JOHNSON v. ELLIS

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

WENDELL JOHNSON,

Plaintiff Civil Action No. 20-11472 (MAS)

OPINION

WARDEN CHARLES ELLIS, ef ai.,

Defendants.

SHIPP, District Judge

This matter comes before the Court on the Court’s sua sponte screening of Plaintiff

Wendell Johnson’s amended complaint (ECF Nos. 29, 31) in this prisoner civil rights matter. As

Plaintiff has previously been granted in forma pauperis status in this matter (ECF No. 13), this

Court is required to screen his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and dismiss any

claim which is frivolous, malicious, fails to state a claim for relief, or seeks relief from an immune

defendant. For the reasons set forth below, Plaintiff's religious exercise claims shall be permitted

to proceed at this time against Defendant Ellis only, and all of Plaintiff's remaining claims shall

be dismissed without prejudice.

1 BACKGROUND

At the time relevant to the allegations in his amended complaint,' Plaintiff was a state

criminal detainee incarcerated at the Mercer County Correctional Center. (ECF No. 29 at 2-3.) In

| Plaintiff has since been convicted and is now confined in Northern State Prison. (ECF No. 29 at

2-3.)

his amended complaint, Plaintiff seeks to raise claims against state officials related to his

incarceration during the COVID-19 pandemic which led to his contracting the virus in May 2020.

Plaintiff believes he contracted COVID-19 from contact with a guard who transported him to a

court proceeding in March 2020. (ECF No. 29-1 at 1-15.) Specifically, Plaintiff takes issue with

the Governor, the state Attorney General, the state public defender, the head of the N.J. Homeland

Security office and the ACLU on the basis that they were responsible for approving and enforcing

the state’s bail reform laws under which Plaintiff was held during the pandemic and insomuch as

they did not order his release as part of consent decisions issued during the height of the pandemic

in the summer of 2020 during which some, but not all, state pretrial detainees were released. (Id.

at 1-2.) Plaintiff believes that his being detained and not released was the result of his indictments.

Several of the indictments were dismissed in 2022 after Plaintiff pled guilty and was convicted on

another indictment, which Plaintiff apparently believes was the system being gamed to keep him

imprisoned rather than additional counts which were dismissed as a result of his guilty plea. (See

ECF No, 29-1 at 1-5; 29-2 at 1-5.)

Plaintiff additionally seeks to raise claims against Charles Ellis, the warden of the county

jail in which he was housed during spring 2020 and thereafter until his conviction, for the

conditions of confinement imposed upon him which he believes resulted in his being infected with

COVID-19. Cd. at 2-15.) Although Plaintiff's contentions are presented largely in a not-fully-

coherent stream-of-consciousness style, it appears that Plaintiff takes issue with the locking down

of the jail, quarantine restrictions which Plaintiff believes were both too harsh and not restrictive

enough, restrictions on clergy entering the facility, and the inability to see his outside mental health

doctors which forced him to use jail medical staff who he believes were inadequate. (/d. at 2-5.)

In his final claim, Plaintiff asserts that, to practice his Christian faith, he must be provided with

access to clergy to conduct worship services, and that the jail’s lockdown rules implemented by

Defendant Ellis prevented any such clergy members from entering the facility. Plaintiff asserts

that this violated his rights under the First Amendment and the Religious Land Use and

Incarcerated Persons Act (“RLUIPA”). (ECF No. 29-1 at 5, 12; ECF No. 31.)

Il. LEGAL STANDARD

Because Plaintiffhas been granted in forma pauperis status, this Court is required to screen

his amended complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Pursuant to the statute, this Court

must sua sponte dismiss any claim that is frivolous, 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.

Id. “The legal standard for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(i1) is the same as that for dismissing a complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6).” Schreane v. Seana, 506 F, App’x 120, 122 (3d Cir. 2012) (citing Allah y.

Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)).

In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a

district court is required to accept as true all factual allegations in the complaint and draw all

reasonable inferences from those allegations in the light most favorable to the plaintiff, see Phillips

v. County of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008), but need not accept as true legal

conclusions couched as factual allegations. Papasan vy. Allain, 478 U.S. 265, 286 (1986). A

complaint need not contain “detailed factual allegations” to survive a motion to dismiss, but must

contain “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.

Igbal, 556 U.S. 662, 678 (2009). A complaint “that offers ‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do,’” and a complaint will not “suffice” if it

provides only “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” /d. (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)). “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Jd. (quoting Twombly, 550 U.S. at 570). “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.” Jd. (quoting Twombly, 550 U.S. at 556). A

complaint that provides facts “merely consistent with” the defendant’s liability “stops short of the

line between possibility and plausibility” and will not survive review under Rule 12(b)(6). Jd.

(quoting Twombly, 555 U.S. at 557). While pro se pleadings are to be liberally construed in

conducting such an analysis, pro se litigants must still “allege sufficient facts in their complaints

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

Iii. DISCUSSION

In his first series of claims, Plaintiff seeks to argue that various state officials—the

Governor of New Jersey, Attorney General, head of Homeland Security, and public defender—as

well as the state branch of the ACLU, are liable to him for adopting and agreeing with a state bail

reform law which resulted in his detention pending trial, and to COVID-related release protocols

which, while releasing many pretrial detainees, did not result in Plaintiff's release because of the

severity of the indictments against him, some of which were dismissed following his guilty plea.

Plaintiff does not plead facts, however, indicating that any of these state officials or outside parties

were in any way responsible for the actual bail finding or lack of release in his own case.

In order to plead a plausible claim for relief under § 1983, a plaintiff must plead facts

which, if proven, would show that the named defendants had personal involvement in the alleged

? Although Plaintiff attempts to resume his earlier claims that these indictments were “void ab

initio,” the documents he submits clearly indicate that although some of his indictments were

dismissed, they were dismissed as a result of a guilty plea to one indictment and its ten-year

sentence, and not as a result of a finding that those indictments themselves were void or improper.

(See ECF No. 29-2 at 1-6.) Plaintiff has thus not pled facts indicating that these indictments were

actually improper, and the documents he provides undercut any bald allegation to that effect

Plaintiff has made in his complaint.

wrongs. Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988). A supervisor or employer

may not be held vicariously liable for the actions of his subordinates. See, e.g., Chavarriaga v.

NJ. Dep't of Corr., 806 F.3d 210, 222 (3d Cir. 2015). Where the allegations are targeted at

supervisory officials, municipal defendants, or contracting companies, a plaintiff seeking to show

personal involvement must normally plead facts indicating that the supervisor, municipality, or

corporation put into place a policy, custom, or practice which caused the constitutional violation

alleged. Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003). A formally

enacted policy, practice, or custom must therefore be the “moving force” behind the alleged

constitutional violation to hold the municipality or corporate contractor liable. City of Canton v.

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

(2010).

Although Plaintiff lays the fault for his imprisonment during the COVID-19 pandemic at

the feet of various state officials, the Public Defender, and the ACLU? for adopting and putting

into place a bail reform law, it was the legislature that adopted the law and the Governor who

signed it into effect, and both the legislature and governor are immune from suit for so doing. See,

e.g., Gibbs v. Minner, No. 07-342, 2007 WL 2071749, at *3 (D. Del. July 19, 2007). The protocols

for releasing some detainees from jail during the pandemic was likewise put into place, as Plaintiff

appears to acknowledge in his amended complaint, by the New Jersey Supreme Court rather than

the named Defendants. See generally Matter of Request to Release Certain Pretrial Detainees,

245 N.J. 218 (2021). To the extent Plaintiff attempts to blame the named Defendants for his

imprisonment, he either fails to allege how they were directly involved in the alleged wrongs or

3 The Court notes that the ACLU, as a non-governmental advocacy organization, is not a branch

of the state and is not a state actor. It is, therefore, likely not liable under § 1983 even had Plaintiff

pled an otherwise actionable claim. See, e.g., Nicini v. Morra, 212 F.3d 789, 806 (3d Cir. 2000)

(liability under § 1983 applies only to individuals “acting under color of state law’).

fails to account for their immunity from suit for adopting the bail reform law in the person of

Governor Murphy. Plaintiffs criminal charges, which ultimately resulted in his conviction on

arson charges, are in and of themselves sufficient to support criminal detention under the

constitution. See, e.g., Henderson v. New Jersey, No. 20-12949, 2021 WL 487133, at *2-3 (D.N.J.

Feb. 10, 2021) (citing Bell v. Wolfish, 441 U.S. 520, 535-36 (1979); United States v. Salerno, 481

U.S. 739, 742 (1987)). In addition, Plaintiff has not otherwise presented facts connecting the

named Defendants to the decision of the New Jersey state courts to order Plaintiff's detention

pending trial. Plaintiff, consequently, has failed to plead facts indicating that these Defendants

were personally involved in his detention in any way that is not subject to immunity. Plaintiff's

claims against the Defendants other than Defendant Ellis are therefore dismissed without prejudice

at this time.

Tuming to Defendant Ellis, Plaintiff seeks to raise three series of claims — claims once

again asserting that Warden Ellis’s adoption of COVID guidelines for the Mercer County jail

effectively amounted to punitive conditions of confinement or deliberate indifference to Plaintiff's

medical needs, as well as a claim that Ellis denied Plaintiff his religious exercise rights. Turning

first to Plaintiffs religious claims, Plaintiff once again alleges that his right to religious expression

was denied, in violation of the constitution and RLUIPA. This Court finds no basis for the

dismissal of these claims at this time and will permit them to proceed. The Court only briefly

notes that Plaintiff contends that his sincerely held religious beliefs as a Christian include that it is

“necessary for a preacher . . . to teach the word of God (Jesus Christ)” either in person in the jail

or “by video screen,” that Plaintiff made requests for either an in person or by video preacher, and

was denied that by Ellis. (See ECF No. 31 at 6.) Plaintiff has thus pled that his sincerely held

religious beliefs were infringed without sufficient cause, which is sufficient to survive initial

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screening. See, e.g., Holt v. Hobbs, 574 U.S. 352, 356-57 (2015) (as to RLUIPA); DeHart v. Horn,

227 F.3d 47, 51-52 (3d Cir. 2000) (as to the First Amendment).

Plaintiff's other COVID-related claims, however, suffer the same deficiencies that led to

their dismissal following Plaintiffs initial complaint. As this Court previously explained to

Plaintiff,

In his final series of claims, Plaintiff alleges that Warden Ellis

denied him his right to Due Process by either subjecting him to

punitive conditions of confinement in light of COVID-19 or by

being deliberately indifferent to his medical needs. The Third

Circuit reaffirmed the legal standards to be applied to such claims in

the COVID-19 context in its decision in Hope v. Warden York

County Prison, 972 F.3d 310 (3d Cir. 2020). As the Court of

Appeals explained in Hope, in evaluating the assertion that a

prisoner’s conditions of confinement are unconstitutionally

punitive, “[t]he touchstone for the constitutionality of detention is

whether conditions of confinement are meant to punish.” Jd. at

325-27. In the absence of a showing that detention facility staff

acted with an express intent to punish the plaintiff, determining

whether conditions amount to unconstitutional punishment requires

that the district court “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.” Jd. In reviewing the conditions and actions of detention

officials and their relation to the Government’s legitimate interest in

detaining aliens awaiting the conclusion of removal proceedings,

reviewing courts “must acknowledge that practical considerations

of detention justify limitations on many privileges and rights,” and

“ordinarily defer” to the expertise of prison officials in responding

to COVID-19 unless there is “substantial evidence in the record that

the officials have exaggerated their response” to the situation. Jd.

Where a government entity has a strong interest in detaining the

plaintiff — which is undoubtedly the case for a criminal defendant

awaiting sentencing as Plaintiff asserted himself to be in his

complaint — the Third Circuit rejected the assertion that detention

during the COVID-19 pandemic would amount to unconstitutional

punishment where the facility in which the plaintiff is housed had

taken significant, concrete steps aimed at mitigating the threat posed

to detainees, notwithstanding serious pre-existing health conditions

which may render those detainees more likely to suffer serious

complications should they contract the virus. Jd. at 327-29.

Turning to deliberate indifference medical claims, the Third

Circuit reaffirmed that “[t]o establish deliberate indifference, [the

plaintiff] must show the Government knew of and disregarded an

excessive risk to their health and safety.” Jd. at 329 (citing Nicini v.

Morra, 212 F.3d 798, 811 (3d Cir. 2000). The Court of Appeals

further held that “[t]he context of the Government’s conduct is

essential to determine whether it shows the requisite deliberate

indifference,” and that, in evaluating this context, a reviewing court

must defer to the expertise of both medical officials and jail

administrators, and not assume a constitutional defect where

concrete action has been taken in response to the COVID-19

pandemic as “rules of due process are not subject to mechanical

application in unfamiliar territory.” Id. at 329-30 (quoting County

of Sacramento v. Lewis, 523 U.S. 833, 850 (1998)). Thus, where

the Government has taken concrete steps towards mitigating the

medical effects of COVID-19 on a detention facility, a detainee will

fall “well short of establishing that the Government was deliberately

indifferent toward [his] medical needs” in light of the virus even

though the detaining officials cannot entirely “eliminate all risk” of

contracting COVID-19, notwithstanding even serious pre-existing

medical conditions which may exacerbate a COVID-19 infection

should one occur. Jd. at 330-31.

(ECF No. 27 at 5-7).

As in his original complaint, Plaintiff once again clearly acknowledges, both in his

allegations and in copies of Ellis’s certifications of which he requests this Court take notice, that

the warden did take measures to curtail the risks of COVID-19, including the testing of inmates

and quarantine procedures for infected inmates. (ECF No. 1 at 6-14.) Likewise, documents

Plaintiff submitted indicate that Ellis took further steps, including the testing and quarantining

of infected guards, daily health checks for infected prisoners, increased facility cleaning and

sanitization, intake medical screening for individuals entering the facility, limitations on outside

individuals entering the jail, and the provision of protective equipment where appropriate. (ECF

No. 1-3 at 10-13.) In light of these clear, concrete steps aimed at limiting the risk of COVID-19

to prisoners at the jail, Plaintiff has failed to plead sufficient facts to support a claim that Warden

Ellis has either subjected him to unduly punitive conditions of confinement or has been

deliberately indifferent to Plaintiffs medical needs in light of COVID-19. That Plaintiff once

again alleges that he has been denied access to a private doctor from outside the facility does not

alter this conclusion in the absence of factual allegations suggesting he has not received any

treatment for his ongoing medical conditions while detained, allegations which are once again

completely lacking.* Plaintiffs deliberate indifference and punitive conditions of confinement

claims are therefore dismissed without prejudice. Hope, 972 F.3d at 327-31.

Finally, the Court notes that in addition to his amended complaint documents (ECF Nos.

29, 31), Plaintiff has submitted numerous proposed addenda and supporting documents which he

may or may not have intended to serve as additions to his complaint. (ECF Nos. 32-39.) Such

attempts are entirely improper. “[N]either [Federal Rule of Civil Procedure] 8, which governs

pleadings, nor [Federal Rule of Civil Procedure] 15, which governs amended and supplemental

pleadings, permits [a plaintiff] to submit . . . addenda to his Complaint in. . . piecemeal fashion.”

Lewis v. Sessions, No. 17-5475, 2017 WL 7313822, at *2 (D.N.J. Nov. 3, 2017). Instead, Rule 15

permits a plaintiffto amend his complaint once as a matter of right prior to the service of an answer,

and thereafter to amend only with leave of court. See Fed. R. Civ. P. 15(a)(1). Plaintiff in this

matter had leave to file one consolidated amended complaint, which he did, albeit in two parts.

(See ECF Nos. 29, 31.) Plaintiff's remaining documents are thus improper attempts at piecemeal

amendment filed without leave of court or authorization. As they are improper, this Court will not

consider them as portions of Plaintiff's complaint. To the extent Plaintiff chooses to seek leave to

further amend his complaint, he may do so only by filing a formal motion for leave to amend

accompanied by a complete proposed amended complaint containing all of his claims in a single

* Although Plaintiff does state that he believes that jail medical staff are incompetent, he does not

detail what treatment he did or did not receive, nor does he allege any specific failure in treatment,

and certainly no such failure attributable to Warden Ellis.

oO

document, or through otherwise complying with the terms of Rule 15. Any further piecemeal

addenda not filed as part of a comprehensive motion to formally amend the complaint will not be

considered to be part of this matter other than as evidence to support the claims presented in any

formal amendment.

IV. CONCLUSION

For the reasons expressed above, Plaintiff's religious expression claims shall PROCEED

at this time, and Plaintiff's remaining claims shall be DISMISSED WITHOUT PREJUDICE.

An order consistent with this Opinion will be entered.

s/ Michael A. Shipp

MICHAEL A. SHIPP

UNITED STATES DISTRICT JUDGE