DRAKE v. MUNIAK et al
OPINION. Signed by Judge Robert B. Kugler on 3/23/2017. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KEITH HASSON DRAKE,
Civ. No. 13-3868 (RBK) (KMW)
ROSELLEN G. MUNIAK, et al.,
ROBERT B. KUGLER, U.S.D.J.
Plaintiff, Keith Hasson Drake, is a state prisoner who is currently incarcerated at the East
Jersey State Prison in Rahway, New Jersey. He is proceeding pro se with a proposed third
amended civil rights complaint filed pursuant to 42 U.S.C. § 1983. Previously, this Court
dismissed Mr. Drake’s other complaints at the screening stage. Upon dismissing his second
amended complaint in March, 2016, this Court noted that it would give Mr. Drake one final
opportunity to sufficiently state claims in a proposed third amended petition. Thereafter, Mr.
Drake filed a request for an extension of time to submit a third amended complaint. (See Dkt.
No. 29) Subsequently, Mr. Drake filed his third amended complaint. (See Dkt. No. 30)
Mr. Drake’s request to file a third amended complaint beyond the time-frame that this
Court previously allowed will be granted and the Clerk will be ordered to reopen this case so that
the third amended complaint can be screened. At this time, this court must review the third
amended complaint 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 following reasons, Mr. Drake’s federal
claims will be dismissed with prejudice for failure to state a claim and this Court will decline to
exercise supplemental jurisdiction over Mr. Drake’s state law claims.
The allegations of the third amended complaint will be construed as true for purposes of
this screening opinion. Mr. Drake names three defendants in the third amended complaint; they
are: (1) Rosellen G. Muniak; (2) Sgt. M. Sheppard; and (3) Lt. John Doe.
Mr. Drake’s claims against these three defendants are largely identical to the claims he
brought against these three defendants in his previous complaints. Mr. Drake’s claims arise while
he was incarcerated the South Woods State Prison. He states that the defendants violated his
constitutional rights by confiscating a computer disk containing his legal materials that had been
loaned to him in September, 2012. The defendants subsequently read his legal materials
contained on the disk. He received a disciplinary report on September 14, 2012 for being in
possession of property belonging to another inmate. Mr. Drake states that by confiscating his
legal disk, this deprived him of the opportunity to present a past legal claim. Mr. Drake also
alleges that the defendants denied him the right to legal photocopying services even though he
was willing to pay for the cost of copy of the items that were on the disk that they confiscated.
Mr. Drake further alleges that the defendants violated his rights under Section 10A of the New
Jersey Administrative Code by their actions and that he was not informed by the defendants of
the rules concerning personal computer/word processor usage at the facility.
As relief, Mr. Drake seeks the return of his confiscated legal materials as well as money
Under the Prison Litigation Reform Act, Pub.L. 104-134, §§ 801-810, 110 Stat. 1321-66
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 42 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. see 28 U.S.C. § 1915(e)(2)(B).
“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)
(citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App’x
230, 232 (3d Cir. 2012) (discussing 42 U.S.C. § 1997e(c)(l)); Courteau v. United States, 287 F.
App’x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)). That standard is set forth in
Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
as explicated by the United States Court of Appeals for the Third Circuit. To survive the court's
screening for failure to state a claim, the complaint must allege ‘sufficient factual matter’ to
show that the claim is facially plausible. See Fowler v. UPMC 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.” Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)
(quoting Iqbal, 556 U.S. at 678). “[A] pleading that offers ‘labels or 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).
Pro se pleadings, as always, will be liberally construed. See Haines v. Kerner, 404 U.S.
519 (1972). Nevertheless, “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
A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of
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
declaratory decree was violated or declaratory relief was
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 Twp. Police Dep't, 635 F.3d 606, 609 (3d Cir. 2011) (citations omitted); see also West v.
Atkins, 487 U.S. 42, 48 (1988).
A. Reading Legal Materials
Mr. Drake asserts that the defendants are liable to him because they read his legal
materials. This Court has previously explained what is needed to state such a claim. Indeed, a
plaintiff may state a First Amendment claim against defendants who read his legal materials if he
alleges that there was a pattern or practice of opening and reading his legal materials outside of
his presence. See Schreane v. Holt, 482 F. App’x 684, 676-77 (3d Cir. 2012) (“Prisoners may
establish a violation of the First Amendment without establishing actual injury where there is a
pattern and practice of opening properly marked incoming legal mail outside the prisoner’s
presence.”) (citing Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 2006)); see also Thompson v.
Hayman, No. 09-1833, 2011 WL 2652185, at *5 (D.N.J. July 6, 2011) (same).
Similar to Mr. Drake’s previous attempts to raise this claim in his other complaints, the
third amended complaint fails to state a claim against the defendants for reading his legal
materials as Mr. Drake fails to allege that the defendants were engaged in a pattern or practice of
reading his legal materials. Instead, the third amended complaint alleges that the defendants
reading his legal materials arose out of one incident in September, 2012. Thus, he fails to state a
claim. Accord Ortiz v. Prison Bd. Members, No. 08-2126, 2011 WL 776195, at *4 (M.D. Pa.
Feb. 28, 2011) (finding amended complaint failed to state First Amendment claim where there
was no assertion that mail was opened outside of his presence pursuant to any pattern, practice or
policy); Hale v. Pennsylvania Dep’t of Corr., No. 07-0345, 2010 WL 3791833, at *3 (M.D. Pa.
Sept. 16, 2010) (“Isolated incidents of opening legal mail outside of an inmate’s presence,
without any evidence of improper motive, is nothing more than an assertion of negligence, and is
insufficient to establish a constitutional violation.”) (citations omitted). It is worth noting that
Mr. Drake states at one point in his third amended complaint that his constitutional rights were
violated when there was a pattern or practice that the defendants read or inspected prisoners’
legal materials outside of their presence. (See Dkt. No. 30 at p. 14) However, such a statement by
Mr. Drake is conclusory and does not satisfy the Iqbal/Twombley facial plausibility standard that
there was a pattern or practice of reading prisoners legal mail.
Mr. Drake has now had four opportunities to raise this claim to no avail. In light of the
warning this Court gave Mr. Drake when his second amended complaint was dismissed, this
Court will not give Mr. Drake another opportunity to raise this claim in another amended
complaint. Therefore, it will be dismissed with prejudice.
B. Confiscation of Legal Materials
Mr. Drake also alleges that the defendants are liable because they confiscated his legal
materials by taking a disk that had his legal materials on it. “Under the First and Fourteenth
Amendments, prisoners retain a right of access to the courts.” Monroe v. Beard, 536 F.3d 198,
205 (3d Cir. 2008) (citing Lewis v. Casey, 518 U.S. 343, 346 (1996)). “Where prisoners assert
that defendants’ actions have inhibited their opportunity to present a past legal claim, they must
show (1) that they suffered an ‘actual injury’ – that they lost a chance to pursue a ‘nonfrivolous’
or ‘arguable’ underlying claim; and (2) that they have no other “remedy that may be awarded as
recompense” for the lost claim other than in the present denial of access suit.” Id. (citing
Christopher v. Harbury, 536 U.S. 403, 415 (2002)). Thus, to satisfy the requisite pleading
requirements, “[t]he complaint must describe the underlying arguable claim well enough to show
that it is ‘more than mere hope,’ and it must describe the ‘lost remedy.’” Id. at 205-06 (footnote
omitted) (citing Christopher, 536 U.S. at 416-17).
In Monroe, the Third Circuit determined that the complaint failed to state an access to
courts claim upon which relief could be granted and stated the following:
In this case, the defendants confiscated all of the plaintiffs’
contraband and non-contraband legal materials, including their
legal briefs, transcripts, notes of testimony, exhibits, copies of
reference books, treatises, journals, and personal handwritten
notes. In their initial pleadings, the plaintiffs’ claim rested solely
on the ground that the defendants confiscated their legal materials,
contraband and non-contraband alike. That claim, on its face, was
insufficient to state a claim under Harbury. So too were their
subsequent amendments, which alleged that they lost the
opportunity to pursue attacks of their convictions and civil rights
claims but did not specify facts demonstrating that the claims were
nonfrivolous. Nor did they maintain that they had no other remedy
to compensate them for their lost claims. Even liberally construing
their complaints as we must do for pro se litigants, they do not
sufficiently allege that they have suffered an actual injury.
536 F.3d at 206 (internal citation and footnote omitted).
Mr. Drake states that he was denied access to the courts by the disk being confiscated
because he was not able to put forth a supplemental post-conviction relief petition. However, Mr.
Drake provides this Court with no information regarding what claims he was not permitted to
raise in his post-conviction relief proceedings as a result of the confiscation. Thus, he fails to
state a claim because this Court cannot determine if such a claim was nonfrivoulous or arguable.
Furthermore, as this Court noted in a prior opinion, Mr. Drake did in fact file a pro se
supplemental brief during his post-conviction relief proceedings before the New Jersey Superior
Court, Appellate Division. See State v. Drake, 2014 WL 1622108, at *2 (N.J. Sup. Ct. App. Div.
Apr. 24, 2014). Similar to Mr. Drake’s reading legal materials claim, this claim will also be
dismissed with prejudice in light of the numerous opportunities Mr. Drake has been given to
state a claim as well as this Court’s previous warning that his third amended complaint would be
his last chance to do so.
C. Photocopying Services
Mr. Drake also argues that the defendants denied him the right to legal photocopying
services as he was willing to pay for the cost of each copy of the legal materials that were on the
disk that was confiscated. Similar to the access to courts discussion above, this claim also fails as
Mr. Drake fails to show that he was actually injured to the purported failure to provide him with
photocopying services. See Kelly v. York Cnty. Prison, 325 F. App’x 144, 145 (3d Cir. 2009). As
previously indicated, Mr. Drake actually did file a supplemental brief on appeal during his postconviction relief proceedings. Furthermore, he does not make any mention whatsoever of what
type of claim he was prevented from raising. Accordingly, this claim will be dismissed with
prejudice for failure to state a claim in light of the numerous opportunities previously given to
Mr. Drake to state a claim and this Court’s warning that this would be his last opportunity to
raise a claim.
D. Failure to Inform of Rules
Mr. Drake alludes to an argument that his rights were violated when the defendants did
not fully disclose the rules, procedures and schedule concerning the operation of the facility. (See
Dkt. No. 30 at p.22) As this Court has noted in prior opinions in this case, it is not clear what
constitutional basis Mr. Drake is attempting to raise this claim under. Thus, this claim lacks
facial plausibility under the Iqbal standard. Furthermore, documents from 2011/2012 that Mr.
Drake has included regarding the policy in place indicate that the rules included language that
“no disk should be in use by an inmate but his assigned disk.” (See Dkt. No. 30-1 at p.3)
Accordingly, this claim will be dismissed with prejudice for failure to state a claim in light of the
numerous opportunities that Mr. Drake has had to sufficiently state a claim and this Court’s prior
warnings to Mr. Drake that this would be his last opportunity to do so.
E. State Law
It appears as if Mr. Drake is also attempting to pursue state law claims. For example, he
claims that the defendants violated the New Jersey Administrative Code in parts of his third
amended complaint. However, as described above, all of Mr. Drake’s federal claims against the
defendants have been dismissed. As there are no more federal claims remaining against any of
the defendants, any remaining potential basis for Mr. Drake’s state law claims is supplemental
jurisdiction pursuant to 28 U.S.C. § 1367. However, when a court has dismissed all claims over
which it had federal question jurisdiction, it has the discretion to decline to exercise
supplemental jurisdiction over the remaining state law claims. See id. § 1367(c)(3). Because the
federal claims against the defendants no longer remain, this Court will exercise its discretion to
decline supplemental jurisdiction over any state law claims Mr. Drake is pursuing in his third
For the foregoing reasons, Mr. Drake’s federal claims against the defendants will be
dismissed with prejudice for failure to state a claim upon which relief may be granted. Mr. Drake
has now had four opportunities to sufficiently state a claim. Additionally, Mr. Drake warned in
the prior dismissal of his second amended complaint that he would be given one more
opportunity to file a third amended complaint that stated a federal claim. Having failed to do so
here, dismissal of Mr. Drake’s federal claims with prejudice is appropriate. This Court will
decline to exercise supplemental jurisdiction over Mr. Drake’s state law claims. An appropriate
order will be entered.
DATED: March 23, 2017
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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