# FORD v. WARDEN RICHARD SMITH

> District Court, D. New Jersey · December 16, 2022

URL: https://www.frixlaw.com/law-library/cases/10274441

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** December 16, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10274441

## How later opinions describe it (automated extraction)

- 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
- finding Eighth Amendment violation where “[s]ome inmates with serious contagious diseases are allowed to mingle with the general 11 prison population”
- 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)

## Opinion text

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.

6
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

9
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,
10
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
11
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. ¶
18
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).
19
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

20
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;

21
(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.
22
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10274441. Public record. Not legal advice.