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Case 1:10-cv-01006-JBS-JS Document 68 Filed 07/10/13 Page 1 of 35 PageID: 636

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

MARLON D. HARGIS, JR.,

Plaintiff,

HON. JEROME B. SIMANDLE

Civil No. 10-1006 (JBS/JS)

v.

ARAMARK CORRECTIONAL SERVICE,
LLC, et al.,

Defendants.

OPINION

APPEARANCES:
Salvatore J. Siciliano, Esq.
SICILIANO & ASSOCIATES, LLC
16 South Haddon Avenue
P.O. Box 25
Haddonfield, NJ 08033

Attorney for Plaintiff Marlon D. Hargis, Jr.

James T. Dugan, Esq.
Atlantic County Department of Law
1333 Atlantic Avenue
8th Floor
Atlantic City, NJ 08401

Attorney for Defendants Dennis Levinson (improperly pleaded as
Dennis Levison), Alisa Cooper (improperly pleaded as Mr.
Cooper), James Curcio (improperly pleaded as Mr. Circio),
Frank Finnerty (improperly pleaded as Mr. Finner), Joseph
Kelly (improperly pleaded as Mr. Kelly), Lawton Nelson
(improperly pleaded as Mr. Nelson), Thomas Russo (improperly
pleaded as Mr. Russo), Susan Schilling (improperly pleaded as
Mr. Schilling), Frank Sutton (improperly pleaded as Mr.
Sutton), and Joseph Silipena (improperly pleaded as Mr.
Filipina)

SIMANDLE, Chief Judge:
I. INTRODUCTION

Plaintiff Marlon D. Hargis, Jr., was a pre-trial detainee

who was admitted to the Atlantic County Justice Facility in 2009

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with a gunshot wound. He alleges that he was forced to live in
overcrowded and unsanitary conditions due to a systematic policy
of overcrowding pretrial detention facilities, including sleeping
on the floor of his cell next to the toilet, and that he
contracted a MRSA infection as a result of the actions of the
defendants, in violation of his constitutional rights as an
unconvicted inmate under the due process clause of the Fourteenth
Amendment. This opinion explores the constitutional standard
required for housing pretrial detainees under the Fourteenth
Amendment, in comparison to the standard protecting sentenced
inmates from cruel and unusual punishment in their conditions of
confinement under the Eighth Amendment. The greater degree of
constitutional protection given to pretrial detainees (who may be
detained but not "punished" by their conditions of confinement)
and sentenced prisoners (who may indeed be punished by their
conditions of confinement so long as it is not "cruel and
unusual") determines the standards to be applied in this case.

This matter is before the Court on a motion for summary

judgment filed by Defendants Dennis Levison, Alisa Cooper
(improperly pleaded as Mr. Cooper), James Curcio (improperly
pleaded as Mr. Circio), Frank Finnerty (improperly pleaded as Mr.
Finner), Joseph Kelly (improperly pleaded as Mr. Kelly), Lawton
Nelson (improperly pleaded as Mr. Nelson), Thomas Russo
(improperly pleaded as Mr. Russo), Susan Schilling (improperly

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pleaded as Mr. Schilling), Frank Sutton (improperly pleaded as
Mr. Sutton), and Joseph Silipena (improperly pleaded as Mr.
Filipina)(hereinafter "Defendants" or "moving Defendants").
[Docket Item 65.] The Plaintiff has filed opposition. [Docket
Item 66.]

For the reasons discussed herein, the Defendants' motion for
summary judgment will be granted in part and denied in part. The
Court will also dismiss the remaining unnamed or unserved
Defendants in this action for the reasons discussed below.

II. BACKGROUND

The instant action arises out of the conditions of

confinement of Plaintiff Marlon D. Hargis, Jr., as a pre-trial
detainee at Atlantic County Justice Facility ("ACJF").

Plaintiff was arrested on August 12, 2009 and at the time of
his arrest was suffering from a gunshot wound to his right hip.
There is no indication in the record that Plaintiff was arrested
pursuant to an arrest warrant. Rather, it appears from the
record that Plaintiff was arrested at the scene of a gun fight.
Plaintiff was taken to AtlantiCare Regional Medical Center where
he was treated for the gunshot wound. (Pl.'s Ex. B.) Shortly
thereafter, Plaintiff was released into police custody and
transported on the same day to ACJF with his gunshot wound
bandaged. (Pl.'s Ex. C; Def.'s Ex. A, Deposition of Marlon D.

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Hargis taken May 12, 2011 ("Hargis Dep.") at 32:7.) There is no
evidence in the record indicating when Plaintiff received his
probable cause hearing.

When Plaintiff arrived at ACJF, he was examined by medical

1

staff who provided specific instructions to sleep on a lower
level/lower bunk, not a boat, until "D/C'D by M.D." (Pl.'s Ex.
D.) A boat is a plastic bed frame with a mattress, sheets and
blanket that sits on the floor and is used as a third bunk in
cells during periods of overcrowding. (Def.'s Ex. B,
Overcrowding Certification of Geraldine Cohen, Warden of ACJF, at
¶ 21.) Due to the cell's small dimensions, this third bunk is
typically placed in close proximity to the toilet. (Pl.'s Ex.
E.) During the period of Plaintiff's incarceration, the ACJF was
required to house some pretrial detainees three men to a cell.
This was necessary due to the high pretrial detainee population
and the fact that state law does not permit ACJF to turn away
properly committed individuals. (Def.'s Statement of Facts ¶
10.) Warden Geraldine Cohen was aware of the policy of triple
bunking, along with Lieutenant Steven Iuliucci. (Def.'s Exs. B
and C.)

1

Cohen averred in her certification that a pillow is also
provided with the boat. Plaintiff, however, testified that he
did not receive a pillow. (Hargis Dep. at 46:20-47:2.) Viewing
the facts in the light most favorable to the Plaintiff, the Court
will assume for purposes of this motion for summary judgment that
the Plaintiff did not receive a pillow.

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Plaintiff was housed in the medical wing of the jail from

August 12, 2009 until August 16, 2009 due to his gunshot wound.
On August 16, 2009, Plaintiff was released into the general
population with no medical restrictions and assigned to a cell
with two other men already confined. (Def.'s Reply Ex. A; Hargis
Dep. at 55:10-56:20.) It was ACJF policy to assign the boat
bunks to the newest inmates in the facility. (Cohen Overcrowding
Decl. at ¶ 22.) As the newest man assigned to the cell,
Plaintiff was ordered to sleep in a boat. 2

During his time on the boat, Plaintiff slept in close

proximity to the cell toilet, where "everything [urine and feces]
splashed" on him and his mattress. (Hargis Dep. at 56:19-57:1;
69:2.)

On September 4, 2009, after approximately three weeks of
sleeping on a boat, Plaintiff developed two boils which were
cultured and tested positive for MRSA. Prior to this, Plaintiff

3

2

Plaintiff testified that when he first got to the jail, he
was placed in a boat. (Hargis Dep. at 47:3-5.) Defendants
dispute this and argue that when he first arrived at the jail, he
stayed in the medical wing for four days and was assigned to a
wall bunk. (Pl.'s Reply Ex. A.) Viewing the facts in the light
most favorable to the Plaintiff, the court will assume for
purposes of this motion for summary judgment that Plaintiff was
assigned to sleep in a boat despite medical instructions against
this placement.

3

The Court takes judicial notice, pursuant to Fed. R. Evid.

201, that MRSA is an abbreviation for methicillin-resistant
Staphylococcus aureus. Staphylococcus aureus is a species of
bacteria that causes serious suppurative infections and systemic
disease, including impetigo bullosa, staphylococcal pneumonia and

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never tested positive for MRSA nor experienced any MRSA related
symptoms. (Hargis Dep. at 55:21-25; Pl.'s Ex. F.) Plaintiff
testified that he slept in a boat for approximately ten to eleven
months. (Id. at 59:22-60:1.) Mr. Hargis also testified that he
often had to eat his meals in his cell on the boat close to the
toilet because there was not enough space for all the inmates at
ACJF to eat in the pod. (Id. at 61:17-62:7.)

Pretrial detainees at ACJF are required to stay in their
cells approximately eight (8) hours each day. Inmate cells at
ACJF are 77 square feet. (Defs.' Ex. C, Decl. of Lt. Steven
Iuliucci ¶¶ 5, 11.) The majority of a pretrial detainee's time
at ACJF is spent either in his cell or in the available day space
which is 792 square feet. (Id. ¶¶ 6, 11.) Recreation is
permitted in the gymnasium, measuring 2,650 square feet and the
outdoor area measuring 16,714 square feet. (Id. ¶ 11.) The
record is silent on how much time is allotted per day for
detainees to use the gymnasium and outdoor space. 4

staphylococcal scalded skin syndrome. It has developed a
resistance to nearly all classes of antibiotics and can also
produce toxins that cause food poisoning and toxic shock
syndrome. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1184, 1765 (32d ed.
2012).
4

Defendants state in their brief that Mr. Hargis was
permitted one hour of recreation outside his living unit on a
daily basis. (Defs.' Br. at 11.) Defendants cite to two
certifications in the record. These certifications, however, do
not state that Mr. Hargis was permitted one hour of recreation
outside his cell per day. Therefore, the Court will give no
weight to Defendants' unsubstantiated assertion in their brief as

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Plaintiff filed the instant action pro se pursuant to 42

U.S.C. § 1983 alleging that the Defendants subjected him to
unconstitutional confinement conditions and denied him access to
the Courts. [Docket Items 1 and 2.] The Court reviewed
Plaintiff's Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2)
and dismissed Plaintiff's access to courts claim in its entirety.
The Court permitted the Plaintiff to proceed with his conditions
of confinement claim against John Doe Warden/Director, the
Atlantic County Health and Sanitation Department, Aramark
Correctional Service, LLC, the Atlantic County Chief Fire
Inspectors, and the moving Defendants. Defendant Dennis Levinson
is sued in his individual capacity and his official capacity as
Atlantic County Executive and the remaining moving Defendants are
sued in their individual capacities and official capacities as
Atlantic County Freeholders. [Docket Item 2.]

Defendants Cooper, Curcio, Silipena, Finnerty, Kelly, Russo,

Nelson, Sutton and Levinson filed an answer to the Amended
Complaint. [Docket Item 15.] Defendant Atlantic City Chief
Inspectors also answered the Amended Complaint. [Docket Item
20.] The summonses for Defendants Aramark Correctional Service,
LLC, and Atlantic County Health and Sanitation Department were
returned unexecuted on September 28, 2010. [Docket Item 21.] To
date, these Defendants have not been served. The time for

to the time allotted per day for recreation.

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service of process expired 120 days after the Complaint was
entered on the docket on May 19, 2010, which was September 17,
2010.

Plaintiff filed a motion to amend his complaint requesting

to add Warden Sean Thomas, Warden Joseph Bondiskey and Warden
Geraldine Cohen, among others, as defendants. [Docket Item 8.]
Plaintiff's motion to amend was granted on December 28, 2010 and
Plaintiff was ordered to file his Amended Complaint within 15
days of the entry of the Order. [Docket Item 30.] Plaintiff
never filed an Amended Complaint and has not named and served
fictitious Defendant John Doe Warden/Director.

Plaintiff then filed a motion to appoint pro bono counsel.
This motion was granted on October 31, 2011. [Docket Item 49.]
Sal Siciliano, Esq., was appointed to represent Plaintiff on
March 22, 2012. [Docket Item 53.] The Scheduling Order was
amended to allow Plaintiff's counsel to conduct any discovery
that was appropriate. [Docket Items 56, 57, 58 and 61.]

Defendant Atlantic County Chief Inspectors was dismissed
with prejudice by way of Consent Order on November 19, 2012.
[Docket Item 63.] Discovery then concluded and the remaining
Atlantic County Defendants filed the instant motion for summary
judgment. [Docket Item 65.]

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III. DISCUSSION

A. Standard of Review
Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A dispute is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the non-moving party.”
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
fact is "material" only if it might affect the outcome of the
suit under the applicable rule of law. Id. Disputes over
irrelevant or unnecessary facts will not preclude a grant of
summary judgment. Id. The Court will view any evidence in favor
of the nonmoving party and extend any reasonable favorable
inferences to be drawn from that evidence to that party. Hunt v.
Cromartie, 526 U.S. 541, 552 (1999). See also Scott v. Harris,
550 U.S. 372, 378 (2007) (The district court must “view the facts
and draw reasonable inferences in the light most favorable to the
party opposing the summary judgment motion.”).

B. Claims Against Moving Defendants
Plaintiff’s claims against the moving Defendants arise under

42 U.S.C. § 1983, which provides that:

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory
or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the

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Constitution and laws, shall be liable for redress . . .

42 U.S.C. § 1983 (1996). The Plaintiff alleges he was subject to
unconstitutional conditions of confinement because he was forced
to sleep on a boat near the toilet while recovering from a
gunshot injury. Plaintiff claims that housing three men in his
cell, which was designed to accommodate no more than two inmates,
when he had an open wound violated his constitutional rights and
caused him to contract MRSA. Plaintiff also alleges that he was
frequently splashed with urine and feces due to his boat being
placed inches from the toilet. Finally, Plaintiff claims that
the day space at ACJF is not able to accommodate the large inmate
population and consequently, Plaintiff was forced to eat his
meals by the toilet on his boat.

Plaintiff maintains that the ACJF fails to meet federal,
state and local requirements and this failure has created the
unsanitary, unhealthy, unsafe and substandard living conditions
discussed above. Plaintiff claims he was subject to these
conditions while was a pretrial detainee before he was convicted
of any crime. The Plaintiff has sued the moving Defendants in
their individual and official capacities. (Am. Compl. ¶ 53.)
The individual capacity and official capacity claims will be
analyzed separately below.

5

5

It is unclear from the record whether Plaintiff was

subject to these conditions prior to a determination of probable
cause.

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At the outset, the Court notes that Plaintiff is raising a

claim of unconstitutional conditions of confinement as a pretrial
detainee, and that he is not alleging a medical claim of
deliberate indifference to substantial medical needs. He alleges
instead that his contracting the MRSA infection was a consequence
of his confinement in an unsanitary and overcrowded cell. As
discussed further below, this distinction is material because in
the Third Circuit, the Bell v. Wolfish test governs a pretrial
detainee's non-medical conditions of confinement claim, Hubbard
v. Taylor, 538 F.3d 229, 231-32 (3d Cir. 2008)["Hubbard II"],
while a denial of medical care claim by a pretrial detainee is
governed by the Fourteenth Amendment's application of a standard
of due process that is at least as protective for a pretrial
detainee as the deliberate indifference standard of the Eighth
Amendment is for a convicted inmate. A.M. v. Luzerne County
Juvenile Detention Center, 372 F.3d 572, 584 (3d Cir. 2004); see
County of Sacramento v. Lewis, 523 U.S. 833, 850 (1998)
(deliberate indifference "must also be enough to satisfy the
fault requirement for due process claims based on the medical
needs of someone jailed while awaiting trial.") Thus, this Court
applies the due process standard of Bell v. Wolfish to this claim
of overcrowding of a detainee.

1. Individual Capacity Claims against Moving Defendants
For a plaintiff to establish personal liability in a § 1983

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action, he must be able to show that the official, acting under
color of state law, caused the deprivation of a federal right.
Kentucky v. Graham, 473 U.S. 159, 165 (1985) (referencing Scheuer
v. Rhodes, 416 U.S. 232, 237-238 (1974)).

Importantly, the Plaintiff must show that the moving

Defendants had personal involvement in the alleged wrongdoing
since liability under § 1983 cannot be predicated solely on a
theory of respondeat superior. Rode v. Dellarciprete, 845 F.2d
1195, 1207 (3d Cir. 1988); see also Parratt v. Taylor, 451 U.S.
527, 537 n.3 (1981). Section 1983 does not allow vicarious
liability against supervisors for the actions of their employees.
See, e.g., Iqbal, 556 U.S. at 676 (recognizing that vicarious
liability is inapplicable to § 1983 suits); Monell, 436 U.S. at
692 (analyzing the statutory history and language of § 1983 and
explaining why respondeat superior liability is not allowed).
In Sample v. Diecks, the Third Circuit Court of Appeals

explained:

[I]t is not enough for a plaintiff to argue that the
constitutionally cognizable injury would not have
occurred if the superior had done more than he or she
did. The district court must insist that [plaintiff]
identify specifically what it is that [defendant] failed
to do that evidences his deliberate indifference.
Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989).

A defendant’s personal involvement in causing a

constitutional harm can be shown through “allegations of personal
direction or of actual knowledge and acquiescence.” Rode, 845

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F.2d at 1207. A Plaintiff must portray “specific conduct by
state officials which violates some constitutional right.”
Gittlemacker v. Prasse, 428 F.2d 1, 3 (3d Cir. 1970).

The record currently before the Court contains no evidence

that the moving Defendants had any personal involvement in
causing the harm alleged to the Plaintiff. The moving Defendants
are current and former Atlantic County Freeholders, with the
exception of Dennis Levinson who is Atlantic County's County
Executive. The Board of Chosen Freeholders is a legislative body
and does not participate in executive or administrative
functions. The County Executive is responsible for all
administrative and executive functions. (N.J.S.A. § 40:41A-32;
Pl.'s Ex. I.) The Plaintiff's own exhibit reiterates that the
Board of Chosen Freeholders "serves as the legislative body, much
like the U.S. Congress or the State Legislature. . . . [and]
performs all legislative actions on behalf of Atlantic County."
(Pl.'s Ex. I at 2.)

Here, the Plaintiff is not challenging any law passed by the

Freeholders and there is no allegation or proof that the
Freeholders adopted a legislative policy regarding the conditions
of confinement at issue in this case. Instead, Plaintiff
testified that he brought this suit against the Freeholder
Defendants because "it's the freeholders' responsibility to make
sure that the jail is running; that people aren't being subjected

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to the conditions that I was subjected to." (Hargis Dep. at
18:11-15.) This clearly indicates a respondeat superior theory
of liability which is not cognizable under § 1983.

Further, discovery is complete and the Plaintiff has adduced

no proof of personal involvement, knowledge or acquiescence
regarding the alleged constitutional violations by the Freeholder
Defendants. The most Plaintiff has produced are meeting minutes
from a September 22, 2009 Freeholder Meeting which contained the
following:

Freeholder McDevitt talked about the jail tour. He
stated that everything was fixed and there was harmony
with the FOP. The Jail Committee received a good report
that everything was working well and that there is a good
personnel attitude.
Freeholder Cooper thought that the jail was the best it
has been in years. The jail tour was cordial and calm.
There was a good rapport. They are on the right path.

Freeholder Garret stated that the Committee's presence at
the jail has made a difference.

(Pl.'s Ex. H at 5 ¶¶ 5-7.) The Plaintiff also presented evidence
that in 2012, three members of the Board of Freeholders formed an
ad hoc Jail Committee. None of these 2012 Freeholders are
defendants in this case.

Without more, this evidence only demonstrates that the Board

of Freeholders formed a Committee to review conditions at the
jail and this Committee reported back that the jail was moving in
a positive direction. There is no evidence that this Committee
discovered that jail officials were forcing inmates to sleep in

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boats despite medical directives against these accommodations.
There is no evidence that this Committee knew that there was a
danger that communicable diseases were being spread to inmates
because of this sleeping arrangement. There is also no evidence
that other inmates contracted MRSA at the jail during this period
of time, nor that these Defendants knew of such an outbreak or
that they were indifferent to it.

In order to survive summary judgment, a Plaintiff must show

“specific conduct by state officials which violates some
constitutional right.” Gittlemacker v. Prasse, 428 F.2d 1, 3 (3d
Cir. 1970). The Plaintiff has shown nothing except that the
Freeholder Defendants met and began investigations into the
administration of the ACJF. Plaintiff's theory of liability for
the Freeholder Defendants is predicated solely on a theory of
respondeat superior and is not cognizable under § 1983. There is
no evidence in the record from which a rational factfinder could
conclude that the Freeholder Defendants had any personal
involvement in the alleged constitutional violations. Therefore,
summary judgment will be granted as to the claims against the
Freeholder Defendants in their individual capacities.

The same analysis applies to Defendant Levinson as the

County Executive of Atlantic County. While Defendant Levinson is
responsible for the day-to-day functions of the County, the
Plaintiff has produced no evidence that Levinson knew of the

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alleged constitutional violations or had any personal involvement
in these violations. Without more, Plaintiff is merely seeking
to hold Defendant Levinson liable on a supervisory theory of
liability. This is insufficient to sustain a claim against
Levinson under § 1983 and no rational jury could find Levinson
was personally involved in the alleged constitutional harms.
Therefore, summary judgment will be granted as to Defendant
Levinson and all claims against him in his personal capacity will
be dismissed with prejudice.

2. Official Capacity Claims against Moving Defendants
Suits against municipal officers in their official capacity
are essentially suits against the municipality. Hafer v. Melo,
502 U.S. 21, 25 (1991)("official-capacity suits generally
represent only another way of pleading an action against an
entity of which an officer is an agent"). Consequently, a suit
against Defendants in their official capacity is a suit against
Atlantic County.

It is well established that in § 1983 cases, municipalities

may not be held vicariously liable for the actions of their
employees. Montgomery v. De Simone, 159 F.3d 120, 126 (3d Cir.
1998)(citing Monell v. Department of Social Servs. of City of
N.Y., 436 U.S. 658, 691-94 (1978)). Rather, liability under §
1983 only attaches where the municipality had in place a custom
or policy, which directly caused the constitutional deprivation.

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Id.

Defendants argue summary judgment is appropriate because the

Plaintiff has not established a violation of his Fourteenth
Amendment rights. The Court finds this unpersuasive and
concludes that the Plaintiff has presented facts from which a
rational jury could find that Plaintiff suffered a constitutional
deprivation of due process as a result of Atlantic County's
custom of overcrowding their prison facilities holding pretrial
detainees.

Here, Plaintiff is a pretrial detainee, so the Eighth

Amendment does not apply when analyzing his claims. Rather, the
due process clause of the Fourteenth Amendment applies when
addressing the constitutionality of conditions of confinement
imposed on pretrial detainees. Bell v. Wolfish, 441 U.S. 520,
537 (1979).

A due process violation of the Fourteenth Amendment occurs

when “the conditions of confinement complained of amounted to
punishment prior to the adjudication of guilt.” Simmons v.
Taylor, No. 10-1192, 2012 WL 3863792, at *3 (D.N.J. September 5,
2012)(citing Bell v. Wolfish, 441 U.S. 520 (1979) and Acevedo v.
CFG Health Sys. Staff, No. 10-5103, 2010 WL 4703774, at *4
(D.N.J. Nov. 12, 2010)). The due process standard under the
Fourteenth Amendment contains both objective and subjective
components; “the objective component requires an inquiry into

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whether the deprivation [was] sufficiently serious and the
subjective component asks whether the officials act[ed] with a
sufficiently culpable state of mind.” Simmons, 2012 WL 3863792,
at *3 (quoting Stevenson, 495 F.3d at 68) (internal quotation
marks omitted). An inference of mens rea is allowed "where the
restriction is arbitrary or purposeless, or where the restriction
is excessive, even if it would accomplish a legitimate
governmental objective." Stevenson v. Carroll, 495 F.3d 62, 68
(3d Cir. 2007). Put another way, a “measure amounts to
punishment when there is a showing of express intent to punish on
the part of the detention facility officials, when the
restriction or condition is not rationally related to a
legitimate non-punitive government purpose, or when the
restriction is excessive in light of that purpose.” Simmons,
2012 WL 3863792, at *3 (quoting Stevenson v. Carroll, 495 F.3d
62, 68 (3d Cir. 2007)). Whether a restriction is excessive
requires a court to consider the totality of the conditions.
Hubbard v. Taylor, 538 F.3d 229, 233 (3d Cir. 2008)(“Hubbard
II”).

The standard to apply when evaluating conditions of

confinement imposed on pretrial detainees is not clear and has
been the subject of recent scholarly debate. Catherine T.
Struve, The Conditions of Pretrial Detention, 161 U. PA. L. REV.
1009 (2013). The Supreme Court and the Third Circuit have

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unequivocally held that the Fourteenth Amendment due process
standard is at least as protective as the Eighth Amendment cruel
and unusual punishment standard when analyzing conditions of
confinement. See Bell v. Wolfish, 441 U.S. at 545 ("pretrial
detainees, who have not been convicted of any crimes, retain at
least those constitutional rights that we have held are enjoyed
by convicted prisoners"); Stevenson, 495 F.3d at 70 ("the
protections due to sentenced inmates provide a floor for what
pretrial detainees may expect").

However, the Supreme Court and the Third Circuit have yet to
address when certain conditions violate the Fourteenth Amendment
but not the Eighth Amendment. In addition, the Supreme Court has
offered little guidance on the standard to apply when a pretrial
detainee is subject to poor conditions prior to a determination
of probable cause. There is some case law which would suggest
the Fourth Amendment applies in this situation. Atwater v. Lago
Vista, 532 U.S. 318 (2001)(holding that the Fourth Amendment
permits custodial arrest of an individual for minor offenses);
Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510
(2012)(analyzing a pretrial detainee's claims of an unlawful
strip search under both the Fourth and Fourteenth Amendments).
Here, the record is unclear as to whether and when Plaintiff

received a probable cause hearing and when Plaintiff was
arraigned. It appears that police arrested Hargis at the scene

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of a shooting, and that he was not the subject of an indictment
or other probable cause determination when he was first detained.
Absent these facts, it is uncertain which standard applies to
analyze Plaintiff's conditions of confinement claims.

The Court will apply the Third Circuit's analysis in Hubbard

II, supra, on this motion for summary judgment which represents
the minimum constitutional protections Plaintiff was entitled to
as a pretrial detainee. Hubbard v. Taylor, 538 F.3d 229, 233 (3d
Cir. 2008). However, the Court makes no finding as to what law
will apply to the Plaintiff's claims at trial and further
briefing by the parties may be needed.

The United States Court of Appeals for the Third Circuit
recently addressed the practice of assigning three inmates to a
two-person cell in the context of a Fourteenth Amendment claim
brought by a pretrial detainee. In Hubbard II, the Third Circuit
held that requiring pretrial detainees to sleep on a mattress on
the floor in a cell holding three inmates for three to seven
months did not constitute punishment in violation of the
Fourteenth Amendment. 538 F.3d at 234-35. The court rejected a
per se ban on the practice and instead considered it “as part of
the ‘totality of the circumstances within [the] institution.’”
Id. at 235 (quoting Hubbard v. Taylor, 399 F.3d 150, 160 (3d Cir.
2005)(“Hubbard I”). The court then concluded that although the
plaintiffs “did spend a substantial amount of time on floor

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mattresses,” they had access to large day rooms and the record
did not substantiate plaintiffs’ claims that the use of floor
mattresses caused disease or led to the splashing of human waste
on the plaintiffs. Id. After noting the efforts made by the
jail to improve conditions, the court found “that Plaintiffs were
not subjected to genuine privations and hardship over an extended
period of time for purposes of their due process claim.” Id.

The District of New Jersey, through Judge Renee Bumb,

recently addressed the conditions of confinement at the ACJF from
September 17, 2007 to May 28, 2009 with regard to pretrial
detainees and triple-bunking. In Duran v. Merline, No. 07-3589
(RMB/AMD), 2013 WL 504582 (D.N.J. February 8, 2013), the
plaintiff was pretrial detainee at ACJF who alleged that:

the ACJF was severely overcrowded, such that its 7 x 12
foot cells, which were designed for one inmate, housed
three. The dayroom space available was so cramped that
it did not provide space for recreation, dining, or
other activities outside the cell. . . . [A]s a result
of these conditions, [the plaintiff] was forced to sleep
and eat his meals next to an open toilet for fifteen
months, where he was frequently splashed with urine,
feces, and other bodily fluids. These conditions led to
the spread of disease and caused Plaintiff to suffer
painful boils, rashes, and back pain.

Id. at *5. These are the same conditions that are at issue in
this case. Indeed, Plaintiff Hargis was a pretrial detainee at
ACJF in August 2009, less than three months after the time period

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6

addressed in Duran. In Duran, the Court addressed Hubbard II
and concluded that a genuine issue of material fact existed as to
whether the conditions of confinement at ACJF were
unconstitutional. Judge Bumb reasoned:

Given the totality of the circumstances, a question of
fact exists as to whether these conditions exceeded the
bounds of the Fourteenth Amendment. These alleged
conditions are significantly worse than those alleged by
the Hubbard II plaintiffs. First, while the cells in
both cases are similarly sized, the day room space
available to the Hubbard II plaintiffs was approximately
ten times larger than the day room space available to a
comparable number of ACJF inmates. Second, the Hubbard II
plaintiffs were only relegated to floor mattresses for
three to seven months, less than half the fifteen-month
period that Plaintiff claims to have endured the
conditions here. Third, in Hubbard II, the record did
not substantiate the plaintiffs' allegations that the use
of floor mattresses resulted in “the splashing of human
waste upon them.” 538 F.3d at 235. Here, however,
Plaintiff has corroborated his claim with letters,
grievance forms, and his own affidavit. Plaintiff also
proffered evidence concerning additional problems such as
very limited recreational time (only once a week),
extreme noise, violence, and the spread of disease.
Further, while the Hubbard II majority found the
plaintiffs' claims unsubstantiated, Third Circuit Judge
Sloviter filed a concurring and dissenting opinion in
which she credited such claims (that the plaintiffs slept
on floor mattresses where they were regularly splashed
with bodily fluids) and found them shocking to the
conscience in violation of the Fourteenth Amendment.
Hubbard II, 538 F.3d at 239 (Sloviter, J.,
concurring/dissenting). Here, as discussed above, the
conditions allegedly suffered by Plaintiff were more
egregious than those in Hubbard II, and Plaintiff
supported such claims with evidence in the record. Thus,
it appears these facts create an issue for trial. . . .

6

In fact, Mr. Duran and Mr. Hargis were cellmates at one
point during Mr. Hargis's confinement and Hargis discussed his
legal action with Duran. (Hargis Dep. at 9:10-13:2; 20:15-21.)

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. On this set of facts, the Court cannot conclude as a
matter of law that the conditions of Plaintiff's
confinement passed constitutional muster.

Id. at **5-6. The same reasoning applies to the facts set forth
in this case.

Here, Mr. Hargis has also provided evidence of conditions

worse than those imposed on the pretrial detainees in Hubbard II.
He asserts that he was made to sleep on the boat next to a toilet
while recovering from a gunshot wound which was protected by only
a bandage. He testified in his deposition that he was made to
sleep on a boat for approximately 10-11 months, which is longer
than the Hubbard II detainees. He presented medical evidence
that within the first three weeks of sleeping on the boat, while
his gunshot wound was still fresh, he contracted MRSA and had two
painful boils on his body. While Plaintiff has not presented
expert testimony relating to the cause of his contraction of
MRSA, the temporal proximity between his admission to AJCF and
the appearance of boils is quite suggestive. When coupled with
the fact that he was sleeping with an open gunshot wound on the

7

7

Plaintiff is entitled to the benefit of reasonable
inferences that may be drawn in his favor from the facts in
evidence, as the party opposing summary judgment. It can
reasonably be inferred that Plaintiff contracted MRSA while in
Defendants' custody due to the unsanitary, overcrowded cell
arrangements that he describes, due to Defendants' application of
the new-man-in-the-boat policy in disregard of medical orders.
Such an inference is not compelled but it is reasonably based
upon common knowledge even without the aid of expert witness
testimony. Whether a jury is persuaded to agree remains to be
seen at trial.

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floor next to an open toilet and assuming (as we must for
purposes of this motion) that he was occasionally splashed with
urine and feces of other cellmates, a rational jury could
conclude that Mr. Hargis contracting MRSA was a foreseeable
consequence these conditions of confinement.

Defendants' main argument in opposition is that Mr. Hargis

was released into the general population without medical
restrictions on August 16, 2009, so Plaintiff was not medically
prohibited from sleeping in a boat. Defendants' argument relies
on several forms which were filled out when Plaintiff was first
incarcerated at ACJF. First, on August 12, 2009, when Plaintiff
was initially housed in the medical wing, an "Identification of
Special Needs" form stated that Plaintiff was to be given a
"Lower Level/Lower Bunk **NO BOAT**" from 8/12/2009 until "D/c'd
by M.D." (Pl.'s Ex. D.) However, just two days later, on August
14, 2009, a "Medical Screening" form was filled out which
indicated that Plaintiff had "No current medical limitations."
(Defs.' Reply Ex. A.) This form also indicates that Plaintiff
was not cleared for the general population because he would need
crutches and an evaluation. Next, on August 15, 2009, a
"Medical Classification Report" was issued which cleared Mr.
Hargis for the general population. (Id.) Finally, on August 16,

8

8

The rest of the notes on the Medical Screening form are

illegible.

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2009, a "Physicians' Orders" form was filled out and noted that
Plaintiff was "clear gen pop." (Id.) Defendants argue these
forms show that Mr. Hargis was not medically required to sleep in
a bunk once he was cleared for the general population on August
16, 2009. There is a genuine dispute as to these facts.

Giving all favorable inferences to the non-moving party as

is required on summary judgment, a reasonable jury could find
that the prohibition on boats in the "Identification of Special
Needs" form applied once the Plaintiff was released to the
general population. First of all, boats were not used in the
medical wing of ACJF and consequently, such a prohibition would
make no rational sense while Plaintiff was housed in the medical
wing if there was no possibility he would be forced to sleep in a
boat. Logically, this prohibition would only apply when
Plaintiff was released into the general population because then
sleeping in a boat would be a possibility if there were no
medical directives in place.

Second, the "Medical Screening" form, "Medical

Classification Report" and "Physicians' Orders" form are
different, distinct forms when compared with the "Identification
of Special Needs" checklist. The "Special Needs" checklist has a
specific, pre-written list and "NO BOAT" is one of the options.
The "Special Needs" checklist particularly focuses on whether an
inmate should sleep in a lower level/lower bunk. Neither of the

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9

other three forms discuss bunk options or contain a pre-written
"NO BOAT" selection. Rather, the "Medical Screening" form lists
such things as whether an inmate is diabetic, has a seizure
disorder, or has current/past injuries. There is no mention of
housing accommodations. The "Medical Classification Report"
contains a blank space for a medical professional to write down
observations about an inmate and decide whether to refer an
inmate to the mental health department. This form has nothing to
do with bunks or housing requirements. The "Physicians' Orders"
form contains a blank space to note an inmate's allergies and an
inmate's current prescriptions and does not address housing
options.

Therefore, giving all favorable inferences to the Plaintiff,
a rational jury could conclude that the "Medical Screening" form,
the "Medical Classification Report" and the "Physicians' Orders"
forms would not negate the NO BOAT prohibition contained in the
"Identification of Special Needs" form. A reasonable jury could
conclude that this form is distinct and separate from the other
forms at issue. Further, when considered in conjunction with
Plaintiff's open gunshot wound on his right hip, a rational jury
could find that Plaintiff's need to sleep on a bunk, not a boat
beneath the open toilet, was obvious and in line with Plaintiff's

9

It is unexplained how Hargis, having a fresh gunshot

wound, could be said to have no current injury.

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medical condition. Therefore, genuine issues of material fact
exist which prevent summary judgment as to the Defendants'
official capacity claims.

In addition, while ACJF had a day space available, this area
is significantly smaller than the area at issue in Hubbard II, as
explained in Duran. Plaintiff also testified that he had to eat
his meals by the toilet because there was not enough room in the
day space for all the detainees. Though an outdoor area and
gymnasium were available for recreation, the record is silent on
how much time per day pretrial detainees are given to use these
spaces. While Plaintiff was recovering from a gunshot wound, it
is unlikely he would have been physically able to take advantage
of these spaces even if given the opportunity. Indeed, Lt.
Iuliucci declared that the balance of an inmate's time is spent
either in his cell or in the overcrowded day space.

Though ACJF has a legitimate interest in providing housing
to the high pretrial detainee population, a rational factfinder
could conclude that the policy of triple-bunking in Mr. Hargis's
situation in the aftermath of an open gunshot wound was not
rationally related to this purpose and excessive. Confinement of
a detainee in an unsanitary and dangerous environment for a very
extended period of time would seem to cross the line between
temporarily crowded and suboptimal detention, on the one hand,
and unsanctioned punishment on the other. The County's reliance

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on Nickles v. Taylor, Civ. Nos. 09-313, 09-557, 09-679, 09-952,
2010 WL 1949447 (D.N.J. May 14, 2010), is misplaced as Nickles is
distinguishable from the instant action. Nickles dealt with a
prisoner's unsubstantiated allegations of unconstitutional
conditions. Here, the Plaintiff has presented sufficient
evidence to support his claims. Viewing the facts in the light
most favorable to the Plaintiff, a rational jury could find that
the Plaintiff was deprived of his Fourteenth Amendment rights.
Nickles also applied the Eighth Amendment. Here, Mr. Hargis is a
pretrial detainee and protected by the Fourteenth Amendment.

In addition, a rational jury could conclude that Plaintiff's
constitutional deprivation was the result of municipal custom or
usage. As Judge Bumb explained in Duran:

[T]he County has a long history of operating the ACJF in
an overcrowded and unsanitary manner. The parties do not
dispute that [the Warden] was well aware of the
overcrowded conditions; in fact, Plaintiff proffered a
letter from him in which he acknowledged that the ACJF
has been overcrowded “for my 24 years here.” Merline
Letter, July 2, 2007, Pl.'s (unnumbered) exhibit. The
Third Circuit has recognized that such long-standing
conditions of confinement may reflect the existence of a
custom for § 1983 purposes. Anela v. City of Wildwood,
790 F.2d 1063, 1069 (3d Cir. 1986) (holding that jail's
long-standing conditions of confinement constituted a
city “custom or usage” for Monell purposes); Bowers v.
City of Phila., Civ. No. 06–3229, 2008 WL 5210256, *6
(E.D.Pa. Dec. 12, 2008) (same). In light of the 24 years
of overcrowding at the ACJF, a reasonable fact-finder
could conclude that these conditions amounted to a
custom, which caused the harm alleged by Plaintiff.
Further, Plaintiff has specifically identified the
widespread custom of “triple-celling” inmates, which he
claims has led to unsanitary conditions, such as the
splashing of urine and feces on him. . . . The County

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Defendants readily admit that they triple-cell inmates
during periods of overcrowding.

Duran, 2013 WL 504582, at *7. The Court finds these facts and
legal principles equally applicable in this case. Indeed,
Plaintiff submits the same exhibit from Warden Merline wherein
the Warden acknowledges that the ACJF has been overcrowded for
twenty-four years. (Pl.'s Ex. G.) A reasonable fact finder
could find that this is sufficient to show a municipal custom of
indifference to providing an adequate facility for pretrial
detainees. Where the custom causes physical injury to a pretrial
detainee, the jury must determine whether the defendant was
indifferent to the prospect of harm to the detainee arising from
overcrowding. Therefore, a rational jury could conclude that
Plaintiff's constitutional harms were caused by the County's
custom of overcrowding its jail, exposing Plaintiff to unsanitary
conditions, in disregard of his serious medical condition.

Accordingly, Defendants' motion for summary judgment will be

denied as to the claims asserted against them in their official
capacity.

D. Defendants Aramark and Atlantic County Health and

Sanitation Department

Two additional defendants in this action are Aramark
Correctional Service, LLC and Atlantic County Health and
Sanitation Department. Neither of these Defendants has been
served. Their summonses were returned unexecuted on September
28, 2010. [Docket Item 21.]

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Rule 4(m) states that, if a defendant is not served within
120 days after the complaint is filed, courts "must dismiss the
action without prejudice against that defendant or order that
service be made within a specified time."

The Plaintiff has not sought an extension of time to serve
these Defendants and has not provided any reason for failing to
serve them. The Plaintiff proceeded to litigate this case and
complete discovery without ever serving these Defendants. The
court finds no reason, two and a half years after the summonses
were returned unexecuted, to permit Plaintiff to serve these
Defendants at this late juncture. Therefore, the Court will
dismiss Defendants Aramark, LLC and Atlantic County Health and
Sanitation Department without prejudice. If the Plaintiff
contests this dismissal, the Plaintiff must show good cause why
he should be permitted to serve these Defendants out of time
within fourteen (14) days of this order. If the Plaintiff does
not show cause within fourteen (14) days, then the dismissal of

10

10

The "primary focus" of the good cause analysis "is on the
plaintiff's reasons for not complying with the time limit in the
first place." MCI Telecomms. Corp. V. Teleconcepts, Inc., 71 F.3d
1086, 1097 (3d Cir. 1995). To show good cause, a plaintiff must
show "'(1) good faith on the part of the party seeking an
enlargement and (2) some reasonable basis for non-compliance
within the time specified in the rules.'" Id. (quoting
Petrucelli v. Bohringer, 46 F.3d 1298, 1312 (3d Cir.
1995)(Becker, J., concurring in part and dissenting in part)).
Moreover, a plaintiff seeking to enlarge time to serve an absent
defendant after expiration of discovery and indeed after most
claims against viable defendants have been adjudicated bears a
heavy burden, since the case would essentially begin anew as to
the unserved defendants.

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these Defendants will be with prejudice.

E. John Doe Warden/Director
The last defendant listed is fictitious John Doe

Warden/Director. Discovery is complete and Plaintiff has failed
to file an amended complaint naming fictitious Defendant John Doe
Warden/Director. In his brief, Plaintiff argues that Warden
Geraldine Cohen is liable under § 1983. The Plaintiff, however,
has never named Geraldine Cohen as a Defendant in this case and
she has never been served with a complaint or been made to
answer.

The Plaintiff was given an opportunity to name John Doe

Warden/Director when his motion to amend was granted on December
28, 2010. Plaintiff was ordered to file an amended complaint
within 15 days of the order and the purpose of this amended
complaint was to name the fictitious defendant, John Doe
Warden/Director. Plaintiff, however, failed to file an amended
complaint and declined to name John Doe/Warden and consequently,
no one was ever served.

A court may, pursuant to Fed. R. Civ. P. 21, drop a party on

its own motion "on just terms." Fed. R. Civ. P. 21. Courts in
the Third Circuit have used this rule to dismiss fictitious
parties from an action when necessary. Blakeslee v. Clinton
County, 336 Fed. Appx. 248, 250-51 (3d Cir. 2009); Adams v. City
of Camden, 461 F. Supp. 2d 263, 271 (D.N.J. 2006). "[I]f after a
reasonable period of discovery a plaintiff has not identified the

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fictitious defendant, the court may dismiss the fictitious
defendant." Martin v. Comunale, No. 03-CV-06793, 2006 U.S. Dist.
LEXIS 1692, 2006 WL 208645 (E.D. Pa. January 18, 2006)(citing
Agresta v. City of Philadelphia, 694 F. Supp. 117 (E.D. Pa.
1988)).

Factual discovery is complete and the Plaintiff has not
moved to name this fictitious party. When the Plaintiff was
given an opportunity amend his complaint to name this fictitious
defendant two years ago, Plaintiff chose not do so and never
filed an amended pleading. Plaintiff cannot now be heard to
argue two and a half years later that Geraldine Cohen is liable
under Section 1983 in order to delay entering summary judgment in
this case. Plaintiff offers no explanation for his dilatory and
neglectful conduct in failing to name John Doe/Warden. This
litigation has been pending for more than three years and the
Plaintiff has made no effort to file an amended complaint,
despite being given an opportunity to do so.

Further, the evidence in the record does not suggest that

Geraldine Cohen would be liable in her personal capacity even if
named as a defendant. The Plaintiff has put forth no evidence
that Cohen knew Plaintiff was assigned to a boat when the medical
staff at the prison specifically directed he be assigned to a
lower bunk. Plaintiff admits in his deposition testimony that he
never wrote a grievance or filed an inmate request form saying he
wanted to be on a bunk. (Hargis Dep. at 47:22-25.) There is

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also no evidence that Plaintiff ever complained to Cohen about
the location of his bed in the cell and how its proximity to the
toilet caused him to be splashed with urine and feces. In fact,
Hargis testified that he never filed an inmate request form
complaining that his boat was too close to the toilet. (Hargis
Dep. at 61:10-13.)

Without this evidence, Plaintiff has failed to establish
that Cohen knew anything beyond that pretrial detainees were
sometimes required to sleep three to cell when the cell was made
for two inmates. Cohen averred in her declaration that to her
knowledge, no inmate uses a boat for more than five months.
(Cohen Overcrowding Decl. ¶ 23.) This by itself is not
unconstitutional and is strong evidence that Cohen would be
entitled to qualified immunity. See Hubbard v. Taylor, 538 F.3d
229 (3d Cir. 2008)(holding that requiring pretrial detainees to
sleep on a mattress on the floor in a cell holding three inmates
for three to seven months did not constitute punishment in
violation of the Fourteen Amendment); see also Duran, 2013 WL
504582, at **7-8 (finding a warden was entitled to qualified
immunity because it is not well established what degree of prison
overcrowding constitutes punishment under the Fourteenth
Amendment).

Therefore, pursuant to Fed. R. Civ. P. 21, the Court will
dismiss John Doe Warden/Director as a Defendant. The Plaintiff
has failed to name this fictitious defendant and discovery is now

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complete. The record before the Court does not suggest Geraldine
Cohen, as Warden of ACJF, would be liable in her personal
capacity in any event. Accordingly, the Court finds it just and
appropriate to dismiss John Doe Warden/Director as a party at
this time.

IV. CONCLUSION

For the reasons discussed above, Defendants' motion for

summary judgment will be granted in part and denied in part. The
Plaintiff failed to present any evidence from which a rational
jury could conclude that the moving Defendants had a personal
involvement in the alleged constitutional violations. Therefore,
summary judgment will be granted as to the claims against the
moving Defendants in their individual capacity.

However, Plaintiff has produced sufficient evidence from
which a rational jury could find that he was deprived of his
constitutional rights under the Fourteenth Amendment and this
deprivation was the result of the County's custom of prison
overcrowding as applied to a detainee with an open gunshot wound,
and that it was foreseeable that personal harm of this type would
be caused by such policy. Therefore, summary judgment will be
denied as to the claims against the moving Defendants in their
official capacities.

In addition, Defendants Aramark Correctional Service, LLC,

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and Atlantic County Health and Sanitation Department will be
dismissed without prejudice for failure to serve pursuant to Fed.
R. Civ. P. 4(m). The Plaintiff will have fourteen (14) days to
show good cause why he failed to serve these Defendants within
the specified time limit. If the Plaintiff fails to show cause,
these Defendants will be dismissed with prejudice.

Finally, fictitious Defendant John Doe Warden/Director will
be dismissed pursuant to Fed. R. Civ. P. 21 as the Plaintiff has
failed to amend his complaint to name this fictitious Defendant
after discovery has been completed.

The accompanying Order will be entered.

July 10, 2013
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

35