NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

: ISAIAH GORDON and JULIUS SPINNER,: : Civil No. 24-893 (BRM) (MAH) Plaintiffs,1 : : v. : OPINION : MAXIMUM CASAS and BECKY SCOTT, : : Defendants. : :

MARTINOTTI, DISTRICT JUDGE Before the Court is pro se Plaintiffs Isaiah Gordon and Julius Spinner’s (“Plaintiffs”) civil rights complaint (“Complaint”), filed pursuant to

(ECF No. 1), Isaiah Gordon’s application to proceed in forma pauperis (ECF No. 1-1), and Julius Spinner’s application to proceed to in forma pauperis (ECF No. 1-2). Based on their affidavit of indigence (ECF Nos. 1-1, 1-2), the Court grants Plaintiffs leave to proceed in forma pauperis and orders the Clerk of the Court to file the Complaint. At this time, the Court must review the Complaint, pursuant to

(e)(2) 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

1 The caption of the Complaint also lists Darrylu Stewart as a Plaintiff. However, Stewart is not listed in the body of the Complaint as a plaintiff. Additionally, there is no address for Stewart on the docket and no application to proceed in forma pauperis from Stewart. Therefore, the Court does not consider Darrylu Stewart to be a plaintiff in this matter. defendant who is immune from such relief. For the reasons set forth below, the Court concludes the Complaint should be dismissed in its entirety. I. BACKGROUND The Court will construe the allegations in the Complaint as true for the purposes of this

Opinion. See Phillips v. Cnty. of Allegheny,

(3d Cir. 2008). Plaintiffs are pretrial detainees confined at Hudson County Correctional Facility (“HCCF”), in Kearney, New Jersey. (See ECF No. 1.) Plaintiff brings this civil rights action, pursuant to

, against Director of Nurses Maxim Casas (“Casas”) and Director of HCCF Becky Scott (“Scott”) (hereinafter “Defendants”). (See id.) In their Complaint, Plaintiffs allege that on December 8, 2023, Defendants “failed to communicate and protect [Plaintiffs] under color of state law in their individual and official capacity with superior knowledge and policy in place that warrants isolation, quarantining, and cohorting of infected inmates who test positive for Covid.” (Id. at 5.) Plaintiffs seek monetary compensation and enforceable Covid-19 protocols.

II. STANDARD OF REVIEW A. In forma pauperis complaints Per the Prison Litigation Reform Act,

801-810,

-66 to 1321-77 (April 26, 1996) (“PLRA”), district courts must review complaints in those civil actions in which a prisoner is proceeding in forma pauperis, see

(e)(2)(B), seeks redress against a governmental employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim with respect to prison conditions, see 42 U.S.C. § 1997e. The PLRA directs district courts to sua sponte dismiss any claim that is frivolous, is 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. This action is subject to sua sponte screening for dismissal under

(e)(2)(B) and 1915A because Plaintiffs are prisoners who are proceeding as indigent. According to the Supreme Court’s decision in Ashcroft v. Iqbal, “a pleading that offers ‘labels or conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’”

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

(2007)). To survive sua sponte screening for failure to state a claim, the complaint must allege “sufficient factual matter” to show that the claim is facially plausible. Fowler v. UPMS Shadyside,

(3d Cir. 2009) (citation omitted). “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.” Belmont v. MB Inv. Partners, Inc.,

, 483 n.17 (3d Cir. 2012) (quoting Iqbal,

). Moreover, while pro se pleadings are liberally construed, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc.,

(3d Cir. 2013) (citation omitted). B. Section 1983 Actions

A plaintiff may have a cause of action under

for certain 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....

Therefore, 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, the alleged deprivation was committed or caused by a person acting under color of state law. See West v. Atkins,

(1988); Malleus v. George,

(3d Cir. 2011). III. DECISION A. Supervisory Liability Claim

The Complaint appears to allege that Defendants failed to have proper policies in place to prevent the spread of Covid-19 and to provide medical care regarding Covid-19. (See ECF No. 1.) The Court construes the Complaint as raising claims pursuant to

for violations of the due process clause of the Fourteenth Amendment. Plaintiffs seek to hold Defendants liable under a theory of supervisory liability. The Due Process Clause of the Fourteenth Amendment affords protections to pretrial detainees “at least as great as the Eighth Amendment protections available to a convicted prisoner.” City of Revere v. Mass. Gen. Hosp.,

(1983); see also Natale v. Camden Cty. Corr. Facility,

(3d Cir. 2003). Due process or Eighth Amendment standards may be violated when a pretrial detainee is subjected to punishment unrelated to a legitimate

governmental objective. See Hubbard v. Taylor,

(3d Cir. 2008). The Eighth Amendment requires prison officials to provide humane conditions of confinement. See Betts v. New Castle Youth Dev. Ctr.,

(3d Cir. 2010); see also Farmer v. Brennan,

(1994). “For the conditions of confinement to rise to the level of an Eighth Amendment violation, they must deny the ‘minimal civilized measure of life's necessities.’” Betts,

(quoting Farmer,

). A “failure to provide minimally civil conditions of confinement to pre-trial detainees violates their rights against punishment without due process of law.” Roman v. DeMarco, No. 18-8010,

, at *2 (D.N.J. Feb. 5, 2019) (citing Reynolds v. Wagner,

, 173–74 (3d Cir. 1997)). A plaintiff may establish supervisory liability under § 1983 by showing: (1) liability based on an establishment of policies, practices, or customs that directly caused the constitutional violation; or (2) personal liability based on the supervisor participating in the violation of the plaintiff’s rights, directing others to violate the plaintiff’s rights, or having knowledge of and

acquiescing to a subordinate’s conduct. Doe v. New Jersey Dep’t of Corr., No. 14-5284,

, at *9 (D.N.J. May 29, 2015). “Allegations of participation or actual knowledge and acquiescence . . . must be made with appropriate particularity.” Rode v. Dellarciprete,

, 1207 (3d Cir. 1987). “Only those defendants whose inactions or actions personally caused [Plaintiff's] injury may be held liable under § 1983.” Shaw by Strain v. Strackhouse,

, 1147 (3d Cir. 1990). In other words, “[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.” Rode, 845 F.2d at 1207. “[T]o hold a supervisor liable . . . [for their deficient policy or practice] . . . the plaintiff must identify a specific policy or practice that the supervisor failed to employ and show that: (1)

the existing policy or practice created an unreasonable risk of [a constitutional] injury; (2) the supervisor was aware that the unreasonable risk was created; (3) the supervisor was indifferent to that risk; and (4) the injury resulted from the policy or practice.” Beers-Capitol v. Whetzel,

, 133–34 (3d Cir. 2001) (citing Sample v. Diecks,

(3d Cir. 1989)). The Third Circuit addressed COVID-19 in the prison setting in Hope v. Warden York County Prison,

(3d Cir. 2020), explaining that when evaluating a detention facility’s protocols, courts “must acknowledge that practical considerations of detention justify limitations on many privileges and rights,” and “ordinarily defer” to the expertise of prison officials in responding to COVID unless there is “substantial evidence in the record that the officials have exaggerated their response” to the situation.

In the Complaint, Plaintiffs do not identify a specific policy or policies that Defendants failed to employ. Plaintiffs’ Complaint does not address what policies or protocols were in place

to prevent the spread of the COVID-19 virus and how these policies were deficient. While Plaintiffs allege that they filed grievances, that type of allegation—i.e., a claim that grievances were sent to a warden or other administrator—are generally insufficient to establish supervisory liability, absent a plausible allegation that the supervisor had contemporaneous knowledge of the incident and either directed or acquiesced in it. See, e.g., Folk v. Prime Care Med.,

, 51 (3d Cir. 2018) (affirming dismissal of claims against warden and others, based on allegation they had received grievances; “Although some of these defendants were apparently involved in responding to some of Folk’s prison grievances, there are no allegations linking them to the underlying incidents and thus no basis for liability based on those later grievance reviews.”); Butler v. Penchishen, No. 22-CV-3252,

, at *4 (E.D. Pa.

Sept. 26, 2022) (“To the extent Butler is attempting to connect any of the individual Defendants to these events based on his allegation that he either filed grievances or wrote them letters, such allegations are unclear and, in any event, would not establish the requisite personal involvement to establish liability.”). In short, Plaintiffs do not allege sufficient facts to allow this claim to proceed at this time and their claims against Defendants are dismissed without prejudice. See Iqbal,

(2009). IV. CONCLUSION For the reasons set forth above, the Court will dismiss Plaintiffs’ Complaint without prejudice. The Court shall give Plaintiffs thirty days to file an amended complaint to cure the deficiencies discussed above. An appropriate Order follows.

Dated: March 29, 2024

/s/ Brian R. Martinotti HON. BRIAN R. MARTINOTTI UNITED STATES DISTRICT JUDGE