WILSON v. NEW JERSEY DEPARTMENT OF CORRECTION

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

DAVID WILSON, : CIV. NO. 18-9591 (RMB)

:

Plaintiff :

:

v. : OPINION

:

NEW JERSEY DEP’T OF CORR., :

et al., :

:

:

Defendants :

APPEARANCES:

DAVID WILSON

Plaintiff Pro Se

NICHOLAS SULLIVAN, Esq.

Deputy Attorney General

Office of the Attorney General of New Jersey

Richard J. Hughes Justice Complex

25 Market Street, P.O. Box 112

Trenton, NJ 08625-0112

On behalf of Defendants Gary Lanigan and John Powell

BUMB, DISTRICT JUDGE

This matter comes before the Court upon the State Defendants’1

First Motion to Dismiss in Lieu of an Answer. (Mot. to Dismiss,

ECF No. 14; State Defs’ Brief, ECF No. 14-3.) Plaintiff filed a

brief in opposition to the motion to dismiss. (Pl’s Brief in Opp.,

1 The State Defendants are Gary Lanigan, Commissioner of the

Department of Corrections and John Powell, Warden of Bayside State

Prison. (State Defs’ Brief, ECF No. 14-3 at 13.)

ECF No. 15.) The State Defendants filed a reply brief. (State

Defs.’ Reply Brief, ECF No. 16). The Court will decide the motion

on the briefs, without oral hearing, pursuant to Federal Rule of

Civil Procedure 78(b).

I. BACKGROUND

A. Procedural History

Plaintiff David Wilson, a prisoner confined at Bayside State

Prison in Leesburg, New Jersey filed this civil rights complaint

under 42 U.S.C. § 1983 on May 22, 2018. (Compl., ECF No. 1.) The

Court granted Plaintiff’s application to proceed in forma pauperis

(“IFP”) under 28 U.S.C. § 1915 and screened the complaint pursuant

to 28 U.S.C. §§ 1915(e)(2)(B); 1915A(b) and 42 U.S.C. §

1997e(c)(1). (Opinion, ECF No. 3; Order, ECF No. 4.) The Court

dismissed with prejudice the claim against the New Jersey

Department of Corrections. (Id.)

Summonses were returned executed as to Gary Lanigan and John

Powell in February 2019, and the State Defendants filed a timely

motion to dismiss in lieu of an answer on March 14, 2019. (Mot. to

Dismiss, ECF No. 14.) Plaintiff filed a brief in opposition to the

motion to dismiss on March 15, 2019, and the State Defendants filed

a reply brief on April 25, 2019. (Pl’s Opp. Brief, ECF No. 15;

State Defs’ Reply Brief, ECF No. 16.)

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B. The Complaint

Plaintiff alleges that when he was transferred to Bayside

State Prison on June 26, 2017, he was in good health. (Compl., ECF

No. 1, ¶2.) After two months, he developed a cough and went to the

medical department. (Id.) He noticed there were signs posted on

the doors leading to the plumbing of each cell on his unit that

read “caution do not enter.” (Id., ¶3.) Upon information and

belief, Plaintiff alleged there is asbestos in the prison, which

was why caution signs were posted on Units A, B, C, D, E, and F.

(Id., ¶4.) Plaintiff had been housed in Units B, E and D. (Id.)

Plaintiff also noticed that the ventilation system was not working,

and upon information and belief, it had been out of order for close

to a decade. (Id., ¶5.)

Plaintiff asked to be tested for asbestos on or about

September or October 2017, but his request was denied. (Id., ¶6.)

In May 2018, Plaintiff asked Defendant Powell if the asbestos was

life threatening and Powell answered in the negative. (Id., ¶7.)

During the summer in 2017, numerous inmates were passing out in

their cells from lack of ventilation. (Id., ¶8.) Plaintiff alleges

Defendants Lanigan, Powell and John Does 1-10 refused to take

corrective action because they are protecting the reputation of

the jail against claims that it is a hazardous environment. (Id.,

¶10.) Plaintiff further alleges the defendants have failed to

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remove him from the hazardous environment “even after

acknowledging the threat and risk the jail poses to the plaintiff

Wilson’s health and life.” (Compl., ECF No. 1, ¶14.)

In response to Plaintiff’s grievances, Defendant Powell told

Plaintiff to address his concerns with the medical department and

refused to answer questions about the caution signs posted on the

door to the plumbing of his cell. (Id., ¶¶16-17.) Plaintiff

suffered from inhaling thick clouds of dust in his cell in the B,

E and D housing wings. (Id., ¶18.) The kitchen and shop areas of

Bayside prison have been closed down on occasion “due to strong

systems of asbestos.” (Id., ¶20.) Plaintiff informed Defendant

Lanigan and his office about the problem and Lanigan refused to

take corrective action. (Id., ¶22.) For relief, Plaintiff seeks

compensatory and punitive damages. (Id. at 8.) It is not clear

whether Plaintiff seeks injunctive relief. Plaintiff wrote the

words “Injunctive Relief” in his complaint, but he did not describe

any injunctive relief that he seeks.

C. The State Defendants’ Motion to Dismiss

The State Defendants assert Plaintiff’s § 1983 claims against

them in their official capacities are barred by the Eleventh

Amendment and because they are not “persons” amenable to suit under

§ 1983 in their official capacities. (State Defs’ Brief, ECF No.

14-3 at 6-9.) The State Defendants recognize that prospective

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injunctive relief may be sought against state officials acting in

their official capacities under § 1983, but here Plaintiff seeks

monetary relief. (State Defs’ Brief, ECF No. 14-3 at 8.)

The State Defendants also seek dismissal of Plaintiff’s

claims against them in their individual capacities, contending

that Plaintiff failed to allege specific facts of their personal

involvement in his claims. (Id. at 10-14.) The State Defendants

maintain that Plaintiff’s threadbare allegation that he asked

Defendant Powell whether the asbestos posed a risk to his health,

and Powell said it did not, is insufficient to impute actual

knowledge of asbestos or a broken ventilation system. (Id. at 13.)

Similarly, the State Defendants argue Plaintiff’s allegation that

he informed Defendant Lanigan and his office of the issue and

Lanigan failed to act is insufficient to state a claim. (Id.)

D. Plaintiff’s Opposition Brief

In opposition to the motion to dismiss, Plaintiff points out

that the parties have not yet engaged in discovery. (Pl’s Opp.

Brief, ECF No. 15 at 1.) He alleges that there are caution signs

on more than fifty closet doors in the prison. (Id.) He fears he

will develop cancer. (Id.)

E. State Defendants’ Reply Brief

In reply, the State Defendants argue that Plaintiff failed to

address their legal claims. (State Defs’ Reply Brief, ECF No. 16

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at 2.) Further, they claim it is illogical to assume that caution

signs indicate the presence of asbestos. (Id. at 2-3.)

II. DISCUSSION

A. Standard of Review

Under Federal Rule of Civil Procedure 12(b)(6), courts may

dismiss a complaint for failure to state a claim upon which relief

may be granted. A plaintiff need only present a “short and plain

statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8. A complaint must “ʽgive the defendant

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

it rests.’” Palakovic v. Wetzel, 854 F.3d 209, 219 (3d Cir. 2017)

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

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (alteration in

original)).

“ʽ[A] complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on

its face.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129

S.Ct. 1937 (2009) (citation and internal quotation marks omitted).

A claim is facially plausible if the factual content “ʽallows the

court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.’” Id.

Courts assessing the sufficiency of a complaint on a motion

to dismiss under Fed. R. Civ. P. 12(b)(6) should first determine

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the elements a plaintiff must plead to state a claim, and second

identify allegations that are no more than conclusions, which are

not entitled to the assumption of truth. Palakovic, 854 F.3d at

220 (citing Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d

Cir. 2011)(internal quotation marks omitted) (quoting Santiago v.

Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). Third, courts

should assume well-pleaded factual allegations are true and “then

determine whether they plausibly give rise to an entitlement for

relief.’” Id.

B. Eighth Amendment Conditions of Confinement Claim Under

42 U.S.C. § 1983

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

1983 for 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....

To state a claim for relief under § 1983, a plaintiff must

allege the violation of a right secured by the Constitution or

laws of the United States, and that the constitutional deprivation

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was caused by a person acting under color of state law. West v.

Atkins, 487 U.S. 42, 48 (1998); Malleus v. George, 641 F.3d 560,

563 (3d Cir. 2011).

a. Official Capacity Claims

The Eleventh Amendment provides, in relevant part, “[t]he

Judicial Power of the United States shall not be construed to

extend to any suit in law or equity commenced or prosecuted against

one of the United States by Citizens of another State...” The

Eleventh Amendment bars § 1983 claims for monetary damages against

state officials in their official capacities. Kentucky v. Graham,

473 U.S. 159, 169 (1985). Claims for prospective injunctive relief

are not barred by the Eleventh Amendment. Green v. Mansour, 474

U.S. 64, 68 (1985) (citing Ex Parte Young, 208 U.S. 123, 155-56,

159 (1908)).

Plaintiff seeks monetary damages against the State Defendants

in their official capacities and has not clearly sought prospective

injunctive relief. The Court will dismiss the official capacity

claims against the State Defendants without prejudice.

b. Personal Involvement in an Eighth Amendment

violation

The treatment a prisoner receives and his conditions of

confinement are subject to scrutiny under the Eighth Amendment.

Farmer v. Brennan, 511 U.S. 825, 832 (1994). For a claim based on

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failure to prevent harm, “the inmate must show that he is

incarcerated under conditions posing a substantial risk of serious

harm.” Farmer, 511 U.S. at 834 (citing Helling v. McKinney, 509

U.S. at 25, 35 (1993)); see Fontroy v. Owens, 23 F.3d 63, 65 (3d

Cir. 1994) (“Helling permits a plaintiff to proceed on a cause of

action alleging an unreasonable risk of future injury from present

exposure to asbestos.”)

A prisoner states an Eighth Amendment claim by alleging the

defendants, “with deliberate indifference,” exposed him to a toxic

environment that poses an unreasonable risk of serious damage to

his future health. Helling, 509 U.S. at 35. Objectively, the

plaintiff must show he is being exposed to an unreasonably high

level of a toxic substance, in this case, asbestos. (Id.)

Additionally, a court must assess whether “society considers the

risk that the prisoner complains of to be so grave that it violates

contemporary standards of decency to expose anyone unwillingly to

such a risk.” Id. at 36.

A plaintiff must also establish the defendants’ deliberate

indifference to the risk of injury to the plaintiff’s health, which

should be judged by the defendants’ attitude and conduct. Id. “‘A[n

individual government] defendant in a civil rights action must

have personal involvement in the alleged wrongdoing; liability

cannot be predicated solely on the operation of respondeat

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superior. Personal involvement can be shown through allegations of

personal direction or of actual knowledge and acquiescence.”

Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode

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

To establish that he is exposed to asbestos at a level that

poses an unreasonable risk of serious damage to his future health,

Plaintiff must plead additional facts. Plaintiff alleged that upon

information and belief, there is asbestos in the prison, which was

why caution signs were posted on Units A, B, C, D, E, and F. (Id.,

¶4.) Plaintiff must allege what information he relies on to form

his belief that there is asbestos present, and that the asbestos

is present at a level that poses an unreasonable risk to his future

health. Plaintiff should also elaborate on his claim that the

kitchen and shop areas of Bayside prison have been closed down on

occasion “due to strong systems of asbestos.” (Id., ¶20.) For

example, when did this occur and how did Plaintiff learn asbestos

was the cause for closing the kitchen and shop?

Plaintiff also alleged that upon information and belief, the

ventilation system has been out of order for close to a decade.

Plaintiff should describe the information upon which he draws this

conclusion. Plaintiff further alleges the defendants have failed

to remove him from the hazardous environment “even after

acknowledging the threat and risk the jail poses to the plaintiff

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Wilson’s health and life.” (Compl., ECF No. 1, ¶14.) Plaintiff

should elaborate on how and when each defendant acknowledged the

threat and risk the jail poses to Plaintiff.

These additional facts are needed to determine whether

Plaintiff’s allegation that asbestos in Bayside State Prison poses

an unreasonable risk of serious damage to his future health states

a plausible claim for relief. Therefore, the Court grants the State

Defendants’ motion to dismiss the Eighth Amendment claims under §

1983 against Defendants Powell and Lanigan in their individual

capacities and the claims are dismissed without prejudice.

III. CONCLUSION

For the reasons stated above, the Court grants the State

Defendants’ motion to dismiss.

An appropriate order follows.

DATE: September 18, 2019

s/Renée Marie Bumb

RENÉE MARIE BUMB

United States District Judge

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