2007), for the proposition that

"[a] pleading that offers ‘labels and conclusions' or ‘a

formulaic recitation of the elements of a cause of action will

not do,’” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at

555), the Supreme Court held that, to prevent a summary

dismissal, a civil complaint must now allege "sufficient factual

matter" to show that the claim is facially plausible. This then

"allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged." See id. at

1948; see also Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC

Shadyside, 578 F.3d 203 (3d Cir. 2009).

The Court of Appeals for the Third Circuit recently provided

detailed and highly instructive guidance as to what type of

allegations qualify as sufficient to pass muster under the Rule 8

pleading standard. See Phillips v. County of Allegheny, 515 F.3d

224, 230-34 (3d Cir. 2008). The Court of Appeals explained, in

relevant part:

[T]he pleading standard can be summed up thus: 

"stating ... a claim requires a complaint with enough

factual matter (taken as true) to suggest" the required

element. This "does not impose a probability

requirement at the pleading stage[ ]" but . . . "calls

for enough facts to raise a reasonable expectation that

discovery will reveal evidence of" the necessary

element.

Phillips, 515 F.3d at 234 (internal citations omitted). 

In determining the sufficiency of a pro se complaint, the

Court must be mindful to construe it liberally in favor of the

plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)

4

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(following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Haines

v. Kerner, 404 U.S. 519, 520-21 (1972)). See also United States

v. Day, 969 F.2d 39, 42 (3d Cir. 1992). 

B. Section 1983 Actions

A plaintiff may have a cause of action under 42 U.S.C.

§ 1983 for certain violations of his or her constitutional

rights. Section 1983 provides in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory ... subjects, or causes to be subjected,

any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress ... .

Thus, to establish a violation of 42 U.S.C. § 1983, a plaintiff

must demonstrate that the challenged conduct was committed by (1)

a person acting under color of state law and (2) that the conduct

deprived him of rights, privileges, or immunities secured by the

Constitution or laws of the United States. See Parratt v.

Taylor, 451 U.S. 527, 535 (1981), overruled in part on other

grounds by Daniels v. Williams, 474 U.S. 327 (1986); Adickes v.

S.H. Kress & Co., 398 U.S. 144, 152 (1970); Piecknick v.

Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). 

C. Plaintiff’s Claims Must Be Dismissed.

First, although Plaintiff names ACJF as a defendant in the

caption of his complaint, he does not assert any specific claims

against the jail within the complaint. Further, a jail is not a

5

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“person” that may be found liable under § 1983, pursuant to

Monell v. Dept. of Social Services of City of New York, 436 U.S.

658, 688–90 (1978). See Powell v. Cook County Jail, 814 F. Supp.

757, 758 (N.D. Ill. 1993); McCoy v. Chesapeake Correctional

Center, 788 F. Supp. 890, 893–894 (E.D. Va. 1992). While this

Court would typically construe this defendant as Atlantic County,

as Plaintiff has not asserted any claims within the complaint

against ACJF or Atlantic County, the Court is constrained to

dismiss this defendant, without prejudice.

Second, while Plaintiff states he is “here on a VOP

[violation of probation],” (Complt., ¶ 5), it is unclear whether

Plaintiff is a pretrial detainee or a convicted and sentenced

prisoner. In assessing a pre-trial detainee's failure to protect

claim, as opposed to a convicted inmate's claim, the Court of

Appeals for the Third Circuit has not determined a specific level

of subjective culpability that meets the “shocks the conscience”

standard under the Fourteenth Amendment. See Jacobs v.

Cumberland County Dept. of Corr., Civ. No. 09–0133, 2010 WL

5141717, at *4 (D.N.J. Dec. 8, 2010) (internal citation omitted)

(noting that “a violation of the Fourteenth Amendment right to

substantive due process may be shown by conduct that ‘shocks the

conscience’”). Most cases that have considered the issue have

stated that the Fourteenth Amendment provides a pretrial detainee

at least as much protection as the Eighth Amendment “deliberate

indifference” standard. See Urrutia v. Harrisburg County Police

6

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Dept., 91 F.3d 451, 456 (3d Cir. 1996) (holding that a pre-trial

detainee plaintiff “is certainly entitled to the level of

protection provided by the Eighth Amendment”). In similar cases,

the Third Circuit has indicated that deliberate indifference is

the appropriate standard in the context of a Fourteenth Amendment

failure to protect claim. See Luzerne County, 372 F.3d at 587.

The Third Circuit has been clear, however, that “negligent

conduct is never egregious enough to shock the conscience.” Id.

at 579. In other words, mere negligence or inattention by a

corrections officer in failing to protect a pretrial detainee

from violence at the hands of another inmate is not enough to

rise to the level of a constitutional violation under the

Fourteenth Amendment. On the basis of this precedent, the Court

evaluates Plaintiff's claim of a Fourteenth Amendment substantive

due process violation under the deliberate indifference standard.

Under the deliberate indifference standard, officers and

prison officials have a duty “to take reasonable measures to

protect prisoners from violence at the hands of other prisoners.”

Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997) (citations

and internal quotations omitted). For a failure to protect

claim, Plaintiff must provide some evidence establishing that (1)

“the conditions in which he was detained entailed a sufficiently

serious risk of harm”; (2) the defendants acted with “deliberate

indifference” to his health and safety; and (3) causation. See

Farmer v. Brennan, 511 U.S. 825, 834 (1994); Hamilton, 117 F.3d

7

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at 746. Defendant Officers “must actually [have been] aware of

the existence of the excessive risk; it is not sufficient that

[Defendants] should have been aware.” Beers–Capitol v. Whetzel,

256 F.3d 120, 133 (3d Cir. 2001) (emphasis added).

In this case, Plaintiff asserts only that the Defendant

officers “failed many times on keeping us separate.” (Complt., ¶

3B). This Court finds that, as pled, Plaintiff’s statement does

not sufficiently show deliberate indifference and causation. 

Plaintiff does not plead any facts asserting that these Defendant

officers actively ignored orders to keep these inmates apart,

that these officers were aware of Plaintiff’s presence near the

problem inmate, or that these officers witnessed the interaction

that occurred on February 4, 2011. Plaintiff does not connect

these Defendant officers in any way to the facts of the alleged

incident in February of 2011.2

As such, Plaintiff’s complaint fails to state a claim upon

which relief can be granted, in accordance with Iqbal standards,

and must be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii)

and 1915A(b)(1). However, it is conceivable that Plaintiff

simply neglected to assert facts supporting his failure to

protect claim. Therefore, this Court will grant Plaintiff thirty

 This Court also notes that Plaintiff’s allegation that 2

the state actors are liable to Plaintiff because he “felt he had

no choice” but to assault another inmate is meritless. It is not

facially plausible that the state defendants would be liable to

Plaintiff for Plaintiff’s misconduct against a third party. Such

conduct by Plaintiff cannot be attributed to the state actors. 

See Iqbal, 129 S. Ct. at 1948.

8

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days to file an amended complaint to address the deficiencies of

his complaint.3

CONCLUSION

For the foregoing reasons, Plaintiff’s complaint is

dismissed, without prejudice, pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii) and § 1915A(b)(1). An appropriate Order

follows.

 s/ Noel L. Hillman 

NOEL L. HILLMAN

United States District Judge

Dated: July 2, 2012

At Camden, New Jersey

 Plaintiff should note that once an amended complaint is 3

filed, the original complaint no longer performs any function in

the case and cannot be utilized to cure defects in the amended

complaint, unless the specific portion of the original complaint

is specifically incorporated in the amended complaint. See 6

Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d §

1476 (1990) (footnotes omitted). To avoid confusion, the safer

course is to file an amended complaint that is complete in

itself. See id.

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