BURT v. HICKS

[ECF Nos. 114, 120, 130]

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

STEVEN C. BURT,

Plaintiff,

v. Civil No. 20-19459 (KMW/SAK)

MARCUS O. HICKS et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court on the motion to amend [ECF No. 114] filed by pro se

Plaintiff Steven C. Burt. The Court received the opposition filed by Defendants Marcus O. Hicks,

John Powell, Erin Nardelli, and Keisha Fisher (collectively, “Defendants”) [ECF No. 118-1],1 and

Plaintiff’s reply [ECF No. 130-1].2 The Court exercises its discretion to decide the motion without

oral argument. See FED. R. CIV. P. 78; L. CIV. R. 78.1. For the reasons to be discussed in detail,

Plaintiff’s motion is DENIED.

I. BACKGROUND

Since the parties are well familiar with the factual and procedural background of the case,

only the most salient points will be set forth herein. Plaintiff initially filed this civil rights action

1 Defendants responded to Plaintiff’s motion by filing a cross-motion to dismiss Plaintiff’s motion

to amend pursuant to Federal Rule of Civil Procedure 12(b)(6). See ECF No. 120. However, since

Plaintiff’s proposed amendment is just that—i.e., a proposal—the Court will deny the cross-motion

as moot and construe Defendants’ brief [ECF No. 118-1] as their opposition to Plaintiff’s motion.

2 Plaintiff responded to Defendants’ cross-motion with a “Motion to Dismiss Defendants’ Motion

to Dismiss,” which includes a brief in support of Plaintiff’s motion to amend. See ECF No. 130-1.

As such, the Court construes Plaintiff’s filing as his reply brief and will deny the motion as moot.

while proceeding pro se on December 16, 2020. See Compl. [ECF No. 1]. Plaintiff subsequently

moved for, and was granted, the appointment of pro bono counsel. See Order, Mar. 3, 2022 [ECF

No. 81]; see also ECF No. 53. Shortly thereafter, pro bono counsel filed a motion to amend

Plaintiff’s complaint. See ECF No. 90. The motion was granted and Plaintiff’s First Amended

Complaint (“FAC”) [ECF No. 95] was filed on July 13, 2022.

Plaintiff is an inmate currently confined at the Mid-State Correctional Facility in Fort Dix,

New Jersey. See FAC ¶ 14. His claims, however, arise out of his prior transfer between two state

prisons—South Woods State Prison (“South Woods”) and Southern State Correctional Facility

(“Southern State”). Plaintiff’s transfer occurred on or about April 20, 2020, during the early days

of the COVID-19 pandemic. See id. ¶¶ 31–35. As such, the FAC named the following four

defendants in their individual and official capacities: Marcus O. Hicks, as former Commissioner

of the New Jersey Department of Corrections (“NJDOC”); John Powell, as former Administrator

of South Woods; Keisha Fisher, as current Administrator of Southern State; and Erin Nardelli, as

Administrator of Southern State. See id. ¶¶ 15–18. In short, Plaintiff alleged that Defendants failed

to implement and follow adequate health policies and procedures causing him to contract COVID-

19 upon his transfer to Southern State. Plaintiff further alleged that Defendants were deliberately

indifferent to his medical needs and subjected him to overly punitive conditions of confinement.

More specifically, Plaintiff’s FAC asserted the following three counts against all Defendants:

(1) Unconstitutional Conditions of Confinement (Eighth Amendment; 42 U.S.C. §

1983);

(2) Deprivation of Eighth Amendment Rights (Eighth Amendment; 42 U.S.C. §

1983); and

(3) Violation of New Jersey Civil Rights Act (N.J.S.A. § 10:6-2).

See id. ¶¶ 75–93.

Defendants moved to dismiss Plaintiff’s FAC pursuant to Federal Rule of Civil Procedure

12(b)(6). See ECF No. 101. On November 14, 2022, the Honorable Karen M. Williams, U.S.D.J.,

granted Defendants’ motion and dismissed all claims without prejudice. See Op. [ECF No. 109];

Order [ECF No. 110]. In brief, Judge Williams held that Plaintiff failed to establish a plausible

claim for relief by failing to connect the individual defendants, all of whom were supervisory

officials, to the alleged wrongs. See Op. at 6–7. Judge Williams also held that Plaintiff failed to

plead facts sufficient to give rise to a constitutional violation. See id. at 6, 8. While neither the

Opinion nor the Order expressly granted Plaintiff leave to file an amended complaint, the Opinion

implicitly contemplated a future amendment. See id. at 8 n.2 (noting that Defendants’ qualified

immunity arguments, which were not addressed in the Opinion, could be revisited “[s]hould

Plaintiff choose to file an amended complaint”).

Plaintiff now moves for leave to file an amended complaint.3 Attached to the motion is a

copy of Plaintiff’s proposed Second Amended Complaint (“SAC”) [ECF No. 114-2].4 He offers

no formal brief or argument in support of the proposed amendment.5 His motion papers, however,

include two vague references to purported “video evidence” that somehow “warrant the reopening

of this” action, without any further elaboration. See Pl.’s Mot. ¶¶ 3, 4. Plaintiff’s proposed SAC

names two Defendants from his FAC: Marcus O. Hicks, as former Commissioner of the NJDOC,

3 Plaintiff filed the instant motion while the docket still reflected his pro bono counsel as counsel

of record for Plaintiff. The Court held a status conference to address this issue on June 22, 2023,

at which pro bono counsel advised the Court that their representation had been terminated once

Defendants’ motion to dismiss was granted and the case terminated. They further represented that

Plaintiff was advised accordingly and that he had been proceeding pro se on his own volition since.

4 Plaintiff titles his proposed amendment as a “VERIFIED AMEDNED [sic] COMPLAINT WITH

JURY DEMAND.” For the sake of clarity, the Court will refer to it as Plaintiff’s proposed SAC.

5 The Court notes that Plaintiff’s motion also fails to include a “marked-up” copy of the proposed

amended pleading that indicates in what respect(s) it differs from Plaintiff’s FAC, as required by

Local Civil Rule 15.1(a)(2). Nevertheless, because Plaintiff is proceeding pro se, the Court will

excuse his noncompliance in order to reach the merits of the instant motion. See Valente v. Zucker,

No. 20-8316, 2021 WL 4132287, at *2 n.4 (D.N.J. Sept. 10, 2021).

and John Powell, as former Administrator of South Woods. See SAC ¶¶ 10, 11. It also names the

following new parties as defendants: Willie Bonds, as Director of Operations for the NJDOC, and

Correctional Officers Jane/John Does Nos. 1–10. See id. ¶¶ 12, 13. All of the defendants are named

in their individual capacities. See id. ¶ 14. The facts underlying Plaintiff’s proposed SAC amount

to a heavily abridged version of those underlying his FAC. See id. ¶¶ 16–22. The claims asserted

in the proposed SAC also vary in substance and style with those asserted in Plaintiff’s FAC, while

attempting to address the same alleged wrongs. Specifically, Plaintiff’s proposed SAC asserts the

following four counts pursuant to 42 U.S.C. § 1983:

(1) Fourteenth Amendment; Equal Protection against Defendant John Powell;

(2) Risk of Injury; Deliberate Indifference against all Defendants;

(3) Direct Participation and Personal Involvement; against all Defendants; and

(4) Gross Negligence; Failure to Protect against all Defendants.

See id. ¶¶ 23–34.

Defendants oppose Plaintiff’s motion. In sum, they argue that his motion must be denied

because the proposed amendment is futile. See Opp’n Br. at 5. Specifically, Defendants argue that

Plaintiff’s equal protection claim fails as a matter of law because he does not allege membership

in a protected class or that he was treated differently from others similarly situated. See id. at 5–7.

They also argue that Plaintiff’s deliberate indifference claim is not viable because he fails to allege

facts indicating any Defendant acted with deliberate indifference or was personally involved with

his alleged injury. See id. at 7–12. Defendants finally argue that Plaintiff’s unexplained delay in

seeking the amendment, coupled with the prejudice it would cause Defendants if it were permitted

to proceed, only further warrants denying the motion. See id. at 12–14.

In reply, Plaintiff contends that his proposed amendment meets federal pleading standards.6

As to his equal protection claim, Plaintiff argues “he was a protected class of one and was NOT

treated as all similarly situated inmates.” Pl.’s Reply at 6. As to Plaintiff’s claims for deliberate

indifference and personal involvement, he simply disagrees with the contention that he has failed

to alleged facts sufficient to render these claims viable. See id. at 6–8. Plaintiff does not address

his final claim of gross negligence/failure to protect.

II. DISCUSSION

A. Legal Standard

“Federal Rule of Civil Procedure 15(a)(2) provides a liberal standard for motions to amend:

‘[t]he court should freely give leave when justice so requires.’” Spartan Concrete Prods., LLC v.

Argos USVI, Corp., 929 F.3d 107, 115 (3d Cir. 2019). Notwithstanding this liberal standard,

“[d]enial of leave to amend can be based on undue delay; bad faith or dilatory motive on the part

of the movant; repeated failure to cure deficiencies by amendments previously allowed; prejudice

to the opposing party; and futility.” Mullin v. Balicki, 875 F.3d 140, 149 (3d Cir. 2017) (citing

Foman v. Davis, 371 U.S. 178, 182 (1962); United States ex rel. Schumann v. AstraZeneca Pharm.

L.P., 769 F.3d 837, 849 (3d Cir. 2014)); see United States ex rel. Thomas v. Siemens AG, 593 F.

App’x 139, 144 (3d Cir. 2014) (citation omitted) (“A motion to amend a complaint is committed

to the sound discretion of the district court.”).

6 Plaintiff’s reply brief is largely dedicated to refuting and/or responding to Defendants’ opposition

arguments. However, he also raises novel arguments of his own therein. Given Plaintiff’s failure

to submit a brief in support of his motion in the first instance, these portions of his brief inevitably

exceed the permissible scope of argument on reply. See Bayer AG v. Schein Pharm., Inc., 129 F.

Supp. 2d 705, 716 (D.N.J. 2001) (citation omitted); see also Napier v. City of New Brunswick, No.

17-4152, 2018 WL 6573465, at *5 (D.N.J. Dec. 13, 2018) (emphasis in original) (“The concept

that replies are limited to responding to the non-moving party’s arguments or reinforcing the

moving party’s original position is universal.”). Nevertheless, in light of Plaintiff’s pro se status,

and in the interests of fairness, the Court will consider all arguments raised therein.

“‘Futility’ means the pleading, as amended, would fail to state a claim upon which relief

could be granted,” and is analyzed under the same standard of legal sufficiency as a Rule 12(b)(6)

motion to dismiss. Evans v. City of Philadelphia, 763 F. App’x 183, 185–86 (3d Cir. 2019) (citation

omitted). The Court’s inquiry is whether the proposed pleading sets forth “enough facts to state a

claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

More specifically, the Court’s analysis involves three steps:

First, [the Court] will note the elements of a claim; second, [the Court] will identify

allegations that are conclusory and therefore not assumed to be true, and; third,

accepting the factual allegations as true, [the Court] will view them and reasonable

inferences drawn from them in the light most favorable to [the non-movant] to

decide whether they plausibly give rise to an entitlement to relief.

Sweda v. Univ. of Pa., 923 F.3d 320, 326 (3d Cir. 2019) (internal quotations and citations omitted).

Although a pleading does not need detailed factual allegations to survive a 12(b)(6) attack, Rule 8

demands more than just labels and conclusions. See Twombly, 550 U.S. at 555 (citations omitted);

see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Rule 8 . . . demands more than an unadorned,

the-defendant-unlawfully-harmed-me accusation.”). In particular, a pleading that merely offers a

“formulaic recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678.

B. Analysis

Defendants argue that Plaintiff’s proposed amendment fails to state a viable claim for relief

against any Defendant and, therefore, his motion to amend must be denied as futile. For the reasons

to be discussed below, the Court agrees and finds Plaintiff’s proposed SAC, much like his FAC,

fails to state a claim against Defendants. Accordingly, the Court will deny Plaintiff’s motion on

the basis of futility and will not address the merits of Defendants’ additional arguments. The Court

will proceed to address each claim asserted in the proposed SAC in turn.

1. Fourteenth Amendment; Equal Protection against Defendant John Powell

“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall

‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a

direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne

Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). As such,

to state a class-based claim under the Equal Protection Clause, a plaintiff must allege that: (1) she

is a member of a protected class; and (2) she was treated differently from others similarly situated.

See id. Equal protection claims may also be “brought by a ‘class of one.’” Vill. of Willowbrook v.

Olech, 528 U.S. 562, 564 (2000). To state a class-of-one claim, “a plaintiff must allege that (1)

the defendant treated him differently from others similarly situated, (2) the defendant did so

intentionally, and (3) there was no rational basis for the difference in treatment.” Hill v. Borough

of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006).

Here, the Court finds that Plaintiff’s proposed SAC fails to state a viable claim for relief

under the Equal Protection Clause. In his reply, Plaintiff appears to indicate that he only seeks to

assert a class-of-one claim. This notwithstanding, insofar as Plaintiff may have intended to assert

a class-based claim, the Court finds it would likewise fail. This is because he fails to allege that

he is a member of a protected class or that he was treated differently from others similarly situated.

In fact, the proposed SAC alleges the exact opposite—that those who were similarly situated to

Plaintiff were also treated similarly. See SAC ¶ 17 (alleging that “Plaintiff & other Inmates were

not provided with face masks or testing during or prior to the transfer”); Abdul-Akbar v. McKelvie,

239 F.3d 307, 317 (3d Cir. 2001) (noting prisoners are not a protected class). This sole allegation

is also fatal to Plaintiff’s class-of-one claim, because it readily establishes that he cannot satisfy

the threshold showing that he was treated differently from others similarly situated. Without this

showing, the remainder of the class-of-one test is rendered moot. For these reasons, the Court

finds that Plaintiff’s equal protection claim is futile.

2. Risk of Injury; Deliberate Indifference against all Defendants

To state a claim for deliberate indifference under the Eighth Amendment, a plaintiff must

plead facts showing both that Defendants knew of a serious medical need and were deliberately

indifferent to that need. See Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir.

2003). Deliberate indifference is a “subjective standard of liability consistent with recklessness.”

Id. (citation omitted); see Hope v. Warden York Cnty. Prison, 972 F.3d 310, 329 (3d Cir. 2020)

(citation omitted) (“Deliberate indifference requires significantly more than negligence.”); see also

Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001) (“[T]he prison official-defendant must

actually have known or been aware of the excessive risk to inmate safety.”). In the context of the

pandemic, the Third Circuit has held that the mere exposure to or risk of contracting COVID-19

does not suffice. See Hope, 972 F.3d at 329–31. Likewise, mere disagreement as to the response

to the risk “will not support constitutional infringement.” Id. at 329 (citation omitted). Nor does a

failure to eliminate all risk establish the defendants were deliberately indifferent to the plaintiff’s

serious medical needs. See id. at 330.

Here, the Court finds that Plaintiff fails to state a viable claim for deliberate indifference.

Plaintiff simply fails to connect any single defendant—who again, are supervisory officials—with

knowledge of Plaintiff’s serious medical need. Instead, the thrust of Plaintiff’s allegations are that

Defendants had general knowledge of COVID-19 and the risks it may pose. See, e.g., SAC ¶ 22.

Even if Plaintiff sufficiently plead such knowledge of a serious medical need, the proposed SAC

still fails to allege deliberate indifference to any degree. At most, Plaintiff’s allegations amount to

a mere disagreement with the response that was had. Accordingly, the Court finds that Plaintiff’s

deliberate indifference claim is futile.

3. Direct Participation and Personal Involvement; against all Defendants

The exact contours of Plaintiff’s third claim are somewhat unclear.7 The Court notes that

neither party fully briefed this claim. Nonetheless, it appears that it is not likely a standalone claim

but rather Plaintiff’s attempt to predicate liability upon Defendants as to his first two claims. See

Rode v. Dellarciprete, 845 F.2d 1195, 1207–08 (3d Cir. 1988) (citations omitted) (“A defendant

in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be

predicated solely on the operation of respondeat superior.”); see also Chavarriaga v. New Jersey

Dep’t of Corr., 806 F.3d 210, 222 (3d Cir. 2015) (citation and internal quotations omitted) (“[A]

plaintiff must demonstrate a defendant’s personal involvement in the alleged wrongs.). However,

the Court finds this particular “claim” amounts to no more than conclusory allegations not entitled

to the assumption of truth. See Great W. Mining & Min. Co., 615 F.3d 159, 178 (3d Cir. 2010)

(quoting Iqbal, 556 U.S. at 679) (“[P]leadings that, because they are no more than conclusions, are

not entitled to the assumption of truth.”). In other words, Plaintiff’s proposed amendment fails to

meet federal pleading standards. Consequently, to the extent that Plaintiff intended to assert Count

Three as a standalone claim, the Court finds it futile.

7 Count Three of Plaintiff’s proposed amendment consists of two paragraphs and reads as follows:

25. Defendants directly participated in the violation of Plaintiffs rights by ordering

the transfer and approving it.

26. Defendants were personally responsible for the violation that caused injuries

to Plaintiff by their failure to implement the “INMATES COMMUNICATION

UPDATE FORE [sic] COVID-19” sent directly from the Central Office in Trenton

New Jersey.

4. Gross Negligence; Failure to Protect against all Defendants

With regard to Plaintiff’s claims of gross negligence, the Court finds that Plaintiff fails to

establish the legal basis for these claims. As previously noted, the proposed SAC relies entirely

on section 1983 without reference to any other source of law. See SAC, at 1 (stating the following:

“This is a Title 42 U.S.C. 1983 Civil Rights Complaint for new claims & to add new partie(s)”).

The Court should also add that neither party briefed this issue. However, even if the Court were

to assume that a legitimate basis for jurisdiction over such claims had been asserted, they still fail.

This is because Count Four of Plaintiff’s proposed SAC merely reads as a “formulaic recitation of

the elements of a cause of action.” Iqbal, 556 U.S. at 678 (citation omitted). It is also rife with

“‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. Thus, Plaintiff once again fails

to satisfy federal pleading standards. As such, the Court finds this count, and the proposed SAC

in its entirety, to be futile. Therefore, the Court will deny Plaintiff’s motion.

III. CONCLUSION

Accordingly, for all the foregoing reasons,

IT IS HEREBY ORDERED this 13th day of December, 2023, that Plaintiff’s motion to

amend [ECF No. 114] is DENIED; and it is further

ORDERED that Defendants’ cross-motion [ECF No. 120] is DENIED as moot; and it is

further

ORDERED that Plaintiff’s motion to dismiss Defendants’ cross-motion [ECF No. 130] is

DENIED as moot; and it is further

ORDERED that the Clerk’s Office shall forward a copy of this Opinion and Order to

Plaintiff via regular mail and shall enter a notation on the docket indicating the date upon which

this Opinion and Order was forwarded to Plaintiff via regular mail.

s/ Sharon A. King

SHARON A. KING

United States Magistrate Judge

cc: Hon. Karen M. Williams, U.S.D.J.