SKELTON v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

RAYMOND SKELTON on behalf of :

himself and all other :

similarly situated persons, : CIV. NO. 19-18597 (RMB)

:

Plaintiff :

v. : OPINION

:

NEW JERSEY DEP’T OF CORR., :

et al., :

:

Defendants :

______________________________

Keith Altman, Esq.

Solomon M. Radner, Esq.

EXCOLO Law PLLC

26700 Lahser Road, Suite 401

Southfield, MI 48033

Attorneys for Plaintiff

Daniel S. Shehata, Deputy Attorney General

Michael Ezra Vomacka, Deputy Attorney General

New Jersey Office of the Attorney General

Richard J. Hughes Justice Complex

25 Market St, P.O. Box 112

Trenton, NJ 08625

Attorneys for Defendants

BUMB, United States District Judge

This matter comes before the Court upon Defendants’1 First

Motion to Dismiss Plaintiff’s Complaint (“Def’s Mot. to Dismiss,”

1 “Defendants” refers to the moving Defendants, the NJDOC,

Commissioner Marcus O. Hicks (“Hicks”), and Administrator of South

Woods State Prison John Powell (“Powell”) in their individual and

official capacities.

Dkt. No. 14; Def’s Brief, Dkt. No. 14-1), Plaintiff’s Response to

Defs’ Mot. to Dismiss (“Pl’s Opp. Brief,” Dkt. No. 15), and Defs’

Reply Brief (Defs’ Reply Brief, Dkt. No. 17). Plaintiff is a

prisoner at South Woods State Prison who brings a putative class

action challenging the constitutionality of the prisoner diet

provided by the New Jersey Department of Corrections. Pursuant to

42 U.S.C. § 1997e(c)(1)2, the Court may sua sponte screen the

Complaint for immunity and failure to state a claim. This Court

will decide the motion on the briefs without an oral hearing,

pursuant to Federal Rule of Civil Procedure 78(b).

For the reasons discussed below, the Court grants Defendants’

motion to dismiss and dismisses the claims against NJDOC with

prejudice as barred by the Eleventh Amendment, and dismisses the

claims against Hicks and Powell without prejudice for failure to

state a claim.

2 42 U.S.C.A. § 1997e(c)(1) provides:

(c) Dismissal

(1) The court shall on its own motion or on

the motion of a party dismiss any action

brought with respect to prison conditions

under section 1983 of this title, or any other

Federal law, by a prisoner confined in any

jail, prison, or other correctional facility

if the court is satisfied that the action is

frivolous, malicious, fails to state a claim

upon which relief can be granted, or seeks

monetary relief from a defendant who is immune

from such relief.

I. BACKGROUND

A. Procedural History

Plaintiff filed his initial complaint as a purported class

action on October 2, 2019. (Compl., Dkt. No. 1.) Defendants

requested a pre-motion conference pursuant to the Court’s

Individual Procedure Requirements. (Letter, Dkt. No. 9.) The Court

entered an order permitting Defendants to proceed with filing the

present motion to dismiss. (Order, Dkt. No. 13.)

B. The Complaint

Plaintiff makes the following allegations in his Complaint,

taken as true for purposes of this motion to dismiss.

1. Summary of allegations

Plaintiff, who suffers from diabetes, is currently

incarcerated at the South Woods State Prison in Bridgetown, NJ.

(Compl., ¶ 24.) Since 2010, Plaintiff has been medically prescribed

diabetic meals in South Woods state prison. (Id., ¶¶ 93, 95.)

Throughout the years of his incarceration, Plaintiff has provided

grievance after grievance that the prisoner diet is not adequate

to sustain normal health and does not meet his serious medical

needs. (Id., ¶ 24.) In addition to the Moving Defendants, the

Complaint alleges claims against John Doe dieticians, food service

directors, and past NJDOC administrators. Plaintiff asserts a

putative class action under 42 U.S.C. § 1983, the Americans with

Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA") and Section

504 of the Rehabilitation Act of 1973, as amended, at 29 U.S.C. §

794. (Compl., Dkt. No. 1.)

2. The contents of the prisoner diet

All prisoners in the NJDOC are provided with standardized

meals designed by the NJDOC. (Compl., ¶ 4.) NJDOC policy, set forth

in Internal Management Procedure FMP.002.MENU.001, states the

prisoner diet adheres to all “qualifying dietary standards

established by the United States Department of Agriculture

(“USDA”) and the Recommended Dietary Guidelines of Food and

Nutrition Board, Institute of Medicine, National Academy of

Science, or the National Research Council.” (Compl., ¶ 7.) In fact,

the diet does not adhere to any government or medical standards.

(see e.g. Compl., ¶ 15, 44, 51, 52.)

As designed and prepared, the diet served to prisoners during

the class period since 2010 is not adequate to sustain normal

health in that it is deficient in calories, nutrients, vitamins,

and minerals, and is comprised of foods that do not allow prisoners

to self-select meals which comply with their health needs,

particularly for those with diabetes. (Compl., ¶ 9.) Defendants

removed virtually every fruit and vegetable critical to human

health and replaced it with paste, white flour, and starches like

potatoes and rice. (Id., ¶ 15.) Defendants also removed virtually

all healthy proteins replacing them with processed meats, many of

which contain almost no actual protein. (Id.) The diet is filled

with empty starches, zero fiber, almost no protein, and no

nutrition. (Compl., ¶ 67.) Diabetes is and can be caused by poor

quality, high-fat, high-starch diets. (Id., ¶ 68.) The NJDOC serves

a diet to prisoners, including diabetics, of grits, overcooked

carrots, white bread, greasy processed meats, cookies, cakes,

white rice, sugary drinks, margarine, and constant potatoes-all

foods to be avoided by diabetics. (Id.)

3. The diet for prisoners with dietary medical needs

Instead of providing meals specifically for diabetic

individuals, prisoners with diabetes are required to self-select

from the standard meal offerings, but the meals, as designed and

prepared, did not allow for those with diabetes to select foods

which were appropriate for diabetics and to provide adequate

nutrition at the same time. (Id., ¶ 14.) For virtually all

prisoners whose illnesses are affected by diet, Defendants provide

absolutely no healthful options. (Id., ¶ 22.) Further, the NJDOC

only offers unhealthy food for prisoners for sale by prison

vendors, including foods with high sodium, high fat, and high sugar

content. (Id., ¶¶ 20, 21.)

4. Preparation of the prisoner diet

Plaintiff alleges,

[t]he NJDOC menu as designed by the NJDOC,

with full knowledge and acquiescence of all

Defendants, is not the menu that is actually

prepared and served. The menu is designed to

fool outside agencies into believing that the

prisoners are receiving adequate nutrition

when they are not. Even if the menu as designed

is what is actually served, it does not stand

the most basic nutritional scrutiny when held

up to the light of normal dietary standards

and government guidelines and

recommendations.

(Id., ¶ 77.) “Defendants are responsible for generating ‘bogus’

menus that may, on their face, appear to provide some semblance of

an appropriate diet.” (Id., ¶ 79.) “Plaintiffs receive nowhere

near the portions of the many food items alleged, as the Food

Defendants3 order kitchen workers to “short” amounts of food far

below the stated, or required, levels.” (Id., ¶ 81.) “Plaintiff

Skelton has challenged this practice and has repeatedly grieved

this issue, as have hundreds of other inmates.” (Id., ¶ 82.) The

menus also falsely represent food served, such as cheese, which

contains protein, vitamins, and minerals, but what is served is

watered-down liquid cheese, which does not contain any nutrition.

(Id., ¶ 84.)

5. Personal Involvement of the Defendants

Plaintiff alleges that NJDOC was responsible for designing

the inadequate diet. (Id., ¶ 4.) Defendants created, mandated, and

served this diet knowing the harm it causes. (Id., ¶ 11.)

3 John Doe Food Service Directors and Dieticians are alleged to

oversee and/or implement the NJDOC prisoner diet. (Compl., ¶¶ 30,

31, 33.)

Defendants conspired together to provide meals to prisoners which

were not sufficient to maintain normal health and conspired to

deny proper nutrition to prisoners with medical needs. (Id., ¶

13.) Defendants prepared a diet that did not meet the nutritional

needs for prisoners to sustain good health. (Id., ¶ 115.)

Allegations specific to Hicks and Powell are as follows. Hicks

has personal oversight of prisoners’ health, well-being, and

dietary needs. (Id., ¶ 27.) Hicks and Powell, together with the

John Doe Defendants, “the Individual Defendants,” (Id., ¶ 135)

were aware that the diet being provided to the prisoners was

inadequate to meet the needs of normal health and did nothing to

correct it. (Id., ¶ 134.) “Throughout the years of his

incarceration, Skelton has provided grievance after grievance that

the prisoner diet is not adequate to sustain normal health and

does not meet his serious medical needs.” (Id., ¶ 24.) Powell

continued a policy started by former Administrators that

deliberately eliminated required food from diabetic meals.

(Compl., ¶ 98.) Prison workers who assisted in the kitchen were

inadequately trained and supervised, leading to defective

preparation of the meals. (Id., ¶ 133.) “Plaintiff has complied

with all aspects of the pre-exhaustion requirements of the Prison

Litigation Reform Act through the appropriate grievance processes

of the NJDOC.” (Id., ¶ 90.) The Individual Defendants did not

change the diet in response to Plaintiff’s grievances. (Id., ¶

134.)

6. Harm to Plaintiff and the putative class

The prisoner diet, as prepared, harmed both Plaintiff and the

putative class because the meals did not contain the proper

quantities of food and were not adequate to maintain normal health.

(Id., ¶ 133.) The diet has led to a substantial increase in various

conditions such as diabetes and heart disease. (Id., ¶ 10.) The

failure to provide Plaintiff with diabetic meals has resulted in

Plaintiff having a blood sugar level outside acceptable medical

ranges, and caused him to suffer hypoglycemic episodes, chronic

nausea, hypertension, constant weakness, nerve damage, and other

physical ailments. (Id., ¶¶ 100-02.) The diet has caused the

putative class to suffer from

weakened immune systems, increased [sic] in

debilitating illnesses, accelerated aging,

obesity, worsening of (or creation of) their

diabetes, high blood pressure, heart disease

and cancer among other disorders), muscle

loss, joint pain and damage, mental confusion

and debility, vision and hearing disturbances,

and mental imbalances as so many mandatory

nutrients are critical to not just physical

health, but mental health.

(Id., ¶ 23.)

II. STANDARD OF REVIEW

The standard for dismissal of a prisoner’s claim regarding

prison conditions under 42 U.S.C. 1997e(c)(1) for failure to state

a claim is the same standard as for a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6), which governs dismissal

for failure to state a claim in federal courts. See generally Shane

v. Fauver, 213 F.3d 113 (3d Cir. 2000). In reviewing the

sufficiency of a claim under Federal Rule of Civil Procedure

12(b)(6), a court must first identify the legal elements required

to state a cognizable claim. Argueta v. U.S. Immigration and

Customs Enforcement, 643 F.3d 60, 74 (3d Cir. 2011) (citing

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); Santiago v. Warminster

Twp., 629 F.3d 121, 129-30 (3d Cir. 2010).

Second, the court should identify allegations that are no

more than conclusions that are not entitled to an assumption of

truth. Id.; Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d

Cir. 2016). Under Twombly and Iqbal, “even outlandish allegations”

are entitled to a presumption of truth unless they are merely

“formulaic recitations of the elements of a … claim.” Id. (citing

Iqbal, 556 U.S. at 681.) “[T]he clearest indication that an

allegation is conclusory and unworthy of weight in analyzing the

sufficiency of a complaint is that it embodies a legal point.”

Connelly, 809 F.3d at 790 (citing Peñalbert–Rosa v. Fortuño–

Burset, 631 F.3d 592, 595 (1st Cir. 2011) (citation and internal

quotation marks omitted).

Third, a court must determine whether the “well-pleaded

factual allegations plausibly give rise to an entitlement to

relief.” Argueta, 643 F.3d at 74 (citations omitted.) The

plausibility requirement “‘is not akin to a ‘probability

requirement.’” Id. (quoting Iqbal, 129 S. Ct. at 1949.) The

plausibility requirement requires a pleading to show “‘more than

a sheer possibility that a defendant has acted unlawfully.’”

Connelly, 809 F.3d at 786 (citing Iqbal, 556 U.S. at 678)).

Allegations that are “merely consistent with a defendant's

liability” … are not enough. Santiago, 629 F.3d at 133 (quoting

Iqbal, 129 S. Ct. at 1949-50 (internal quotation marks omitted)).

Where there is an allegation consistent with a defendant’s

liability but there is an “obvious alternative explanation,” the

inference of the defendant’s liability is not plausible. Id.

A plaintiff has the burden of pleading sufficient “factual

matter” but not to plead “specific facts.” Schuchardt v. President

of the United States, 839 F.3d 336, 347 (3d Cir. 2016) (quoting

Boykin v. KeyCorp, 521 F.3d 202, 215 (2d Cir. 2008) (quoting

Twombly, 550 U.S. at 569; Erickson v. Pardus, 551 U.S. 89, 93

(2007)). “Implicit in the notion that a plaintiff need not plead

‘specific facts’ to survive a motion to dismiss is that courts

cannot inject evidentiary issues into the plausibility

determination.” Schuchardt, 839 F.3d at 347 (citation omitted). A

court may not dismiss a complaint based on the court’s “assessment

that the plaintiff will fail to find evidentiary support for his

allegations or prove his claim to the satisfaction of the

factfinder.” Id. (quoting Twombly, 550 U.S. at 573.) On a Rule

12(b)(6) motion to dismiss, courts must accept the Plaintiff’s

allegations as true “with the important caveat that the presumption

of truth attaches only to those allegations for which there is

sufficient “factual matter” to render them “plausible on [their]

face.” Id. at 353 (quoting Iqbal, 556 U.S. at 679).

III. MOTION TO DISMISS

A. Eleventh Amendment Immunity and “Persons” under 42

U.S.C. § 1983

Defendants move to dismiss Plaintiff’s claims for monetary

damages against the NJDOC and Hicks and Powell in their official

capacities based on Eleventh Amendment immunity and because they

are not “persons” subject to § 1983 liability. (Defs’ Brief, Dkt.

No. 14-1 at 29-32.) Plaintiff submits that his claims against NJDOC

and its officials in their official capacities are limited to

claims for prospective injunctive relief. (Pl’s Opp. Brief, Dkt.

No. 15 at 24-25.)

First, “a state official in his or her official capacity,

when sued for injunctive relief, would be a person under § 1983

because ‘official-capacity actions for prospective relief are not

treated as actions against the State.’” Will v. Michigan Dep't of

State Police, 491 U.S. 58, 71 n. 10 (1989) (quoting Kentucky v.

Graham, 473 U.S., at 167, n. 14). Second, pursuant to Ex Parte

Young,4 a plaintiff may bring § 1983 claims for prospective

injunctive relief against state officials in their official

capacities without offending the Eleventh Amendment. Virginia

Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 254–55

(2011).

The same is not true for prospective relief claims asserted

against a state or state agency by name. Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 100, 104 (1984) (“It is clear, of

course, that in the absence of consent a suit in which the State

or one of its agencies or departments is named as the defendant is

proscribed by the Eleventh Amendment.”) The Eleventh Amendment

“prohibits suits against a ‘state’ in federal court whether for

injunctive, declaratory or monetary relief.” Lawson v. Shelby

Cty., TN, 211 F.3d 331, 335 (6th Cir. 2000); Alabama v. Pugh, 438

U.S. 781, 782 (1978) (“There can be no doubt, however, that suit

against the State and its Board of Corrections is barred by the

Eleventh Amendment, unless [the State] has consented to the filing

of such a suit”); Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 58

(1996) (“we have often made it clear that the relief sought by a

plaintiff suing a State is irrelevant to the question whether the

suit is barred by the Eleventh Amendment.”)

4 209 U.S. 123 (1908).

Therefore, the Court will dismiss the § 1983 claims against

NJDOC based on Eleventh Amendment immunity. Hicks and Powell, in

their official capacities, do not have Eleventh Amendment immunity

for Plaintiff’s claims for prospective injunctive relief.

Defendants, however, further argue that Plaintiff’s claims for

prospective injunctive relief do not meet the pleading

requirements of the PLRA. (Defs’ Brief, Dkt. No. 14-1 at 27-28.)

Plaintiff contends there is no pleading requirement for

prospective relief under the PLRA. (Pl’s Opp. Brief, Dkt. No. 15

at 24.)

18 U.S.C. § 3626, as amended by the PLRA, provides, in

pertinent part,

(a) Requirements for relief.—

(1) Prospective relief.--(A) Prospective

relief in any civil action with respect

to prison conditions shall extend no

further than necessary to correct the

violation of the Federal right of a

particular plaintiff or plaintiffs. The

court shall not grant or approve any

prospective relief unless the court finds

that such relief is narrowly drawn,

extends no further than necessary to

correct the violation of the Federal

right, and is the least intrusive means

necessary to correct the violation of the

Federal right. The court shall give

substantial weight to any adverse impact

on public safety or the operation of a

criminal justice system caused by the

relief.

By its plain language, the statute does not require that a

plaintiff must plead a narrowly tailored claim for injunctive

relief, but rather the statute expressly limits the court’s power

to grant or approve the prospective relief requested. Geisinger

Community Med. Ctr. v. Sec'y U.S. Dep't of Health & Human Servs.,

794 F.3d 383, 391 (3d Cir. 2015) (quoting Rosenberg v. XM Ventures,

274 F.3d 137, 141 (3d Cir. 2001) (“[w]here the statutory language

is plain and unambiguous, further inquiry is not required.”)

Therefore, Plaintiff’s claims for prospective injunctive relief

under § 1983 against Hicks and Powell in their official capacities

are not barred by 18 U.S.C. § 3696.

B. Eighth Amendment Claims under 42 U.S.C. § 1983

42 U.S.C. § 1983 provides a private citizen with the right to

bring an action against any person who under color of state law

deprives him of a right or privilege secured by the Constitution

of the United States. The statute does not create substantive

rights but instead “provides only remedies for deprivations of

rights established elsewhere in the Constitution or federal laws.”

Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996) (citations

omitted). To state a viable § 1983 claim, a plaintiff “must

establish that [ ]he was deprived of a federal constitutional or

statutory right by a state actor.” Kach v. Hose, 589 F.3d 626, 646

(3d Cir. 2009).

Plaintiff, on behalf of a putative class of NJDOC prisoners,

alleges that Defendants violated the Cruel and Unusual Punishments

Clause of the Eighth Amendment by failing to provide him with a

nutritionally adequate diet, and by failing to provide him, as a

diabetic, with a diet adequate for his serious medical needs. There

are two distinct Eighth Amendment analyses applicable to these

claims, the first involves failure to protect an inmate’s health,

and the second involves adequacy of treatment for a prisoner’s

serious medical needs.

1. Failure to protect inmate health

a. Failure to provide prisoners nutritionally

adequate food constitutes an Eighth Amendment

violation

“‘[T]he treatment a prisoner receives in prison and the

conditions under which he is confined are subject to scrutiny under

the Eighth Amendment[.]’” Farmer v. Brennan, 511 U.S. 825, 832

(1994) (quoting Helling v. McKinney, 509 U.S. 25, 31 (1993).

“[P]rison officials must ensure that inmates receive adequate

food….” Id. Circuit Courts, including the Third Circuit, have

interpreted “adequate food” to include nutritionally adequate

food. Laufgas v. Speziale, 263 F. App’x 192, 198 (3d Cir. 2008)

(citing Ramos v. Lamm, 639 F.2d 559, 571 (10th Cir. 1980); Robles

v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983). The Complaint contains

sufficient factual allegations that the food provided was not

nutritionally adequate because the diet was far below any

government or medical standard for nutrition. Plaintiff adequately

alleged that the diet presented a substantial risk to the health

of all prisoners by alleging it caused them to develop or to

exacerbate pre-existing conditions of diabetes, heart disease, and

other serious illnesses.

Mora v. Camden Cty.,5 cited by Defendants, is not

precedential, nor is it persuasive because, here, Plaintiff makes

factual allegations beyond those pled in Mora. The District Court

in Mora held that the allegations were insufficient to state a

claim “because aside from alleging that the coffee and tea were

weak, the cabbage was raw, and the ketchup and mustard were

insufficiently supplied, Plaintiffs do not describe the diet they

were served at all.” Mora, 2010 WL 2560680, at *9. The plaintiffs

in Mora also failed to plead the dates of their incarceration or

“otherwise plead facts showing how long they allegedly suffered

from malnutrition.” Id. Further, the alleged harm in Mora,

diminished mental and physical faculties and diminished resistance

to fatigue and illness, was not sufficiently serious to state an

Eighth Amendment claim. Id. The Complaint here does not suffer the

same deficiencies because it contains many of allegations of

nutrients lacking in the diet and allegations that Plaintiff

suffered significant damage to his health.

5 Mora, No. CIV.09-4183 (JBS), 2010 WL 2560680, at *9 (D.N.J. June

21, 2010).

b. Deliberate indifference and personal

involvement in a constitutional violation

The Court turns to the deliberate indifference component of

a claim for failure to protect Plaintiff’s health from a

substantial risk of harm.

[A] prison official cannot be found liable

under the Eighth Amendment for denying an

inmate humane conditions of confinement unless

the official knows of and disregards an

excessive risk to inmate health or safety; the

official must both be aware of facts from

which the inference could be drawn that a

substantial risk of serious harm exists, and

he must also draw the inference.

Farmer, 511 U.S. at 837. For an Eighth Amendment claim “it is

enough that the official acted or failed to act despite his

knowledge of a substantial risk of serious harm.” Id. at 842.

“Whether a prison official had the requisite knowledge of a

substantial risk is a question of fact subject to demonstration in

the usual ways, including inference from circumstantial evidence.”

Id. For example, a trier of fact may find actual knowledge by a

prison official’s exposure to evidence of a pervasive, well

documented risk. Id.

Defendants argue that Plaintiff’s allegations are conclusory

and fail to state the Individual Defendants’ personal involvement

in a constitutional violation. (Defs’ Brief, Dkt. No. 14-1 at 16-

18, 21-23.) Additionally, Defendants contend that Plaintiff’s

allegations lodged against “Defendants” generally constitute

improper group pleading that fails to put Hicks and Powell on

notice of their alleged involvement in the claims. (Def’s Brief,

Dkt. No. 14-1 at 16 citing Sheeran v. Blyth Shipholding S.A., 2015

U.S. Dist. LEXIS 168019, at *8, 2015 WL 9048979 (D.N.J. Dec. 16,

2015) (citing Ingris v. Borough of Caldwell, 2015 WL 3613499, at

*5 (D.N.J. June 9, 2015)). Specifically, Defendants assert that it

is implausible to infer that Hicks and Powell, as the administrator

and commissioner of the DOC, prepared the menus or the prisoners’

meals. (Id. at 16.) Finally, Defendants maintain that Plaintiff

did not set forth more than conclusory statements that the

Defendants were subjectively aware of the inadequacies of the diet

and failed to respond. (Id.)

Defendants are correct that Plaintiff cannot establish

Powell’s and Hick’s deliberate indifference by alleging that

“Defendants,” as a group including the NJDOC generally and hundreds

of unidentified prison employees and/or contractors, designed,

prepared, and served Plaintiff a nutritionally inadequate diet

since 2010. “Because vicarious liability is inapplicable to Bivens

and § 1983 suits, a plaintiff must plead that each Government-

official defendant, through the official's own individual actions,

has violated the Constitution.” Iqbal, 556 U.S. at 676; Evancho v.

Fisher, 423 F.3d 347, 353 (3d Cir. 2005). Moreover, it is not

plausible that the Commissioner of the NJDOC or the Administrator

of South Woods State Prison designed, prepared, or served the NJDOC

prisoner meals.

c. Knowledge and acquiescence in a constitutional

violation by reviewing a prisoner’s grievances

Plaintiff also asserts personal involvement by Hicks and

Powell by their knowledge and acquiescence in the designing,

preparing, and serving Plaintiff a nutritionally inadequate diet

since 2010. Knowledge and acquiescence in a subordinate’s

constitutional violation can establish a supervisor’s liability

for an Eighth Amendment violation. Evancho, 423 F.3d at 353

(quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.

1988)). Plaintiff relies on his grievances to establish Hick’s and

Powell’s knowledge and acquiescence. In the context of prisons

conditions, knowledge and acquiescence may be established by a

supervisor’s receipt of a prisoner’s correspondences. Atkinson v.

Taylor, 316 F.3d 257, 270-71 (3d Cir. 2003); see also Vance v.

Peters, 97 F.3d 987, 993 (7th Cir. 1996) (“a prison official's

knowledge of prison conditions learned from an inmate's

communications can, under some circumstances, constitute

sufficient knowledge of the conditions to require the officer to

exercise his or her authority and to take the needed action to

investigate and, if necessary, to rectify the offending

condition.”) Plaintiff, however, does not specifically state that

Powell or Hicks received his grievances, rather he alleges that he

fully exhausted all issues raised in the Complaint according to

the NJDOC’s established grievance process.

The Court takes judicial notice that New Jersey

Administrative Code 10a:1-4.1 through 10a:1-4.9 governs the NJDOC

“Inmate Remedy System.” Under this system, if a dispute is not

resolved by staff, the inmate may file an “Administrative Appeal”

to the “Administrator or designee.” N.J. Admin. Code § 10A:1-

4.4(c). “The Administrator or designee shall be responsible for …

[r]eviewing all ‘Administrative Appeals,’ making the final

Department of Corrections decision relative to the ‘Administrative

Appeal’ and ensuring the decision or finding is provided to the

inmate within the designated time frame[.]” N.J. Admin. Code §

10A:1-4.7(a)(3). To establish Powell’s knowledge and acquiescence

in the alleged Eighth Amendment violation for failure to protect

inmate health, Plaintiff must allege it was Powell, and not a

designee, who reviewed Plaintiff’s grievances. Plaintiff cannot

establish Commissioner’s Hick’s knowledge and acquiescence in a

constitutional violation by his exhaustion of the NJDOC inmate

remedy system because the regulations do not require appeal to the

Commissioner and Plaintiff does not allege that he specifically

wrote to Hicks about his grievances.

d. Supervisory liability by policy or practice

Plaintiff also seeks to establish Powell’s personal

involvement in a constitutional violation by alleging his

continuation of a policy “started by former Administrators” that

deliberately eliminated required food from his diet. (Compl., ¶

98.) The Court construes this as a failure to supervise claim, for

which a

plaintiff must identify a supervisory policy

or practice that the supervisor failed to

employ, and then prove that: (1) the policy or

procedures in effect at the time of the

alleged injury created an unreasonable risk of

a constitutional violation; (2) the defendant-

official was aware that the policy created an

unreasonable risk; (3) the defendant was

indifferent to that risk; and (4) the

constitutional injury was caused by the

failure to implement the supervisory practice

or procedure.

Barkes v. First Correctional Medical, Inc., 766 F.3d 307, 317 (3d

Cir. 2014), overruled on other grounds by Taylor v. Barkes, 135 S.

Ct. 2042 (2015)); Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir.

1999).

Plaintiff alleges there was a practice at South Woods State

Prison and the NJDOC of eliminating virtually all nutritious food

from the prisoner diet. As described in Barkes, the existence of

a policy or practice is insufficient to plead supervisory liability

absent allegations that the official was aware that the policy or

practice created an unreasonable risk of a constitutional injury,

and the official was indifferent to that risk. Absent allegations

that Hicks or Powell reviewed Plaintiff’s grievances, Plaintiff

has not sufficiently alleged the deliberate indifference element

of his Eighth Amendment failure to protect claim.

e. Establishing deliberate indifference through

circumstantial evidence

It is also possible to establish deliberate indifference from

circumstantial evidence.” Farmer, 511 U.S. at 837. For example, a

trier of fact may find actual knowledge by a prison official’s

exposure to evidence of a pervasive, well documented risk. Id.

Plaintiff alleges that, since 2010, consuming the prison diet

caused him to suffer hypoglycemic episodes, chronic nausea,

hypertension, constant weakness, and nerve damage. Plaintiff,

however, also alleges that diabetic prisoners were instructed and

trained to choose appropriate foods from the available food to

satisfy their special dietary needs. Therefore, even assuming for

the sake of argument that Powell knew Plaintiff suffered these

maladies since 2010, he might have concluded that it was

Plaintiff’s decision to eat food restricted by his medically

prescribed diet that caused the harm. Deliberate indifference

cannot be established where there is an obvious alternative to

explain the harm suffered by the plaintiff.

The Court must also consider whether it was obvious to Hicks

or Powell, based on circumstantial evidence, that the NJDOC diet

posed a substantial risk of serious harm to inmate health by

providing inadequate nutrition to all prisoners and inadequate

calories to those with medically prescribed dietary restrictions.

While a reasonable factfinder might infer that the NJDOC

Commissioner and Administrator of a New Jersey state prison had a

general knowledge of the food provided to prisoners, Plaintiff

must also allege facts establishing that Hicks and Powell knew the

diet posed a substantial risk to inmate health.

Plaintiff alleges that the diet led to a substantial increase

in diabetes and heart disease among prisoners, and “upon

information and belief, a review of the incidence of diabetes

among the class will show a substantial elevation compared to other

prison systems and even within the NJDOC from before the present

diet was developed.” (Compl., ¶ 10.) Similarly, Plaintiff alleges

“[c]ancer, heart disease, and high blood pressure are on the rise

in the NJDOC….” (Id., ¶ 15.) These allegations are insufficient

for a factfinder to infer that it was obvious to Hicks and Powell

that the NJDOC diet posed a substantial risk to inmate health

because the incidence of these illnesses among prisoners in the

NJDOC may be attributable to a higher incidence of incarceration

of persons having these illnesses as pre-existing conditions.

Plaintiff also alleges that the NJDOC diet did not provide a

sufficient amount of food appropriate for a diabetic or others

with medically restricted diets to maintain adequate nutrition or

sufficient calories. Plaintiff does not allege facts establishing

that it would have been obvious to Powell and Hicks that prisoners

were suffering from malnutrition, for instance by observing the

weight loss or weakness of the many prisoners with restricted

diets, resulting from inadequate food or nutrition.

f. Failure to train or supervise

Finally, Plaintiff asserts liability based on failure to

train and supervise food preparers, whom he alleges intentionally

“shorted” the amount of food served by watering it down;

substituting cheese with “fake” liquid cheese and meats with

harmful “processed meats”; and serving rotten fruit, vegetables,

and meat. “‘Failure to’ claims” such as “failure to train, failure

to discipline, or … failure to supervise—are generally considered

a subcategory of policy or practice liability.” Barkes, 766 F.3d

at 317, reversed on other grounds by Taylor v. Barkes, 575 U.S.

822 (2015)). “[T]he level of intent necessary to establish

supervisory liability will vary with the underlying constitutional

tort alleged.” Id. at 319. Here, the intent required is deliberate

indifference. Thus, to state an Eighth Amendment failure to

supervise claim against a state official, a plaintiff must allege

“that a state official, by virtue of his or her own deliberate

indifference to known deficiencies in a government policy or

procedure, has allowed to develop an environment in which there is

an unreasonable risk that a constitutional injury will occur, and

that such an injury does occur.” Id. at 320.

The supervisory practice that Plaintiff alleges Hicks and

Powell failed to employ was training the food preparers to prepare

and serve a nutritionally adequate diet in sufficient amounts for

all prisoners, including those who were required to choose only

certain food permitted by their special diets. Plaintiff alleges

the food preparation training and supervision was deficient

because it was common practice for the food preparers to “short”

food, substitute improper food, and serve rotten food. “[T]here

are limited circumstances in which an allegation of a “failure to

train” can be the basis for liability under § 1983.” City of

Canton, Ohio v. Harris, 489 U.S. 378, 387 (1989). Ordinarily, “[a]

pattern of similar constitutional violations by untrained

employees” is necessary “to demonstrate deliberate indifference

for purposes of failure to train.” Thomas v. Cumberland Cty., 749

F.3d 217, 223 (3d Cir. 2014) (citing Connick v. Thompson, 131 S.

Ct. 1350, 136 (2011).

The alleged NJDOC practices of shorting food, substituting

non-nutritional food, and serving rotten food are not practices so

well known to pose a substantial risk to inmate health that it was

obvious to prison officials that training and supervision must be

deficient. While NJDOC prisoners have alleged similar claims,

Plaintiff has not cited to such an abundance of cases that the

risk of a constitutional violation must have been obvious to prison

administrators. True, it is well known that prison food is

unappetizing and occasionally spoiled, the same is not true of

Plaintiff’s claim that the food, as designed and/or prepared,

lacked adequate nutrition for at least ten years.

Because Plaintiff has failed to establish Hick’s or Powell’s

deliberate indifference or personal involvement in an Eighth

Amendment violation for failure to protect inmate health and by

failure to train NJDOC food preparers, the Court will dismiss these

§ 1983 claims without prejudice and need not address Defendants’

qualified immunity claims.

2. Deliberate Indifference to a Serious Medical Need

Plaintiff alleges a second type of Eighth Amendment violation

on behalf of a putative class, that he was prescribed a special

diet to treat his diabetes and Defendants failed to provide the

diet as prescribed. The analysis for such a claim diverges from

that of an Eighth Amendment failure to protect inmate health.

“[D]eliberate indifference to serious medical needs of prisoners

constitutes the unnecessary and wanton infliction of pain …

proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S.

97, 104 (1976) (internal quotation omitted). This includes

intentional interference with prescribed treatment. Id. “[A]bsent

a reason to believe (or actual knowledge) that prison doctors or

their assistants are mistreating (or not treating) a prisoner, a

non-medical prison official … will not be chargeable with the

Eighth Amendment scienter requirement of deliberate indifference.”

Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004).

Plaintiff encounters the same roadblock in establishing

deliberate indifference to his serious medical need. The

allegation that Plaintiff and other prisoners were instructed on

how to choose proper foods for their special diets requires

Plaintiff to allege Hicks and Powell were deliberately indifferent

to the fact that the food offered was so inadequate to meet their

special diets that they were forced to choose between insufficient

amounts of food or eating food that exacerbated their medical

conditions. As discussed above, Plaintiff has not adequately

alleged Hicks and Powell had knowledge of the inadequacies of the

diet, particularly where Plaintiff alleges there was a written

policy that the NJDOC diet met the standards of the USDA and Food

and Nutrition Board, Institute of Medicine, National Academy of

Science and National Research Council.

Because Plaintiff has failed to establish Hick’s or Powell’s

deliberate indifference or personal involvement in an Eighth

Amendment violation for failing to provide adequate medical care

for their serious medical needs, the Court will dismiss these §

1983 claims without prejudice and need not address Defendants’

qualified immunity claims.

C. Conspiracy Under 42 U.S.C. § 1983

Plaintiff brings his conspiracy claim under 42 U.S.C. § 1983.

(Compl., ¶¶ 42, 139-42.)

The elements of a claim of conspiracy to

violate federal civil rights are that “(1) two

or more persons conspire to deprive any person

of [constitutional rights]; (2) one or more of

the conspirators performs ... any overt act in

furtherance of the conspiracy; and (3) that

overt act injures the plaintiff in his person

or property or deprives the plaintiff of any

right or privilege of a citizen of the United

States,” with the added gloss under § 1983

that “the conspirators act ‘under the color of

state law.’”

Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 294 n. 15 (3d Cir.

2018) (quoting Barnes Foundation v. Township of Lower Merion, 242

F.3d 151, 162 (3d Cir. 2001) (quoting 42 U.S.C. § 1983)).

After a plaintiff establishes that the object

of the conspiracy was the deprivation of a

federally protected right, “the rule is clear

that” the plaintiff “must provide some factual

basis to support the existence of the elements

of a conspiracy: agreement and concerted

action.” Capogrosso v. Supreme Court of N.J.,

588 F.3d 180, 184–85 (3d Cir. 2009) (citing

Crabtree v. Muchmore, 904 F.2d 1475, 1481

(10th Cir. 1990)). To show agreement, he must

demonstrate that “the state actors named as

defendants in the[ ] complaint somehow reached

an understanding to deny [the plaintiff] his

rights,” Kost v. Kozakiewicz, 1 F.3d 176, 185

(3d Cir. 1993), and in the absence of direct

proof, that “meeting of the minds” or

“understanding or agreement to conspire” can

be “infer[red]” from circumstantial evidence,

Startzell v. City of Philadelphia, 533 F.3d

183, 205 (3d Cir. 2008). Such circumstantial

evidence may include that the alleged

conspirators “did or said something ... to

create an understanding,” “the approximate

time when the agreement was made, the specific

parties to the agreement[,] the period of the

conspiracy, or the object of the conspiracy.”

Great W. Mining, 615 F.3d at 178–79 (citations

omitted).

Id. at 295.

Defendants move to dismiss the conspiracy claim based on

Plaintiff’s failure to state an underlying Eighth Amendment

violation. The Court will dismiss the conspiracy claim without

prejudice for failure to allege an underlying constitutional

violation, and for the additional reason that the conspiracy

allegations in the Complaint are wholly conclusory.

D. Americans with Disabilities and Rehabilitation Act

Claims

Title II of the ADA provides that “[n]o qualified individual

with a disability shall, by reason of such disability, be excluded

from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. § 12132. State

prisons are public entities for purposes of this provision.

Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 210 (1998);

Chisolm v. McManimon, 275 F.3d 315, 325 (3d Cir. 2001) (“Title II

of the ADA applies to services, programs and activities provided

within correctional institutions.”) The Rehabilitation Act

provides that “[n]o otherwise qualified individual with a

disability in the United States ... shall, solely by reason of her

or his disability, be excluded from the participation in, be denied

the benefits of, or be subjected to discrimination under any

program or activity receiving Federal financial assistance ...” 29

U.S.C. § 794(a). The Third Circuit has explained that “[t]he

substantive standards for determining liability under the [RA] and

the ADA are the same.” Blunt v. Lower Merion Sch. Dist., 767 F.3d

247, 275 (3d Cir. 2014) (quoting Ridley Sch. Dist. v. M.R., 680

F.3d 260, 282–83 (3d Cir. 2012) (citation omitted).

To state a claim under either the ADA or the Rehabilitation

Act, a plaintiff “must allege that he is a qualified individual

with a disability, who was precluded from participating in a

program, service, or activity, or otherwise was subject to

discrimination, by reason of his disability.” Furgess v.

Pennsylvania Dep't of Corr., 933 F.3d 285, 288–89 (3d Cir. 2019).

Where the plaintiff seeks compensatory damages, he “must also show

intentional discrimination under a deliberate indifference

standard.” Id. “The term ‘disability’ means, (A) a physical or

mental impairment that substantially limits one or more of the

major life activities of such individual; (B) a record of such an

impairment; or (C) being regarded as having such an impairment.”

Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 563 (1999) (quoting

42 U.S.C. § 12102(2)); Goldstine v. FedEx Freight Inc., No. C18-

1164 MJP, 2019 WL 5455726, at *6 (W.D. Wash. Oct. 24, 2019) (“the

updated ADA definition of a “qualifying disability” requires only

that a medical condition substantially limit a major life

activity….”)

Defendants submit that Plaintiff’s allegations of inadequate

medical treatment do not violate the ADA and Rehabilitation Act.

(Defs’ Brief, Dkt No. 14-1 at 25-27.) Plaintiff counters that while

the NJDOC diet given to all inmates is inadequate, those with

serious medical needs are discriminated against because they

receive less food than prisoners who do not require special diets.

(Pl’s Opp. Brief, Dkt. No. 15 at 23.) Thus, the adverse effects of

the diet are greater for those with special medical needs. (Pl’s

Opp. Brief, Dkt. No. 15 at 23.) Therefore, Plaintiff contends the

Complaint states a claim for violation of the ADA and

Rehabilitation Act. (Id.) In reply, Defendants note that Plaintiff

has not cited any precedent in support of his ADA and

Rehabilitation Act claims, nor has he distinguished those cases

cited by Defendants. (Defs’ Reply Brief, Dkt. No. 17 at 8.)

The Third Circuit cases cited by Defendants’ for their

argument that allegations of inadequate medical care for the

serious medical needs of prisoners do not violate the ADA or the

Rehabilitation Act,6 are not precedential. Moreover, Plaintiff has

6 In Kokinda v. Pennsylvania Dep't of Corr., 663 F. App'x 156, 157

(3d Cir. 2016), the plaintiff was a prisoner with soy allergies

who asserted an ADA claim based on the prison’s failure to provide

him with a soy-free diet. In the non-precedential opinion, the

Third Circuit dismissed the ADA claim, holding that the ADA

prohibits disability-based discrimination, “not inadequate

distinguished his ADA and Rehabilitation Act claims by asserting

that the adverse effects of the NJDOC diet served to all prisoners

are greater for diabetics such as Plaintiff and others with

medically prescribed dietary restrictions because they receive

less food by virtue of having to self-limit from the food served

to all prisoners, and that they are not left with sufficient food

to provide adequate calories or nutrition. These allegations, if

proven, may be sufficient to show that Plaintiff was otherwise

“subject to discrimination, by reason of his disability.”

Nonetheless, Plaintiff’s allegations under the ADA and

Rehabilitation Act fail to state a claim because he does not

sufficiently allege that his diabetes substantially limits a major

life activity. Johnson v. Amtrak, 390 F. App'x 109, 113 (3d Cir.

2010) (“the discomfort or inconvenience that accompanies Johnson

as a result of his diabetes, colitis, and back, neck, and knee

injuries does not constitute a disability, as defined by the ADA.”)

Furthermore, for his claims for compensatory damages under the ADA

and Rehabilitation Act, Plaintiff must also allege facts

establishing Defendants’ intentional discrimination. Furgess, 933

F.3d at 288. To show intentional discrimination, Plaintiff would

have to allege facts showing that Hicks and Powell knew there was

treatment for the disability.” Id. at 159. The Third Circuit later

held that Kokinda was not entitled to relitigate his ADA claim on

remand. Kokinda v. Pennsylvania Dep't of Corr., 803 F. App'x 574,

576 (3d Cir. 2020).

an insufficient amount of appropriate food for diabetics to choose

from. As discussed above, Plaintiff has not alleged sufficient

facts of their actual knowledge or that the deficiency was obvious

to them. For these reasons, the Court will dismiss Plaintiff’s ADA

and Rehabilitation Act claims without prejudice.

IV. CONCLUSION

For the reasons discussed above, Plaintiff’s claims against

the NJDOC are barred by the Eleventh Amendment and will be

dismissed with prejudice. Plaintiff’s claims against Hicks and

Powell in their individual and official capacities fail to state

Eighth Amendment claims of failure to protect inmate health and

failure to provide adequate medical care for serious medical needs,

fail to state a conspiracy claim under 42 U.S.C. § 1983, and fail

to state claims for violation of the ADA and Rehabilitation Act.

These claims will be dismissed without prejudice. An appropriate

Order follows.

Date: October 30, 2020 s/Renée Marie Bumb

RENÉE MARIE BUMB

United States District Judge