DO NOT FILE IN THIS CASE

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

___________________________________

GREGORY L. FISHER, :

:

Plaintiff, : Civ. No. 21-13212 (RBK) (AMD)

:

v. :

:

CAMDEN COUNTY CORRECTIONAL : OPINION

FACILITY, et al., :

:

Defendants. :

____________________________________:

ROBERT B. KUGLER, U.S.D.J.

I. INTRODUCTION

Plaintiff, Gregory Fisher (“Plaintiff” or “Fisher”), is a pretrial detainee at the Camden

County Correctional Facility (“CCCF”) in Camden, New Jersey. He is proceeding pro se with a

civil rights complaint filed pursuant to 42 U.S.C. § 1983 as well as under New Jersey state law.

(See Dkt. No. 1). Plaintiff paid the filing fee.

This Court must screen the allegations of Plaintiff’s complaint pursuant to 28 U.S.C. §

1915A to determine whether they are frivolous or malicious, fail to state a claim upon which

relief may be granted, or whether the allegations seek monetary relief from a defendant who is

immune from suit. For the following reasons, Plaintiff’s complaint shall proceed past screening

in part.

II. BACKGROUND

The allegations of the complaint shall be construed as true for purposes of this screening

opinion. Plaintiff names several Defendants in this action; they are as follows: (1) CCCF; (2)

C.F.G. Medical Enterprise; (3) Dr. R. Clemons; (4) Warden Karen Taylor; (5) Nurse J. Houston;

(6) Nurse T. Governor; (7) Sergeant A. Kelly; (8) Sergeant Dearant; and (9) Sharon Bean.1

Petitioner arrived at CCCF in June, 2020. (See Dkt. No. 1-1 at 8). At the time, Plaintiff

was prescribed suboxone for his opiate addiction. (See id.). In July and August, 2020, Defendant

Houston harassed him for challenging her behavior with patients. (See id. at 3). In October, 2020,

Defendant Governor created an “intense environment” during the distribution of patients’

suboxone medication. (See id.). Governor told Plaintiff she was going to get Plaintiff “kicked

off” his suboxone medication. (See id.). Ultimately, Defendant Clemons discontinued Plaintiff’s

suboxone medication on November 2, 2020. (See Dkt. No. 1 at 6; see also Dkt. No. 1-1 at 10).

Clemons told Plaintiff she was discontinuing Plaintiff’s medication because Plaintiff was causing

problems with nurses when they distributed medication. (See Dkt. No. 1 at 6).

Plaintiff suffered from withdrawal, cravings, pain and suffering in the months that

followed. In March, 2021, Clemons offered Plaintiff the opportunity to take a different

medication for his addiction, namely sublocade. (See id.). Plaintiff would receive this medication

once a month through an injection as opposed to suboxone’s pill form. (See id.). Plaintiff shared

his fears about sublocade with Clemons because his outside physician told him it would be best

if he received “strips” or suboxone pills. (See id.). Clemons provided Plaintiff with a brochure to

educate himself about sublocade. (See id.).

After Clemons took Plaintiff off of suboxone in November, 2020, Plaintiff filed

numerous complaints and grievances. Plaintiff states he complained to Defendant Kelly about

the nurses’ behavior while they distributed medication on November 3, 2020 and November 10,

1 Defendants Clemons, Governor, Kelly, Dearant and Bean are not listed in the caption of this

case available on CM/ECF. However, Plaintiff clearly names them as Defendants in the body of

his complaint. Therefore, the Clerk shall add these Defendants to the caption of this case.

2020 through grievances. (See Dkt. No. 1-1 at 4). Despite telling Plaintiff that he would

investigate, Plaintiff never received a response to these grievances by Kelly. (See id.).

Plaintiff also complained to Defendant Dearant at Internal Affairs about the actions of the

medical department doctor, nurses and Kelly. Dearant told Plaintiff she would investigate his

complaints. (See id.). Dearant subsequently explained to Plaintiff that she had investigated his

issues, spoke to Clemons and that Clemons was going to reinstate Plaintiff’s suboxone

medication. (See id.). However, Plaintiff was never put back on suboxone. (See id.)

In January, 2021, Plaintiff complained to Defendant Bean, who is in charge of the entire

jail population, about the nurses behavior and Clemons’ stated reason for taking him off

suboxone. (See id. at 5; 8-10). Plaintiff also complained to Defendant Warden Taylor in January

2021 about the issues he was having with the medical department. (See id. at 2). However,

Taylor never gave Plaintiff a response. (See id.).

Plaintiff asserts the Defendants violated his constitutional rights, the Americans with

Disabilities Act (“ADA”) and are liable under New Jersey state law for malpractice. As relief,

Plaintiff seeks monetary damages and an injunction requiring the reinstatement of his medical

treatment. (See Dkt. No. 1 at 6).

III. LEGAL STANDARD

District courts must review complaints in civil actions in which a prisoner seeks redress

against a governmental employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim with

respect to prison conditions. See 42 U.S.C. § 1997e. District courts are directed to 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. See 28

U.S.C. § 1915A(b).

The legal standard for dismissing a complaint for failure to state a claim pursuant to 28

U.S.C. § 1915A(b) is the same as that for dismissing a complaint pursuant to Federal Rule of

Civil Procedure 12(b)(6). See Mitchell v. Beard, 492 F. App’x 230, 232 (3d Cir. 2012)

(discussing 42 U.S.C. § 1997e(c)(l)); Courteau v. United States, 287 F. App’x 159, 162 (3d Cir.

2008) (discussing 28 U.S.C. § 1915A(b)). That standard is set forth in Ashcroft v. Iqbal, 556 U.S.

662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). To survive the court's

screening for failure to state a claim, the complaint must allege ‘sufficient factual matter’ to

show that the claim is facially plausible. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d

Cir. 2009) (citation omitted). “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 Iqbal, 556 U.S. at 678). “[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

Twombly, 550 U.S. at 555).

Pro se pleadings, as always, are liberally construed. See Haines v. Kerner, 404 U.S. 519

(1972). Nevertheless, “pro se litigants still must allege sufficient facts in their complaints to

support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation

omitted).

A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of

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 or the

District of Columbia, 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, except that in any action brought against a

judicial officer for an act or omission taken in such officer's

judicial capacity, injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory relief was

unavailable.

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. See Harvey v.

Plains Twp. Police Dep't, 635 F.3d 606, 609 (3d Cir. 2011) (citations omitted); see also West v.

Atkins, 487 U.S. 42, 48 (1988).

IV. DISCUSSION

A. Clemons

Plaintiff sues Clemons under three different theories: (1) deliberate indifference to his

serious medical needs under the United States Constitution filed pursuant to § 1983; (2) the

ADA; and (3) malpractice. For the following reasons, Plaintiff’s deliberate indifference and

malpractice claims shall proceed past screening but his ADA claim shall be dismissed without

prejudice.

i. Section 1983

Plaintiff’s claim for deliberate indifference to his serious medical needs is analyzed under

the Fourteenth Amendment as Plaintiff is a pretrial detainee as opposed to the Eighth

Amendment.2 See Tapp v. Brazill, 645 F. App’x 141, 145 n.4 (3d Cir. 2016). Nevertheless, the

Eighth Amendment’s “deliberate indifference” standard provides a guide to what, at a minimum,

2 Plaintiff sues the other Defendants in this action also under the Eighth and Fourteenth

Amendments. However, because Plaintiff is a pretrial detainee, those claims will also be

analyzed under the Fourteenth rather than the Eighth Amendment throughout this opinion.

is owed to pretrial detainees. See id. (citing Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575,

581-82 (3d Cir. 2003)).

For the delay or denial of medical care to rise to a violation of the

Eighth Amendment’s prohibition against cruel and unusual

punishment, a prisoner must demonstrate “(1) that defendants were

deliberately indifferent to [his] medical needs and (2) that those

needs were serious.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.

1999). Deliberate indifference requires proof that the official

“knows of and disregards an excessive risk to inmate health or

safety.” Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582

(3d Cir. 2003) (quoting Farmer v. Brennan, 511 U.S. 825, 837

(1994)). We have found deliberate indifference where a prison

official: “(1) knows of a prisoner’s need for medical treatment but

intentionally refuses to provide it; (2) delays necessary medical

treatment based on a nonmedical reason; or (3) prevents a prisoner

from receiving needed or recommended treatment.” Rouse, 182

F.3d at 197. Deference is given to prison medical authorities in the

diagnosis and treatment of patients, and courts “disavow any

attempt to second-guess the propriety or adequacy of a particular

course of treatment ... (which) remains a question of sound

professional judgment.” Inmates of Allegheny Cnty. Jail v. Pierce,

612 F.2d 754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551

F.2d 44, 48 (4th Cir. 1977)). Allegations of negligent treatment or

medical malpractice do not trigger constitutional protections.

Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).

Pierce v. Pitkins, 520 F. App’x 64, 66 (3d Cir. 2013). Deliberate indifference can also be found

“where the prison official persists in a course of treatment in the face of resultant pain and risk of

permanent injury.” See McCluskey v. Vincent, 505 F. App’x 199, 202 (3d Cir. 2012) (internal

quotation marks and citation omitted). “A medical need is serious if it ‘has been diagnosed by a

physician as requiring treatment,’ or if it ‘is so obvious that a lay person would easily recognize

the necessity for a doctor’s attention.’” See Mitchell v. Beard, 492 F. App’x 230, 236 (3d Cir.

2012) (quoting Atkinson v. Taylor, 316 F.3d 257, 272-73 (3d Cir. 2003) (quoting Monmouth

Cnty. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987))).

Plaintiff has stated a deliberate indifference claim under the Fourteenth Amendment

against Clemons. At this stage of the proceedings, this Court will presume that Plaintiff has

stated a serious medical need considering his prescription for suboxone. See, e.g., Mayne v.

Clarke, No. 08-5785, 2009 WL 2003396, at *4 (D.N.J. July 7, 2009) (proceeding claim that

defendant was deliberately indifferent to plaintiff’s serious medical needs when he interfered

with plaintiff’s prescription for suboxone). Additionally, Plaintiff has adequately alleged

Clemons’ deliberate indifference as he states that she prevented him from receiving necessary

medical treatment based on a non-medical reason. More specifically, Plaintiff alleges Clemons

refused Plaintiff his prescribed medication because of how he interacted with nurses, not for any

medical reason. Indeed, Clemons purportedly understood the importance of Plaintiff receiving

suboxone by telling him that she would provide him with it if/when he was released from CCCF.

Thus, this claim shall proceed.

ii. ADA

Next, Plaintiff sues Clemons under the ADA. Title II of the ADA provides that “no

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. To state a claim under

the ADA, Plaintiff must allege that he (1) is a qualified individual with a disability, (2) who was

precluded from participating in a service, program, or activity, or otherwise was subject to

discrimination; and (3) because of his disability. See Furgess v. Pa. Dep't of Corr., 933 F.3d 285,

288–89 (3d Cir. 2019). The phrase “service, program, or activity” is “extremely broad in scope

and includes anything a public entity does.” Furgess, 933 F.3d at 289 (footnote omitted).

Assuming arguendo that Plaintiff has adequately alleged the first two elements of stating

an ADA claim, the complaint fails to allege that the purported inadequate medical care he

received was because of his disability. Indeed, Clemons’ statement to Plaintiff that she was

taking him off suboxone was not because of his disability, but rather due to the interactions

Plaintiff had with CCCF staff. See Kokinda v. Pa. Dep’t of Corr., 663 F. App’x 156, 159 (3d Cir.

2016) (footnote citation and internal quotation marks omitted) (“[T]he ADA prohibits disability-

based discrimination, not inadequate treatment for the disability.”). Thus, Plaintiff’s ADA claim

against Clemons is dismissed without prejudice for failure to state a claim upon which relief may

be granted.3

iii. Malpractice

Plaintiff next sues Clemons for malpractice under New Jersey state law. To properly

allege a malpractice claim in New Jersey, a plaintiff must allege (1) the applicable standard of

care; (2) a deviation from that standard of care; and (3) that the deviation proximately caused the

injury. See Scott v. Manenti, 781 F. App'x 65, 68–69 (3d Cir. 2019) (internal quotation marks

and citations omitted). Based on the foregoing allegations described supra against Clemons,

Plaintiff’s medical malpractice claim against Clemons shall proceed.

B. Houston

Plaintiff sues Defendant Houston for her verbal taunts and threats to take Plaintiff off of

his suboxone medication in July and August, 2020. More specifically, he sues her under: (1)

Fourteenth Amendment for cruel and unusual punishment; and (2) malpractice. For the following

3 Plaintiff attempts to bring ADA claims against the other Defendants in this case. However,

Plaintiff’s ADA claims against those Defendants are dismissed for similar reasons as he fails to

allege any purported discrimination was because of his purported disability.

reasons, Plaintiff’s claims against Houston are dismissed without prejudice for failure to state a

claim.

i. Section 1983

Threats and verbal harassment are certainly be deplorable. However, they alone are

insufficient to state a claim for relief under § 1983. See Stepney v. Gilliard, No. 02–5259, 2005

WL 3338370, at *6 (D.N.J. Dec. 8, 2005) (“[V]erbal harassment or profanity alone,

unaccompanied by any injury no matter how inappropriate, unprofessional, or reprehensible it

might seem, does not constitute the violation of any federally protected right and therefore is not

actionable under [Section] 1983.”). Plaintiff’s § 1983 claim against Houston under the

Fourteenth Amendment relates to taunts or threats. Accordingly, this claim is dismissed without

prejudice for failure to state a claim upon which relief may be granted. Indeed, it was Clemons,

not Houston who was responsible for taking Plaintiff off his prescribed suboxone medication

according to the allegations of the complaint.

ii. Malpractice

Plaintiff also fails to state a malpractice claim against Houston. Clemons had the duty of

care for treating Plaintiff and took Plaintiff off his suboxone medication, not Houston. Thus,

Plaintiff’s medical malpractice claim against Houston is also dismissed without prejudice for

failure to state a claim.

C. Governor

Plaintiff’s claims against Governor are similar to those against Houston with the

exception that Governor’s purported harassment and threats occurred in October, 2020 as

opposed to July and August 2020. For similar reasons though as discussed in analyzing

Plaintiff’s claims against Houston, Plaintiff’s claims against Governor are dismissed without

prejudice for failure to state a claim upon which relief may be granted.

D. Kelly

Plaintiff next sues Kelly under similar theories as the other Defendants; namely: (1) the

Fourteenth Amendment for cruel and unusual punishment; and (2) malpractice. Plaintiff claims

Kelly is liable because he never responded to Plaintiff’s grievances about how the nurses were

treating him. (See Dkt. No. 1-1 at 4).

i. Section 1983

“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.” Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations omitted). “Personal involvement

can be shown through allegations of personal direction or of actual knowledge and

acquiescence.” Id. “Allegations of participation or actual knowledge and acquiescence, however,

must be made with appropriate particularity.” Id.; see also Baker v. Monroe Twp., 50 F.3d 1186,

1190–91 (3d Cir. 1995) (a plaintiff “must show that a policymaker for the [municipality]

authorized policies that led to the violations or permitted practices that were so permanent and

well settled as to establish acquiescence.” (citation omitted)).

“The filing of grievances, alone, is insufficient to show the actual knowledge necessary

for personal involvement.” Miller v. Trometter, No. 11–811, 2012 WL 5933015, at *13 (M.D.

Pa. Nov. 27, 2012) (citing Rode, 845 F.2d at 1207). Thus, “prison officials cannot be held liable

based solely on their failure to take corrective action when grievances or investigations were

referred to them.” Miller, 2012 WL 5933015, at *13 (citing Pressley v. Beard, 266 F. App'x 216

(3d Cir. 2008) (per curiam); Hughes v. Smith, 237 F. App'x 756, 758 (3d Cir.2007) (per curiam))

(other citations omitted); see also Robinson v. Green, No. 12–1212, 2012 WL 5401079, at *3

(E.D. Pa. Nov. 5, 2012); Mercado v. Ellis, No. 11–6756, 2012 WL 1636164, at *3 (D.N.J. May

9, 2012) (“It appears that Plaintiffs only claims against the named defendants are based on their

failure to investigate or respond to Plaintiffs letters and grievances. These claims fail to rise to

the level of a constitutional deprivation sufficient to state a claim under § 1983. Indeed, an

allegation of a failure to investigate, without another recognizable constitutional right, is not

sufficient to sustain a section 1983 claim.”) (internal quotation marks and citations omitted).

Plaintiff bases his civil rights claim against Kelly for his failure to respond to his

grievances against the nurses. This alone is insufficient to state a § 1983 claim. Furthermore,

Plaintiff failed to allege an underlying constitutional claim against the nurses for their harassing

behavior and verbal taunts. Thus, any purported failure on the part of Kelly in failing to respond

would also not give rise to § 1983 claim because there was no underlying constitutional

violation. See, e.g., McDougal v. Orkies, No. 17-469, 2017 WL 2778642, at *2 (S.D. Ill. June 27,

2017) (citing Perez v. Fenoglio, 792 F.3d 768, 782 (7th Cir. 2015) (“Without an underlying

constitutional violation to turn a blind eye to, [Defendant’s] alleged failure to respond to

Plaintiff’s letters cannot constitute deliberate indifference.”); see also Stattuck-Knaebel v. Lewis,

No. 18-212, 2019 WL 1060034, at *8 (E.D. Mo. Mar. 6, 2019) (“Since plaintiff’s underlying

complaints, contained in his kites to Warden Lewis and Assistant Warden Reed, do not amount

to constitutional violations, the failure by Lewis and Red to respond likewise do not constitute a

violation of plaintiff’s constitutional rights.”). Furthermore, while it does not appear Plaintiff’s

claims against the nurses constituted a claim of a continuing violation, even if it did, Kelly’s

failure to respond would not raise a constitutional claim because Plaintiff failed to assert an

underlying constitutional claim against the nurses he was complaining about. Jones-El v. Wright,

No. 16-502, 2018 WL 9811898, at *17 (E.D. Va. Sept. 28, 2018) (citing Scott v. Clarke, 64 F.

Supp. 3d 813, 842 (W.D. Va. 2014) (“[T]o hold [Defendants] liable for failing to respond to

continuing violations of Plaintiff’s constitutional rights that they learned about through the

grievance process, Plaintiff must show an underlying violation of Plaintiff’s constitutional rights

upon which [Defendants] failed to act.”). Accordingly, Plaintiff’s Fourteenth Amendment claim

against Kelly is dismissed without prejudice for failure to state a claim upon which relief may be

granted.

ii. Malpractice

Plaintiff’s malpractice claim against Kelly will also be dismissed. As described above,

Plaintiff failed to state a malpractice claims against the nurses. Thus, it follows that any

purported failure by Kelly in not responding to Plaintiff’s grievances on these issues against the

nurses also fails to state a claim upon which relief may be granted.

E. Dearant

Plaintiff next sues Defendant Dearant, an Internal Affairs Sergeant, under the Fourteenth

Amendment and for malpractice. Plaintiff filed grievances to Dearant on several occasions

complaining about the medical department doctor (presumably Clemons) as well as the actions

of the nurses and inaction of Kelly in response to his grievances about the nurses. (See Dkt. No.

1-1 at 4). Plaintiff explains that Dearant told him she spoke to Clemons who was going to

reinstate his suboxone medication. (See id.). However, Plaintiff states his suboxone medication

was never reinstated by Clemons.

Unlike Kelly, Plaintiff’s claims against Dearant shall be permitted to proceed, but only to

the extent Plaintiff’s claims relate to Dearant’s failure to act to Plaintiff’s grievances against

Clemons. Plaintiff’s claim against Dearant relates to his purported grievances alleging an

ongoing violation, namely the continued denial of adequate medical care by Clemons. A plaintiff

may state a claim by alleging that a supervisory defendant reviewed a grievance where the

plaintiff alleges an ongoing violation. See Carter v. Smith, No. 08-279, 2009 WL 3088428, at *6

(E.D. Pa. Sept. 23, 2009) (internal quotations omitted); see also Whitehead v. Rozum, No. 11-

102, 2012 WL 4378193, at *2 (W.D. Pa. Aug. 7, 2012) (“In the prison setting, where a grievance

alleges an ongoing constitutional violation, a supervisory defendant who reviews it is personally

involved in that violation because he is confronted with a situation he can remedy directly.”)

(internal citations omitted). Thus, Plaintiff’s claims against Dearant shall proceed with respect to

Dearant’s failure to act on Plaintiff’s grievances against Clemons. To the extent though that

Plaintiff asserts claims against Dearant for his failure to act on his grievances against the nurses

and Kelly, it fails for the same reason as do his claims against Kelly described supra.

F. Bean

Defendant Bean oversees the whole jail population. (See Dkt. No. 1-1 at 5). In January,

2021, Plaintiff complained to Bean regarding being taken off of his suboxone medication by

Clemons via a letter. (See Dkt. No. 1-1 at 8-10). Bean never responded to Plaintiff’s complaint.

(See id. at 5). While Plaintiff does not expressly state what theories he is suing Bean under, this

Court will presume it is like the other Defendants; namely under the Fourteenth Amendment and

for malpractice.

Like Plaintiff’s allegations against Dearant, Plaintiff’s complaints to Bean relate to the

purported ongoing violation occurring due to Clemons providing Plaintiff inadequate medical

care. Thus, for similar reasons as discussed with Dearant, Plaintiff’s claims against Bean under

the Fourteenth Amendment and for malpractice shall proceed past screening.

G. Taylor

Defendant Taylor is the warden at CCCF. (See Dkt. No. 1-1 at 2). Plaintiff filed

numerous grievances to Taylor informing her of what was “going on in her facility by the

medical department.” (See id.). These grievances included complaints about Plaintiff’s pain,

suffering and withdrawal. Taylor never responded to Plaintiff’s grievances. (See id.). Plaintiff

sues Taylor under the Fourteenth Amendment and for malpractice.

For the reasons previously discussed with Defendants Dearant and Bean, Plaintiff’s

Fourteenth Amendment and malpractice claims against Taylor shall proceed past screening.

H. CCCF

Plaintiff next names CCCF as a Defendant. He claims CCCF employs all the named

individual Defendants whose negligence led to his pain and suffering. He sues CCCF under the

Fourteenth Amendment and for malpractice.

Plaintiff’s claim under § 1983 pursuant to the Fourteenth Amendment against CCCF is

dismissed with prejudice for failure to state a claim upon which relief may be granted. Indeed, a

county jail is not a “person” amenable to suit under § 1983. See, e.g., Coleman v. Corizon Med.,

No. 18-4611, 2019 WL 5704501, at *3 (D.N.J. Nov. 5, 2019); Walker v. Cty. of Gloucester, No.

15-7073, 2018 WL 1064210, at *3 (D.N.J. Feb. 27, 2018) (collecting cases); see also Boomer v.

Lewis, 541 F. App'x 186, 192 (3d Cir. 2013).

However, at this early stage of the proceedings, Plaintiff’s claim for malpractice against

CCCF shall be permitted to proceed based on vicarious liability given that he alleges CCCF

employs all the named individual Defendants. See Spositi v. Reycheck, No. 16-2448, 2017 WL

6539231, at *4 (D.N.J. Dec. 21, 2017) (noting employer of individual defendants can be

vicariously liable for malpractice under respondeat superior).

I. C.F.G. Medical Enterprise

Finally, Plaintiff sues C.F.G. Medical Enterprise. (See Dkt. No. 1 at 4). This Defendant

provides the medical service of doctors and nurses at CCCF for detainees. (See id. at 5).

Plaintiff’s claim against C.F.G. Medical Enterprise under the Fourteenth Amendment

shall be dismissed without prejudice for failure to state a claim. A defendant in a federal civil

rights matter may not be held liable based solely on his role as a supervisor, but instead to be

held liable must have had “personal involvement in the alleged wrongs.” Rode v. Dellarciprete,

845 F.2d 1195, 1207-08 (3d Cir. 1988); see also Iqbal, 556 U.S. at 676 (civil rights defendants

may not be held liable under respondeat superior theory of liability). This generally requires a

plaintiff to plead facts showing either the supervisory defendant's “participation [in the alleged

wrong], or ... actual knowledge and acquiescence [in his subordinate's wrongdoing], to be

liable.” Tenon v. Dreibelbis, 606 F. App'x 681, 688 (3d Cir. 2015); see also Barkes v. First Corr.

Med., Inc., 766 F.3d 307, 316-20 (3d Cir. 2014), rev'd on other grounds, 135 S. Ct. 2042 (2015).

In the case of an outside contractor, such as C.F.G. Medical Enterprise, a plaintiff must instead

plead that the contractor adopted a policy, practice, or custom which was ultimately responsible

for the alleged violation. See Butler v. CFG Health Services, Inc., No. 21-13354, 2022 WL

138085, at *3 (D.N.J. Jan. 12, 2022) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 n.

55 (1978) (other citations and footnote omitted) (“[T]o hold CFG Health Services liable for his

injuries, Plaintiff must prove facts showing that this entity had a relevant policy or custom, and

that policy violated his constitutional rights.”). A corporate policy, practice, or custom must

therefore be the “moving force” behind the alleged constitutional violation for a plaintiff to

successfully plead a plausible claim for relief as to such a defendant. See City of Canton v.

Harris, 489 U.S. 378, 389 (1989); see also Los Angeles Cnty. v. Humphries, 562 U.S. 29, 35-36

(2010).

Plaintiff fails to state with any facial plausibility a policy, practice or custom on the part

of C.F.G. Medical Enterprise giving rise to his injuries. Accordingly, his Fourteenth Amendment

claim under § 1983 is dismissed without prejudice for failure to state a claim upon which relief

may be granted.

Nevertheless, Plaintiff’s malpractice claim against C.F.G. Medical Enterprise shall be

permitted to proceed at this early screening stage based on vicarious liability. See Spositi, 2017

WL 6539231, at *4 (D.N.J. Dec. 21, 2017) (citing Carter v. Reynolds, 175 N.J. 402, 408 (2003);

Miller v. Lagana, No. 15-2510, 2016 WL 1060417, at *4 (D.N.J. Mar. 17, 2016)).

V. MOTION TO APPOINT PRO BONO COUNSEL

Finally, Plaintiff seeks the appointment of pro bono counsel. (See Dkt. No. 8). Indigent

persons raising civil rights claims have no absolute right to counsel. See Parham v. Johnson, 126

F.3d 454, 456-57 (3d Cir. 1997). To appoint pro bono counsel, there must be some merit in fact

or law to the claims the plaintiff is attempting to assert. See Tabron v. Grace, 6 F.3d 147, 155 (3d

Cir. 1993). Furthermore, 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

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). Additionally, the power to grant appointment of counsel lies solely with the

discretion of this Court. See Tabron, 6 F.3d at 155. Appointing counsel may be made at any

point during the litigation sua sponte or by granting a party’s motion. See id. at 156.

It is not entirely clear that Plaintiff is indigent. Indeed, Plaintiff paid the filing fee in this

case. Thus, Plaintiff’s motion for the appointment of pro bono counsel is denied without

prejudice. If Plaintiff though can show his indigency, such as by filing an updated application to

proceed in forma pauperis, he can refile a motion for the appointment of pro bono counsel that

will be considered anew.

VI. CONCLUSION

For the foregoing reasons, Plaintiff’s ADA claims against the Defendants are dismissed

without prejudice. Plaintiff’s remaining claims against Defendants Houston, Governor and Kelly

are dismissed without prejudice and these Defendants will be terminated from this case.

Plaintiff’s Fourteenth Amendment and malpractice claims shall proceed against Defendants

Clemons, Dearant, Bean and Taylor. Plaintiff’s Fourteenth Amendment claims against CCCF is

dismissed with prejudice, but Plaintiff’s malpractice claim against CCCF shall proceed.

Plaintiff’s Fourteenth Amendment claim against Defendant C.F.G. Medical Enterprise is

dismissed without prejudice, but Plaintiff’s malpractice claim against C.F.G. Medical Enterprise

shall proceed. Plaintiff’s motion for the appointment of pro bono counsel (Dkt. No. 8) is denied

without prejudice. An appropriate order will be entered.

DATED: May 20, 2022 s/ Robert B. Kugler

ROBERT B. KUGLER

United States District Judge