The opinion of the court was delivered by: O'neill, J.
On February 2, 2009, plaintiff Eric Allen filed a pro se complaint against the Passaic County Jail, the Philadelphia Prison Systems and Philadelphia Prison Commissioner Louis Giorla alleging that numerous prison conditions related to his incarceration at the Passaic County Jail constituted violations of his constitutional rights. He brings suit under 42 U.S.C. § 1983. Before me now is defendant Passaic County Jail's motion to dismiss plaintiff's complaint against all three defendants*fn1 and plaintiff's response thereto.
Allen was incarcerated in the Passaic County Jail beginning on approximately June 1, 2008 and was released sometime before May 15, 2009.*fn3 Upon his arrival at the Jail, he was given a handbook which stated, in relevant part, that inmates would receive at least two hot meals a day, inmates would have showers with hot water, 10% of the gross of all proceeds from commissary purchases would be for the Victims of Crime Compensation Board of New Jersey, and all grievances filed with the Jail would receive a response in a reasonable period of time. During his time in the Jail Allen was consistently served cold meals, was without hot water for weeks at a time, and a 10% surcharge was added to his commissary purchases. On August 14, 2009, plaintiff registered a grievance seeking hot food, hot water and repairs to the toilets. He received no written response; however, the toilets were fixed. Three grievances were filed and letters were sent directly to the Deputy Warden, the Philadelphia Prison Society, and Philadelphia Prison Commissioner Giorla.*fn4 No responses to any of these grievances were received. On August 20, 2009, Allen asked the Deputy Warden and Captain Speranza about the grievances and why no response had been received. The Deputy Warden stated he had not received them; Captain Speranza stated he had received them and no formal response was issued because he had fixed the problem. Allen told Captain Speranza and the Deputy Warden that there had been no hot water since August 12. They stated the problem would be fixed. There was no hot water until November 29; subsequently, there was no hot water again from January 5 until the date Allen filed his complaint.
Allen was convicted of his crime in a Philadelphia. He was transferred to the Jail in New Jersey because of overcrowding in the Philadelphia prisons; therefore, he was not able to participate in any of the programs to prevent recidivism offered at the Philadelphia Prison System's House of Corrections located on State Road in Philadelphia. Allen alleges that the Philadelphia Prison System and Philadelphia Prison Commissioner Giorla knew the Jail to be overcrowded and of the other complained-of conditions at the Jail and were negligent in contracting to send Philadelphia inmates to the Jail. During his incarceration Allen could only make collect calls, could not attend religious services at the Jail, was unable to participate in any of the Jail's programs to prevent recidivism and was only permitted one hour a day of recreation.
Allen seeks monetary damages of $5,000 per month of incarceration for pain and suffering, $12.90 per day for lost phone time, and reimbursement for the ten per cent commissary fee. He also requests injunctive relief in the form of shutting down the Passaic County Jail.
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). When ruling on a defendant's motion to dismiss, I must accept as true all of the well-pleaded facts alleged in the complaint. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." "Specific facts are not necessary; the statement need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007), quoting Twombly, 550 U.S. 544 (2007). "A document filed pro se is 'to be liberally construed,' and 'a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Id. at 94, quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976); citing Fed. R. Civ. Proc. 8(f) ("All pleadings shall be so construed as to do substantial justice"). The court has an additional duty under several federal statutes to review civil complaints filed by prisoners against a government entity and dismiss any portion of the complaint that fails to state a claim upon which relief may be granted or that seeks monetary relief from a defendant who can assert immunity. See 28 U.S.C. §§ 1915(e)(2) and 1915A; 42 U.S.C. § 1997e(c).
I. New Jersey Class Action Lawsuit
Before deciding the motion to dismiss, I must first address whether Allen's case may be brought in this Court in light of a class action lawsuit pending before the United States District Court for the District of New Jersey. See Imprisoned Citizens Union v. Shapp, 977 F. Supp. 335, 341 (E.D. Pa. 1996), citing McNeil v. Guthrie, 945 F.2d 1163, 1165-66 (10th Cir. 1986) ("cases addressing the alleged right of a class member to proceed pro se rather than through class counsel conclude that such action is inappropriate."); Ratliff v. Fields, 1999 WL 381126, at *1 (10th Cir. June 11, 1999) ("[w]hen there is an existing class action, individual suits alleging unconstitutional prison conditions related to the same facility may not be brought."). On September 3, 2008, a group of inmates at the Passaic County Jail represented by counsel and the ACLU filed suit under § 1983 seeking solely injunctive and declaratory relief for,
(1) overcrowding, leading to a lack of privacy, loss of sleep and the threat of inmate violence;
(2) unsanitary living conditions;
(3) inadequate medical care;
(4) unsafe and inadequate food;
(5) inadequate temperature control and ventilation;
(7) inadequate fire detection and alarm systems;
(8) use of excessive force by Correction Officers, including the use of dogs for intimidation;
(9) restrictions on religious freedom; and
(10) retaliation for airing grievances.
The class action complaint alleges "(1) violation of the Fourteenth Amendment prohibition on unlawful punishment of pre-trial detainees; (2) violation of the Eighth Amendment prohibition on cruel and unusual punishment of sentenced inmates; (3) violation of the First Amendment right to the free exercise of religion; (4) violation of the First Amendment due to alleged retaliation against inmates; and (5) violation of the First Amendment due to alleged restrictions on inmate access to the courts." Colon v. Passaic County, 2009 WL 1560156, at *1 (D. N.J. May 27, 2009). On May 27, 2009, under Federal Rule of Civil Procedure 23(b)(2) Judge Cavanaugh certified a class of "all persons who are now or will become incarcerated at [Passaic County Jail] during the pendency of this lawsuit." Id. at *2. Allen's incarceration at Passaic County Jail began on or about June 1, 2008 and Allen's complaint alleges a loss of hot water in early January 2009. Therefore, it appears that Allen was an inmate at Passaic County Jail on September 3, 2008, which is during the pendency of the Colon case.
On August 7, 2009, I ordered defendants to research and brief Allen's eligibility for inclusion in the Colon v. Passaic County certified class. After reviewing the brief, I conclude that Allen may proceed with his pro se complaint for the following reasons. First, the class action plaintiffs seek only injunctive and declaratory "appropriate and necessary to ameliorate the current conditions of confinement." Colon Complaint at ¶ 3. Allen, however, seeks primarily monetary damages, i.e. $5,000 per month of incarceration for pain and suffering, $12.90 per day for lost phone time, and reimbursement for a ten per cent commissary fee. While Allen also requests injunctive relief in the form of shutting down the Passaic County Jail, this relief is wholly apart from that injunctive and declaratory relief sought by the class action plaintiffs. Allen is no longer imprisoned in the Passaic County Jail and any injunctive relief awarded in that action would not address his alleged injuries. Second, the class action plaintiffs seek relief from Passaic County, the Board of Chosen Freeholders, the Sheriff's Department, Warden, Deputy Warden and Commissioner of the New Jersey Department of Corrections. In contrast, Allen does not name any of these defendants in his complaint. Finally, while some of the ...