FORD v. WARDEN RICHARD SMITH

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

______________________________

:

TODD FORD, JR., :

:

Plaintiff, : Civ. No. 20-18863 (NLH) (AMD)

:

v. : OPINION

:

:

WARDEN RICHARD SMITH, et al., :

:

Defendants. :

:

______________________________:

APPEARANCES:

Jennifer C. Critchley, Esq.

Aaron H. Gould, Esq.

Connell Foley LLP

One Newark Center

1085 Raymond Boulevard

Newark, New Jersey 07102

Counsel for Plaintiff

Victor A. Afanador, Esq.

Christopher A. Khatami, Esq.

Lite DePalma Greenberg & Afanador, LLC

570 Broad Street, Suite 1201

Newark, New Jersey 07102

Counsel for Defendants, Warden Richard Smith, Warden

Charles Warren and Cumberland County

Stephen D. Holtzman, Esq.

Jeffrey S. McClain, Esq.

Lilia Londar, Esq.

Holtzman McClain & Londar, PC

524 Maple Avenue, Suite 200

Linwood, NJ 08221

Counsel for Defendant Kristina Smith

HILLMAN, District Judge

Defendants Warden Richard Smith, Warden Charles Warren and

Cumberland County move to dismiss Plaintiff Todd Ford, Jr.’s

first amended complaint under Federal Rule of Civil Procedure

12(b)(6). ECF No. 72. Defendant Kristina Smith joins in that

motion. ECF No. 76. Plaintiff opposes the motions to dismiss

and cross moves to amend the complaint. ECF No. 80. The

parties jointly move to seal certain exhibits. ECF No. 90.

For the reasons stated below, the Court will deny the

motions to dismiss and grant the cross-motion to amend. The

motion to seal will be granted in part.

I. BACKGROUND

This matter is one of many cases presently before the Court

in which a pretrial detainee at the Cumberland County Jail

(“Cumberland Jail” or “Jail”) alleges prison and county

officials created unconstitutional conditions of confinement

when they failed to respond to the COVID-19 pandemic that began

in early 2020. A class action addressing the Jail’s failures in

COVID-19 testing, protection, and quarantine and isolation

procedures and seeking only injunctive relief is presently

pending before the Court. Brown v. Warren, 20-7907 (“Class

Action”). Here, Plaintiff Todd Ford, Jr., filed his original

complaint pro se, ECF No. 1, and filed an amended complaint with

2

leave of court after the appointment of pro bono counsel.1 ECF

No. 55. Defendants now move to dismiss the amended complaint.

ECF Nos. 72 & 76. Plaintiff opposes the motions and cross-moves

for leave to file a second amended complaint. ECF No. 80.

II. STANDARD OF REVIEW

When considering a motion to dismiss a complaint for

failure to state a claim, Fed. R. Civ. P. 12(b)(6), the Court

must accept all well-pleaded allegations in the complaint as

true and view them in the light most favorable to the non-moving

party. A motion to dismiss may be granted only if the plaintiff

has failed to set forth fair notice of what the claim is and the

grounds upon which it rests that make such a claim plausible on

its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

Although Rule 8 does not require “detailed factual allegations,”

it requires “more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (citing Twombly, 550 U.S. at 555).

In reviewing the sufficiency of a complaint, the Court must

“tak[e] note of the elements [the] plaintiff must plead to state

1 The Court acknowledges and appreciates the advocacy of Jennifer

C. Critchley, Esq. and Aaron H. Gould, Esq. of Connell Foley

LLP, who accepted appointment as pro bono counsel pursuant to 28

U.S.C. § 1915(e)(1) and this Court’s Plan for Appointment of

Attorneys in Pro Se Civil Actions, see App. H of the Local Civil

Rules of the District of New Jersey.

3

a claim. Second, it should identify allegations that, because

they are no more than conclusions, are not entitled to the

assumption of truth. Finally, [w]hen there are well-pleaded

factual allegations, [the] court should assume their veracity

and then determine whether they plausibly give rise to an

entitlement to relief.” Connelly v. Lane Const. Corp., 809 F.3d

780, 787 (3d Cir. 2016) (alterations in original) (internal

citations and quotation marks omitted). “[A] complaint’s

allegations of historical fact continue to enjoy a highly

favorable standard of review at the motion-to-dismiss stage of

proceedings.” Id. at 790.

III. DISCUSSION

A. Motion to Amend

Rule 15(a)(2) states that after a responsive pleading has

been served “a party may amend its pleading only with the

opposing party’s written consent or the court’s leave[,]” and

“[t]he court should freely give leave when justice so requires.”

Fed. R. Civ. P. 15(a)(2). “[A] district court has the discretion

to deny this request if it is apparent from the record that (1)

the moving party has demonstrated undue delay, bad faith[,] or

dilatory motives[;] (2) the amendment would be futile[;] or (3)

the amendment would prejudice the other party.” Lake v. Arnold,

232 F.3d 360, 373 (3d Cir. 2000).

4

Defendants do not argue that Plaintiff has demonstrated

undue delay, bad faith, or dilatory motive, nor do Defendants

assert that they will be prejudiced by the amendment. They

argue that “while Plaintiff cobbles together new allegations in

an effort to survive this motion, the effort is futile.” ECF

No. 88 at 6. Amendment of a complaint is futile when the

amended complaint fails to state a claim upon which relief can

be granted. Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).

“Accordingly, if a claim is vulnerable to dismissal under Rule

12(b)(6), but the plaintiff moves to amend, leave to amend

generally must be granted unless the amendment would not cure

the deficiency.” Id.

In the interest of judicial economy and in the absence of

prejudice, the Court will consider the proposed second amended

complaint (“SAC”) as the operative pleading for purposes of the

motions to dismiss. See Diversified Indus., Inc. v. Vinyl

Trends, Inc., No. 13-6194, 2014 WL 1767471, at *1 n.1 (D.N.J.

May 1, 2014).

B. Failure to Exhaust

Defendants argue the complaint must be dismissed because

Plaintiff failed to exhaust his administrative remedies as

required by the Prison Litigation Reform Act (“PLRA”). See 42

U.S.C. § 1997e(a). Failure to exhaust administrative remedies

5

is an affirmative defense under the PLRA, and “inmates are not

required to specifically plead or demonstrate exhaustion in

their complaints.” Jones v. Bock, 549 U.S. 199, 216 (2007). See

also Small v. Camden Cty., 728 F.3d 265, 268 (3d Cir. 2013)

(“Failure to exhaust is an affirmative defense the defendant

must plead and prove; it is not a pleading requirement for the

prisoner-plaintiff.”). As exhaustion is not a pleading

requirement, it is not an appropriate subject for a motion to

dismiss for failure to state a claim. Defendants may raise this

defense in an appropriately supported motion for summary

judgment. See Paladino v. Newsome, 885 F.3d 203 (3d Cir. 2018).

C. Claim-Splitting Doctrine

Defendants further argue that Plaintiff’s claims are

precluded by the claim-splitting doctrine, “the longstanding bar

against having a single party-plaintiff simultaneously maintain

two actions against the same defendant.” Pennsylvania v.

Navient Corp., 967 F.3d 273, 286 (3d Cir. 2020) (citing Walton

v. Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977) (en banc)).

Defendants argue that Plaintiff’s status as a representative in

the Class Action warrants dismissal “because a final judgment in

the Class Action would nevertheless preclude this action.” ECF

No. 73 at 6.

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Plaintiff’s action is distinguishable from Walton. “There,

a single plaintiff filed two separate employment lawsuits based

on the same underlying facts, in the same court, against the

same defendant.” Navient Corp., 967 F.3d at 286 (citing Walton,

563 F.2d 69–70). Plaintiff did not file the Class Action as a

single plaintiff seeking damages for himself; it was filed with

other class representatives on behalf of present and future

inmates at the Cumberland Jail. Therefore, “a single plaintiff”

did not file both actions. More significantly, the Class Action

and Plaintiff’s complaint serve entirely different purposes.

Plaintiffs in the Class Action seek “the means to take

reasonable precaution against the spread of the [COVID-19] virus

and receive an appropriate level of treatment and care . . . .”

Consent Order, Brown v. Warren, No. 20-7907 (D.N.J. May 13,

2021) (ECF No. 126 at 2).2 Here, Plaintiff seeks compensation

for the alleged injuries that he personally incurred at the

Cumberland Jail. Defendants’ argument that a final order in the

Class Action will preclude any relief here “is a distraction.

[Defendants] can only speculate as to what will happen if both

actions proceed.” Navient Corp., 967 F.3d at 286 n.9.

Moreover, the Consent Order specifically stated that the Class

Action “does not adjudicate or resolve any other claim asserted

2 The Court takes judicial notice of this public record.

7

in any other action or petition brought by any current or future

member of the class or any other former detainee at the

Cumberland Jail for monetary damages, nominal damages, habeas

corpus, or individual relief not encompassed by the within

Consent Order.” Consent Order, No. 20-7907 (ECF No. 126 at 7).

The Court will not dismiss the complaint under the claim-

splitting doctrine.

D. Count One – Deliberate Indifference to Serious Medical Need

Defendants argue that Plaintiff has failed to state a

deliberate indifference claim. Claims by pretrial detainees for

failing to provide adequate medical care arise under the

Fourteenth Amendment Due Process Clause and are analyzed “under

the standard used to evaluate similar claims brought under the

Eighth Amendment[.]” Natale v. Camden Cty. Corr. Facility, 318

F.3d 575, 582 (3d Cir. 2003). The Court will therefore review

Plaintiff’s claims under the same standard used to evaluate

similar claims brought under the Eighth Amendment. Moore v.

Luffey, 767 F. App’x 335, 340 (3d Cir. 2019).3

3 The Supreme Court has applied an “objectively unreasonable”

standard to analyze an excessive force claim under the

Fourteenth Amendment. Kingsley v. Hendrickson, 576 U.S. 389,

398 (2015). However, the Third Circuit has declined to address

whether the “objectively unreasonable” standard applies to a

deliberate indifference to medical need analysis. Moore, 767 F.

App’x at 340 n.2.

8

To state an Eighth Amendment Claim, a plaintiff must allege

facts indicating that defendants were deliberately indifferent

to his or her serious medical need. Estelle v. Gamble, 429 U.S.

97, 104 (1976). To accomplish this, “a plaintiff must make (1)

a subjective showing that ‘the defendants were deliberately

indifferent to [his or her] medical needs’ and (2) an objective

showing that ‘those needs were serious.’” Pearson v. Prison

Health Serv., 850 F.3d 526, 534 (3d Cir. 2017) (quoting Rouse v.

Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (second alteration in

original)).

“A medical need is serious if it ‘has been diagnosed by a

physician as requiring treatment,’ or if it’s so obvious that a

lay person would easily recognize the necessity for a doctor’s

attention.’” 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)). “The seriousness of an inmate’s medical need may also

be determined by reference to the effect of denying the

particular treatment.” Monmouth Cnty. Corr. Institutional

Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). “[I]f

‘unnecessary and wanton infliction of pain,’ results as a

consequence of denial or delay in the provision of adequate

medical care, the medical need is of the serious nature

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contemplated by the eighth amendment.” Id. (quoting Estelle,

429 U.S. at 103).

Plaintiff alleges he contracted COVID-19 and was

symptomatic. SAC ¶ 36, 50. He further alleges he has

experiences “residual health problems” as a result of COVID-19.

Id. ¶ 50. The Court concludes Plaintiff has alleged a serious

medical need for purposes of the motions to dismiss. See Clark

v. Kalteski, No. 5:22-CV-81, 2022 WL 1172975, at *3 (E.D. Pa.

Apr. 20, 2022) (“The severe abdominal pains, headaches, and

difficulty breathing suffered by Mr. Clark after his diagnosis

with Covid-19 constitute a serious medical need.”).

The Third Circuit has found deliberate indifference “‘where

the 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 non-medical reason; or

(3) prevents a prisoner from receiving needed or recommended

medical treatment.’” Parkell v. Danberg, 833 F.3d 313, 337 (3d

Cir. 2016) (quoting Rouse, 182 F.3d at 197). Deliberate

indifference also includes “ignor[ing] a condition of

confinement that is sure or very likely to cause serious illness

and needless suffering the next week or month or year.” Helling

v. McKinney, 509 U.S. 25, 33 (1993). See also Hemphill v.

Hochberg, No. 07-2162, 2008 WL 2668946, at *5 (D.N.J. June 27,

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2008) (“Eighth Amendment liability is not limited to

indifference to current serious medical problems; the risk of

serious future harm to an inmate’s health may also constitute a

claim under the Amendment.”) (citing Helling).

Plaintiff alleges Defendants knew about the risk COVID-19

posed to the population of the Cumberland Jail because “the CDC,

the State of New Jersey, medical experts, and various advocates

. . . alerted them of [the heightened threat of COVID-19 in the

Jail] as well as the preventative measures needed to protect

against the further spread of COVID-19.” SAC ¶ 25. Despite

these warnings, “Defendants refused to provide necessary medical

treatment and prevention measures . . . based on non-medical,

but rather administrative and/or financial, reasons.” Id. ¶ 46.

“Plaintiff repeatedly requested to be tested when he felt sick,

but that request was denied.” Id. ¶ 36.

“Additionally, Plaintiff requested to be properly

quarantined but was rather forced into quarantine with another

inmate.” Id. He claims he spent over 300 hours quarantining

with another individual while “Plaintiff was suffering from

breathing issues, a cough, and chills.” Id. ¶ 5. See Gates v.

Collier, 501 F.2d 1291, 1300 (5th Cir. 1974) (finding Eighth

Amendment violation where “[s]ome inmates with serious

contagious diseases are allowed to mingle with the general

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prison population”). Essentially, Plaintiff alleges that not

only did Defendants fail to implement protective measures until

well into the pandemic, see id. ¶ 54 (alleging “[t]esting was

not permitted by Defendants at the Jail until six or seven

months into the Pandemic”), they took affirmative actions that

made things worse, id. ¶¶ 26-27.

Defendants rely on the Third Circuit’s decision in Hope v.

Warden York County Prison, 972 F.3d 310 (3d Cir. 2020) for the

proposition that Plaintiff has failed to state a claim. In

reviewing a district court’s order directing the release of

immigration detainees under 28 U.S.C. § 2241, the Third Circuit

concluded that the district court “abused its discretion when it

held that Petitioners showed a substantial likelihood of success

on the merits of their claims.” Id. at 323. Nothing in Hope

alters the pleading standards for civil rights claims; it only

concluded that the detainees had failed to prove that “the

Government knew of and disregarded an excessive risk to their

health and safety.” Id. at 329 (emphasis in original). See

also Jones v. Ellis, et al., No. 21-13625, 2021 WL 5015921, at

*3 (D.N.J. Oct. 28, 2021) (citing Hope for proposition that “a

detainee asserting deliberate indifference based on exposure to

COVID-19 must still establish that the Defendant had the

12

requisite mental state, which is akin to recklessness.”). That

is not the question presently before the Court.

On a motion to dismiss under Rule 12(b)(6), the Court asks

only whether Plaintiff has pled “sufficient factual allegations

to raise a reasonable expectation that discovery will reveal

evidence” of his claims. Connelly v. Lane Const. Corp., 809

F.3d 780, 789 (3d Cir. 2016). It must “assume all . . . factual

allegations to be true, construe those truths in the light most

favorable to the plaintiff, and then draw all reasonable

inferences from them.” Id. If Plaintiff’s factual allegations

are true, Defendants knew the risk that COVID-19, a deadly

disease with serious aftereffects, posed to Plaintiff but failed

to take action due to the costs and because they were

understaffed. This goes beyond “mere negligence.” See Andrews

v. Cervantes, No. CIV S-03-1218, 2008 WL 1970345, at *1 (E.D.

Cal. May 5, 2008), report and recommendation adopted, No. CIV S-

03-1218, 2008 WL 2705405 (E.D. Cal. July 9, 2008) (allowing

Eighth Amendment claim to proceed based on allegations that

defendants were aware “of the spread of disease, yet refuse[d]

to take any reasonable measures to shield plaintiff from the

risk of harm”); Hemphill v. Hochberg, No. 07-2162, 2008 WL

2668946, at *5 (D.N.J. June 27, 2008) (allowing Eighth Amendment

claim to proceed against doctor for “fail[ing] to inform inmates

13

of the nature of their ailment” and “communicat[ing] to the

inmates that their medical condition was not contagious, thereby

enabling the spread of scabies within the penal institution”).

“The context of the Government’s conduct is essential to

determine whether it shows the requisite deliberate indifference

that ‘shocks the conscience’ for a substantive due process

violation.” Hope, 972 F.3d at 330. This is a fact-intensive

inquiry, and the Court cannot assess the reasonableness of

Defendants’ response on a motion to dismiss. Plaintiff will

ultimately have to prove that Defendants were deliberately

indifferent, but he has satisfactorily alleged that they knew of

and disregarded an excessive risk to his health and safety. The

Court will deny the motions to dismiss this claim.

E. Count Two – Unconstitutional Punishment

Count Two of the SAC alleges unconstitutional punishment in

violation of the Fourteenth Amendment. “In accordance with the

Supreme Court’s decision in Bell v. Wolfish, 441 U.S. 520, 549

(1979), detainees may not be punished before they are

adjudicated guilty.” Hope, 972 F.3d at 325. “The touchstone

for the constitutionality of detention is whether conditions of

confinement are meant to punish or are ‘but an incident of some

other legitimate governmental purpose.’” Id. at 326 (quoting

Hubbard v. Taylor, 538 F.3d 229, 231 (3d Cir. 2008) (“Hubbard

14

II”)). “‘[T]he ultimate question’ is whether conditions are

‘reasonably related to a legitimate governmental objective.’”

Id. (quoting Hubbard II, 538 F.3d at 236)) (alteration in

original). If detainees “are subject to conditions unrelated to

a legitimate governmental objective, ‘we may infer “that the

purpose of the governmental action is punishment that may not be

constitutionally inflicted upon detainees qua detainees.”’” Id.

(quoting E. D. v. Sharkey, 928 F.3d 299, 307 (3d Cir. 2019);

Hubbard II, 538 F.3d at 232). Courts must “consider the

totality of the circumstances of confinement, including any

genuine privations or hardship over an extended period of time,

and whether conditions are (1) rationally related to their

legitimate purpose or (2) excessive in relation to that

purpose.” Id. (citing Hubbard v. Taylor, 399 F.3d 150, 159-60

(3d Cir. 2005) (“Hubbard I”)).

The Third Circuit rejected the Hope detainees’

unconstitutional punishment claim because the district court did

not “meaningfully consider pertinent evidence on conditions

provided by the Government, including social distancing efforts”

at the detention facilities. Hope v. Warden York Cnty. Prison,

972 F.3d 310, 327 (3d Cir. 2020). “Considering all the

responsive measures specifically implemented to detect and to

prevent spread of the virus, the challenges of facility

15

administration during an unprecedented situation, and the

purposes served by detention—Petitioners did not show a

substantial likelihood of success on their claim that the

conditions of their confinement constitute unconstitutional

punishment.” Id. at 329. Again, this is not the question

presently before this Court. The only question is whether

Plaintiff has plausibly alleged unconstitutional punishment.

Unlike the Hope detainees, Plaintiff is not alleging a

theoretical exposure to COVID-19; he was exposed and did in fact

contract COVID-19. SAC ¶¶ 33, 50. See Hope, 972 F.3d at 325

(noting detainees “asserted . . . that, if Petitioners are

exposed to COVID-19 and if they contract the virus, their ages

and medical conditions put them at ‘imminent risk’ of serious

illness, including possible death.” (emphasis in original)).

Plaintiff alleges that Defendants failed to take preventative

measures and took actions that exacerbated the risk, such as

quarantining multiple inmates in one room and denying testing to

inmates who were experiencing COVID-19 symptoms. SAC ¶ 27. If

Plaintiff’s factual allegations are true, Defendants ignored

warnings from various government agencies and actively took

steps that endangered Plaintiff and the other inmates of the

Cumberland Jail because of financial and staffing concerns.

16

Considering the totality of the circumstances alleged in

the SAC, Plaintiff has plausibly alleged unconstitutional

punishment. Prison officials “may [not] be deliberately

indifferent to the exposure of inmates to a serious,

communicable disease on the ground that the complaining inmate

shows no serious current symptoms.” Helling v. McKinney, 509

U.S. 25, 33 (1993). See also Hutto v. Finney, 437 U.S. 678,

682–83 (1978) (finding Eighth Amendment violation in part due to

“some prisoners suffer[ing] from infectious diseases such as

hepatitis and venereal disease” comingling with other inmates

and sharing laundry facilities). “We have great difficulty

agreeing that prison authorities may not be deliberately

indifferent to an inmate’s current health problems but may

ignore a condition of confinement that is sure or very likely to

cause serious illness and needless suffering the next week or

month or year.” Helling, 509 U.S. at 33.

Plaintiff alleges a dangerous, highly contagious disease

was allowed to run rampant in the Cumberland Jail for months

before Defendants took substantive action to address it.

Defendants will have an opportunity to demonstrate the

reasonableness of their actions, but it is plausible on the face

of the SAC that Defendants’ actions, or lack thereof, were

17

unrelated to a legitimate governmental objective. The motions

to dismiss this claim will be denied.

F. Count Three - Monell Liability

Count Three of the SAC seeks to impose liability on

Cumberland County itself. “A municipality cannot be held liable

for the unconstitutional acts of its employees on a theory of

respondeat superior. A plaintiff seeking to hold a municipality

liable under section 1983 must demonstrate that the violation of

rights was caused by the municipality’s policy or custom.”

Thomas v. Cumberland Cnty., 749 F.3d 217, 222 (3d Cir. 2014)

(citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691

(1978)).

Plaintiff alleges Cumberland County “tolerated, permitted,

failed to correct, promoted and/or ratified a number of customs,

patterns or practices that condoned and/or required Wardens and

other employees (such as and including the Jail’s Medical

Director) to turn a blind eye to and to not intervene with, the

lack of precautionary measures” in the Jail. SAC ¶ 67. These

policies and customs “failed to provide for the health, safety

and welfare of detainees, inmates, and the like, during

confinement, including but not limited to, reasonable and

necessary measures such as the lack of personal protective

equipment, sanitation measures, and social distancing.” Id. ¶

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66. Plaintiff alleges that he was exposed to and contracted

COVID-19 as a result of these policies and customs. Id. ¶ 69.

Accordingly, Plaintiff has sufficiently alleged Cumberland

County’s liability under Monell.

G. Qualified Immunity

Defendant Smith and Warren assert they are entitled to

qualified immunity. “[O]fficers are entitled to qualified

immunity ... unless (1) they violated a federal statutory or

constitutional right, and (2) the unlawfulness of their conduct

was ‘clearly established at the time.’” D.C. v. Wesby, 138 S.

Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566 U.S. 658,

664 (2012)). The first prong of the analysis “asks whether the

facts, [t]aken in the light most favorable to the party

asserting the injury, ... show the officer’s conduct violated a

[federal] right[.]” Tolan v. Cotton, 572 U.S. 650, 655-56

(2014) (internal quotation marks and citations omitted)

(alterations and omissions in original).

The Court denies qualified immunity at this time. The

second amended complaint, when read in the light most favorable

to Plaintiff, states claims for violations of his Fourteenth

Amendment rights. Moreover, “[t]hat the Eighth Amendment

protects against future harm to inmates is not a novel

proposition.” Helling v. McKinney, 509 U.S. 25, 33 (1993).

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COVID-19 may be a new virus, but prisons have faced highly

communicable diseases before and have been found liable when

they failed to respond appropriately. See Helling, 509 U.S. at

33-34; Hutto v. Finney, 437 U.S. 678, 682–83 (1978); Gates v.

Collier, 501 F.2d 1291, 1300 (5th Cir. 1974); Hazel v. Russell,

et al., No. 3:20-CV-0726, 2022 WL 17414908, at *3 (D. Nev. Dec.

5, 2022) (denying qualified immunity because “existing Supreme

Court precedent gave government officers fair warning that their

alleged failure to abide by or enforce compliance with NDOC

guidelines concerning a serious communicable disease [COVID-19]

was unlawful”).

The Court will deny qualified immunity without prejudice.

Defendants may reassert the qualified immunity defense upon

factual development.

H. Request to Stay

Defendants also ask the Court to stay Plaintiff’s complaint

pending entry of a final order in the Class Action. The Court

will exercise its discretion and decline the request.

Plaintiff’s complaint concerns specific Defendants’ actions

within a particular timeframe whereas the Class Action continues

to address the ongoing conditions at the Jail as a whole. The

parties will have the opportunity to bring any specific concerns

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to the Court’s or the Magistrate Judge’s attention as the matter

proceeds.

I. Motion to Seal

The parties jointly move to seal Defendants’ brief and

exhibits in support of their motion to dismiss, docketed as ECF

No. 73. ECF No. 90.

“It is well-settled that there exists, in both criminal and

civil cases, a common law public right of access to judicial

proceedings and records. The public’s right of access extends

beyond simply the ability to attend open court proceedings.

Rather, it envisions a pervasive common law right to inspect and

copy public records and documents, including judicial records

and documents.” In re Cendant Corp., 260 F.3d 183, 192 (3d Cir.

2001) (internal citations and quotation marks omitted). A party

seeking to seal portions of the judicial record from public view

bears party “bears the heavy burden of showing that the material

is the kind of information that courts will protect and that

disclosure will work a clearly defined and serious injury to the

party seeking closure.” Millhouse v. Ebbert, 674 F. App’x 127,

128 (3d Cir. 2017) (per curiam) (internal quotation marks and

citations omitted). In deciding a motion to seal, the Court

considers:

(a) the nature of the materials or proceedings at issue;

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(b) the legitimate private or public interest which

warrants the relief sought;

(c) the clearly defined and serious injury that would

result if the relief sought is not granted;

(d) why a less restrictive alternative to the relief

sought is not available;

(e) any prior order sealing the same materials in the

pending action; and

(f) the identity of any party or nonparty known to be

objecting to the sealing request.

L. Civ. R. 5.3(c)(3).

Plaintiff alleges Defendants denied him medical care and

unconstitutionally punished him based on their inadequate

response to the COVID-19 pandemic in the Cumberland Jail. Filed

under temporary seal is Defendants’ brief in support of their

motion to dismiss, ECF No. 73; Exhibit A, the CCDOC Inmate

Handbook, ECF No. 73-1 at 1-38; and Exhibit B, Inmate Request

Forms filed by Plaintiff, ECF No. 73-1 at 39-88. The parties do

not make any arguments why Exhibit A should remain sealed, and

the Court does not see any. Defendants must file Exhibit A on

the public docket.4

The parties seek to seal Exhibit B, Plaintiff’s Inmate

Request Forms, because the forms “contain personal and sensitive

medical information of Plaintiff, other inmates, and staff

4 Exhibits A and B are filed as a single document, ECF No. 73-1.

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members of the CCDOC.” ECF No. 90-1 at 5. “These inmate

request forms also contain personal identifying numbers of

Plaintiff and staff members of the CCDOC whom are not parties to

this litigation.” Id. They allege that “[r]edaction is not

feasible; nearly all information contained therein would be

redacted.” Id.

Plaintiff has a legitimate privacy interest in his medical

records, see Doe v. Delie, 257 F.3d 309, 315 (3d Cir. 2001), but

he inserted the relevance of his medical record and conditions

into this action by alleging Defendants denied him necessary

medical care. Plaintiff has a right to have his complaint

adjudicated in a public process, and the public has a right to

information about how county jails are responding to a public

health crisis. “The public’s interest is particularly

legitimate and important where, as in this case, at least one of

the parties to the action is a public entity or official.”

Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir.

1994). “‘Broad allegations of harm, unsubstantiated by specific

examples or articulated reasoning,’ do not support a good cause

showing.” Id. (quoting Cipollone v. Liggett Group, Inc., 785

F.2d 1108, 1121 (3d Cir. 1986)).

The Court has reviewed Exhibit B and has found only two

instances of another inmate’s name appearing in the forms. ECF

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No. 73-1 at 53-54. Defendants may redact that inmate’s name,

leaving the first and last initials, with little trouble. The

information about staff appears limited to their position in the

prison and any involvement in reviewing Plaintiff’s grievances

or providing medical treatment. The grievances do not contain

“private” information about jail staff such that sealing would

be appropriate. Moreover, Exhibit B contains printouts of news

articles. Id. at 86-88. These articles are publicly accessible

online and do not qualify for sealing. The Court will keep the

unredacted version of Exhibit B under seal, but Defendants must

file a version with appropriate redactions on the public docket.

Finally, the parties ask the Court to seal Defendants’

brief because it “references Plaintiff’s medical condition and

treatment requests.” ECF No. 90-1 at 7. The Court will deny

the request to seal the brief for the reasons previously

discussed. The Clerk will be ordered to lift the temporary seal

on the brief.

IV. CONCLUSION

For the reasons set forth above, the Court will deny the

motions to dismiss, Fed. R. Civ. P. 12(b)(6), and grant the

cross-motion to amend, Fed. R. Civ. P. 15(a). Plaintiff will

file a second amended complaint that conforms with his proposed

second amended complaint within 10 days of this Order. The

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motion to seal is granted as to Exhibit B, but Defendants must

file a version with appropriate redactions on the public docket.

The motion to seal is otherwise denied.

An appropriate Order follows.

Dated: December 16, 2022 s/ Noel L. Hillman

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

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