NASH v. NEW JERSEY DEPARTMENT OF CORRECTIONS et al

Filing 2

OPINION. Signed by Chief Judge Jerome B. Simandle on 5/13/2013. (nz, )n.m.

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LORENZO P. NASH, SR.,

Civil Action No. 12-7741 (JBS)

Plaintiffs,
OPINION
v.

N.J. DEPT. OF CORRECTIONS, et
al.,
Defendants.

APPEARANCES:
LORENZO P. NASH, SR., #764310B
Southern State Correctional Facility
4295 Route #47
Delmont, NJ 08314
SIMANDLE, Chief Judge:
Lorenzo P. Nash, Sr., an inmate who is confined at Southern
State Correctional Facility (“SSCF”), seeks to file a Complaint
asserting violation of rights under 42 U.S.C. § 1983 without
prepayment of the filing fee.

This Court will grant Plaintiff’s

application to proceed in forma pauperis.

Having thoroughly

reviewed the Complaint, as required by 28 U.S.C. §§
1915(e)(2)(B) and 1915A, this Court will dismiss the federal
claims raised in the Complaint and decline to exercise
supplemental jurisdiction. 1

1

This Court makes no determination as to the merits of any claim
Plaintiff may have arising under New Jersey law.

I.

BACKGROUND

Lorenzo P. Nash, Sr., brings this Complaint for violation
of his constitutional rights under 42 U.S.C. § 1983 against the
New Jersey Department of Corrections (“NJDOC”), NJDOC Hearing
Officer Elizabeth DiBenedetto, and C. Ray Hughes, Administrator
of SSCF.

(ECF No. 1 at p.1.)

The action arises from an

administrative disciplinary proceeding against Nash while he was
confined at SSCF.

Nash asserts the following facts in the body

of the Complaint:
On 12/21/2010, I appeared before Hearing Officer
Elizabeth DiBenedetto for the disciplinary charges of
.802/.754, I offered testimony as to my unawareness of
the other inmate’s attempt, and that I had no p[r]ior
association or communication with the inmate. My
testimony went ignored and I received 10 days
detention an[d] 60 days loss of comp time. I was
removed from my work detail as a paralegal. I
appealed to the administrator C. Ray Hughes and after
review he upheld the hearing officer’s decision
although it was arbitrary and not derived from any
proof that I had attempted to circumvent the
Department’s rules. After appealing my case to the
Superior Court Appellate Division, I was afforded a
re-hearing and adjudicated not guilty.
After being adjudicated not guilty at the re-hearing,
I submitted a remedy for reimbursement of my out-ofpocket expenses with the facility’s administration. I
was told that I would have to proceed further and I
wrote the New Jersey Department of Corrections
Commissioner and was told that I would need to file
with the Court of New Jersey . . . . This civil
Complaint comes after filing with the Bureau of Risk
Management Tort and Contract Unit over 6 months prior
and not receiving any response from them.
2

(ECF No. 1 at 3-4.)
For violation of his constitutional rights, Nash requests
the following relief:

reimbursement for out-of-pocket expenses,

including lost pay, and damages.
II.

(ECF No. 1 at 7.)

STANDARD OF REVIEW

The Prison Litigation Reform Act (‟PLRA”), Pub. L. No. 104134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996),
requires a District Court to screen a complaint in a civil
action in which a plaintiff is proceeding in forma pauperis or a
prisoner is seeking redress against a government employee or
entity, and to sua sponte dismiss any claim if the Court
determines that it is frivolous, malicious, fails to state a
claim on 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), 1915A.
To survive dismissal “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim for relief
that is plausible on its face.’ 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.'”

Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (citation omitted).

The plausibility standard “asks

for more than a sheer possibility that a defendant has acted
3

unlawfully.

Where a complaint pleads facts that are merely

consistent with a defendant’s liability, it stops short of the
line between possibility and plausibility of entitlement to
relief,” and will be dismissed.

Id. at 678 (citations and

internal quotation marks omitted); Fowler v. UPMC Shadyside, 578
F.3d 203, 210-211 (3d Cir. 2009) (“a complaint must do more than
allege the plaintiff's entitlement to relief.

A complaint has

to “show” such an entitlement with its facts”) (emphasis
supplied).

The Court is mindful, however, that the sufficiency

of this pro se pleading must be construed liberally in favor of
the plaintiff, even after Iqbal.

See Erickson v. Pardus, 551

U.S. 89 (2007).
III.

DISCUSSION

Section 1983 of Title 28 of the United States Code 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.
42 U.S.C. § 1983.

4

To recover under 42 U.S.C. § 1983, a plaintiff must show
two elements:

(1) a person deprived him or caused him to be

deprived of a right secured by the Constitution or laws of the
United States, and (2) the deprivation was done under color of
state law.

See West v. Atkins, 487 U.S. 42, 48 (1988).

This

Court construes the Complaint as attempting to assert two
claims:

(1) Nash was deprived of liberty without due process

when he spent 10 days in disciplinary detention, and (2) Nash
was deprived of property without due process of law.
A.

Due Process – Deprivation of Liberty
A prisoner facing the loss of a legally cognizable liberty

interest following disciplinary proceedings has a due process
right to certain procedural protections.
McDonnell, 418 U.S. 539, 566-67 (1974).

See Wolff v.
However, a prisoner is

deprived of a liberty interest protected by the Due Process
Clause only when the conditions of confinement “impose[]
atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life.”
U.S. 472, 484 (1995).

Sandin v. Conner, 515

In considering whether the conditions

impose atypical and significant hardship in relation to the
ordinary incidents of prison life, a court must consider “two
factors:

1) the amount of time the prisoner was placed into . .

. segregation; and 2) whether the conditions of his confinement
5

. . . were significantly more restrictive than those imposed
upon other inmates in solitary confinement.”

Shoats v. Horn,

213 F. 3d 140, 144 (3d Cir. 2000).
In this Complaint, Nash complains that he was wrongfully
placed in disciplinary detention for 10 days.

Because the Third

Circuit has held that confinement in segregation for 15 months
is not an atypical and significant hardship, see Griffin v.
Vaughn, 112 F.3d 703, 708 (3d Cir. 1997) (“[E]xposure to the
conditions of administrative custody for periods of as long as
15 months . . . did not deprive [the inmate] of a liberty
interest”), Nash’s 10-days in segregated confinement did not
deprive him of a protected liberty interest.

See Velasquez v.

DiGuglielmo, 2013 WL 1122717 at *5 (3d Cir. Mar. 19, 2013)
(“four-month confinement in the [restricted housing unit] does
not constitute an atypical or significant hardship”); Smith v.
Mensinger, 293 F.3d 641, 654 (3d Cir. 2002)(seven months in
disciplinary confinement did not impose atypical and significant
hardship).

Because Plaintiff’s allegations fail to establish

that he was deprived of a protected liberty interest, his due
process deprivation of liberty claim necessarily fails and will
be dismissed.

6

B.

Due Process – Deprivation of Property
Nash complains that he spent money on appealing the

disciplinary sanction to the Appellate Division of the New
Jersey Superior Court, and he lost income from his paralegal job
while he was improperly confined in disciplinary detention.
This Court construes these allegations as an attempt to assert a
claim for deprivation of property without due process.
The Due Process Clause prohibits a state or local
government from depriving a person of property without providing
due process of law.

See Greenholtz v. Inmates of Nebraska Penal

and Correctional Complex, 442 U.S. 1, 7 (1979).

To analyze a

due process claim, a court conducts a two-part inquiry:

a court

determines whether the plaintiff “was deprived of a protected
interest, and, if so, what process was his due.”

Logan v.

Zimmerman Brush Co., 455 U.S. 422, 428 (1982); see also Holman
v. Hilton, 712 F.2d 854, 858 (3d Cir. 1983).

Although Nash may

have a property interest in the money he expended to appeal, cf.
Tillman v. Lebanon County Correctional Facility, 221 F. 3d 410,
421 (3d Cir. 2000); Reynolds v. Wagner, 128 F. 3d 166, 179 (3d
Cir. 1997), his due process property claim nevertheless fails as
a matter of law because the New Jersey Tort Claims Act
(“NJTCA”), N.J. Stat. Ann. § 59:1-1 et seq., and the prison’s
grievance procedure, see N.J. Admin. Code § 10A:1-4.1(a)(1)
7

(effective June 16, 2008), provide all the process that is due.
See Holman, 712 F.2d at 857; Asquith v. Volunteers of America, 1
F. Supp.2d 405, 419 (D.N.J. 1998), aff'd 186 F.3d 407 (3d Cir.
1999).

Because the NJTCA and inmate remedy procedures were

available post-deprivation remedies providing all the process
which is due, Nash’s due process deprivation of property claim
fails and this Court will dismiss it for failure to state a
claim upon which relief may be granted.

See id.; Pettaway v.

SCI Albion, 2012 WL 1850919 (3d Cir. May 22, 2012) (dismissing
as frivolous inmate’s appeal challenging order dismissing his
deprivation of property claim); Crosby v. Piazza, 465 Fed. App’x
168, 172 (3d Cir. 2012) (affirming dismissal of inmate
deprivation of property claim on ground that administrative
grievance procedure provided adequate post-deprivation remedy);
Tillman v. Lebanon County Correc. Fac., 221 F.3d 410, 422 (3d
Cir. 2000) (prison’s grievance program provided adequate postdeprivation remedy for inmate’s deprivation of property claim).
C.

Amended Complaint
Although this Court generally grants leave to file an

amended complaint, see DelRio-Mocci v. Connolly Properties Inc.,
672 F.3d 241, 251 (3d Cir. 2012); Shane v. Fauver, 213 F.3d 113,
115 (3d Cir. 2000), this Court will not grant leave to amend,
with regard to the federal claims under the due process clause
8

as discussed above, since amendment in this case would be
futile.
D.

Supplemental Jurisdiction
"Supplemental jurisdiction allows federal courts to hear

and decide state-law claims along with federal-law claims when
they are so related to claims in the action within such original
jurisdiction that they form part of the same case or
controversy."

Wisconsin Dept. of Corrections v. Schacht, 524

U.S. 381, 387 (1998) (citation and internal quotation marks
omitted).

Where a district court has original jurisdiction

pursuant to 28 U.S.C. § 1331 over federal claims and
supplemental jurisdiction over state claims pursuant to 28
U.S.C. § 1367(a), the district court has discretion to decline
to exercise supplemental jurisdiction if it has dismissed all
claims over which it has original jurisdiction.

28 U.S.C. §

1367(c)(3); Growth Horizons, Inc. v. Delaware County,
Pennsylvania, 983 F.2d 1277, 1284-1285 (3d Cir. 1993).

In this

case, this Court is dismissing every claim over which it had
original subject matter jurisdiction at an early stage in the
litigation and declines to exercise supplemental jurisdiction
over any claims Plaintiff may have under New Jersey law. 2

2

Nor does this Court make any determination as to the merits of
any such claim(s).
9

IV.

CONCLUSION

Based on the foregoing, this Court will grant Plaintiff’s
application to proceed in forma pauperis, dismiss the federal
claims in the Complaint, and decline to exercise supplemental
jurisdiction.

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief Judge

Dated:

May 13

, 2013

10