GREEN et al v. HOLMES et al
Filing
3
MEMORANDUM OPINION FILED. Signed by Judge Renee Marie Bumb on 10/1/13. (js)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_______________________________________
:
DONTE GREEN et al.,
:
: Civil Action No. 13-2752 (RMB)
Plaintiffs,
:
:
v.
:
MEMORANDUM OPINION
:
CHRISTOPHER HOLMES et al.,
:
:
Defendants.
:
_______________________________________
:
This matter comes before the Court upon Plaintiffs’ filing
of a civil complaint (“Complaint”) accompanied by the filing fee,
see Docket Entry No. 1, and an application by Plaintiff Donte
Green (“Green”) seeking service of the Complaint upon all named
Defendants by the U.S. Marshal, and it is appearing that:
“Green [is] an inmate . . . serving a fourteen-year sentence
with a minimum ten-year, eleven-month period of parole
ineligibility.”
Green v. New Jersey Dep’t of Corr., 2011 N.J.
Super. Unpub. LEXIS 561 (N.J. Super. Ct. App. Div. Mar. 8, 2011);
see also
https://www6.state.nj.us/DOC_Inmate/details?x=1346698&n=0 (New
Jersey Department of Corrections web-page detailing Green’s
aliases and convictions).
Green’s co-plaintiff is Sherri Goldberg (“Goldberg”), a nonincarcerated individual.
See Docket Entry No. 1, at 3.
According to the Complaint, Goldberg visited Green at the
facility of Green’s confinement on October 1, 2011.
See id. at
5. Either during or upon completion of that visit, Green was
charged with a disciplinary infraction based on Goldberg touching
him in a sexually inappropriate manner.
See id. at 5-6.
Following a prison investigation, Green was administratively
adjudicated guilty of a disciplinary infraction and sanctioned to
ten days in isolated confinement, sixty days in segregated
confinement, sixty days of loss of commutation credits and one
year loss of contact visits.1
See id. at 7.
Green’s request to
review a videotape of the October 1, 2011, visitation process for
the purposes of defending against the aforesaid administrative
charges was denied by his prison officials.
See id. at 6.
Green appealed the administrative determination to the
Superior Court of New Jersey, Appellate Division (“Appellate
Division”).2
See id. at 7.
According to the Complaint, the
Appellate Division found Green’s due process rights violated and
remanded the matter to Green’s prison officials for a re-hearing,
with a directive to allow Green to review and offer the videotape
1
The Complaint also asserts that Goldberg was barred from
visiting Green, by means of both contact and non-contact visits,
for one year. See Docket Entry No. 1, at 7.
2
This Court’s own review of the Appellate Division’s
records failed to locate the proceeding asserted in the
Complaint. The sole proceeding this Court located yielded the
decision in Green, 2011 N.J. Super. Unpub. LEXIS 561, where the
Appellate Division upheld Green’s disciplinary sanctions imposed
upon his “use of . . . prohibited substances” and “setting a
fire.” Id. at *1 and n.1
2
into evidence.
See id.
The Complaint states that, upon said re-
hearing, the administrative charges against Green were vacated
and his then-outstanding sanctions nullified except for the oneyear ban on Goldberg’s visits.3
See id.
Plaintiffs maintain that their rights were violated by the
one-year ban on Goldberg’s visits, by Green’s ten-day placement
in isolated confinement, his sixty days in administrative
segregation and other sanctions.
See id. at 7-9.
Plaintiffs
seek $10,350,000 million in compensatory damages and $1 million
in punitive damages.
See id. at 11.
To the extent Plaintiff’s claims are based on the events
challenged before the Appellate Division, or on the facts or
events that could have been raised in the action adjudicated by
the Appellate Division, these claims are barred by the doctrine
of res judicata.4
3
The Complaint suggests that the visitation process was
never videotaped, and that fact prompted the vacatur of Green’s
administrative adjudication. See Docket Entry No. 1, at 7-8.
Although the Complaint does not detail the effect of sanction
nullification, the time-line offered in the Complaint suggests
that the sanction nullified upon re-hearing was the loss of
commutation credits. Green’s challenges to loss of such credits
could not be entertained in this matter in any event, since it is
a habeas rather than civil right claim. See Preiser v.
Rodriguez, 411 U.S. 475, 498-99 (1973); see also Muhammad v.
Close, 540 U.S. 749 (2004). However, since the lost credits were
restored to Green, this habeas aspect presents a distinction
without a difference in light of the Court’s dismissal of this
matter under the doctrine of res judicata.
4
Res judicata precludes claims that either were actually
litigated or could have been litigated during a prior proceeding.
3
To the extent Plaintiffs’ claims could be construed as
asserting challenges unrelated to Plaintiff’s attack on Green’s
disciplinary proceeding, i.e., if their claims could be read as
free-standing challenges based either on Green’s one-year
inability to receive visits with Green, or on Green’s placement
in isolated confinement for ten days and in segregated
confinement for sixty days, the so-construed claims are
meritless.
The only constitutionally protected interest which generally
may be created by a prison regulation is one to be free from a
condition which results in “atypical and significant hardship” in
relation to the unusual incidents of imprisonment.
Conner, 515 U.S. 472 (1995).
See Sandin v.
An inability to receive visitors is
not atypical and unusually harsh compared to the ordinary
R & J Holding Co. v. Redevelopment Auth. of Cnty. of Montgomery,
670 F.3d 420, 427 (3d Cir. 2011). Here, the Appellate Division
action detailed in the Complaint precludes Plaintiffs from reraising their adjudicated and related challenges. Moreover, even
if this Court were to hypothesize that Plaintiffs did not prevail
in their Appellate Division matter, as they claim in their
Complaint, Plaintiff would still be barred from re-litigation of
their claims under a narrower court teaching, the Rooker-Feldman
doctrine, see District of Columbia Court of Appeals v. Feldman,
460 U.S. 462 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413
(1923), because – short of two narrow exceptions inapplicable
here – the Rooker-Feldman doctrine bars the losing party in a
state court litigation from obtaining federal review of the same
claims. See ASARCO Inc. v. Kadish, 490 U.S. 605 (1989).
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circumstances contemplated by a prison sentence.5
Indeed, there
is no absolute constitutional right to visitation. See Kentucky
Dept. of Corrections v. Thompson, 490 U.S. 454, 460 (1989) (there
is no substantive due process right to “unfettered visitation”);
Neumeyer v. Beard, 301 F. Supp.2d 349, 351 (M.D. Pa. 2004),
aff’d, 421 F.3d 210 (3d Cir. 2005) (convicted prisoners and their
families and spouses have no “constitutional right to visitation”
other than with legal counsel); see also White v. Keller, 438 F.
Supp. 110, 115-18 (D. Md. 1977) (holding that neither prisoners
nor prospective visitors have constitutional right to prison
visitation), aff’d, 588 F.2d 913 (4th Cir. 1978).
Removal from
society is a fundamental incident of imprisonment and, where
visitation is permitted, it is often narrowly circumscribed.
See
Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 461
(1989) (denying an inmate prison visitation with his mother is
well within ordinarily contemplated terms of imprisonment).
The
Supreme Court has recognized, time and again, that the
Constitution does not require that inmates be allowed visits when
5
See Parke v. Lancaster County Prison, 1995 U.S. Dist.
LEXIS 22618 (E.D. Pa. 1995) (detailing the same); see also
Flanagan v. Shively, 783 F. Supp. 922, 934 (M.D. Pa.) (neither
convicted prisoners nor their family members have an inherent
constitutional right to visitation. “Prison authorities have
discretion to curtail or deny visitation if they deem
appropriate, and no due process right is implicated in the
exercise of that discretion"), aff’d, 980 F.2d 722 (3d Cir.
1992), cert. denied, 510 U.S. 829 (1993); accord Buehl v. Lehman,
802 F. Supp. 1266, 1270 (E.D. Pa. 1992)(visitation is a privilege
subject to the discretion of prison authorities).
5
prison administrators determine, in their sound discretion, that
such visits jeopardize the security of the institution or
conflict with an orderly administration of the same for one
reason or another.
(1984).6
See Block v. Rutherford, 468 U.S. 576, 589
Furthermore, to the extent that Green’s part of the
challenges could be construed as a First Amendment claim, his
allegations are facially deficient since he did not allege that
he was barred from all contacts with his family and friends,
including contacts by mail and telephone.7
See Thorne v. Jones,
765 F.2d 1270, 1273-74 (5th Cir. 1985) (reading the challenge as
a First Amendment attack and finding no associational right to
visitation); see also Tormasi v. Hayman, 2011 U.S. Dist. LEXIS
6
The Supreme Court elaborated on that holding pointing out
that “[w]ithdrawing visitation privileges is a proper and even
necessary management technique to induce compliance with the
rules of inmate behavior.” Overton v. Bazzetta, 539 U.S. 126,
134 (2003). The Court of Appeals has similarly concluded that a
legitimate prohibition on visititation is acceptable even if it
implicates a fundamental right, such as family relationships.
See Inmates of Allegheny County v. Pierce, 612 F.2d 754, 759 (3d
Cir. 1979). A fortiori, one’s self-classification as a “fiancé”
or “fiancee” of an inmate cannot salvage one’s claims. See Toney
v. Walsh, 2013 U.S. Dist. LEXIS 4136 (M.D. Pa. Jan. 10, 2013)
(dismissing an inmate’s challenges based on the disciplinary
finding of infraction as a result of a visit where an officer
determined that the inmate’s fiancee was touching him in a
sexually inappropriate manner and barring the alleged fiancee
from visiting the inmate indefinitely).
7
Even if this Court were to presume that Goldberg is
Green’s only friend, and that Green has no family members
whatsoever, the Complaint, read in toto, indicates that, during
the year ban on her visits, Goldberg was allowed to communicate
with Green by mail and telephone and did, indeed, so communicate.
6
25849, at *29-30 (D.N.J. Mar. 14, 2011) (a potentially viable
First Amendment challenge may arise solely out of the factual
pattern showing that the inmate was barred from every and all
contact with his family and friends, regardless of the means of
communication).
Green’s ten days in isolated confinement or sixty days in
segregated confinement cannot qualify as an atypical and
significant hardship within the meaning of Sandin, 515 U.S. 472.
See Thomas v. Rosemeyer, 199 F. App’x 195, 197-98 (3d Cir. 2006)
(270 days in the restricted confinement was not an atypical or
significant hardship); Griffin v. Vaughn, 112 F.3d 703, 706 n.2
(3d Cir. 1997) (fifteen months in restricted confinement did not
implicate a liberty interest).
Therefore, this line of claims
is, too, facially deficient.
Correspondingly, Plaintiffs’ challenges will be dismissed as
barred by the doctrine of res judicata with regard to the claims
based on Green’s administrative hearing and all related claims
and, alternatively or in addition, for failure to state a claim
upon which relief can be granted with regard to the allegations
based on Goldberg’s inability to visit Green and/or Green’s
placement in isolated and segregated confinements.
Green’s application for service of process by the U.S.
Marshal will be denied as moot and, in addition, for the lack of
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merit.8
For the foregoing reasons, Plaintiffs’ Complaint will be
dismissed.
Since the deficiencies plaguing the Complaint are not
amenable to cure by re-pleading, leave to amend would be futile,
and the Complaint will be dismissed with prejudice.
See Foman v.
Davis, 371 U.S. 178, 182 (1962); Alvin v. Suzuki, 227 F.3d 107,
121 (3d Cir. 2000); Coventry v. U.S. Steel Corp., 856 F.2d 514,
519 (3d Cir. 1988).
An appropriate Order follows.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: October 1, 2013
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Green’s assertion that he is entitled to service because
he prepaid the filing fee is an error: the Court is obligated to
screen all prisoners’ civil complaint for sua sponte dismissal
upon prepayment of the filing fee or upon the grant of in forma
pauperis status. See 28 U.S.C. § 1915A (listing the grounds for
dismissal and pointing out that “[t]he court shall review, before
docketing, if feasible or . . . as soon as practicable [after
filing] a complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a
governmental entity . . .
[T]he term ‘prisoner’ means any
person incarcerated or detained in any facility”).
Moreover,
even if Plaintiffs’ Complaint were to survive this Court’s sua
sponte review, Plaintiffs would not be entitled to service by the
U.S. Marshal without establishing both Green’s and Goldberg’s
financial need. See, e.g., Venkataram v. City of New York et
al., Civil Action No. 11-0789 (JBS) (N.J.D.), Docket Entry No. 7
(where “Plaintiff paid the $350 filing fee at the commencement of
this action, meaning that Plaintiff is not proceeding in forma
pauperis, and therefore the Court is not obligated to Order the
Marshal to effect service under Fed. R. Civ. P. 4(c)(3) and 28
U.S.C. § 1915; and the Court finding that Plaintiff has not
demonstrated good cause for the public expense of service by U.S.
Marshal to eight defendants”).
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