NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE DAMIAN D. HARRIELL,

Plaintiff, Civil No. 22-3268 (RMB/SAK) v. WARDEN JOHN CUZZUPE, et al., OPINION Defendants. RENÉE MARIE BUMB, United States District Judge This matter comes before the Court upon pro se Plaintiff Damian D. Harriell’s (“Plaintiff”) second IFP application pursuant to

(a) (Docket Nos. 4,

5), and his amended complaint (Docket No. 6.) (“Plaintiff”). Plaintiff was a pretrial detainee in Salem County Correctional Facility ("SCCF") in Woodstown, New Jersey when he filed the original complaint. On August 26, 2022, this Court denied Plaintiff’s first IFP application and dismissed his complaint without prejudice for failure to state a claim under 28 U.S.C. § 1915A(b). (Opinion and Order, Docket

Nos. 2, 3). Plaintiff has properly completed his second IFP application, which establishes his financial eligibility to proceed without prepayment of the filing fee, and the IFP application will be granted. Thus, the Court must screen Plaintiff’s amended complaint. I. Sua Sponte Dismissal

When a prisoner is granted IFP status or files a civil action against government officials or employees, or brings a claim based on prison conditions, courts must, pursuant to

(e)(2)(B), 1915A(b) and 42 U.S.C. § 1997e(c)(1), courts must review the complaint and sua sponte dismiss any claims that

are: (1) frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief against a defendant who is immune from such relief. Courts must liberally construe pleadings that are filed pro se. Erickson v. Pardus,

(2007) (quoting Estelle v. Gamble,

(1976)). Thus, “a pro se complaint, however inartfully pleaded, must be held to ‘less stringent

standards than formal pleadings drafted by lawyers.’”

(internal quotation marks omitted). A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he legal standard for dismissing a complaint for failure to state a claim pursuant to § 1915A is identical to the legal standard employed in ruling on 12(b)(6)

motions.” Courteau v. United States,

(3d Cir. 2008) (citation omitted). The same standard applies to dismissals for failure to state a claim under

(e)(2)(B). Schreane v. Seana,

(3d Cir. 2012) (citing Allah v. Seiverling,

(3d Cir. 2000)). “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.’” Ashcroft v. Iqbal,

(2009) (quoting Bell Atlantic Corp. v. Twombly,

(2007)). “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.” Iqbal,

(quoting Twombly,

.) Legal conclusions, together with threadbare recitals of the elements of a cause of action, do not suffice to state a claim.

Thus, “a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.”

. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal,

. If a complaint can be remedied by an amendment, a district court

may not dismiss the complaint with prejudice but must permit the amendment. Grayson v. Mayview State Hospital,

(3d Cir. 2002). II. DISCUSSION A. The Amended Complaint The defendants to this action, brought under

, are Warden

John Cuzzupe of SCCF and Officer Gaston. Plaintiff alleges that on April 25, 2022, while he was housed in protective custody in SCCF, he was returning to his cell from his recreation time when Inmate Miller yelled through his cell door that Plaintiff was a snitch. Plaintiff yelled back for him to mind his own business. While Plaintiff was still outside his cell, Miller called out for an officer to "pop" his cell door open. Officer Gaston complied with Miller's request, and Miller stepped outside his cell and punched Plaintiff in the face. Officer Gaston knew that he should not open

Miller's door until Plaintiff was safe in his own cell. Plaintiff alleges that Officer Gaston's boss "wrote him up" for this incident. Plaintiff is seeking money damages based on Officer Gaston's negligence, and on Warden Cuzzupe's failure to train. B. Claims under

A plaintiff may have a cause of action under

for violations of his constitutional rights. 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…. Thus, to state a claim for relief under § 1983, a plaintiff must allege: 1) the violation of a right secured by the Constitution or laws of the United States; and 2) that the alleged deprivation was committed or caused by a person acting under color of state law. West v. Atkins,

(1988); Piecknick v. Pennsylvania,

, 1255–56 (3d Cir. 1994). "Under the Due Process Clause [of the Fourteenth Amendment as applied to state pre-trial detainees], prison officials have a duty to “take reasonable measures to guarantee the safety of the inmates” and “protect prisoners from violence at the hands of other prisoners.” Brown v. Smith, No. 21-3127,

, at *1 (3d Cir. July 1, 2022) (quoting Farmer v. Brennan,

(1994)). However, "[a] prison official cannot be found liable for failure to protect an inmate unless the

official was deliberately indifferent to the risk."

at *2 (quoting Farmer, 511 U.S at 837; Hamilton v. Leavy,

(3d Cir. 1997)). "[A]n official demonstrates deliberate indifference to the risk of inmate-on-inmate violence if, before an attack, the official knows an inmate faces 'an excessive risk of harm' from another prisoner

but does nothing to prevent the assault.

(quoting Bistrian v. Levi,

(3d Cir. 2012), abrogated on other grounds as recognized in Mack v. Yost,

, 319 n. 7 (3d Cir. 2020)). Plaintiff's allegation that he was housed in protective custody to keep him segregated from other inmates is sufficient to allege that he was subject to a risk of

harm from other inmates. Plaintiff has failed, however, to allege deliberate indifference by Officer Gaston, after the Court point out this pleading deficiency and gave Plaintiff an opportunity to amend the complaint. Because Plaintiff has not pled a cognizable § 1983 failure to protect claim against Officer Gaston, Warden Cuzzupe cannot be held liable as his supervisor. See Barkes v. First Corr. Med., Inc.,

(3d Cir. 2017), rev'd on other grounds, Taylor v. Barkes,

(2015) (a supervisor is liable under § 1983 only if the supervisor personally joined the subordinate in violating a plaintiff's rights, directed others to violate the plaintiff's rights or, as the person in charge, had knowledge of and acquiesced in the subordinate's unconstitutional conduct or “'with deliberate indifference to the consequences, established and maintained a policy, practice, or custom which directly caused [the] constitutional harm.'”). The claim against Warden Cuzzupe will also be dismissed with prejudice.

Plaintiff accused Officer Gaston of negligence, but he did not specifically assert a negligence claim under the New Jersey Tort Claims Act, N.J.S. 59:1-1 et seq., in his complaint. Even if the Court construed the complaint as alleging a negligence claim under state law, the Court would decline to exercise supplemental jurisdiction over such a claim because Plaintiff has not stated a cognizable federal claim over

which this Court has jurisdiction. See

(c)(3). Plaintiff is free to bring such a claim in state court, although this Court makes no finding as to the merits or procedural posture of such a claim. III. CONCLUSION

For the reasons stated above, the Court will dismiss the amended complaint. An appropriate Order follows. DATE: March 21, 2023 s/Renée Marie Bumb Renée Marie Bumb Chief United States District Judge