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Case 1:12-cv-00338-JBS-KMW Document 7 Filed 07/11/13 Page 1 of 11 PageID: 48

NOT FOR PUBLICATION


UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY



:

OPINION























Plaintiff,



v.







:
:
:
:
:




WENDELL ROSS,
: Civil Action No. 12-338 (JBS)





BURLINGTON COUNTY JAIL, :
et al., :
:


:



APPEARANCES:







SIMANDLE, Chief Judge


WENDELL ROSS, Plaintiff pro se
# 741036/332034-B
Southern State Correctional Facility
4295 Rt. 47
Delmont, New Jersey 08314


Defendants.













Plaintiff, Wendell Ross, a state inmate confined at the

Southern State Correctional Facility, seeks to bring this action

in forma pauperis. On August 7, 2012, this Court entered an

Order administratively terminating this case because Plaintiff

had failed to pay the requisite filing fee or submit a complete

in forma pauperis application with his six-month institutional

account certified by a prison official at the prison where

Plaintiff was then confined. (See Dkt. # 2.) The August 7,

Case 1:12-cv-00338-JBS-KMW Document 7 Filed 07/11/13 Page 2 of 11 PageID: 49

2012 Order allowed Plaintiff to re-open his case if he submitted

a complete in forma pauperis application or paid the filing fee.

(Id.) On August 14 and 22, 2012, Plaintiff submitted a complete

in forma pauperis application with a letter asking that his

action be re-opened. (See Dkt. ## 5, 6.) Based on his

affidavit of indigence, the Court will grant Plaintiff’s

application to proceed in forma pauperis (“IFP”) pursuant to 28

U.S.C. § 1915(a)(1998) and order the Clerk of the Court to re-

open this case and file the Complaint accordingly.



At this time, the Court must review the Complaint, pursuant

to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, to determine whether it

should be dismissed as frivolous or malicious, for failure to

state a claim upon which relief may be granted, or because it

seeks monetary relief from a defendant who is immune from such

relief. For the reasons set forth below, the Court concludes

that the Complaint should be dismissed.

I. BACKGROUND



Plaintiff, Wendell Ross (“Plaintiff”), brings this civil

action, pursuant to 42 U.S.C. § 1983, against the Burlington

County Jail, Warden Cox, Aramark Food Service (“Aramark”), and

Mr. Nelson, Aramark Supervisor. (Dkt. # 1, Complaint, Caption,

¶¶ 4, 6.) The following factual allegations are taken from the

Complaint, and are accepted for purposes of this screening only.



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The Court has made no findings as to the veracity of Plaintiff’s

allegations.



Plaintiff alleges that, on November 7, 2011, while he was a

pretrial detainee confined at the Burlington County Jail, he

suffered second degree burns on his head, chest and face from

boiling water. In particular, on that date, Plaintiff was

working as a cook in the kitchen at Burlington County Jail. He

alleges that he did not receive any training, and that the

“stove-top range” was “unsafe.” (Id., ¶ 6.)



Plaintiff further alleges that Defendant Nelson told him

the equipment “belongs to [the] County,” and that Defendant

Warden Cox allegedly stated that the equipment was “faulty and

will be replaced.” (Id.) Plaintiff asserts that both

Defendants are “negligent and responsible for [Plaintiff] being

burned and [] fired from his job.” (Id.)



Plaintiff seeks an unspecified amount of money damages to

compensate him for his injuries. (Id., ¶ 7.)

II. STANDARDS FOR A SUA SPONTE DISMISSAL



The Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-

134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996),

requires a district court to review a complaint in a civil

action in which a prisoner is proceeding in forma pauperis or

seeks redress against a governmental employee or entity. The



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Court is required to identify cognizable claims and to 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.

28 U.S.C. §§ 1915(e)(2)(B) and 1915A. Accordingly, Plaintiff’s

Complaint is subject to sua sponte screening for dismissal under

both 28 U.S.C. § 1915(e)(2)(B) and § 1915A.



Federal Rule of Civil Procedure 8(a)(2) provides that a

complaint must contain “a short and plain statement of the claim

showing that the pleader is entitled to relief.” However, “a

pleading that offers ‘labels or conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.’”

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

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To

prevent summary dismissal, the complaint must allege “sufficient

factual matter” to show that the claim is facially plausible

which “allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Fowler v.

UPMS Shadyside, 578 F.3d 203, 210 (3d Cir.2009) (citation

omitted).



The Supreme Court’s ruling in Iqbal emphasizes that a

plaintiff must demonstrate that the allegations of the complaint

are plausible. See Iqbal, 556 U.S. at 678–79; Warren Gen. Hosp.



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v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011). “A complaint

must do more than allege a plaintiff’s entitlement to relief. A

complaint has to ‘show’ such an entitlement with its facts.”

Fowler, 578 F.3d at 211 (citation omitted). Thus, factual

allegations must be more than speculative, but the pleading

standard “is not akin to a ‘probability requirement.’”

Covington v. International Association of Approved Basketball

Officials, 710 F.3d 114, 118 (3d Cir. 2013) (quoting Iqbal, 556

U.S. at 678; Twombly, 550 U.S. at 556). That said, in light of

the Plaintiff's pro se status, the Court liberally construes the

complaint in his favor. See Erickson v. Pardus, 551 U.S. 89,

93–94 (2007); see also Liggon–Redding v. Estate of Sugarman, 659

F.3d 258, 265 (3d Cir. 2011) (“Pro se filings ... must be

liberally construed.”).

III. SECTION 1983 ACTIONS



Plaintiff brings this action pursuant to 42 U.S.C. § 1983.

Section 1983 provides in relevant part:

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory ... 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
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress ... .





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Thus, to state a claim for relief under § 1983, a plaintiff must

allege, first, the violation of a right secured by the

Constitution or laws of the United States and, second, that the

alleged deprivation was committed or caused by a person acting

under color of state law. West v. Atkins, 487 U.S. 42, 48

(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d

Cir. 1994). See also Malleus v. George, 641 F.3d 560, 563 (3d

Cir. 2011).



This Complaint will be dismissed with prejudice, in its

entirety, as against Defendant Burlington County Jail, for

failure to state a claim, because Defendant is not a “person”

acting under color of state law, subject to suit under § 1983.

See Duran v. Merline, No. 07-3589 (RMB), --- F.Supp.2d ----,

2013 WL 504582, *20, fn. 4 (D.N.J. 2013); Grabow v. Southern

State Correctional Facility, 726 F. Supp. 537, 538–39 (D.N.J.

1989) (correctional facility is not a person under § 1983);

Parrish v. Aramark Foods, Inc., No. 11-5556 (NLH), 2012 WL

1118672, *3 (D.N.J. Apr. 2, 2012). See also Marsden v. Federal

BOP, 856 F. Supp. 832, 836 (S.D.N.Y. 1994) (county jail not an

entity amenable to suit under 42 U.S.C. § 1983); Powell v. Cook

County Jail, 814 F. Supp. 757, 758 (N.D.Ill. 1993) (a jail is

not a “person” under § 1983).







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IV. DISCUSSION



The Complaint asserts a negligence-based claim against the

remaining Defendants, Warden Cox, Aramark, and Supervisor

Nelson. The Complaint does not allege any constitutional

wrongs. At best, the Complaint alleges that Defendants were

negligent in making Plaintiff work in the kitchen with faulty

equipment. (See Dkt. # 1, Complaint, ¶ 6.) This assertion,

however, amounts to nothing more than a claim of negligence on

the part of Defendants.



The Supreme Court has held that “liability for negligently

inflicted harm is categorically beneath the threshold of

constitutional due process.” County of Sacramento v. Lewis, 523

U.S. 833, 848 (1998). “[M]erely negligent misconduct will not

give rise to a claim under § 1983; the state defendant must act

with a higher degree of intent”. Burton v. Kindle, 401 F. App’x

635, 637 (3d Cir. 2010) (citing Lewis, 523 U.S. at 849).

Indeed, the Supreme Court has long held that prison authorities’

mere negligence in and of itself does not violate a prisoner’s

constitutional rights. See Daniels v. Williams, 474 U.S. 327,

330–30 (1986). See also Davidson v. Cannon, 474 U.S. 344, 347

(1986); Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 193 n. 2

(3d Cir. 2001). The United States Constitution is not a “font

of tort law.” Lewis, 523 U.S. at 847 n. 8, 848 (The



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Constitution does not guarantee due care on the part of

government officials.); Innis v. Wilson, 334 F. App’x 454, 457

(3d Cir. 2009). In a due process challenge, the threshold

question is whether the behavior of the government officer “is

so egregious, so outrageous, that it may fairly be said to shock

the contemporary conscience.” Lewis, 523 U.S. at 847 n. 8; see

Daniels, 474 U.S. at 330 (claim arising out of a fall from

pillow left on prison stairs is a claim of negligence, not

actionable under the Due Process Clause of the Fourteenth

Amendment); Sanford v. Stiles, 456 F.3d 298, 305 (3d Cir.2006).

See also Robinson v. Temple Univ. Health Svcs., 2012 WL 6183603

at *2 (3d Cir. Dec. 12, 2012) (unpubl.) (allegations of

negligence do not support a section 1983 claim).



When judged against this higher standard, the facts alleged

here do not rise to such a level of indifference as to

constitute gross negligence. Plaintiff does not allege that

Defendants knew or were made aware of the “faulty” stove top

range before Plaintiff’s accident. Instead, Plaintiff simply

alleges that he told Defendants about the faulty range after his

injury. At most, Plaintiff’s allegations, if true, demonstrate

only negligence. Accordingly, the Complaint will be dismissed

with prejudice, in its entirety as against the remaining



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Defendants Warden Cox, Aramark, and Supervisor Nelson, for

failure to state a cognizable claim under § 1983.



Plaintiff also cannot proceed with this negligence action

against the remaining Defendants based on diversity

jurisdiction. To establish diversity jurisdiction under 28

U.S.C. § 1332(a), “the party asserting jurisdiction must show

that there is complete diversity of citizenship among the

parties and an amount in controversy exceeding $75,000.”

Schneller ex rel. Schneller v. Crozer Chester Med. Ctr., 387 F.

App'x 289, 292 (3d Cir. 2010). In this regard, a plaintiff

relying on diversity of citizenship as the asserted basis for

federal jurisdiction “‘must specifically allege each party’s

citizenship, and these allegations must show that the plaintiff

and defendant[s] are citizens of different states.’” Gay v.

Unipack, Inc., No. 10–6221, 2011 WL 5025116, at *4 (D.N.J. Oct.

20, 2011) (citation omitted). Thus, the Court may properly

dismiss a complaint for lack of subject matter jurisdiction in

the absence of complete diversity—i.e., where the plaintiff and

any defendant are citizens of the same state. Schneller, 387 F.

App'x at 292 (affirming district court’ determination that it

lacked diversity jurisdiction where plaintiff and eleven

defendants were citizens of the same state).



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Here, Plaintiff fails to assert complete diversity among

the named Defendants, Warden Cox, Aramark and Supervisor Nelson.

He also does not assert an amount in controversy over $75,000,

as required to establish diversity jurisdiction under 28 U.S.C.

§ 1332(a). Therefore, the Complaint will be dismissed without

prejudice as against Defendants Warden Cox, Aramark, and

Supervisor Nelson, for failure to assert facts necessary to

establish diversity jurisdiction at this time. The dismissal of

negligence claims is without prejudice to Plaintiff’s right to

refile his negligence claims, if any, in a court of competent

jurisdiction, i.e., the Superior Court of New Jersey, if he

complies with the New Jersey Tort Claims Act requirements.

V. CONCLUSION



For the reasons set forth above, the Complaint asserting

negligence claims under 42 U.S.C. § 1983 will be dismissed with

prejudice, in its entirety, as against all named Defendants

Burlington County Jail, pursuant to 28 U.S.C. §§

1915(e)(2)(b)(ii) and 1915A(b)(1), for failure to state a claim

upon which relief may be granted. To the extent that Plaintiff

wishes to proceed with his negligence claim against Defendants,

Warden Cox, Aramark, and Supervisor Nelson under 28 U.S.C. §

1332, the Complaint will be dismissed without prejudice because

Plaintiff has not asserted facts to establish diversity



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jurisdiction as required under 28 U.S.C. § 1332(a). An

appropriate order follows.































s/ Jerome B. Simandle
JEROME B. SIMANDLE, Chief Judge
United States District Court



Dated: July 11, 2013



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