PETERSON v. HOLMES et al
Filing
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OPINION. Signed by Judge Robert B. Kugler on 11/5/2012. (nz, )n.m.
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BRADLEY C. PETERSON,
Plaintiff,
v.
CHRISTOPHER HOLMES, et al.,
Defendants.
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Civil Action: 12-865 (RBK)
O P I N I O N
APPEARANCES:
Bradley C. Peterson, Pro Se
#408612
South Woods State Prison
215 Burlington Road South
Bridgeton, NJ 08302
KUGLER, District Judge
Plaintiff, Bradley C. Peterson, currently incarcerated at the
South Woods State Prison, Bridgeton, New Jersey, seeks to bring
this action alleging constitutional violations in forma pauperis,
without prepayment of fees.
Based on Plaintiff’s affidavit of
indigence and institutional account statement, the Court will
grant his application to proceed in forma pauperis, 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) 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 following reasons, Plaintiff’s complaint will be
dismissed, without prejudice.
BACKGROUND
Plaintiff seeks to sue various employees of the South Woods
State Prison, including Administrator Christopher Holmes,
Assistant Administrator Judith Gentile, Inmate Remedy Coordinator
Valerie Farrow, Education Department Supervisor Rosellen Muniah,
Supervisor of the Medical Department Lynn Kwap, Inmate Property
Inspector John Doe, Business Office Manager Charlotte Chance, and
Lieutenant Davidson.
(Complt., ¶ 4).
He seeks monetary and other
relief “for blatant destruction of property, withholding of
property, denial of access to the courts, due process of complaint
forms, non-scheduling of routine reviews, lack of medical
treatment, degradation of strip searches, etc.”
(Complt. ¶ 7).
In his Statement of Claims, (Complt., ¶ 6), Plaintiff states
that:
•
Upon arrival at South Woods State Prison on July 19, 2011,
Plaintiff’s property (a radio) was withheld until July 25,
2011.
When he received his radio, it was inoperable.
Plaintiff surmises that John Doe defendant tampered with the
radio.
•
Defendant Holmes denied Plaintiff’s request for compensation
or replacement of the radio, and denied Plaintiff his
television without valid reason.
2
•
Three to six times a week he was strip searched with
“psychological degradation.”
•
The Legal Department refused to allow Plaintiff to make legal
calls on a weekly basis.
Plaintiff was denied access to the
inmate paralegal assistance program, as well as access to law
books.
•
Plaintiff’s inmate remedy forms were either delayed or not
processed from October to December of 2011.
•
Plaintiff did not receive adequate medical treatment, and are
“running a fraudulent medical co-pay scam.”
Plaintiff states
that “Complaints regarding ongoing pain are ignored until
more serious signs of ailments are present.”
Plaintiff
states that he prefers an early diagnosis to treat medical
diseases, and that his health is jeopardized.
•
Plaintiff’s inmate account statements have been withheld.
•
Plaintiff states that Lt. Davidson denied him property on
January 22, 2011 for three days in an attempt “to provoke and
incite anger” causing him emotional distress and sleep
deprivation.
(Complt., ¶ 6).
On June 15, 2012, Plaintiff filed a letter detailing his
medical issues more fully (docket entry 2) and seeking to add
William Briglia, D.O. at South Woods State Prison, as a defendant.
Plaintiff states that he has made complaints about pain, and the
doctor is ignoring the seriousness of his claims, although the
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facility deducts a co-payment from his account.
Plaintiff claims
that his medication has been discontinued, and he has been given a
“placebo” that is ineffective.
(Letter, p. 2).
He contends that
he has records demonstrating that he is at risk for chronic kidney
disease, increased risk for diabetes, and high cholesterol.
He
argues that Dr. Briglia is ignoring his health issues, and
claiming Plaintiff “has nothing to worry about.”
(Letter, p. 3).
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,
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. This action is subject to sua sponte
screening for dismissal under both 28 U.S.C. § 1915(e)(2)(B) and §
1915A.
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)
4
(following Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
The Supreme Court refined the standard for summary dismissal
of a complaint that fails to state a claim in Ashcroft v. Iqbal,
556 U.S. 662 (2009). 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.” Fed. R. Civ. P. 8(a)(2).
Citing its 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, 556 U.S. at 678 (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.” Fowler v. UPMC
Shadyside, 578 F.3d 203 (3d Cir. 2009) (citing Iqbal, 556 U.S. at
676). The Supreme Court's ruling in Iqbal emphasizes that a
plaintiff must demonstrate that the allegations of his complaint
are plausible. See id. at 678–79; see also Twombly, 505 U.S. at
555, & n.3; Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d
Cir. 2011). “A complaint must do more than allege the plaintiff's
entitlement to relief. A complaint has to ‘show’ such an
entitlement with its facts.” Fowler, 578 F.3d at 211 (citing
5
Phillips v. County of Allegheny, 515 F.3d 224, 234–35 (3d Cir.
2008).
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,
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). See also Malleus v. George, 641 F.3d 560, 563 (3d Cir.
2011).
C.
Analysis
1.
Medical Care Claims
Plaintiff asserts that the he has been denied proper medical
care because his complaints of pain are not being taken seriously,
and he is not receiving the medication he prefers, but is
receiving an ineffective placebo instead.
6
The Eighth Amendment proscription against cruel and unusual
punishment requires that prison officials provide inmates with
adequate medical care.
See Estelle v. Gamble, 429 U.S. 97, 103–04
(1976); Rouse v. Plantier, 182 F.3d 192 (3d Cir. 1999).
In order
to set forth a cognizable claim for a violation of his right to
adequate medical care, an inmate must allege: (1) a serious
medical need; and (2) behavior on the part of prison officials
that constitutes deliberate indifference to that need.
See Estelle, 429 U.S. at 106; Natale v. Camden County Correctional
Facility, 318 F.3d 575, 582 (3d Cir. 2003).
To satisfy the first prong of the Estelle inquiry, the inmate
must demonstrate that his medical needs are serious. “Because
society does not expect that prisoners will have unqualified
access to health care, deliberate indifference to medical needs
amounts to an Eighth Amendment violation only if those needs are
‘serious.’”
Hudson v. McMillian, 503 U.S. 1, 9
(1992).
The
Third Circuit has defined a serious medical need as: (1) “one that
has been diagnosed by a physician as requiring treatment;” (2)
“one that is so obvious that a lay person would recognize the
necessity for a doctor's attention;” or (3) one for which “the
denial of treatment would result in the unnecessary and wanton
infliction of pain” or “a life-long handicap or permanent loss.”
Atkinson v. Taylor, 316 F.3d 257, 272–73 (3d Cir. 2003) (internal
quotations and citations omitted); see also Monmouth County
7
Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 347
(3d Cir. 1987), cert. denied, 486 U.S. 1006 (1988).
The second element of the Estelle test requires an inmate to
show that prison officials acted with deliberate indifference to
his serious medical need.
See Natale, 318 F.3d at 582 (finding
deliberate indifference requires proof that the official knew of
and disregarded an excessive risk to inmate health or safety).
“Deliberate indifference” is more than mere malpractice or
negligence; it is a state of mind equivalent to reckless disregard
of a known risk of harm.
837–38 (1994).
See Farmer v. Brennan, 511 U.S. 825,
Furthermore, a prisoner's subjective
dissatisfaction with his medical care does not in itself indicate
deliberate indifference.
See Andrews v. Camden County, 95 F.
Supp.2d 217, 228 (D.N.J. 2000).
Similarly, “mere disagreements
over medical judgment do not state Eighth Amendment claims.” White
v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990). “Courts will
disavow any attempt to second-guess the propriety or adequacy of a
particular course of treatment ... [which] remains a question of
sound professional judgment.”
Inmates of Allegheny County Jail v.
Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (internal quotation and
citation omitted).
Even if a doctor's judgment concerning the
proper course of a prisoner's treatment ultimately is shown to be
mistaken, at most what would be proved is medical malpractice and
not an Eighth Amendment violation.
105–06; White, 897 F.3d at 110.
8
See Estelle, 429 U.S. at
The Third Circuit has found deliberate indifference where a
prison official: (1) knows of a prisoner's need for medical
treatment but intentionally refuses to provide it; (2) delays
necessary medical treatment for non-medical reasons; or (3)
prevents a prisoner from receiving needed or recommended
treatment.
See Rouse, 182 F.3d at 197.
The court also has held
that needless suffering resulting from the denial of simple
medical care, which does not serve any penological purpose,
violates the Eighth Amendment.
See Atkinson, 316 F.3d at 266. See
also Monmouth County Correctional Institutional Inmates, 834 F.2d
at 346 (“deliberate indifference is demonstrated ‘[w]hen ...
prison authorities prevent an inmate from receiving recommended
treatment for serious medical needs or deny access to a physician
capable of evaluating the need for such treatment.’”); Durmer v.
O'Carroll, 991 F.2d 64 (3d Cir. 1993); White v. Napoleon, 897 F.2d
103 (3d Cir. 1990).
Here, Plaintiff’s vague allegations of “pain,” do not pass
Iqbal’s sua sponte screening plausibility requirement, because he
has not pled a “serious medical need.”
However, even assuming
Plaintiff’s pain is a serious medical need, Plaintiff has not
sufficiently pled deliberate indifference.
Plaintiff’s
allegations in the complaint and supplemental letter show that he
has seen doctors for his complaints and has been placed on
medication, and told “not to worry.”
Plaintiff’s dissatisfaction
with his treatment, at best, could show medical malpractice or
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medical negligence, which are not actionable claims under § 1983.
See Estelle, 429 U.S. at 105–06; White, 897 F.3d at 110 (even if a
doctor's judgment concerning the proper course of a prisoner's
treatment ultimately is shown to be mistaken, at most what would
be proved is medical malpractice and not an Eighth Amendment
violation).
Because it is possible that Plaintiff could provide
additional facts to support a claim as to his medical issues,
however, this Court will dismiss this denial of medical care
claims, without prejudice, for failure to state a claim, pursuant
to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1).
2.
Property Claims
Next, Plaintiff asserts that his property was tampered with
prior to his receiving it at South Woods, and that he was denied
possession of his television.
An unauthorized deprivation of property by a state actor,
whether intentional or negligent, does not constitute a violation
of the procedural requirements of the Due Process Clause of the
Fourteenth Amendment if a meaningful post-deprivation remedy for
the loss is available.
See Hudson v. Palmer, 468 U.S. 517, 530–36
(1984); Parratt v. Taylor, 451 U.S. 527, 543–44 (1981), overruled
in part on other grounds, Daniels v. Williams, 474 U.S. 327, 328
(1986).
In Logan v. Zimmerman Brush Co., 455 U.S. 422, 435–36
(1982), the Supreme Court explained, however, that
post-deprivation remedies do not satisfy the Due Process Clause if
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the deprivation of property is accomplished pursuant to
established state procedure rather than through random,
unauthorized action.
Here, if the action of the Defendants was unauthorized,
Plaintiff has failed to state a claim because New Jersey does
provide a post-deprivation remedy for unauthorized deprivation of
property by public employees.
See New Jersey Tort Claims Act,
N.J. Stat. Ann. §§ 59:1–1, et seq. (2001).
In addition, as
Plaintiff admits, he had an administrative grievance procedure
available to him.
Plaintiff has alleged no facts suggesting that
Defendants deprived him of property pursuant to an established
state procedure, nor has this Court located any such established
procedure.
To the contrary, established state procedures require
prison officials to preserve personal property of inmates.
See,
e.g., N.J. Admin. Code §§ 10A:1–11.1, et seq. (2001).
Plaintiff’s property claims must be dismissed for failure to
state a claim upon which relief may be granted, pursuant to 28
U.S.C. § 1915(e)(2)(B) and § 1915A(b).
3.
Legal Access Claims
Plaintiff states that he has been denied access to legal
materials and the inmate paralegal, and that he has been denied
his right to make legal phone calls.
The right of access to the courts derives from the First
Amendment right to petition and the due process clauses of the
Fifth and Fourteenth Amendments.
The right of access to the
11
courts requires that “adequate, effective, and meaningful” access
be provided to inmates wishing to challenge their criminal charge,
conviction, or conditions of confinement.
430 U.S. 817, 822 (1977).
See Bounds v. Smith,
Prison officials must “give prisoners a
reasonably adequate opportunity to present claimed violations of
fundamental constitutional rights to the Courts.” Id. at 825.
However, as the Supreme Court explained:
... Bounds does not guarantee inmates the wherewithal
to transform themselves into litigating engines capable
of filing everything from shareholder derivative
actions to slip-and-fall claims. The tools it requires
to be provided are those that the inmates need in order
to attack their sentences, directly or collaterally,
and in order to challenge the conditions of their
confinement. Impairment of any other litigating
capacity is simply one of the incidental (and perfectly
constitutional) consequences of conviction and
incarceration.
Lewis v. Casey, 518 U.S. 343, 355 (1996).
Moreover, a prisoner alleging a violation of the right of
access must show that prison officials caused previous or imminent
“actual injury” by hindering efforts to pursue such a claim or
defense.
See Lewis, 518 U.S. at 348–51, 354–55; Oliver v. Fauver,
118 F.3d 175, 177–78 (3d Cir. 1997).
As the Supreme Court
directed:
[The inmate] might show, for example, that a complaint
he prepared was dismissed for failure to satisfy some
technical requirement which, because of deficiencies in
the prison's legal assistance facilities, he could not
have known. Or that he had suffered arguably actionable
harm that he wished to bring before the courts, but was
so stymied by inadequacies of the law library that he
was unable to file even a complaint.
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Lewis, 518 U.S. at 351.
Here, Plaintiff fails to allege any actual injury due to the
alleged denial of access to the courts. He does not allege that he
was unable to file this or any other complaint in the courts, or
that any court cases were dismissed because he did not have timely
access to the courts.
He has not provided any facts as to how
Defendants’ actions have affected his ability to pursue any legal
claims.
Thus, the allegations in the Complaint are too conclusory
to show a denial of court access sufficient to rise to the level
of a constitutional deprivation under the Iqbal pleading standard.
Furthermore, Plaintiff’s claims regarding denial of legal
calls are also without merit, as pled.
Inmates' ability to
communicate with their lawyers is protected by their
constitutional right of access to the courts and may implicate the
Sixth Amendment right to assistance of counsel in criminal
proceedings. See Aswegan v. Henry, 981 F.2d 313 (8th Cir. 1992)
(analyzing telephone use as access-to-courts issue).
However, it is established that a prisoner “has no right to
unlimited telephone use.”
Washington v. Reno, 35 F.3d 1093, 1100
(6th Cir. 1994) (quoting Benzel v. Grammer, 869 F.2d 1105, 1108
(8th Cir. 1989)).
Rather, an inmate's telephone access is
“subject to rational limitations in the face of legitimate
security interests of the penal institution.”
Id. (quoting
Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir. 1986)).
Correspondingly, an inmate's right to communicate even with
13
his/her legal counsel is not unlimited.
See Ingalls v. Florio,
968 F. Supp. 193, 203–04 (D.N.J. 1997) (“[L]imited access to
telephone calls ... is not a constitutional violation so long as
inmates can communicate with their counsel in writing or in person
by visits.”); Aswegan, 981 F.2d at 314 (upholding a state
penitentiary's policy of prohibiting prisoners from making
toll-free telephone calls, even to their attorneys, because the
prisoners had alternative methods of exercising the right to
access the courts, and had not alleged any irreparable harm or
prejudice from the policy).
Hence, if an inmate has an
alternative method to communicate freely and privately with his
counsel, it is less likely that the restrictions on telephone use
will rise to the level of a constitutional violation.
See
Ingalls, 968 F. Supp. at 203–04; Asweqan, 981 F.2d at 314.
In sum:
three questions relevant to issue of telephone access
to counsel and the courts are (1) whether [the
prisoner] has alleged facts giving rise to an inference
that no legitimate penological interest was served by
the ... Defendants' actions, (2) whether he has
sufficiently alleged that the ... Defendants' actions
caused him an ‘actual injury,’ and (3) whether he had
alternative avenues through which he could communicate
with his attorneys and the courts.
Aruanno v. Main, 2010 WL 251590 at *10 (D.N.J. Jan. 15, 2010).
Here, Plaintiff has failed to allege any injury he suffered
as a result of his inability to call his attorney.
Nor does
Plaintiff allege that he was prevented from communicating with the
14
attorney via alternative avenues such as in writing and in-person
visits.
Based on the foregoing, Plaintiff’s denial of legal access
and legal phone call claims will also be dismissed, without
prejudice.
4.
Claims Regarding Grievances
Plaintiff complains that his grievances were ignored or not
processed.
“[T]he First Amendment does not impose any affirmative
obligation on the government to listen, to respond or ... to
recognize [a grievance].”
Smith v. Arkansas State Highway Emp.,
Local 1315, 441 U.S. 463, 465 (1979); Minnesota State Bd.
Community Colleges v. Knight, 465 U.S. 271, 285 (1984) (“Nothing
in the First Amendment or in this Court's case law interpreting it
suggests that the rights to speak, associate, and petition require
government policymakers to listen or respond to individuals'
communications”).
Alternatively, construing these challenges as due process
claims, they would also be subject to dismissal as facially
meritless.
“Prisoners are not constitutionally entitled to a
grievance procedure and the state creation of such a procedure
does not create any federal constitutional rights.”
Horn, 971 F. Supp. 943, 947 (E.D. Pa. 1997).
Wilson v.
“Thus, a failure to
respond to an inmate's grievances “does not violate his rights to
due process and is not actionable.”
15
Stringer v. Bureau of
Prisons, 145 F. App'x 751, 753 (3d Cir. 2005) (citing Antonelli v.
Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996)).
These claims must be dismissed for failure to state a claim
upon which relief may be granted.
5.
Strip Search Claims
Finally, Plaintiff inserts a vague allegation in his
Statement of Claims: “strip searches/psychological degradation 3-6
times a week.”
(Complt., ¶ 6).
Inmates do not have a Fourth Amendment right to be free of
strip searches, which may be conducted by prison officials without
probable cause provided that the search is conducted in a
reasonable manner. See Bell v. Wolfish, 441 U.S. 520, 99 S.Ct.
1861, 60 L.Ed.2d 447 (1979); Ostrander v. Horn, 145 F. Supp.2d
614, 620 (M.D. Pa. 2001). “Maintaining institutional security and
preserving internal order and discipline are essential goals that
may require limitation or retraction of the retained
constitutional rights.”
Bell, 441 U.S. at 546.
As such, the
alleged infringement of a prisoner's constitutional rights must be
evaluated in the light of the central objective of prison
administration, safeguarding institutional security.
See id.
Prison officials should be accorded “wide-ranging deference in the
adoption and execution of policies and practices that in their
judgment are needed to preserve internal order and discipline and
to maintain institutional security.”
Bell, 441 U.S. at 547; see
also Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington,
16
566 U.S. ––––, 132 S. Ct. 1510, –––L.Ed.2d ––––, 2012 WL 1069092,
at *7 (2012).
“[I]n the absence of substantial evidence in the
record to indicate that the [prison] officials have exaggerated
their response to [legitimate security interests,] courts should
ordinarily defer to their expert judgment in such matters.”
Bell,
441 U.S. at 548 (citation omitted); Florence, ––– U.S. ––––, at
––––, 132 S.Ct. 1510, –––L.Ed.2d ––––, at ––––, 2012 WL 1069092,
at *7 (same).
Thus, in the context of the Fourth Amendment, courts must
conduct a balancing of the need for a particular search against
the invasion of personal rights that the search entails.
“Courts
must consider the scope of the particular intrusion, the manner in
which it is conducted, the justification for initiating it, and
the place in which it is conducted.”
Bell, 441 U.S. at 559. Strip
searches that are excessive, vindictive, harassing, or unrelated
to any legitimate penological interest may violate the Fourth
Amendment. See e.g. Michenfelder v. Sumner, 860 F.2d 328, 332 (9th
Cir. 1988).
Here, Plaintiff does not allege facts, sufficient under the
Iqbal pleading standard, to demonstrate any constitutional wrongs
with regard to the alleged strip searches.
This claim will be
dismissed, without prejudice.
CONCLUSION
Therefore, for the reasons set forth above, the Complaint
will be dismissed without prejudice, in its entirety, pursuant to
17
both 28 U.S.C. §§ 1915(e)(2) (B)(ii) and 1915A(B)(1). An
appropriate order follows.
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
Dated: November 5, 2012
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