WILCOX v. CUMBERLAND CO. BOARD OF COMMISSIONERS

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

PERRY A. WILCOX, No. 22-cv-4672 (NLH) (AMD)

Plaintiff,

v. OPINION

CUMBERLAND CO. BOARD OF

COMMISSIONERS, et al.,

Defendants.

APPEARANCE:

Perry A. Wilcox

357392/SBI 983669B

Hudson County Jail

30-35 Hackensack Ave.

Kearny, NJ 07032

Plaintiff Pro se

HILLMAN, District Judge

Plaintiff Perry A. Wilcox, a prisoner presently confined in

the Hudson County Jail, New Jersey, submits this complaint under

42 U.S.C. § 1983. ECF No. 1. At this time, the Court must

review the complaint pursuant to 28 U.S.C. § 1915 to determine

whether it should be dismissed as frivolous or malicious, for

failure to state a claim upon which relief may be granted, or

because it seeks monetary relief from a defendant who is immune

from such relief. For the reasons set forth below, the Court

will permit the complaint to proceed in part.1

I. BACKGROUND

Plaintiff is one of many pretrial detainees who have filed

suit against various Cumberland County officials for the

Cumberland County Jail’s (“CCJ” or “Jail”) response, or lack

thereof, to the COVID-19 pandemic. On January 19, 2022, the

Court permitted Plaintiff and another inmate to file an amended

complaint against Cumberland County, former Warden Richard

Smith, former Warden Charles Warren, and Vandal Lee for

unconstitutional conditions of confinement and denial of medical

care, as well as related negligence claims, relating to COVID-

19. See Wilcox v. Cumberland County Freeholders, et al., No.

21-0039 (ECF No. 18). Plaintiff is represented by counsel in

that matter. See Order Appointing Counsel, Wilcox, No. 21-0039

(July 14, 2022) (ECF No. 47).

Plaintiff filed this complaint on July 21, 2022. ECF No.

1. Plaintiff’s claims fall into five general categories:

1 The Court’s preliminary review under 28 U.S.C. § 1915 does not

determine whether the allegations in the complaint would survive

a properly supported motion to dismiss filed by a defendant

after service. See Richardson v. Cascade Skating Rink, No. 19-

08935, 2020 WL 7383188, at *2 (D.N.J. Dec. 16, 2020) (“[T]his

Court recognizes [a] § 1915(e) screening determination is a

preliminary and interlocutory holding, subject to revision at

any time prior to entry of final judgment.” (internal quotation

marks omitted)).

challenges to the conditions and medical care at CCJ related to

COVID-19; challenges to the conditions and medical care at CCJ

related to alleged black mold; the agreement between Cumberland

County and Hudson County to house Cumberland County pre-trial

detainees in HCJ; challenges to the conditions and medical care

at HCJ related to COVID-19; and retaliation from HCJ officials.

II. STANDARD OF REVIEW

To survive a sua sponte screening for failure to state a

claim, a complaint must allege “sufficient factual matter” to

show that the Plaintiff’s claims are facially plausible. Fowler

v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). “‘A claim

has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.’” Fair

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

2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

“[A] pleading that offers ‘labels or conclusions’ or ‘a

formulaic recitation of the elements of a cause of action will

not do.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.

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

In determining the sufficiency of a pro se complaint, the

Court must be mindful to construe it liberally in favor of the

plaintiff. Haines v. Kerner, 404 U.S. 519, 520–21 (1972);

United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court

must “accept as true all of the allegations in the complaint and

all reasonable inferences that can be drawn therefrom, and view

them in the light most favorable to the plaintiff.” Morse v.

Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).

III. DISCUSSION

A. Cumberland County COVID-19 Claims

To the extent the complaint raises concerns about

Cumberland County’s COVID-19 response, those claims are

duplicative of Plaintiff’s prior action, Civil No. 21-0039. In

that action, the Court rejected Plaintiff’s attempt to submit

piecemeal supplements to the amended complaint in the absence of

a formal motion under Rule 15. Wilcox, No. 21-0039 (Feb. 9,

2022) (ECF No. 24). Plaintiff may not circumvent the rules

regarding amending complaints by filing a new action raising the

same claims. See Walton v. Eaton Corp., 563 F.2d 66, 71 (3d

Cir. 1977). The Court will dismiss Plaintiff’s claims regarding

Cumberland County’s COVID-19 response as duplicative of Civil

No. 21-0039. Fabics v. City of New Brunswick, 629 F. App’x 196,

198 (3d Cir. 2015) (“‘As part of its general power to administer

its docket,’ a district court may dismiss a duplicative

complaint.” (quoting Colorado River Water Conservation Dist. v.

United States, 424 U.S. 800, 817 (1976))).

B. Cumberland County Black Mold Claims

Plaintiff alleges that he was exposed to black mold in the

CCJ and that he was denied medical care for exposure. Plaintiff

alleges he was rehoused in CCJ’s C-Pod in March 2022 along with

a few other detainees. ECF No. 1-2 at 38. “[P]laintiff

discovered the facility had a significant BLACK MOLD issue that

was beyond control. The issue was so out of control that an

outside company had to be called in to clean or do their best to

remove the mold.” Id. (emphasis in original). Plaintiff and

the others were moved out of C-Pod on or about April 5, 2022 and

returned on or about April 21, 2022. Id. at 39, 41. Plaintiff

alleges they were housed in G-Dorm in bad conditions when “[i]t

would’ve made the most sense to house plaintiff and others in B-

Dorm right next [to] A Dorm which was already occupied on the 1st

floor.” Id. at 39.

Plaintiff asked Defendant CFG Health Systems’ (“CFG”)

employees to check him out for “health complication due to the

exposure to BLACK MOLD.” Id. at 40 (emphasis in original). The

nurse stated “that they would have to know the level of toxin

within the mold exposed to. The plaintiff is more than sure

that is information in the exclusive control of the ‘Interim’

Warden Eugene Caldwell.” Id.

“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 v. Warden York County

Prison, 972 F.3d 310, 325 (3d Cir. 2020). “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

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”)).

Plaintiff has not sufficiently alleged punitive conditions

in violation of the Fourteenth Amendment. According to the

complaint, detainees reported issues of black mold within C-Pod.

Prison officials then hired an outside company to treat the area

and moved detainees out of the affected area while the treatment

was taking place. The detainees were returned to C-Pod after

the treatment concluded. Even if the conditions could be

considered so severe that they would amount to punishment,

Plaintiff has not plausibly alleged that Defendant County

Commissioners and Caldwell were deliberately indifferent to the

conditions. See Edwards v. Northampton County, 663 F. App’x

132, 135-36 (3d Cir. 2016).

Plaintiff also has not stated a claim for denial of medical

care under the Fourteenth Amendment. 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).2

2 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

“[E]ntities like CFG, which provide healthcare services for

to the County pursuant to a contract, ‘cannot be held

responsible for the acts of its employees under a theory of

respondeat superior or vicarious liability.’ Thus, to state a

claim for relief, Plaintiff must provide facts showing that CFG

had a relevant policy or custom, and that the policy or custom

caused the constitutional violation he alleges.” Abner v.

Ellis, No. 21-15359, 2022 WL 17177838, at *7 (D.N.J. Nov. 23,

2022) (quoting Natale v. Camden County Correctional Facility,

318 F.3d 575, 583-84 (3d Cir. 2003)). See also Monell v. New

York City Dept. of Soc. Servs., 436 U.S. 658, 691 (1978).

Plaintiff does not make any allegations that such a policy or

custom regarding treatment for alleged black mold exposure

exists.

Additionally, Plaintiff provides no facts that would

support a reasonable inference that Defendant Caldwell was

deliberately indifferent to a serious medical need. The Court

will dismiss these claims without prejudice.

C. Contract Between Cumberland County and Hudson County

Plaintiff challenges the contract between Cumberland County

and Hudson County that provides for the housing of Cumberland

County detainees within the HCJ. “[B]oth Cumberland and Hudson

indifference to medical need analysis. Moore, 767 F. App’x at 340

n.2.

counties officials displayed a total disregard [f]or pre-trial

detainees constitutional rights with the transfer more than two

(2) hours away denying access to the court, effective assistance

of counsel and place into conditions that are a complete

replication of the 2020 CCDOC mishandling of the disease (COVID-

19).” ECF No. 1-2 at 56. “The Cumberland Officials never took

into consideration the travel conditions a pretrial detainee has

to endure to make a court appearance. They never took the

initiative to conduct a proper inspection of prevention,

detection, or containment protocol of HCDOC handling of COVID-19

prior to the transfer of Cumberland detainees to Hudson.” Id.

The policy of transferring detainees from the Cumberland

County Jail to Hudson County was extensively litigated in the

New Jersey state courts. The New Jersey Public Defender’s

Office “filed a lawsuit in the Superior Court of New Jersey

seeking to enjoin Cumberland County from closing the jail, and

they obtained a preliminary injunction prohibiting CCJ

from transferring any inmate.” ECF No. 1-2 at 32 (citing

Krakora, et al, v. County of Cumberland, et al., Case No. CAM-L-

3500-20 (filed Oct. 22, 2020))). The New Jersey Supreme Court

declined to hear the matter and lifted the injunction. Id. at

33; Krakora for State v. Cty. of Cumberland, 259 A.3d 288,

reconsideration denied sub nom. Krakora v. Cty. of Cumberland,

262 A.3d 424 (N.J. 2021).

“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 has not provided facts that would support a reasonable

inference that the transfer policy amounts to deliberate

indifference to Plaintiff’s constitutional rights. The Court

will dismiss Plaintiff’s challenge to the transfer contract.

Plaintiff also has not pled a retaliation claim against

Defendant Braggs, who allegedly ordered Plaintiff’s transfer to

HCJ. “To state a claim for retaliation, a prisoner must allege

that: (1) he was engaged in constitutionally protected conduct,

(2) ‘he suffered some “adverse action” at the hands of prison

officials,’ and (3) ‘his constitutionally protected conduct was

“a substantial or motivating factor” in the decision’ to take

that action.” Wisniewski v. Fisher, 857 F.3d 152, 156 (3d Cir.

2017) (quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.

2001)).

Plaintiff was transferred to HCJ on May 13, 2022 along with

14 other detainees. ECF No. 1-2 at 43. Plaintiff speculates

his transfer was due to his pending civil rights complaint

against Cumberland County but offers no factual support for this

claim other than his assertion that “special forces” were used

to escort the 15 detainees out of their cells. Id. at 43-44.

However, he admits Defendant Caldwell “has been pushing

prisoners out of the CCDOC Facility since December of 2021,”

i.e., since the New Jersey Supreme Court lifted the injunction

on transfers. Id. at 41. “The dormitory section was completely

emptied out January into February 2022. The entire Blocks

section was finished up prior to plaintiff and others similarly

situated move back to C-Pod from G-Dorm.” Id. He further noted

that the “special forces” participated in all the transfers.

Id. Plaintiff has not plausibly alleged that his protected

activities in this Court was a substantial or motivating factor

in the transfer decision. The Court will dismiss the

retaliation claim against Defendant Braggs without prejudice.

D. Hudson County COVID-19 Claims

Plaintiff challenges his conditions of confinement based on

Hudson County’s allegedly deficient response to COVID-19.

“[T]he HCDOC facility recently had a number of COVID-19 related

deaths of both officers and staff in December 2021. Then an

outbreak of the disease (COVID-19) followed in January 2022.”

ECF No. 1-2 at 45. “[P]laintiff is also aware that Hudson

County has the second largest populated city (Jersey City) in

the state and is right across the Hudson River from New York

City which was the epic center [sic] for the introduction of the

disease (COVID-19) into America.” Id. “There is absolutely no

access to hand sanitizer, no effective chemicals provided, and

no proper cleaning materials.” Id. at 51. “[M]op-heads are

handed out to the unit maybe twice a week, the prisoner assigned

to clean the dorm’s tables perform such with a spray bottle that

does not spray . . . .” Id.

Accepting the alleged facts as true and construing the

complaint liberally, the Court will permit Plaintiff’s

conditions of confinement claims to proceed against Defendants

Hudson County Freeholders, Ronald Edwards, Oscar Aviles, and

Well Path.

E. Retaliation at Hudson County Jail

Plaintiff alleges that HCJ social worker Juan Zapata

confiscated his legal documents after Plaintiff requested copies

of civil complaints against HCJ. ECF No. 1-3. “Instead of Mr.

Zapata just obtaining the copies requested, he turned over the

legal documents to Lt. Najead who confiscated the legal

documents/civil complaints for a period of time with ‘ill

wishes’ in ‘Bad Faith.’” Id. Lt. Najead returned the documents

to Zapata after three days, and Zapata returned the documents to

Plaintiff. Id. “The legal documents were in ‘disarray’ mixed

all together, when they were provided separately with various

documents missing from the supporting evidential factors

provided in support . . . .” Id. at 1-2. Zapata allegedly

“advised detainees to not be surprised if the unit gets ‘SHAKED

DOWN’ and our legal documents are taken.” Id. at 3.

Assuming that requesting copies of prior complaints filed

against the facility is a protected activity, Plaintiff has not

pled sufficient facts to plausibly claim that he suffered an

adverse action that is “sufficient to deter a person of ordinary

firmness from exercising his constitutional rights.” Mack v.

Warden Loretto FCI, 839 F.3d 286, 297 (3d Cir. 2016) (internal

quotation marks omitted). This claim will be dismissed without

prejudice.

F. Appointment of Counsel

Plaintiff requests the appointment of counsel in a cover

letter. ECF No. 1-4. Section 1915 permits a court to “request

an attorney to represent any person unable to afford counsel.”

28 U.S.C. § 1915(e)(1). The Court considers the factors set

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

this determination. Plaintiff only lists the Tabron factors in

his request for counsel and does not articulate how they apply

to his case. The Court will deny the request for counsel

without prejudice; Plaintiff may resubmit a request by fully

addressing the Tabron factors.

IV. CONCLUSION

For the reasons stated above, the Court will permit

Plaintiff’s denial of medical care and conditions of confinement

claims relating to Hudson County’s COVID-19 response to proceed.

All other claims and defendants will be dismissed without

prejudice. The Court will also deny the request for counsel

without prejudice.

An appropriate order follows.

Dated: March 2, 2023 s/ Noel L. Hillman

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