NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

:

BALIL YUSEF BURTON, :

:

Plaintiff, :

:

v. :

:

ATLANTIC CTY JUSTICE FAC., :

:

Defendants. :

 :

Civil No. 11-4673 (RMB)

OPINION

APPEARANCES:

BALIL YUSEF BURTON, #196760, Plaintiff Pro Se

Atlantic County Justice Facility

5060 Atlantic Ave

Mays Landing, NJ 08330

BUMB, District Judge:

Plaintiff, Balil Yusef Burton, a prisoner incarcerated at

Atlantic County Justice Facility, seeks to bring this action in

forma pauperis pursuant to 28 U.S.C. § 1915, asserting violation

of his rights under 42 U.S.C. §1983, against the Atlantic County

Justice Facility (“ACJF”). This Court will grant Plaintiff’s

application to proceed in forma pauperis. See 28 U.S.C. §

1915(b). Having reviewed Plaintiff’s allegations, as required by

28 U.S.C. §§ 1915(e)(2)(B) and 1915A, this Court will dismiss the

Complaint for failure to state a claim upon which relief may be

granted. 

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I. BACKGROUND

Balil Yusef Burton brings this Complaint for violation of

his constitutional rights under 42 U.S.C. § 1983 against the

Atlantic County Justice Facility. The statement of facts in the

Complaint consists of the following:

On June 22, 2011 I Balil Burton was housed in the G

right pod of the Atlantic County Justice Facility. 

Once I went in my room to put my belongings away into

cell #4 I was hit from behind by unknown person. I was

then on the ground when about another 4 or 5 unknown

person came into my cell & started to jump me. I then

called for the C.O.’s who failed to come to my aid at

the time. One of the unknown person left the room then

came back with a rope and I was tied up and beat for

awhile longer. Then another person ran outta [sic] the

room and returned with a broom stick. Then I had my

pants and boxers removed where the gang of people tried

to sexually assault me. Officers failed to protect me

& keep me safe.

***

As correctional officers their job is to protect me and

make sure of my saf[e]ty they failed to do so by not

looking at the cameras & making pods runs as often as

they should have. Allowing me to get jump[ed] by a

gang of people.

(Dkt. 1 at 4.)

Plaintiff seeks the following relief: “I just want justice

for my pain & suffering I’ve went threw and I want for the County

to do its job and keep me safe.” (Dkt. 1 at 5.)

II. 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 screen a complaint in a civil action

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in which a plaintiff is proceeding in forma pauperis or a

prisoner is seeking redress against a government employee or

entity, and to sua sponte dismiss any claim if the Court

determines that it is frivolous, malicious, fails to state a

claim on 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), 1915A. 

Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009),

hammered the “final nail-in-the-coffin” for the “no set of facts”

standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46

(1957),1

 which was previously applied to determine if a federal

complaint stated a claim. See Fowler v. UPMC Shadyside, 578 F.3d

203 (3d Cir. 2009). To survive dismissal under Iqbal, “a

complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim for relief that is plausible on its

face.’ 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.' ” Iqbal, 129 S. Ct. at 1949 (citation omitted). 

Officials may not be held liable under § 1983 for the

unconstitutional misconduct of their subordinates. Id. at 1948-

1

 The Conley court held that a district court was permitted

to dismiss a complaint for failure to state a claim only if “it

appear[ed] beyond doubt that the plaintiff can prove no set of

facts in support of his claim which would entitle him to relief.”

Conley v. Gibson, 355 U.S. at 45-46. 

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49. Rather, the facts set forth in the complaint must show that

each government-official defendant, through the official’s own

individual actions, has violated the plaintiff’s constitutional

rights. Id. This Court must disregard labels, conclusions,

legal arguments, and naked assertions. Id. at 1949. The

plausibility standard “asks for more than a sheer possibility

that a defendant has acted unlawfully. Where a complaint pleads

facts that are merely consistent with a defendant’s liability, it

stops short of the line between possibility and plausibility of

entitlement to relief”, and will be dismissed. Id. (citations

and internal quotation marks omitted); see also Santiago v.

Warminster Township, 629 F. 3d 121, 130 (3d Cir. 2010); Fowler v.

UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009) (“a

complaint must do more than allege the plaintiff's entitlement to

relief. A complaint has to “show” such an entitlement with its

facts”) (emphasis supplied). The Court is mindful, however, that

the sufficiency of this pro se pleading must be construed

liberally in favor of the plaintiff, even after Iqbal. See

Erickson v. Pardus, 551 U.S. 89 (2007).

III. DISCUSSION

A court’s initial task is to “tak[e] note of the elements

[Plaintiff] must plead” in order to state a claim of liability

under 42 U.S.C. § 1983. See Iqbal, 129 S Ct. at 1947-48. 

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Section 1983 of Title 28 of the United States Code 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. 

42 U.S.C. § 1983.

To recover under 42 U.S.C. § 1983, a plaintiff must show two

elements: (1) a person deprived him or caused him to be deprived

of a right secured by the Constitution or laws of the United

States, and (2) the deprivation was done under color of state

law. See West v. Atkins, 487 U.S. 42, 48 (1988). 

First, because a jail is not a “person,” this Court will

construe the defendant - Atlantic County Justice Facility - as

the Atlantic County, New Jersey. See Boneberger v. Plymouth

Twp., 132 F.3d 20, 25 (3d Cir. 1997) (holding that, for purposes

of § 1983, municipality and its police department are treated as

a single entity). However, a local government entity “cannot be

held liable solely because it employs a tortfeasor.” Monell v.

Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978). 

Rather, “it is [only] when execution of a government’s policy or

custom, whether made by its lawmakers or by those whose edicts

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and acts may fairly be said to represent official policy,

inflicts the injury that the government as an entity is

responsible under § 1983.” Id. Because Plaintiff’s allegations

do not show that the execution of a policy or custom adopted by

Atlantic County inflicted any constitutional deprivation, the

Complaint fails to state a claim against Atlantic County. See

Caldwell v. Egg Harbor Police Dep’t, 362 Fed. App’x 250, 252 (3d

Cir. 2010). As the Complaint does not assert a cognizable claim

against the only named defendant, this Court will dismiss the

Complaint for failure to state a claim upon which relief may be

granted. 

Normally, a court will not dismiss a complaint without

granting the plaintiff leave to amend. However, a complaint is

properly dismissed without granting leave to amend where the

plaintiff could not cure the defects in the complaint by filing

an amended complaint. See Phillips v. County of Allegheny, 515

F.3d 224, 245-46 (3d Cir. 2008). In this case, it is not

inconceivable that Plaintiff might be able to state a cognizable

claim under § 1983 by either naming the officers who allegedly

failed to protect him and/or asserting facts showing that a

custom or policy of Atlantic County caused violation of

Plaintiff’s constitutional rights. To guide Plaintiff, this

Court will explain the contours of the failure to protect

standard under § 1983.

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The Eighth Amendment requires prison officials to take

“reasonable measures to guarantee the safety of the inmates,”

Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v.

Palmer, 468 U.S. 517, 526-27 (1984)), which includes protecting

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

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

omitted). To state a failure to protect claim under § 1983, an

inmate must assert facts showing: (1) he is objectively

“incarcerated under conditions posing a substantial risk of

serious harm;” (2) defendant subjectively “knows of and

disregards an excessive risk to inmate health or safety;” and (3)

causation. Farmer, 511 U.S. at 837. 

Even if Plaintiff were to name the appropriate corrections

officers as defendants, as written, his allegations do not

satisfy the objective component because he does not allege facts

showing that he was incarcerated under conditions posing a

substantial risk of serious harm. Plaintiff asserts only one

incident and the objective component of a failure to protect

claim is not generally satisfied by allegations of a single

incident. See Riley v. Jeffes, 777 F. 2d 143, 147 (3d Cir.

1985). Plaintiff’s allegations do not show that corrections

officers saw the attack, could have intervened, but nevertheless

failed to do so, and the allegations are consistent with a

conclusion that the assault was unanticipated. 

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Nor do Plaintiff’s allegations satisfy the subjective

component. For example, Plaintiff does not allege that he

complained to any named defendant about any specific threat, or

that he requested protection prior to the incident. The facts

alleged by Plaintiff do not show deliberate indifference. See

Farmer, 511 U.S. at 835 (“an official's failure to alleviate a

significant risk that he should have perceived but did not, while

no cause for commendation, cannot under our cases be condemned as

the infliction of [unconstitutional] punishment”); Davidson v.

Cannon, 474 U.S. 344 (1986) (prison official who “mistakenly

believed that the situation was not particularly serious” did not

deprive inmate of a liberty interest); Daniels v. Williams, 474

U.S. 327 (1986) (due process is not implicated by a state

official's negligent act causing injury to an inmate). However,

in an abundance of caution, this Court will grant Plaintiff 30

days to file an amended complaint stating a failure to protect

claim.2

2 Plaintiff should note that once an amended complaint is

filed, the original complaint no longer performs any function in

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

complaint. See 6 Wright, Miller & Kane, Federal Practice and

Procedure: Civil 2d § 1476 (1990) (footnotes omitted). Thus, if

Plaintiff elects to file an amended complaint, it should be

complete on its face. 

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V. CONCLUSION

Based on the foregoing, this Court will grant Plaintiff’s

application to proceed in forma pauperis and dismiss the

Complaint.

s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

Dated: April 30, 2012

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