BRAGG v. LIBRARIAN MUNIAK et al
Filing
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OPINION. Signed by Judge Noel L. Hillman on 12/22/2011. (dmr)(n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BRIAN KEITH BRAGG,
Plaintiff,
v.
LIBRARIAN MUNIAK, et al.,
Defendants.
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Civil Action No.:10-6187 (NLH)
O P I N I O N
APPEARANCES:
Brian Keith Bragg, Pro Se
# 648827
Northern State Prison
P.O. Box 2300
Newark, NJ 07114
HILLMAN, District Judge
Plaintiff, Brian Keith Bragg, a prisoner at the Northern
State Prison, Newark, New Jersey, seeks to bring this action in
forma pauperis (“IFP”).
Based on his affidavit of indigence, the
Court will grant Plaintiff's application to proceed IFP, pursuant
to 28 U.S.C. § 1915(a), and order the Clerk of the Court to file
the complaint.
At this time, the Court must review the complaint pursuant
to 28 U.S.C. § 1915(e)(2), 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 case should
be administratively terminated at this time.
BACKGROUND
Plaintiff’s original complaint seeks to sue the librarian at
the South Woods State Prison for restricting Plaintiff’s access
to the law library in retaliation for his filing of grievances.
(Complt., ¶ 4b).
He also names as a defendant Karen Balicki, the
Administrator of South Woods State Prison (Complt., ¶ 4c), and
Corrections Officers Good, King, Rivera, Tomlin, Vennell, Cris,
and John Does, McKishen, and Mailroom John Does (Complt., ¶ 4d).
Plaintiff’s original complaint asserts that the defendants
have retaliated against his filing of grievances by subjecting
him to multiple cell searches, seizing legal materials, verbal
abuse, and threats of disciplinary action.
He states that legal
mail has been opened outside of his presence.
harassed and “threatened with death.”
He alleges he was
(Complt., ¶ 6).
Plaintiff
contends that defendant Muniack, the librarian, denied him
supplies to file suits, and “spread rumors to correctional
officers that Plaintiff was filing lawsuits against correctional
officers.”
(Complt., ¶¶ 23-26).
Plaintiff asked for monetary
relief.
On January 10, 2011, Plaintiff filed an Amended Complaint
(docket entry 3).
In his amended complaint, Plaintiff attempts
to add a Count Three to his original complaint, asserting that on
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December 5, 2010, he was assaulted.
Plaintiff states: “Plaintiff
was being escorted into a holding cell for strip searching.
Please note: Plaintiff was handcuffed from behind during this
assault.
Defendant John Doe One stated ‘this is Mr. Bragg, he
likes filing law suits against Correctional Officers.’
Defendant
SCO John Doe two, using his authority as a SCO, began to berate
Plaintiff and began beating Plaintiff with his fists, without any
provocation.”
(Am. Complt., ¶ 3).
He states in Count Four of
his amended complaint that “Nurse Jane Doe eight and Nurse Jane
Doe nine refused to treat plaintiff or issue him pain medication”
after the assault.
(Am. Complt., ¶ 23).
Along with his amended complaint, Plaintiff filed a
“declaration in support of plaintiff’s emergency motion for
injunction a temporary restraining order” (docket entry 3-2).
In
the declaration, Plaintiff states that officials at Northern
State Prison, where he was transferred to from South Woods at
some point after the assault, are not providing medical treatment
to him.
Plaintiff admits that he was seen by medical staff at
the Northern State Prison on December 22, 2010, for pain in his
right knee due to the assault, but was told that there was
nothing they could do for him.
(Declaration, ¶¶ 5-8).
He
complains that his knee is stiff, he cannot walk normally, and
that he does not have the same range of motion that he had prior
to the assault.
(Declaration, ¶ 10).
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On February 22, 2011, while housed at the Northern State
Prison, Plaintiff filed a Second Amended Complaint (docket entry
5).
In the second amended complaint, Plaintiff asserts that
corrections officer Heartland had denied him access to the law
library in retaliation for his filing of grievances, and has
thrown away his requests for research and copies.
Complt., ¶¶ 1-6).
(Sec. Am.
He also asserts that Peggy Brooks has
“purposefully thrown away Plaintiff’s grievances,” and “ordered
her staff not to investigate Plaintiff’s grievances or process
them” in retaliation for his prior grievances.
Complt., ¶¶ 12-14).
(Sec. Am.
In the second amended complaint, Plaintiff
also reasserts his medical care claim against the staff at
Northern State Prison.
He names various staff medical people at
Northern State Prison, alleging that they believe he is “faking”
his injuries, that nothing can be done for him, and that he still
experiences stiffness and limited motion.
(Sec. Am. Complt., ¶¶
20-32).
On March 17, 2011, Plaintiff filed a letter, attaching an
MRI report of his right knee taken at St. Francis Medical Center
on February 4, 2011.
DISCUSSION
A.
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,
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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
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.
See 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A.
Recently, in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009),
the
Supreme Court refined the standard for summary dismissal of a
complaint that fails to state a claim.
The Court examined Rule
8(a)(2) of the Federal Rules of Civil Procedure which provides
that a complaint must contain "a short and plain statement of the
claim showing that the pleader is entitled to relief."
Civ. P. 8(a)(2).
Fed. R.
Citing its recent opinion in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), for the proposition that
"[a] pleading that offers ‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of action will
not do,’" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at
555), the Supreme Court held that, to prevent a summary
dismissal, a civil complaint must now allege "sufficient factual
matter" to show that the claim is facially plausible.
This then
"allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged."
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See id. at
1948; see also Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC
Shadyside, 578 F.3d 203 (3d Cir. 2009).
The Court of Appeals for the Third Circuit recently provided
detailed and highly instructive guidance as to what type of
allegations qualify as sufficient to pass muster under the Rule 8
pleading standard.
See Phillips v. County of Allegheny, 515 F.3d
224, 230-34 (3d Cir. 2008).
The Court of Appeals explained, in
relevant part:
[T]he pleading standard can be summed up thus:
"stating ... a claim requires a complaint with enough
factual matter (taken as true) to suggest" the required
element.
This "does not impose a probability
requirement at the pleading stage[ ]" but . . . "calls
for enough facts to raise a reasonable expectation that
discovery will reveal evidence of" the necessary
element.
Phillips, 515 F.3d at 234 (internal citations omitted).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff.
See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)
(following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Haines
v. Kerner, 404 U.S. 519, 520-21 (1972)).
See also United States
v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
B.
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,
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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, 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.
See West v. Atkins, 487 U.S. 42, 48
(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.
1994).
C.
JOINDER
Rule 10(b) of the Federal Rules of Civil Procedure provides:
A party must state its claims ... in numbered
paragraphs, each limited as far as practicable to a
single set of circumstances. A later pleading may
refer by number to a paragraph in an earlier pleading.
If doing so would promote clarity, each claim founded
on a separate transaction or occurrence ... must be
stated in a separate count or defense.
Rule 18(a) controls the joinder of claims.
In general, “[a]
party asserting a claim ... may join as independent or
alternative claims, as many claims as it has against an opposing
party.”
Rule 20(a)(2) controls the permissive joinder of defendants
in pro se prisoner actions as well as other civil actions.
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Persons ... may be joined in one action as
defendants if:
(A) any right to relief is asserted against them
jointly, severally, or in the alternative with respect
to or arising out of the same transaction, occurrence,
or series of transactions or occurrences; and
(B) any question of law or fact common to all
defendants will arise in the action.
(emphasis added).
See, e.g., Pruden v. SCI Camp Hill, 252 Fed.
App’x 436 (3d Cir. 2007); George v. Smith, 507 F.3d 605 (7th Cir.
2007).
In actions involving multiple claims and multiple
defendants, Rule 20 operates independently of Rule 18.
Despite the broad language of Rule 18(a),
plaintiff may join multiple defendants in a single
action only if plaintiff asserts at least one claim to
relief against each of them that arises out of the same
transaction or occurrence and presents questions of law
or fact common to all. If the requirements for joinder
of parties have been satisfied, however, Rule 18 may be
invoked independently to permit plaintiff to join as
many other claims as plaintiff has against the multiple
defendants or any combination of them, even though the
additional claims do not involve common questions of
law or fact and arise from unrelated transactions.
7 Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane,
Federal Practice and Procedure, § 1655 (3d ed. 2009).
The requirements prescribed by Rule 20(a) are to be
liberally construed in the interest of convenience and judicial
economy.
See Swan v. Ray, 293 F.3d 1252, 1253 (11th Cir. 2002).
However, the policy of liberal application of Rule 20 is not a
license to join unrelated claims and defendants in one lawsuit.
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See, e.g., Pruden v. SCI Camp Hill, 252 Fed. App’x 436 (3d Cir.
2007); George v. Smith, 507 F.3d 605 (7th Cir. 2007); Coughlin v.
Rogers, 130 F.3d 1348 (9th Cir. 1997).
Pursuant to Rule 21, misjoinder of parties is not a ground
for dismissing an action.
Instead, a court faced with a
complaint improperly joining parties “may at any time, on just
terms, add or drop a party.
The court may also sever any claims
against a party.”
In this case, Plaintiff’s claims throughout his original,
amended, and second amended complaints span from access to the
law library and excessive force in the South Woods State Prison,
to access to legal materials and medical care in the Northern
State Prison.
In addition, in his amended and second amended
complaints, Plaintiff does not list the parties, their official
positions, and the places of their employment in a clear manner.
Thus, Plaintiff has not asserted at least one claim to relief
against each of them that arises out of the same transaction or
occurrence and presents questions of law or fact common to all.
However, it appears that certain claims from each of
Plaintiff’s complaints may warrant answers from the defendants,
or potential defendants.
Plaintiff should note that when an
amended complaint is filed, the original complaint no longer
performs any function in the case and "cannot be utilized to cure
defects in the amended [complaint], unless the relevant portion
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is specifically incorporated in the new [complaint]."
6 Wright,
Miller & Kane, Federal Practice and Procedure § 1476 (2d ed.
1990) (footnotes omitted).
An amended complaint may adopt some
or all of the allegations in the original complaint, but the
identification of the particular allegations to be adopted must
be clear and explicit.
Id.
To avoid confusion, the safer course
is to file an amended complaint that is complete in itself.
Id.
In this case, Plaintiff has filed three complaints (docket
entries 1, 3, 5).
As noted, each complaint asserts different
claims, and apparently different defendants, yet the complaints
are not clear as to whom Plaintiff seeks to sue for which claims.
For example, in the Amended Complaint (docket entry 3), Plaintiff
mentions an Officer Jackson, but Jackson is not named as a
defendant.
It is unclear to the Court which claims are asserted
against which defendants, and whom Plaintiff would seek to serve
with the complaint(s).
Therefore, to ensure that all his claims are addressed,
Plaintiff must file one, all-inclusive complaint, asserting
properly joined claims and parties, naming proper defendants, and
the allegations against each defendant.
This Court will order
that the case be administratively terminated, without assessing a
filing fee, and will order the Clerk to send Plaintiff a form
complaint.
If Plaintiff wishes to reopen this case, he may file
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a motion to reopen, attaching one all-inclusive complaint as set
forth in this opinion.
CONCLUSION
For the reasons set forth above, Plaintiff's complaint will
administratively terminated.
Plaintiff may file a motion to
reopen this case and file a proper complaint to cure the
deficiencies noted herein.
An appropriate order follows.
/s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
Dated:December 22, 2011
At Camden, New Jersey
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