NERI v. NEW JERSEY STATE PAROLE BOARD et al
Filing
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OPINION. Signed by Judge Robert B. Kugler on 8/26/2013. (nz, )n.m.
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
PHILLIP G. NERI,
:
:
Plaintiff,
:
:
v.
:
:
NEW JERSEY STATE PAROLE BOARD, et al., :
:
Defendants.
:
_________________________________________ :
Civ. No. 13-3722 (RBK) (AMD)
OPINION
ROBERT B. KUGLER, U.S.D.J.
I.
INTRODUCTION
Plaintiff is currently incarcerated at the Mid-State Correctional Facility in Wrightstown,
New Jersey. He is proceeding pro se with a civil rights complaint filed pursuant to 42 U.S.C. §
1983. On June 28, 2013, the Court administratively terminated the case as Plaintiff has neither
paid the applicable filing fee nor submitted an application to proceed in forma pauperis.
Subsequently, Plaintiff submitted an amended complaint along with an application to proceed in
forma pauperis. Accordingly, the Clerk will be ordered to reopen this case. Based on the in
forma pauperis application, the Court will grant plaintiff’s application and will order the Clerk to
file the amended complaint.
At this time, the Court must review the amended complaint pursuant to 28 U.S.C. §§
1915(e)(2)(B) 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 suit. For the reasons set forth below, the amended
complaint will be dismissed for failure to state a claim, and Plaintiff will be granted leave to
amend.
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II.
BACKGROUND
Plaintiff brings this civil rights action against Defendants, the New Jersey State Parole
Board, James Plouis, Chief Craig Shindewolf, Officer D’Amico, Officer Shirley Brown and
Hearing Officer Carla Shabazz. The following factual allegations are taken from the complaint,
and are accepted as true for purposes of screening the complaint only.
The thrust of Plaintiff’s complaint arises from his parole revocation proceedings that
occurred earlier this year. Plaintiff’s parole was recommended to be revoked by Hearing Officer
Shabazz on February 22, 2013 based on the following violations:
PSL Condition # 20 – Refrain from any contact with any group,
club, association or organization that engages in, promotes or
encourages illegal or sexually deviant behavior.
PSL Special Condition – Refrain from possession or use of a
computer with Internet access without prior approval of the
District Parole Supervisor.
PSL – Special Condition – Refrain from using any computer
and/or device to create any social networking profile or to access
any social networking service.
(Civ. No. 13-4555, Dkt. No. 1 at p. 15.) 1 On April 24, 2013, the New Jersey State Parole Board
adopted the recommendation of Hearing Officer Shabazz. (See id.)
Plaintiff states that Defendant Brown went online to an adult fantasy website and
downloaded, printed or purchased incriminating evidence against Plaintiff so that it made
Plaintiff look like he was violating the terms of his parole. (See Dkt. No. 5 at p. 9.) He claims
that his Fifth Amendment Due Process rights were violated by this evidence tampering. (See id.)
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The Court takes judicial notice of the Parole Board’s decision that Plaintiff attached to his
habeas petition filed in this Court in Civ. No. 13-4555. See Grynberg v. Total Compagnie
Francaise Des Petroles, 891 F. Supp. 2d 663, 675 (D. Del. 2012) (taking judicial notice of
opinions and court filings from various related cases); Barlow v. United States, No. 10-2770,
2012 WL 274011, at *3 n.4 (D.N.J. Jan. 31, 2012) (“[T]he Court may take judicial notice of
court records.”) (citing Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007)).
2
Plaintiff also asserts that Defendant D’Amico yelled and verbally threatened Plaintiff
“during a ‘biased’ and unjust ‘polygraph” test.” (Id. at p. 10.) Plaintiff also states that
Defendant D’Amico fabricated what took place during the polygraph exam and falsified police
reports. (See id.)
Plaintiff further alleges that he wrote to Defendants Plouis and Schindewolf several times
explaining the constitutional violations arising from his parole revocation proceedings to no
avail. (See id. at p. 7.)
Plaintiff raises several claims related to his parole revocation proceedings. He first
claims that his Fifth Amendment right against self-incrimination was violated when he was
forced to answer incriminating questions without the protection of an attorney during a
polygraph examination on October 4, 2012. (See id. at p. 11.) Next, Plaintiff contends that he
was deprived of property without due process of law because he “lost all of his worldly
possessions, including rare stamp collection, coin collection, comic books, and baseball cards, as
well as his apartment, car, clothes and everything else due to unethical undocumented delays in
the Parole Revocation Process.” (See id.) He further contends that his Sixth Amendment right to
a speedy trial was violated.
Additionally, Plaintiff argues that his Fourth Amendment rights were violated due to an
illegal search and seizure by Defendant Brown when she searched Plaintiff’s apartment on
October 4, 2012. He states that she was “armed with illegally obtained false probable cause
searches.” (See id. at p. 12.)
Plaintiff also contends that the Code of Professional Conduct was violated at his parole
revocation proceedings. Specifically, he claims that Defendant Brown lied under oath at his
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hearing. Furthermore, he alleges that Defendant Shabazz did not impartially and diligently
perform her duties during the hearing. (See id. at p. 13.)
In addition to raising the claims cited above related to his parole revocation proceeding,
Plaintiff also alleges as follows:
Where [sic] at CRAF [Central Reception and Assignment Facility],
the plaintiff is locked down 23 hours a day, like a death row
inmate, has no books read, no way to practice his religion, no
church services, ½ portions of food, mice and roach infestations,
forced by staff to go out in the freezing cold just to have cells
searched and destroyed. Ice cold cells, cold water to shower, no
visits (even thought [sic] there was a memo from Administrator
Evelyn Davis stating Prison Reception Unit inmates could in fact
get visits) Which are direct violations of an inmates [sic] rights as
detailed in the NJDOC inmate handbook, page # 9.
(See id. at p. 12.)
Plaintiff seeks immediate release and that his parole revocation be expunged.
Furthermore, he seeks monetary damages in the amount of $8.5 million.
III.
STANDARD OF REVIEW
A. Standard for Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 132166 to 1321-77 (Apr. 26, 1996) (“PLRA”), district courts must review complaints in those civil
actions in which a prisoner is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B),
seeks redress against a governmental employee or entity, see 28 U.S.C. § 1915A(b), or brings a
claim with respect to prison conditions, see 28 U.S.C. § 1997e. The PLRA directs district courts
to sua sponte dismiss any claim that is frivolous, is 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.
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According to the Supreme Court’s decision in Ashcroft v. Iqbal, “a pleading that offers
‘labels or conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not
do.’” 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To survive sua sponte screening for failure to state a claim 2, the complaint must allege
“sufficient factual matter” to show that the claim is facially plausible. Fowler v. UPMS
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted). “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.” Belmont v. MB Inv. Partners, Inc., 708
F.3d 470, 483 n.17 (3d Cir. 2012) (quoting Iqbal, 556 U.S. at 678). Moreover, while pro se
pleadings are liberally construed, “pro se litigants still must allege sufficient facts in their
complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.
2013) (citation omitted) (emphasis added).
B. Section 1983 Actions
A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of
his constitutional rights. Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, 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, except that in any action brought against a
judicial officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be granted unless a
2
“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012) (per
curiam) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F.
App’x 230, 232 (3d Cir. 2012) (per curiam) (discussing 28 U.S.C. § 1997e(c)(1)); Courteau v.
United States, 287 F. App’x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)).
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declaratory decree was violated or declaratory relief was
unavailable.
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 Harvey v. Plains Tp.
Police Dep’t, 635 F.3d 606, 609 (3d Cir. 2011) (citations omitted); see also West v. Atkins, 487
U.S. 42, 48 (1988)).
IV.
DISCUSSION
The majority of Plaintiff’s complaint concerns his parole revocation proceedings. “It is
well-settled that when a state prisoner is challenging the fact or duration of his confinement, his
sole federal remedy is a writ of habeas corpus, not a § 1983 action.” 3 Williams v. Consovoy, 453
F.3d 173, 177 (3d Cir. 2006) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). In Heck v.
Humphrey, 512 U.S. 477 (1994), the Supreme Court analyzed whether a prisoner could
challenge the constitutionality of his conviction in a suit for damages under § 1983. The
Supreme Court rejected using § 1983 as a vehicle to challenge the lawfulness of the criminal
judgment, stating as follows:
[I]n order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm by actions whose
unlawfulness would render a conviction or sentence invalid, a §
1983 plaintiff must prove that the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination,
or called into question by a federal court’s issuance of a writ of
habeas corpus. 28 U.S.C. § 2254. A claim for damages bearing
that relationship to a conviction or sentence that has not been so
invalidated is not cognizable under § 1983. Thus, when a state
prisoner seeks damages in a § 1983 suit, the district court must
consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence; if it
3
The Court notes that Plaintiff has filed two separate habeas actions in this Court. (See Civ.
Nos. 13-3668 & 13-4555.)
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would, the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been
invalidated.
Heck, 512 U.S. at 486-87. In Williams, 453 F.3d at 177, the Third Circuit determined that a
plaintiff’s § 1983 claims were barred by Heck because success on his claims “would necessarily
demonstrate the invalidity of the Parole Board’s decision” to revoke the plaintiff’s parole. Thus,
in Williams, the Third Circuit held that the Heck bar applied as plaintiff had not shown that the
Parole Board’s decision had been rendered invalid. See id.; see also Connolly v. Arroyo, 293 F.
App’x 175, 177-78 (3d Cir. 2008) (per curiam) (“The duration of Connolly’s confinement after
he was arrested on the parole violator warrant has never been reversed on appeal, declared
invalid by a state tribunal, or called into question by a federal court’s issuance of a writ of habeas
corpus, and he, therefore, has not satisfied Heck’s favorable termination rule.”) (footnote and
citation omitted).
In this case, Plaintiff does not allege in his amended complaint that the Parole Board’s
decision has ever been rendered invalid. Accordingly, Plaintiff’s claims related to his parole
revocation proceedings are barred by Heck as they would necessarily demonstrate the invalidity
of the Parole Board’s decision. Accord Connolly, 293 F. App’x at 177-78; Williams, 453 F.3d at
177.
Nevertheless, as stated above, Plaintiff also alleges in his amended complaint that he has
suffered cruel and unusual punishment based upon the conditions of his confinement while at the
Central Reception and Assignment Facility (“CRAF”) in Trenton, New Jersey. To state a claim
under the Eighth Amendment for cruel and unusual punishment, a plaintiff must allege both an
objective and a subjective component. See Wilson v Seiter, 501 U.S. 294, 298 (1991), see also
Counterman v. Warren Cnty. Corr. Facility, 176 F. App’x 234, 238 (3d Cir. 2006). Only
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“extreme deprivations” are sufficient to make out an Eighth Amendment claim. See Hudson v.
McMillan, 503 U.S. 1, 9 (1992). As to the objective component, only those deprivations denying
the “minimal civilized measure of life’s necessities,” which includes food, clothing, shelter,
sanitation, medical care and personal safety qualify as sufficiently grave to form the basis of an
Eighth Amendment violation. See Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249 (3d Cir.
2010) (citing Farmer v. Brennan, 511 U.S. 825, 835 (1994)). As to the subjective component,
the plaintiff must show that the prison official acted with deliberate indifference to the prisoner’s
health or safety. See Wilson, 501 U.S. at 298-99.
Plaintiff fails to state an Eighth Amendment cruel and unusual punishment claim as he
fails to allege a subjective component to state a claim. Indeed, as previously described, all of the
Defendants that Petitioner names in the complaint took part in his parole revocation process and
proceedings. The complaint is devoid of any allegations that any of these defendants were
deliberately indifferent to Plaintiff’s health or safety. As such, Petitioner fails to state an Eighth
Amendment claim.
As noted in Part II, supra, Plaintiff also states that, while at CRAF, he had no way to
practice his religion or attend church services. (See Dkt. No. 5. at p. 12.) The Court interprets
this allegation as Plaintiff’s attempt to raise a First Amendment – free exercise of religion claim.
“[C]onvicted prisoners do not forfeit all constitutional protections by reason of . . . conviction
and confinement in prison.” Bell v. Wolfish, 441 U.S. 520, 545 (1979) (citations omitted). “The
Free Exercise Clause of the First Amendment prohibits prison officials from denying an inmate
‘a reasonable opportunity of pursuing his faith.’” Bland v. Aviles, No. 11-1742, 2012 WL
137783, at *6 (D.N.J. Jan. 18, 2012) (quoting Cruz v. Beto, 405 U.S. 319, 322 & n.2 (1972)).
“The mere assertion of a religious belief does not automatically trigger First Amendment
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protections, however. To the contrary, only those beliefs which are both sincerely held and
religious in nature are entitled to constitutional protection.” DeHart v. Horn, 227 F.3d 47, 51 (3d
Cir. 2000); see also Sutton v. Rasheed, 323 F.3d 236, 250-51 (3d Cir. 2003).
In this case, Plaintiff does not assert what his religious beliefs are, nor does he allege in
what way any of the named Defendants interfered with his exercise of religious beliefs. While
Plaintiff does allege that he was prevented from attending “church services,” as previously
stated, all of the allegations against the named Defendants in this case relate to Plaintiff’s claims
arising from the parole revocation proceedings, not the conditions of confinement allegations.
Accordingly, Plaintiff has failed to state a First Amendment – free exercise claim. Accord
Bland, 2012 WL 137783, at *6 (holding that plaintiff failed to state a free exercise claim when
he did not assert what his religious beliefs were nor did he allege in what way any defendant
interfered with his exercise of his religious beliefs); Williams v. Montileon, No. 10-3341, 2011
WL 1983361, at *4 (D.N.J. May 20, 2011) (holding that plaintiff failed to state a free exercise
claim when he “d[id] not assert facts showing that he ha[d] any sincerely held religious beliefs,
and he d[id] not assert facts showing how, when and under what circumstances defendants
interfered with his exercise of his religious beliefs”).
Before dismissing a complaint for failure to state a claim upon which relief may be
granted pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must grant Plaintiff leave to amend the
complaint unless amendment would be futile. See Grayson v. Mayview State Hosp., 293 F.3d
103, 114 (3d Cir. 2002). In this case, because it is possible that Plaintiff may be able to
supplement his complaint with facts sufficient to overcome the deficiencies noted herein with
respect to his cruel and unusual punishment and free exercise claims, Plaintiff shall be given
leave to amend.
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V.
CONCLUSION
For the foregoing reasons, the amended complaint will be dismissed without prejudice
with leave to amend. An appropriate order will be entered.
DATED: August 26, 2013
s/Robert B. Kugler___________
ROBERT B. KUGLER
United States District Judge
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