NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

LORIN WRIGHT, :

: Civil Action No. 11-0821 (RBK)

Plaintiff, :

:

v. : OPINION

:

ATLANTIC COUNTY JUSTICE :

FACILITY, et al., :

:

Defendants. :

APPEARANCES:

Plaintiff pro se

Lorin Wright

Atlantic County Justice Facility

5060 Atlantic Avenue

Mays Landing, NJ 08330

KUGLER, District Judge

Plaintiff Lorin Wright, a pre-trial detainee confined at

Atlantic County Justice Facility in Mays Landing, New Jersey, at

the time of the events complained of, seeks to bring this action 1

in forma pauperis pursuant to 42 U.S.C. § 1983, alleging

violations of his constitutional rights. Based on his affidavit

of indigence and the absence of three qualifying dismissals

within 28 U.S.C. §1915(g), the Court will grant Plaintiff’s

 Plaintiff does not state in the Complaint whether he was a 1

pre-trial detainee or a convicted and sentenced prisoner at the

time of the events complained of. The New Jersey Department of

Corrections Inmate Locator reflects that Plaintiff was sentenced

on July 7, 2011, and is now confined at Garden State Youth

Correctional Facility.

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application to proceed in forma pauperis pursuant to 28 U.S.C.

§ 1915(a) and order the Clerk of the Court to file the Complaint.

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.

I. BACKGROUND

The following factual allegations are taken from Plaintiff’s

Complaint and are accepted as true for purposes of this review.

Plaintiff alleges that the ventilation system and showers

are dirty and moldy and that he is required to sleep on the

floor.

Plaintiff names as defendants the Atlantic County Justice

Facility and Warden Joe Bondinsky. He seeks injunctive relief 2

in the form of an order requiring that the showers and

 A jail is not a “person” amenable to suit under 42 U.S.C. 2

§ 1983. See Marsden v. Federal BOP, 856 F. Supp. 832, 836

(S.D.N.Y. 1994) (county jail not an entity amenable to suit under

42 U.S.C. § 1983); Powell v. Cook County Jail, 814 F. Supp. 757,

758 (N.D. Ill. 1993) (Cook County Jail not a “person” under

§ 1983); McCoy v. Chesapeake Correctional Center, 788 F. Supp.

890, 893-94 (E. D. Va. 1992) (local jail not a “person” under §

1983); Vance v. County of Santa Clara, 928 F. Supp. 993, 995

(N.D. Cal. 1996) (county department of corrections is an agency

of the county and cannot be sued separately from the county under

§ 1983); Mayes v. Elrod, 470 F. Supp. 1188, 1192 (N.D. Ill. 1979)

(county department of corrections not a suable entity separate

from the county). Accordingly, all claims against the Atlantic

County Justice Facility will be dismissed with prejudice.

2

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ventilation system be cleaned, and that the sleeping conditions

be changed.

II. STANDARDS FOR A SUA SPONTE DISMISSAL

This Court must dismiss, at the earliest practicable time,

certain in forma pauperis and prisoner actions that are

frivolous, malicious, fail to state a claim, or seek monetary

relief from a defendant who is immune from such relief. See 28

U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C.

§ 1915A (actions in which prisoner seeks redress from a

governmental defendant); 42 U.S.C. § 1997e (prisoner actions

brought with respect to prison conditions).

In determining the sufficiency of a pro se complaint, the

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

plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United

States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court must

“accept as true all of the allegations in the complaint and all

reasonable inferences that can be drawn therefrom, and view them

in the light most favorable to the plaintiff.” Morse v. Lower

Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997).

In addition, any complaint must comply with the pleading

requirements of the Federal Rules of Civil Procedure.

Rule 8(a)(2) requires that a complaint contain “a short and

plain statement of the claim showing that the pleader is entitled

to relief.” A complaint must plead facts sufficient at least to

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“suggest” a basis for liability. Spruill v. Gillis, 372 F.3d

218, 236 n.12 (3d Cir. 2004). “Specific facts are not necessary;

the statement need only ‘give the defendant fair notice of what

the ... claim is and the grounds upon which it rests.’” Erickson

v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).

While a complaint ... does not need detailed factual

allegations, a plaintiff’s obligation to provide the

“grounds” of his “entitle[ment] to relief” requires

more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will

not do, see Papasan v. Allain, 478 U.S. 265, 286, 106

S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to

dismiss, courts “are not bound to accept as true a

legal conclusion couched as a factual allegation”). 

Factual allegations must be enough to raise a right to

relief above the speculative level ... .

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citations omitted).

The Supreme Court has demonstrated the application of these

general standards to a Sherman Act conspiracy claim.

In applying these general standards to a § 1

[conspiracy] claim, we hold that stating such a claim

requires a complaint with enough factual matter (taken

as true) to suggest that an agreement was made. Asking

for plausible grounds to infer an agreement does not

impose a probability requirement at the pleading stage;

it simply calls for enough fact to raise a reasonable

expectation that discovery will reveal evidence of

illegal agreement. And, of course, a well-pleaded

complaint may proceed even if it strikes a savvy judge

that actual proof of those facts is improbable, and

“that a recovery is very remote and unlikely.” ... It

makes sense to say, therefore, that an allegation of

parallel conduct and a bare assertion of conspiracy

will not suffice. Without more, parallel conduct does

not suggest conspiracy, and a conclusory allegation of

agreement at some unidentified point does not supply

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facts adequate to show illegality. Hence, when

allegations of parallel conduct are set out in order to

make a § 1 claim, they must be placed in a context that

raises a suggestion of a preceding agreement, not

merely parallel conduct that could just as well be

independent action.

The need at the pleading stage for allegations

plausibly suggesting (not merely consistent with)

agreement reflects the threshold requirement of Rule

8(a)(2) that the “plain statement” possess enough heft

to “sho[w] that the pleader is entitled to relief.” A

statement of parallel conduct, even conduct consciously

undertaken, needs some setting suggesting the agreement

necessary to make out a § 1 claim; without that further

circumstance pointing toward a meeting of the minds, an

account of a defendant’s commercial efforts stays in

neutral territory. ...

Twombly, 550 U.S. at 556-57 (citations and footnotes omitted).

The Court of Appeals for the Third Circuit has held, in the

context of a § 1983 civil rights action, that the Twombly

pleading standard applies outside the § 1 antitrust context in

which it was decided. See Phillips v. County of Allegheny, 515

F.3d 224, 234 (3d Cir. 2008) (“we decline at this point to read

Twombly so narrowly as to limit its holding on plausibility to

the antitrust context”).

Context matters in notice pleading. Fair notice under

Rule 8(a)(2) depends on the type of case -- some

complaints will require at least some factual

allegations to make out a “showing that the pleader is

entitled to relief, in order to give the defendant fair

notice of what the ... claim is and the grounds upon

which it rests.” Indeed, taking Twombly and the

Court’s contemporaneous opinion in Erickson v. Pardus,

127 S.Ct. 2197 (2007), together, we understand the

Court to instruct that a situation may arise where, at

some point, the factual detail in a complaint is so

undeveloped that it does not provide a defendant the

type of notice of claim which is contemplated by

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Rule 8. Put another way, in light of Twombly, Rule

8(a)(2) requires a “showing” rather than a blanket

assertion of an entitlement to relief. We caution that

without some factual allegation in the complaint, a

claimant cannot satisfy the requirement that he or she

provide not only “fair notice,” but also the “grounds”

on which the claim rests.

Phillips, 515 F.3d at 232 (citations omitted).

More recently, the Supreme Court has emphasized that, when

assessing the sufficiency of any civil complaint, a court must

distinguish factual contentions -- which allege behavior on the

part of the defendant that, if true, would satisfy one or more

elements of the claim asserted -- and “[t]hreadbare recitals of

the elements of a cause of action, supported by mere conclusory

statements.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). 

Although the Court must assume the veracity of the facts asserted

in the complaint, it is “not bound to accept as true a legal

conclusion couched as a factual allegation.” Id. at 1950. Thus,

“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.

Therefore, after Iqbal, when presented with a

motion to dismiss for failure to state a claim,

district courts should conduct a two-part analysis. 

First, the factual and legal elements of a claim should

be separated. The District Court must accept all of

the complaint's well-pleaded facts as true, but may

disregard any legal conclusions. Second, a District

Court must then determine whether the facts alleged in

the complaint are sufficient to show that the plaintiff

has a “plausible claim for relief.” In other words, a

complaint must do more than allege the plaintiff's

entitlement to relief. A complaint has to “show” such

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an entitlement with its facts. See Phillips, 515 F.3d

at 234-35. As the Supreme Court instructed in Iqbal,

“[w]here the well-pleaded facts do not permit the court

to infer more than the mere possibility of misconduct,

the complaint has alleged-but it has not

‘show[n]’-‘that the pleader is entitled to relief.’” 

This “plausibility” determination will be “a

context-specific task that requires the reviewing court

to draw on its judicial experience and common sense.”

Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009)

(citations omitted).

Where a complaint can be remedied by an amendment, a

district court may not dismiss the complaint with prejudice, but

must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34

(1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d

Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane

v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal

pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg

County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).

III. SECTION 1983 ACTIONS

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

§ 1983 for certain violations of his 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 ... .

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Thus, to state a claim for relief under § 1983, a plaintiff must

allege, first, the violation of a right secured by the

Constitution or laws of the United States and, second, that the

alleged deprivation was committed or caused by a person acting

under color of state law. West v. Atkins, 487 U.S. 42, 48

(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.

1994).

Local government units and supervisors are not liable under

§ 1983 solely on a theory of respondeat superior. See City of

Oklahoma City v. Tuttle, 471 U.S. 808, 824 n.8 (1985); Monell v.

New York City Department of Social Services, 436 U.S. 658, 690-

91, 694 (1978) (municipal liability attaches only “when execution

of a government’s policy or custom, whether made by its lawmakers

or by those whose edicts or acts may fairly be said to represent

official policy, inflicts the injury” complained of); Natale v.

Camden County Correctional Facility, 318 F.3d 575, 583-84 (3d

Cir. 2003). “A defendant in a civil rights action must have

personal involvement in the alleged wrongs, liability 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.” Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations

omitted). Accord Robinson v. City of Pittsburgh, 120 F.3d 1286,

8

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1293-96 (3d Cir. 1997); Baker v. Monroe Twp., 50 F.3d 1186, 1190-

91 (3d Cir. 1995).

Finally, a § 1983 action brought against a person in his or

her official capacity “generally represent[s] only another way of

pleading an action against an entity of which an officer is an

agent.” Monell, 436 U.S. at 690 n.55. “[I]n an officialcapacity action, ... a governmental entity is liable under § 1983

only when the entity itself is a ‘moving force’ behind the

deprivation; thus, in an official capacity suit the entity’s

‘policy or custom’ must have played a part in the violation of

federal law.” Kentucky v. Graham, 473 U.S. 159, 166 (1985)

(internal quotation marks and citations omitted).

IV. ANALYSIS

A liberty interest protected by the Due Process Clause may

arise from either of two sources: the Due Process Clause itself

or State law. See Hewitt v. Helms, 459 U.S. 460, 466 (1983);

Asquith v. Department of Corrections, 186 F.3d 407, 409 (3d Cir.

1999).

Pre-trial detainees and convicted but unsentenced prisoners

retain liberty interests firmly grounded in the Due Process

Clause of the Fourteenth Amendment. See Hubbard v. Taylor, 399

F.3d 150 (3d Cir. 2005); Fuentes v. Wagner, 206 F.3d 335, 341

(3d Cir. 2000). Analysis of whether such a detainee or

unsentenced prisoner has been deprived of liberty without due

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process is governed by the standards set out by the Supreme Court

in Bell v. Wolfish, 441 U.S. 520 (1979). Hubbard, 399 F.3d at

157-60, 164-67; Fuentes, 206 F.3d at 341-42.

In evaluating the constitutionality of conditions

or restrictions of pretrial detention that implicate

only the protection against deprivation of liberty

without due process of law, we think that the proper

inquiry is whether those conditions amount to

punishment of the detainee. For under the Due Process

Clause, a detainee may not be punished prior to an

adjudication of guilt in accordance with due process of

law. ...

Not every disability imposed during pretrial

detention amounts to “punishment” in the constitutional

sense, however. Once the government has exercised its

conceded authority to detain a person pending trial, it

obviously is entitled to employ devices that are

calculated to effectuate this detention. ...

A court must decide whether the disability is

imposed for the purpose of punishment or whether it is

but an incident of some other legitimate governmental

purpose. Absent a showing of an expressed intent to

punish on the part of detention facility officials,

that determination generally will turn on “whether an

alternative purpose to which [the restriction] may

rationally be connected is assignable for it, and

whether it appears excessive in relation to the

alternative purpose assigned [to it].” Thus, if a

particular condition or restriction of pretrial

detention is reasonably related to a legitimate

governmental objective, it does not, without more,

amount to “punishment.” Conversely, if a restriction

or condition is not reasonably related to a legitimate

goal--if it is arbitrary or purposeless--a court

permissibly may infer that the purpose of the

governmental action is punishment that may not

constitutionally be inflicted upon detainees qua

detainees. ...

441 U.S. at 535-39 (citations omitted). The Court further

explained that the government has legitimate interests that stem

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from its need to maintain security and order at the detention

facility. “Restraints that are reasonably related to the

institution’s interest in maintaining jail security do not,

without more, constitute unconstitutional punishment, even if

they are discomforting and are restrictions that the detainee

would not have experienced had he been released while awaiting

trial.” 441 U.S. at 540. Retribution and deterrence, however,

are not legitimate nonpunitive governmental objectives. 441 U.S.

at 539 n.20. Nor are grossly exaggerated responses to genuine

security considerations. Id. at 539 n.20, 561-62.

Here, Plaintiff’s threadbare allegations of dirty showers

and ventilation, along with being required to sleep on the floor,

are not sufficient to show that he was subjected to conditions of

confinement amounting to punishment. Cf. Hubbard v. Taylor, 538

F.3d at 233-37 (court will look to totality of circumstances in

determining whether conditions cause inmates to endure such

genuine privations and hardship over an extended period of time

that the adverse conditions amount to a violation of pre-trial

detainees’ due process rights).

Moreover, it appears that Plaintiff is no longer entitled to

the sole form of relief, injunctive relief, that he has

requested. As it appears that he is no longer confined at

Atlantic County Justice Facility, Plaintiff lacks standing to

bring this claim for prospective injunctive relief. He cannot

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show that he faces a real and immediate threat of future injury

arising out of the challenged conduct. See, e.g., City of Los

Angeles v. Lyons, 461 U.S. 95 (1983); Brown v. Fauver, 819 F.2d

395, 400 (3d Cir. 1987). Accordingly, the claim for prospective

injunctive relief will be dismissed with prejudice.

V. CONCLUSION

For the reasons set forth above, the Complaint will be

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

1915A(b)(1), for failure to state a claim. However, if 3

Plaintiff can supplement his pleading with facts sufficient to

overcome the deficiencies noted herein, he may move to re-open

this matter and file an amended complaint. 

4

 The Court notes that “‘[g]enerally, an order which 3

dismisses a complaint without prejudice is neither final nor

appealable because the deficiency may be corrected by the

plaintiff without affecting the cause of action.’ ... The

dispositive inquiry is whether the district court’s order finally

resolved the case.” Martin v. Brown, 63 F.3d 1252, 1257-58 (3d

Cir. 1995) (quoting Borelli v. City of Reading, 532 F.2d 950, 951

(3d Cir. 1976)) (other citations omitted). In this case, if

Plaintiff can correct the deficiencies of his Complaint, he may

file a motion to re-open these claims in accordance with the

court rules.

 Plaintiff should note that when an amended complaint is 4

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 relevant portion is specifically

incorporated in the new [complaint].” 6 Wright, Miller & Kane,

Federal Practice and Procedure § 1476 (2d ed. 1990) (footnotes

omitted). An amended complaint may adopt some or all of the

allegations in the original complaint, but the identification of

the particular allegations to be adopted must be clear and

explicit. Id. To avoid confusion, the safer course is to file

an amended complaint that is complete in itself. Id.

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An appropriate order follows.

s/Robert B. Kugler 

Robert B. Kugler

United States District Judge

Dated: August 30, 2011

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