BROWN v. WARDEN OF CUMBERLAND COUNTY JAIL

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DAVID BROWN, No. 19-cv-21965 (NLH) (JS)

Plaintiff,

OPINION

v.

WARDEN OF CUMBERLAND COUNTY

JAIL, et al.,

Defendants.

APPEARANCES:

David Brown

1214647

Philadelphia Detention Center

8201 State Rd

Philadelphia, PA 19136

Plaintiff Pro se

HILLMAN, District Judge

Plaintiff David Brown filed a complaint under 42 U.S.C. §

1983 alleging he was falsely arrested and detained in the

Cumberland County Jail. ECF No. 1. He also alleges officers

encouraged other inmates to assault him and stood by while the

assault took place. Id. He requests the appointment of

counsel. ECF No. 2.

At this time, the Court must review the Complaint, pursuant

to 28 U.S.C. § 1915(e)(2) 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.

For the reasons set forth below, the Court will permit the

Fourteenth Amendment failure to protect and failure to intervene

claims to proceed, but Plaintiff must provide the Court with the

names of the officers involved.

I. BACKGROUND

Plaintiff’s complaint alleges that he was assaulted by

inmates while incarcerated in the Cumberland County Jail:

In May of 2018 I was arrested in New Jersey for

aggravated assault 2nd degree and held without bail at

Cumberland County Jail for several months before the

charges were eventually dropped and I was released

before that I was being held illegally in a high custody

area of the jail with inmates charged with crimes ranging

form [sic] murder, robbery, rape, and even institutional

rape[.] [O]ne day I was on the tier I was assaulted by

several inmates while officer watched outside the gate

before breaking it up 2 of the inmates involved in the

assault were on trial for murder in the first degree and

should not have been housed with me for my misdemeanor

charges.

ECF No. 1 at 4. He adds that the assault was done at the

officers’ command and they “stood by and watched for

entertainment.” Id. at 7. Plaintiff was hospitalized as a

result. Id.

II. STANDARD OF REVIEW

Section 1915(e)(2) requires a court to review complaints

prior to service in cases in which a plaintiff is proceeding in

forma pauperis. The Court must 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. This action is

subject to sua sponte screening for dismissal under 28 U.S.C. §

1915(e)(2)(B) because Plaintiff is proceeding in forma pauperis

and is incarcerated.

To 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. 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 misconduct alleged.’” Fair Wind

Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “[A]

pleading that offers ‘labels or conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.’”

Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007)).

III. DISCUSSION

A. False Arrest and False Imprisonment

Plaintiff appears to raise false arrest and false

imprisonment claims through his assertion that he was arrested

for second-degree aggravated assault and held in the Cumberland

County Jail for a few months before the charges were dropped.

ECF No. 1 at 4. Plaintiff identified two Paulsboro police

officers in letters to the Court, asking that they be named as

defendants. See ECF Nos. 4 & 5. The Court will not substitute

the officers for the John Doe Officers currently in the caption

as defendants because Plaintiff has not stated a claim for false

arrest or false imprisonment.

“To state a claim for false arrest under the Fourth

Amendment, a plaintiff must establish: (1) that there was an

arrest; and (2) that the arrest was made without probable

cause.” James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d

Cir. 2012). “Probable cause to arrest exists when the facts and

circumstances within the arresting officer’s knowledge are

sufficient in themselves to warrant a reasonable person to

believe that an offense has been or is being committed by the

person to be arrested.” Orsatti v. New Jersey State Police, 71

F.3d 480, 482 (3d Cir. 1995). “[W]here the police lack probable

cause to make an arrest, the arrestee has a claim under § 1983

for false imprisonment based on a detention pursuant to that

arrest.” O’Connor v. City of Phila., 233 F. App’x 161, 164 (3d

Cir. 2007) (internal quotation marks and citation omitted).

Plaintiff has not provided the Court with any information

about the circumstances of his arrest and subsequent

imprisonment beyond stating it was “illegal.” The mere fact

that the charge was later dismissed does not mean the police

lacked probable cause to arrest Plaintiff as charges may be

dismissed pretrial for any number of reasons.

As Plaintiff may be able to allege facts supporting his

false arrest and false imprisonment claims, the Court will

dismiss them without prejudice. Plaintiff may move to amend his

complaint by submitting a motion and amended complaint

containing facts supporting his false arrest and false

imprisonment claims.

B. Fourteenth Amendment Claims

Plaintiff’s other claims concern his allegations that

Cumberland County Jail officers failed to protect Plaintiff when

they directed other inmates to assault Plaintiff and watched the

assault “for their entertainment.” ECF No. 1 at 4,7. As

Plaintiff was a pretrial detainee, his claims arise under the

Fourteenth Amendment’s Due Process Clause.

To state a claim for damages against a prison official for

failure to protect from inmate violence, “an inmate must plead

facts that show (1) he was incarcerated under conditions posing

a substantial risk of serious harm, (2) the official was

deliberately indifferent to that substantial risk to his health

and safety, and (3) the official’s deliberate indifference

caused him harm.” Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir.

2012).1 If Plaintiff’s allegations are true, prison officials

encouraged other inmates to assault him. Having been aware of a

risk to Plaintiff’s safety, they then failed to take reasonable

steps to prevent the harm from happening; indeed, they actively

encouraged it. This is enough to state a failure to protect

claim.

Liberally construing the complaint, Plaintiff also alleges

a failure to intervene claim against the officers. “If a police

officer, whether supervisory or not, fails or refuses to

intervene when a constitutional violation such as an unprovoked

beating takes place in his presence, the officer is directly

liable under Section 1983. However, an officer is only liable

if there is a realistic and reasonable opportunity to

intervene.” Smith v. Mensinger, 293 F.3d 641, 650–51 (3d Cir.

2002) (internal citations and quotation marks omitted).

Plaintiff indicates more than one officer was present at the

scene; therefore, it is reasonable to infer that each officer

had an opportunity to stop the inmates’ attack on Plaintiff but

failed to do so. This claim can also proceed.

1 This standard derives from the Eighth Amendment as opposed to

the Fourteenth, but “it is a given that the [Fourteenth]

Amendment provides the same, if not more, protection for

pretrial detainees than the Eighth Amendment does for imprisoned

convicts.” Bistrian v. Levi, 912 F.3d 79, 91 (3d Cir. 2018)

(recognizing failure to protect claim under the Fifth Amendment

for federal pretrial detainees).

Plaintiff has not stated a claim against Warden Richard

Smith. A plaintiff cannot hold a supervisor liable for the

actions of his employees solely on a respondeat superior theory

under § 1983. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). A

supervisor can be held liable if (1) “they established and

maintained a policy, practice or custom which directly caused

the constitutional harm” or (2) “they participated in violating

plaintiff’s rights, directed others to violate them, or, as the

persons in charge, had knowledge of and acquiesced in their

subordinates’ violations.” Santiago v. Warminster Twp., 629

F.3d 121, 129 n.5 (3d Cir. 2010) (citing A.M. ex rel. J.M.K. v.

Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir.

2004)) (internal quotation marks omitted). There is no

indication in the complaint that Warden Smith established a

policy that caused Plaintiff’s injury or participated in or knew

of the officers’ actions. If Plaintiff is able to allege such

facts, he may include them in an amended complaint.

C. John Doe Defendants

The claims that the Court has permitted to proceed, failure

to protect and failure to intervene, are alleged against John

Doe Corrections Officers.2 The U.S. Marshals cannot serve John

2 The names in Plaintiff’s letters to the Court are Paulsboro

Police officers who are unlikely to have participated in the

assault inside the Cumberland County Jail. The Court will

Doe defendants; Plaintiff must be able to identify defendants

before the Marshals can serve the complaint. If Plaintiff

cannot provide the Court with the name of the officers from the

Cumberland County Jail, “an appropriate method for the plaintiff

to seek the identity of the John Doe defendants is through the

use of a subpoena directed to officials” at the Cumberland

County Jail. Gerber v. Various Other Prison Officials, No.

1:06CV01358, 2007 WL 1847582, at *2 (M.D. Pa. May 10, 2007)

(report and recommendation adopted June 25, 2007). Subpoenas

are governed by Federal Rule of Civil Procedure 45.

D. Motion for the Appointment of Counsel

Plaintiff moves for the appointment of counsel. ECF No. 2.

Appointment of counsel is a privilege, not a statutory or

constitutional right, Brightwell v. Lehman, 637 F.3d 187, 192

(3d Cir. 2011), and is governed by the factors enumerated in

Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993).

In determining whether to appoint counsel, a court

considers the following: (1) the plaintiff’s ability to present

his or her own case; (2) the complexity of the legal issues; (3)

the degree to which factual investigation will be necessary and

the ability of the plaintiff to pursue such investigation; (4)

the amount a case is likely to turn on credibility

instruct the Clerk to add John Doe Corrections Officers 1-5 to

the docket as defendants.

determinations; (5) whether the case will require the testimony

of expert witnesses; and (6) whether the plaintiff can attain

and afford counsel on his own behalf. See id. at 155–56, 157

n.5; see also Cuevas v. United States, 422 F. App’x 142, 144–45

(3d Cir. 2011) (reiterating the Tabron factors).

After considering and weighing the Tabron factors, the

Court will deny Plaintiff’s motion at this time. Plaintiff has

presented his case in a coherent manner thus far and has

survived the Court’s sua sponte review. The remaining issues in

the complaint do not appear to be especially complex based on

the face of the complaint, and the Court does not anticipate any

special difficulty for Plaintiff in presenting his case. Also

weighing against appointing counsel is the fact that extensive

discovery is not expected. The fact that Plaintiff’s and the

officers’ credibility will be a significant factor at trial

weighs in favor of appointing counsel. It does not appear from

the face of the complaint that expert testimony will be

required, which weighs against appointing counsel. As Plaintiff

is proceeding in forma pauperis, the Court accepts that he

cannot afford counsel on his own, which also weighs slightly in

favor of appointing counsel.

The balance of factors weighs against appointing counsel at

the outset of this case. The denial is without prejudice, and

Plaintiff may move again for the appointment of counsel if his

circumstances change or further events in the case warrant a

reconsideration of the Tabron factors.

CONCLUSION

For the reasons stated above, the Complaint may proceed

against the John Doe Corrections Officers on Plaintiff’s failure

to protect and failure to intervene claims. Plaintiff’s claims

against Warden Richard Smith and the Paulsboro officers are

dismissed without prejudice for failure to state a claim.

Plaintiff’s motion for the appointment of counsel is denied

without prejudice.

An appropriate order follows.

Dated: _April 20, 2020 __s/ Noel L. Hillman______

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.