WALKER v. ROMAN et al

Filing 2

OPINION. Signed by Judge Renee Marie Bumb on 2/27/2014. (bdk, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_______________________________________
:
RODNEY WALKER,
:
: Civil Action No. 14-1182 (RMB)
Plaintiff,
:
:
v.
:
OPINION
:
SCO. ROMAN, et al.,
:
:
Defendants.
:
_______________________________________
:
BUMB, District Judge:
This matter comes before the Court upon Plaintiff’s
submission of a civil complaint (“Complaint”) seeking relief
under 42 U.S.C. § 1983, and his application to prosecute this
matter in forma pauperis.

See Docket Entries Nos. 1 and 1-1.

Based upon his affidavit of indigence, the Court will grant
Plaintiff in forma pauperis status under 28 U.S.C. § 1915(a), and
will order the Clerk to file the Complaint.

In conjunction with

that, this Court is obligated to screen the Complaint, pursuant
to 28 U.S.C. §§ 1915(e)(2) and 1915A, to determine whether the
Complaint 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 reasons detailed below, the Complaint will be
dismissed with a narrowly-tailored leave to amend.

Plaintiff, an incarcerated individual, asserts that, on
October 23, 2012, he was assaulted by four other inmates when
prisoners, including Plaintiff and these four inmates, were in
the prison’s recreation yard.

See Docket Entry No. 1, at 4.

He

alleges that, as a result of that incident, he suffered serious
injuries.

See id.

He also asserts that, during that incident,

Officer Roman (“Roman”) “never attempted to come to [Plaintiff’s]
aid,” id. at 5, while Officer Zenyuk (“Zenyuk”), who was in the
“bubble” booth used by officers to monitor the recreation yard,
“call[ed] a code” (i.e., alerted the other officers about the
incident) only when the incident already ended.1

Id. at 6.

In addition to Roman and Zenyuk, Plaintiff named four other
individuals as Defendants: (a) the Commissioner of New Jersey
Department of Corrections (“Commissioner”); (b) the warden
(“Warden”); (c) the prison’s Chief Investigator (“Investigator”);
and (d) an assistant warden Jane Doe (“Doe”).

1

See id. at 2-4.

Plaintiff supplemented his allegations against Zenyuk by
stating that, during the post-incident investigation, Zenuyk
informed her superiors that “she saw [Petitioner] get[ting]
kicked in the face by one of the [four inmates].” Docket Entry
No. 1, at 6. Plaintiff supplemented his allegations against
Roman by stating that, three days prior to the incident, Roman
performed a search of Plaintiff’s cell, during which Roman “threw
all of [Plaintiff’s] belongings out on the catwalk” and did not
put those belongings back in their place, causing Plaintiff’s
utterances expressing his displeasure with that fact and Roman’s
response, “I do whatever it is I want to do on my shift.” Id. at
4. Plaintiff now speculates that this interaction between him
and Roman was “the reason [Roman] did not come to [Plaintiff’s]
aid” during the assault incident three days later. See id.
2

As to the Commissioner, Plaintiff alleged that he violated
Plaintiff’s rights since: (a) the Commissioner held a supervising
position; and (b) Plaintiff wrote two letters to the Commissioner
expressing Plaintiff’s desire to commence criminal proceedings
against Roman and Zenyuk, but received no response.

Analogously,

with regard to the Investigator, Plaintiff asserted that the
Investigator violated his rights since: (a) he supervised the
investigation unit; and (b) Plaintiff wrote him a letter stating
Plaintiff’s interest in commencing criminal proceedings against
Roman and Zenyuk, but also received no response.2

In the same

vein, Plaintiff asserted that the Warden violated his rights
since: (a) he was supervising the prison’s operations; and (b)
Plaintiff wrote grievances to the Warden about the incident, but
received no response.
As to Doe, Plaintiff asserted that she violated his rights
because, being the monitor of “all red phones on each and every
unit, . . . [she] ignored the fact that the red phone [in the
recreation yard unit] was not operating and had not been

2

Plaintiff alleged that his lack of success at commencing
criminal prosecution of Roman and Zenyuk violated his access to
the courts rights. However, an inmate’s interest in commencing a
criminal matter cannot implicate his/her access rights, since
these rights exist only in connection to his/her criminal matter,
i.e., where the inmate acts as a defendant (e.g., the inmate’s
direct appeal or post-conviction relief proceedings), the
inmate’s habeas matters attacking his/her conviction, denial of
parole, term calculation, etc., and civil matters related to or
ensuing from the inmate’s conditions of confinement.
3

operating for quite some time[,] which [fact precluded Zenyuk’s]
calling of a code of any kind [at the time of the incident]” and
that inability to “call a code” was the reason why the incident
went uninterrupted by prison officers.

Id. at 5.

Stating that he was suing Defendants in their individual and
official capacities, Plaintiff requested preliminary injunctive
relief (by an order preemptively barring Defendants’ retaliation
against him in connection with his commencement of this action,
that is, if such retaliation is ever attempted), a declaratory
relief (in the form of an order finding that Defendants violated
Plaintiff’s constitutional rights), $1 million in compensatory
damages and $1 million in punitive damages.

See id. at 8-9.

The bulk of Plaintiff’s claims lack merit.
To start, Plaintiff’s application for injunctive relief is
speculative since it relies on a hypothetical future retaliation.
Hence, that application is facially unripe and will be dismissed.
See Dawson v. Frias, 2010 U.S. Dist. LEXIS 30513 at *8 (D.N.J.
Mar. 30, 2010) (“speculation as to what might or might not happen
in the future” cannot serve as a basis for a valid claim) (citing
Rouse v. Pauliilo, 2006 U.S. Dist. LEXIS 17225 (D.N.J. Apr. 5,
2006) (dismissing speculative claim as to hypothetical future
retaliation and citing Kirby v. Siegelman, 195 F.3d 1285 (11th
Cir. 1999)); Pilkey v. Lappin, 2006 U.S. Dist. LEXIS 44418, at
*45 (D.N.J. June 26, 2006) (“Plaintiff’s [anxieties] fail to

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state a claim upon which relief may be granted’); Patterson v.
Lilley, 2003 U.S. Dist. LEXIS 11097 (S.D.N.Y. June 20, 2003)
(defendants could only be found liable to violations ensuing from
an existing condition, not to a speculative future injury).
Moreover, Plaintiff’s claims for monetary damages raised
against Defendants in their official capacities are subject to
dismissal as the matter of law.

“[A]ny action that charges . . .

an official with wrongdoing while operating in his or her
official capacity as a [government] agent operates as a claim
against the [government]. . . .

Because a [constitutional tort]

claim may not be brought directly against the [government] as
such, an ‘official capacity [constitutional tort] suit’ would be
an oxymoron.”

Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir.

2001); Garden State Elec. Inspection Servs. v. Levin, 144 F.
App’x 247, 251 (3d Cir. 2005) (suits brought against state
officials acting in their official capacities are to be treated
as suits against the employing government agency); see also
Walker v. Beard, 244 F. App’x 439, 440 (3d Cir. 2007) (the
Eleventh Amendment bars all suits against a state and its
agencies in federal court that seek monetary damages).
Next, Plaintiff’s claims raised against the Commissioner,
Warden and Investigator are facially deficient on three different
grounds, each equally dooming to Plaintiff’s claims.

First, “[a]

defendant in a civil rights action must have personal involvement
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in the alleged wrongs; liability cannot be predicated solely on
the operation of respondeat superior.” Solan v. Ranck, 326 F.
App’x 97, 100-01 (3d Cir. 2009), cert. denied, 558 U.S. 884
(2009) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir. 1988), and citing Evancho v. Fisher, 423 F.3d 347, 353 (3d
Cir. 2005)); see also Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)
(“Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of
respondeat superior”).

So, Plaintiff’s reliance on supervisory

positions of the Commissioner, Warden and Investigator cannot
support to a viable claim.
Second, the fact that Plaintiff wrote letters or grievances
to the Commissioner, Warden and Investigator, but did not receive
responses to his mailings, does not alter the preceding point.
It is well established that “[p]risoners are not constitutionally
entitled to a grievance procedure and the state creation of such
a procedure does not create any federal constitutional rights.”
Wilson v. Horn, 971 F. Supp. 943, 947 (E.D. Pa. 1997).

Thus, a

failure to respond to an inmate’s letter or grievances “does not
violate his rights to due process and is not actionable.”
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)).

Analogously, “the First Amendment does not impose any

affirmative obligation on the government to listen, to respond or
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. . . 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”).
Third, these Defendants’ alleged election not to accommodate
Plaintiff’s desire to commence criminal proceedings against Roman
and/or Zenyuk also does not change the initial analysis, since
Plaintiff’s unsatisfied desires cannot implicate his rights.

A

private plaintiff cannot force a criminal prosecution because the
“authority to initiate a criminal complaint rests exclusively
with state and federal prosecutors.”

Collyer v. Darling, 98 F.3d

211, 222 (6th Cir. 1996); Mercer v. Lexington Fayette Urban
County Gov’t, 52 F.3d 325 (6th Cir. 1995); Forney v. Woodridge
Hosp. & Johnson City Med. Ctr., 2005 U.S. Dist. LEXIS 37257, at
*6 (E.D. Tenn. Sept. 14, 2005); see also Savage v. Arnold, 403 F.
Supp. 172 (E.D. Pa. 1975) (a private party cannot commence a
criminal proceeding for failure to meet to comply with the
requirements of Rules 3 and 4 of the Rules of Criminal Procedure)
(citing United States v. Blierley, 331 F. Supp. 1182 (W.D. Pa.
1971); Brown v. Duggan, 329 F. Supp. 207 (W.D. Pa. 1971); Spader

7

v. Wilentz, 25 F.R.D. 492 (D.N.J), aff’d, 280 F.2d 422 (3d Cir.),
cert. denied 364 U.S. 875 (1960)).
Moreover, Plaintiff’s claims against Doe are also meritless
since he neither asserted facts showing her personal involvement
in the alleged wrong nor established that Doe knew about the risk
of the incident that caused Plaintiff’s injuries.
While it is true that “[b]eing violently assaulted in prison
is . . . not part of the penalty that criminal offenders pay for
their offenses against society,” Farmer v. Brennan, 511 U.S. 825,
834 (1994) (quotation marks and citation omitted), “not ‘every
injury suffered by one prisoner at the hands of another
translates into constitutional liability for prison officials
responsible for the victim’s safety.”

Bistrian v. Levi, 696 F.3d

352, 367 (3d Cir. 2012) (quoting Farmer, 511 U.S. at 834).

“To

state a claim for damages against a prison official for failure
to protect from inmate violence, an inmate must plead facts that
show (1) he was incarcerated under conditions posing a
substantial risk of serious harm, (2) the official was
deliberately indifferent to that substantial risk to his health
and safety, and (3) the official’s deliberate indifference caused
him harm.”

Id. (citing Farmer, 511 U.S. at 834, and Hamilton v.

Leavy, 117 F.3d 742, 746 (3d Cir. 1997)).
Here, Plaintiff’s assertions (i.e., Doe’s alleged failure to
ensure that the “red phones” worked in all prison units, the
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recreation yard included) suggest, at most, negligence on her
part and fails to show that Doe knew about the specific risk of
Plaintiff’s incident coming about.
“Deliberate indifference” in this context is a
subjective standard: “the prison official-defendant
must actually have known or been aware of the excessive
risk to inmate safety.” Beers-Capitol [v. Whetzel,]
256 F.3d [120,] 125 [(3d Cir. 2001)]. It is not
sufficient that the official should have known of the
risk. Id. at 133. A plaintiff [must] prove an
official’s actual knowledge of a substantial risk to
his safety . . . .
Bistrian, 696 F.3d at 367 (emphasis supplied).
Since Plaintiff’s Complaint, being detailed and lengthy,
unambiguously shows that Plaintiff’s claims against the
Commissioner, Warden, Investigator and Doe are limited to the
facts stated in the Complaint, his challenges against these
Defendants will be dismissed with prejudice.

No leave to amend

is warranted as to these lines of claim since another recital or
paraphrasing of the same facts would be futile.

See Foman v.

Davis, 371 U.S. 178, 182 (1962); Grayson v. Mayview State Hosp.,
293 F.3d 103, 114 (3d Cir. 2002).
The foregoing leaves the Court with Plaintiff’s claims
against Roman and Zenyuk.

As pled, these claims are deficient.

In Bistrian, the Court of Appeals distinguished two qualitatively
different types of incidents that could be suffered by an inmate.
The Bistrian Court guided as follows:

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In this case, [the plaintiff] faults the guards who
were present for his assaults for not responding
quickly and aggressively enough. . . . [With regard to
one incident, the plaintiff] claims that [an officer]
was deliberately indifferent because he intervened only
after several minutes of continued pummeling. [The
record shows that the officer] was not standing around
and doing nothing. He came to the . . . recreation
[yard] . . . and, when he arrived, [he and] several
officers . . . ordered the assailant to stop. When
enough staff were present, they entered the [yard] and
subdued the assailant. [The plaintiff’s allegations
raise factual] questions about the reasonableness of
[the officer’s] response [e.g.,] how long did [the
officer] shout orders to [the assailant] before
realizing that his words were futile? How often, in
[the officer’s] experience, does a prisoner stop
violently assaulting another inmate simply because a
guard orders him to do so? How many guards are enough
to break up a fist fight? . . . It may be that summary
judgment for [the officer] is on the horizon. But [at
the pleading stage, the court should proceed this claim
past the sua sponte dismissal stage. However,] we
reach a different result with respect to the [second
incident, where] officials at the scene attempted to
stop the attack by firing pepper spray into the
recreation [yard]. When this proved ineffective, they
used a Tactical Blast Stun Munition to incapacitate
[the assailant. The plaintiff claims that they] acted
with deliberate indifference by delaying their use of
the Tactical Blast Stun Munition and their decision to
intervene forcibly. . . . [I]t is difficult, if not
impossible, . . . to glean deliberate indifference from
the guards’ weapon of choice. Although the pepper
spray ultimately proved ineffective, [nothing here]
suggest[s] the decision to use it was unreasonable.
Bistrian, 696 F.3d at 371-72 (quotation marks and citations to
the record omitted).
Under the distinction drawn in Bistrian, Plaintiff’s claims
against Roman are insufficient, and his claims against Zanyuk are
dubious.

10

Relevant to Zenyuk, Plaintiff asserted that: (a) she was in
the “bubble” booth overseeing the recreation yard at the time the
incident took place; and (b) she was equipped with an inoperable
“red phone” which prevented her from sending an alarm signal to
other officers.

Hence, at most, Zenyuk could have just abandoned

her post and rushed into the yard hoping to assist Plaintiff by
facing his four assailants on her own.

Alternatively, she could

have maintained her post (as she probably was obligated to do)
and signal the alarm by means other than the “red phone.”
Plaintiff’s allegations suggest that she made the latter
choice, and – under the guidance provided in Bistrian – “it is
difficult, if not impossible, . . . to glean deliberate
indifference from” her making that election.

Thus, Plaintiff’s

allegations against Zenyuk will be dismissed.

That being said,

this Court cannot rule out the possibility that Plaintiff might
be able to allege acts showing either that Zenyuk merely
witnessed the incident and did nothing (i.e., she did not even
try to alert other officers by means other than the “red phone”)
or, in the alternative, he might be able to plead facts
establishing the following three points: (a) Zenyuk was in the
position to abandon her post; (b) she had sufficient time to
abandon her post and rush into the recreation yard to intervene
in the incident; (c) Zenyuk was sufficiently equipped to

11

intervene in the incident on her own, without signaling the
alarm.
Thus, Plaintiff will be granted leave to state the exact
facts of his claim against Zenyuk.

An analogous narrowly-

tailored leave will be granted as to his claims against Roman.
Here, Plaintiff stated that Roman violated his rights by
failing to intervene in the incident.3

However, Plaintiff merely

recited one of the elements of the failure-to-protect tort, i.e.,

3

Plaintiff tried to buttress this claim by speculating
that Roman’s election not to intervene could have been prompted
by a retaliatory motive ensuing from Plaintiff’s utterances of
expressions of displeasure with the way Roman conducted the
search of Plaintiff’s cell three days prior to the incident.
However, these retaliatory allegations are: (a) superfluous,
since – if Roman was, in fact, deliberately indifferent to
Plaintiff’s risk of harm – no “buttressing” is required because
Plaintiff’s Eighth Amendment claim would stand on its own; and
(b) Plaintiff’s expression of displeasure with Roman’s search of
Plaintiff’s cell was not “protected speech” within the meaning of
the First Amendment and, thus, it cannot support a retaliation
claim. See Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) (the
inmate should “speak as a citizen addressing matters of public
concern”); see also Whitfield v. Snyder, 263 F. App’s 518, 52122(7th Cir. 2008) (since a prisoner’s job-related complaints
involve matters of personal, rather than public, concern, they
are not a protected speech); accord Nunez v. Ramirez, 2010 U.S.
Dist. LEXIS 28689 (N.D. Cal. 2010) (an inmate’s utterance, “If
you saw who was drinking, why don’t you address that person
instead of disrespecting everybody” was not protected speech);
Durkin v. Taylor, 444 F. Supp. 879 (D.C. Va. 1977)(prisoner
telling an officer that he was tired of the “chicken shit” prison
rules was not protected speech). This principle applies
regardless of whether or not Plaintiff resorted to expletives in
his expression of displeasure with Roman’s search. See Roth v.
United States, 354 U.S. 476, 485 (1957) (“obscenity is not within
the area of constitutionally protected speech”); Porter v.
Kimzey, 309 F. Supp. 993, 996 (N.D. Ga. 1970) (“libelous
utterances are not . . . [a] constitutionally protected speech”).
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that Roman was “deliberately indifferent,” but offered this Court
no factual predicate in connection with his claim against Roman.
Here, the Complaint is wholly silent as to whether Roman was
in the recreation yard, in close proximity with the recreation
yard, monitoring the yard during the time of the incident, etc.,
as well as to whether the incident was in Roman’s vantage point.
The Complaint is equally silent as to whether Roman merely
watched the incident and did nothing, or whether he called for
assistance, or took any other action.

Analogously, this Court is

left to guess whether Roman was so equipped to be in the position
to come to Plaintiff’s aid on Roman’s own while the incident was
underway.
No doubt, there are some circumstances in which an
officer’s response to an inmate attack is so
half-hearted that it effectively amounts to no response
at all. . . . But surely there are cases at the other
end of the spectrum in which an inmate fails to allege
that an officer’s response was so unreasonable as to
give rise to an entitlement to relief. For example, if
an inmate alleges that an assailant landed two punches
in rapid succession, the fact that guards saw the first
punch and reacted quickly enough to prevent a third,
but not the second, is not unreasonable. Such an
allegation [fails to state a viable claim]. The key is
whether prison officials acted reasonably.
Bistrian, 696 F.3d at 371-72.
Here, this Court cannot made an informed assessment of
Plaintiff’s facts since no facts are asserted.

Therefore,

Plaintiff’s claims against Roman fail to meet the pleading
standard of Rule 8.

See Fowler v. UPMC Shadyside, 578 F.3d 203,
13

210 (3d Cir. 2009) (“conclusory or ‘bare-bones’ allegations [are
insufficient]: ‘threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.’
[Plaintiff must] set out ‘sufficient factual matter’ to show that
the claim is facially plausible”) (quoting Iqbal, 556 U.S. at
678).

Correspondingly, Plaintiff’s claim against Roman will be

dismissed with leave to state the facts of that claim.

Cf. In re

Suprema Specialties, Inc. Sec. Litig., 438 F.3d 256, 276-77 (3d
Cir.2006) (a plaintiff must assert all the essential factual
background that would accompany “‘the first paragraph of any
newspaper story’ — that is, the ‘who, what, when, where and how’
of the events at issue”) (citations omitted).
For the foregoing reasons, Plaintiff’s application to
proceed in this matter in forma pauperis will be granted, and the
Clerk will be directed to file his Complaint.
Plaintiff’s application for injunctive relief will be
dismissed as unripe.

Plaintiff’s claims against all Defendants

in their official capacities will be dismissed as a matter of
law.

Plaintiff’s claims for monetary damages raised against the

Commissioner, Warden, Inspector and Doe, in their individual
capacities, will be dismissed for failure to state a claim upon
which relief can be granted.

Such dismissal will be with

prejudice.

14

Plaintiff’s claims for monetary damages raised against
Defendants Roman and Zenyuk will be dismissed with narrowlytailored leave in order to allow Plaintiff an opportunity to file
an amended pleading stating only the relevant facts, as explained
in this Opinion, without resorting to conclusive, bold or selfserving statements and without reciting the elements of his
claim.
An appropriate Order follows.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: February 27, 2014

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