DRURY v. DEBELLIS et al

Filing 54

OPINION. Signed by Judge Robert B. Kugler on 7/12/2017. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
JEFFREY DRURY,
:
:
Plaintiff,
:
Civ. No. 15-2137 (RBK) (KMW)
:
v.
:
:
M. DEBELLIS, et al.,
:
OPINION
:
Defendants.
:
_________________________________________ :
ROBERT B. KUGLER, U.S.D.J.
I.

INTRODUCTION & PROCEDURAL BACKGROUND

Plaintiff, Jeffrey Drury, is proceeding pro se with an amended civil rights complaint filed
pursuant to 42 U.S.C. 1983 against several defendants. One of the defendants, M. Debellis, filed
a motion to dismiss the amended complaint for failure to state a claim. Mr. Drury did not file a
response to that motion to dismiss. On June 28, 2017, this Court granted M. Debellis’ motion to
dismiss.1 (See Dkt. Nos. 51 & 52) Mr. Drury’s claims of equal protection and retaliation against
M. Debellis were dismissed without prejudice. The remaining claims against M. Debellis were
dismissed with prejudice.
On July 10, 2017, this Court received a letter from Mr. Drury. (See Dkt. No. 53) Mr.
Drury states that he never received a copy of M. Debellis’ motion to dismiss. While M. Debellis
attached a certificate of service to his motion to dismiss stating that he served Mr. Drury with the
motion by certified mail, it appears as if M. Debellis may have mailed it to the incorrect address.
Indeed, the certificate of service indicates that M. Debellis served Mr. Drury at Bayside State
Prison. However, at the time the motion to dismiss was filed, Mr. Drury’s place of incarceration
This Court noted that Mr. Drury’s claims against the other defendants would be screened in due
course. (See Dkt. No. 51 at p.1 n.1) That remains the case.
1

and address of record in this case was at South Woods State Prison. (See Dkt. No. 28) Therefore,
the motion to dismiss may have in fact never been properly served on Mr. Drury.
This Court will treat Mr. Drury’s letter as a request for reconsideration of the June 28,
2017 opinion and order. Motions for reconsideration are filed pursuant to Federal Rule of Civil
Procedure 59(e) and are governed by Local Civil Rule 7.1(i) which allows a party to seek
reconsideration by the Court in matters in which the party believes the judge has “overlooked.”
See Carney v. Pennsauken Twp. Police Dep't, No. 11–7366, 2013 WL 4501454, at *1 (D.N.J.
Aug. 21, 2013) (citations omitted). “The standard for reargument is high and reconsideration is
to be granted only sparingly.” Yarrell v. Bartkowski, No. 10–5337, 2012 WL 1600316, at *3
(D.N.J. May 7, 2012) (citing United States v. Jones, 158 F.R.D. 309, 314 (D.N.J. 1994)). To be
successful on a motion for reconsideration, a petitioner has the burden to demonstrate: “(1) an
intervening change in the controlling law; (2) the availability of new evidence that was not
available when the court [issued its order]; or (3) the need to correct a clear error of law or fact or
to prevent manifest injustice.” Max's Seafood Café ex rel. Lou–Ann, Inc. v. Quinteros, 176 F.3d
669, 677 (3d Cir. 1999) (citation omitted); see also Berry v. Jacobs IMC, LLC, 99 Fed.Appx.
405, 410 (3d Cir. 2004). Additionally, Rule 59(e) requires that it be filed within twenty-eight
days after the entry of judgment. See Fed. R. Civ. P. 59(e).
Mr. Drury claims that he never received notice of M. Debellis’ motion to dismiss. The
certificate of service attached to M. Debellis’ motion to dismiss lists Mr. Drury’s old address that
was no longer his address of record at the time M. Debellis filed his motion. In light of these
circumstances, this Court will grant Mr. Drury’s request for reconsideration of its June 28, 2017
opinion and order. The June 28, 2017 opinion and order granting M. Debellis’ motion to dismiss
will be vacated in light of this purported lack of proper service of the motion.

2

However, this does not necessarily mean that Mr. Drury can proceed with his claims
against M. Debellis. Indeed, this Court still must screen the amended complaint as it pertains to
M. Debellis pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A to determine whether Mr.
Drury’s claims against M. Debellis are frivolous or malicious, fail to state a claim upon which
relief may be granted, or seek monetary relief against him if he is immune from suit. For the
following reasons, Mr. Drury’s claims against M. Debellis do not merit proceeding past this
screening. Accordingly, M. Debellis’ motion to dismiss the amended complaint that was served
on Mr. Drury at his old address will be denied as unnecessary.
II.

FACUTAL BACKGROUND OF AMENDED COMPLAINT

This Court previously laid out the factual background of the amended complaint as it
relates to Mr. Drury’s allegations against M. Debellis as follows:
M. Debellis is a senior correctional officer at Bayside State Prison
(“BSP”) where Mr. Drury was previously incarcerated. 2 Mr. Drury
had to go to the medical department while incarcerated at BSP at
various times due to the fact that he has multiple sclerosis. Mr.
Drury had a job as a pot washer at BSP. He worked the 8:00 a.m.
to 1:00 p.m. shift. Defendant M. Debellis did not like the fact that
Mr. Drury had to leave work sometimes during his shift to attend
medical appointments. M. Debellis harassed Mr. Drury verbally.
On January 30, 2015, Mr. Drury had a 10:00 am medical
appointment of approximately one hour. This appointment was
longer than his other appointments. Mr. Drury returned to work
after this appointment. The next day, Mr. Drury was fired by M.
Debellis from his pot washing job. M. Debellis told him that he
had not come back to work the previous day. M. Debellis further
told Mr. Drury that he was sick of all of his medical appointments
and that Mr. Drury could take his “sick ass to whatever medical
appointments you want to now[.]” (Dkt. No. 37 at p. 38)
Mr. Drury brings his amended complaint under 42 U.S.C. § 1983,
the Americans with Disabilities Act (“ADA”), the Rehabilitation
Act and the New Jersey Administrative Code. He sues M. Debellis
in both his official and individual capacities. He seeks injunctive
relief and monetary damages in his amended complaint.
2

Mr. Drury is now incarcerated at South Woods State Prison (“SWSP”).
3

(Dkt. No. 51 at p.2)
III.

LEGAL STANDARD

As previously stated, this Court must screen the amended complaint pursuant to 28
U.S.C. § 1915(e)(2)(B) and 1915A. 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)(1)); Courteau v. United States, 287 F.
App'x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)).
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
omitted).
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:

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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
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 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).
IV.

DISCUSSION

As indicated above, this Court applies the same standard when reviewing a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) as it does when screening the
complaint for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. §
1915(e)(2)(B) and § 1915A. Mr. Drury fails to show that his claims against M. Debellis warrant
proceeding them past the screening stage.
A. Request for Injunctive Relief
Mr. Drury’s claims for injunctive relief cannot proceed against M. Debellis because he is
now incarcerated at SWSP, not BSP. Such claims for injunctive relief are moot in light Mr.
Drury’s transfer to SWSP. See, e.g., Hennis v. Varner, 544 F. App’x 43, 45 (3d Cir. 2013)
(request for injunctive relief for loss of prison job became moot upon transfer to another prison);
Abdul–Akbar v. Watson, 4 F.3d 195, 206 (3d Cir. 1993) (holding that the plaintiff's release from
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prison rendered the case moot because “the district court could not provide Abdul–Akbar with
meaningful relief by entering an injunctive order respecting the [prison] in which Abdul–Akbar
no longer was incarcerated”); Weaver v. Wilcox, 650 F.2d 22, 27 (3d Cir. 1981) (holding that the
plaintiff's prison transfer meant that he “lacks standing to seek injunctive relief if he is no longer
subject to the alleged conditions he attempts to challenge”); see also Carey v. Johnson, Civ. No.
05–1695, 2006 WL 3694476, at *6 (W.D. Pa. Dec. 13, 2006) (“The transfer of Plaintiff to SCI–
Greensburg moots any claims for injunctive and declaratory relief against Defendants who no
longer have any responsibility over the care and control of Plaintiff at SCI–Greensburg.”).
Therefore, Mr. Drury’s claims for injunctive relief against M. Debellis shall not be permitted to
proceed.
B. Eleventh Amendment Immunity & Section 1983 Claims
Mr. Drury also cannot proceed with his § 1983 claims for monetary damages against M.
Debellis in his official capacity based upon Eleventh Amendment immunity. “‘A state, its
agencies, and its actors in their official capacities are not person who may be sued under §
1983.’” See Ali–X v. Employees of Mail Room Staffs, No. 12–3147, 2014 WL 1665043, at *3
(D.N.J. Apr. 25, 2014) (quoting Smith v. New Jersey, 908 F. Supp. 2d 560, 563 (D.N.J. 2012)).
Indeed, as the United States Supreme Court has noted, “neither a State nor its officials acting in
their official capacities are ‘persons' under § 1983.” Will v. Michigan Dep't of State Police, 491
U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989). Additionally, “[i]ndividual state
employees sued in their official capacity are also entitled to Eleventh Amendment immunity
because ‘official-capacity suits generally represent only another way of pleading an action’
against the state.” Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 254 (3d Cir. 2010)
(quoting Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991)). Therefore,

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Mr. Drury’s claims for monetary damages against M. Debellis in his official capacity under
Section 1983 will be dismissed with prejudice as he is immune from suit pursuant to the
Eleventh Amendment.
C. ADA & Rehabilitation Act Claims
Mr. Debellis also cannot proceed on his ADA and Rehabilitation Act claims against M.
Debellis. Title II of the ADA provides that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132. However, individuals are not a public entities within the meaning of
Title II of the ADA. See Emerson v. Thiel College, 296 F.3d 184, 189 (3d Cir. 2002) (individuals
are not liable under Title II of the ADA); Wood v. Russell, No. 14-0476, 2017 WL 2485236, at
*8 (D. Del. June 8, 2017) (same). Therefore, Mr. Drury cannot pursue his ADA claims against
M. Debellis as an individual.3
Section 504 of the Rehabilitation Act prohibits programs that receive federal funds from
discriminating against an individual based on disability. The relevant statutory provision states as
follows:
No otherwise qualified individual with a disability in the United
States ... shall, solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or be subjected
to discrimination under any program or activity receiving Federal
financial assistance or under any program or activity conducted by
any Executive agency ....
29 U.S.C. § 794(a).

3

While federal ADA claims for prospective injunctive relief against state officials in their
official capacities may be allowed, see Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161,
179 (3d Cir. 2002), in this case, as stated supra, Mr. Drury’s claims for injunctive relief against
M. Debellis have been dismissed due to his transfer to SWSP.
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Individual liability also does not apply under this statute for public employees. See A.W.
v. Jersey City Pub. Sch., 486 F.3d 791, 804 (3d Cir. 2007) (“Suits may be brought pursuant to
Section 504 against recipients of federal financial assistance, but not against individuals.”)
(citing Emerson, 296 F.3d at 190). Therefore, Mr. Drury shall not be entitled to pursue his
Rehabilitation Act claims against M. Debellis as well. Accordingly, Mr. Drury’s ADA and
Rehabilitation Act claims against M. Debellis shall be dismissed with prejudice.
D. Section 1983 Claims
Mr. Drury also will not be permitted to proceed with his due process, equal protection
and First and Eighth Amendment claims against M. Debellis.
i.

Due Process Claim

Mr. Drury asserts that his due process rights were violated when he was fired from his
prison job by M. Debellis. However, Mr. Drury does not state a constitutional claim based on his
loss of his prison job because “there is no liberty interest in a prison job arising from the Due
Process Clause.” See Presbury v. Wenerowicz, 472 F. App’x 100, 101 (3d Cir. 2012) (citing
James v. Quinlan, 866 F.2d 627, 629 (3d Cir. 1989)). Furthermore, “New Jersey courts have also
held that New Jersey inmates ‘do not have a liberty interest in a particular, or any, job
assignment[.]” Loyal v. Lanigan, No. 15-5769, 2016 WL 4545308, at *4 (D.N.J. Aug. 30, 2016)
(quoting Shabazz v. New Jersey Dep’t of Corrections, 385 N.J. Super. 117, 129 (App. Div. 2006)
(quoting Lorusso v. Pinchak, 305 N.J. Super. 117, 119 (App. Div. 1997), certif. denied, 153 N.J.
403 (1998))). Therefore, Mr. Drury’s due process claim against M. Debellis will be dismissed
with prejudice.

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ii.

Equal Protection Claim

Mr. Drury also appears to assert that his equal protection rights were violated when he
was fired from his prison job. “The Equal Protection Clause of the Fourteenth Amendment
commands that no State shall ‘deny to any person within its jurisdiction the equal protection of
the laws,’ which is essentially a direction that all persons similarly situated should be treated
alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe,
457 U.S. 202, 216 (1982)). Thus, to state a claim under the Equal Protection Clause, a plaintiff
must allege that: (1) he is a member of a protected class; and (b) he was treated differently from
similarly situated inmates. See id. Where the plaintiff does not claim membership in a protected
class, he must allege arbitrary and intentional discrimination in order to state an equal protection
claim. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Specifically, he must state
facts showing that: “(1) the defendant treated him differently from others similarly situated, (2)
the defendant did so intentionally, and (3) there was no rational basis for the difference in
treatment.” Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006).
Prison inmates are not members of a protected class. See Abdul-Akbar v. McKelvie, 239
F.3d 307, 317 (3d Cir. 2001) (stating that prisoners are not a suspect class). Furthermore, the
disabled are not a suspect class. See Bowers v. National Collegiate Athletic Ass’n, 475 F.3d 524,
553 (3d Cir. 2007) (citing City of Cleburne, 473 U.S. at 439). Therefore, Mr. Drury’s equal
protection claim against M. Debellis can only proceed if he has sufficiently alleged facts under
the “class-of-one” theory as stated in Olech and Hill.
Mr. Drury’s allegations fail to state a “class-of-one” equal protection claim under the
applicable Iqbal pleading standard. His allegations do not state with any facial plausibility that
similarly situated people were treated differently by M. Debellis. Mr. Drury’s allegations do not

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name with any specificity any similarly situated person or people that were treated differently
than him. Accordingly, his equal protection claim against M. Debellis will be dismissed without
prejudice for failure to state a claim.
iii.

First & Eighth Amendment Claims

Mr. Drury also cites to the First and Eighth Amendments to support his Section 1983
claims against M. Debellis. This Court construes the amended complaint as attempting to raise a
harassment and retaliation claims against M. Debellis.
“Allegations of verbal abuse or threats, absent any injury or damage, are not cognizable
under § 1983.” Brown v. Hamilton Twp. Police Dep't Mercer Cnty., N.J., 547 F. App’x 96, 97
(3d Cir. 2013) (citing McBride v. Deer, 240 F.3d 1287, 1291 n. 3 (10th Cir. 2001); Freeman v.
Arpaio, 125 F.3d 732, 738 (9th Cir. 1997)). Accordingly, to the extent that Mr. Drury is asserting
an Eighth Amendment claim to be free from cruel and unusual punishment due to M. Debellis’
verbal harassment, he fails to state a claim.
Instead, Mr. Drury’s main complaint throughout his amended complaint centers upon
whether he was retaliated against by prison officials. With respect to retaliation:
“A prisoner alleging retaliation must show (1) constitutionally
protected conduct, (2) an adverse action by prison officials
sufficient to deter a person of ordinary firmness from exercising
his constitutional rights, and (3) a causal connection between the
exercise of his constitutional rights and the adverse action taken
against him.”
Mack v. Yost, 427 F. App’x 70, 72 (3d Cir. 2011) (quoting Mitchell v. Horn, 318 F.3d 523, 530
(3d Cir. 2003)). With respect to the third element, the plaintiff must allege that the
constitutionally protected conduct was a substantial or motivating factor for the adverse action to
sufficiently state a retaliation claim. See Velasquez v. Diguglielmo, 516 F. App’x 91, 95 (3d Cir.

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2013) (citing Cater v. McGrady, 292 F.3d 152, 157, 158 (3d Cir. 2002)); Rauser [v. Horn, 241
F.3d [330,] 333 [(3d Cir. 2001)]. Furthermore:
To establish the requisite causal connection for a retaliation claim
predicated on the First Amendment, the plaintiff (here, a prisoner)
usually has to prove one of two things: (1) an unusually suggestive
time proximity between the protected activity and the allegedly
retaliatory action; or (2) a pattern of antagonism coupled with
timing to establish a causal link. Lauren W. ex rel. Jean W. v.
DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). If neither of these
showings is made, then the plaintiff must show that, from the
evidence in the record as a whole, the trier of fact should infer
causation.” Id.
DeFranco v. Wolfe, 387 F. App’x 147, 154 (3d Cir. 2010). While temporal proximity is relevant
in First Amendment retaliation cases, see Ambrose v. Twp. of Robinson, Pa., 303 F.3d 488, 494
(3d Cir. 2002) (citing Rauser, 241 F.3d at 334), “‘[t]he mere passage of time is not legally
conclusive proof against retaliation.’” Marra v. Phila. Housing Auth., 497 F.3d 286, 302 (3d Cir.
2007) (quoting Robinson v. Southeastern Pa. Transp. Auth, 982 F.2d 892, 894 (3d Cir. 1993))
(other citation omitted).
Mr. Drury fails to state a retaliation claim against M. Debellis because he fails to allege
constitutionally protected conduct as it relates to M. Debellis. It appears as though Mr. Drury is
basing his retaliation claims in his amended complaint upon the filing of prison grievances. The
filing of prison grievances is considered constitutionally protected conduct. See Laurensau v.
Romarowics, 528 F. App’x 136, 139 (3d Cir. 2013) (citing Milhouse v. Carlson, 652 F.2d 371,
373-74 (3d Cir. 1981); Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). Additionally, being
fired from his prison job could constitute an adverse action. See Pepe v. Lamas, No. 16-3195,
2017 WL 633336, at *1 (3d Cir. Feb. 16, 2017); Mack, 427 F. App’x at 72-73. However, the
filing of Mr. Drury’s prison grievances which this Court has construed as Mr. Drury’s
constitutionally protected conduct, all occurred after he was terminated from his job by M.
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Debellis as alleged in the amended complaint. Thus, there is a problem with raising a retaliation
claim against M. Debellis based on the timing of Mr. Debellis’ constitutionally protected
activities as this Court has construed them to be. Accordingly, the retaliation claim against Mr.
Debellis will be dismissed without prejudice as Mr. Drury fails to allege constitutionally
protected conduct that occurred prior to his job termination. Accordingly, Mr. Debellis has failed
to state any Section 1983 claim against M. Debellis.
E. New Jersey Administrative Code § 10A:4-3.1
Finally, Mr. Drury’s claims against M. Debellis under New Jersey Administrative Code §
10A:4-3.1 shall not be permitted to proceed. The relevant provisions of that Administrative Code
section states as follows:
(a) The following rights are found in the Handbook on Discipline
that is provided to each inmate as part of reception into the
Department of Corrections.
1. You have the right to be treated respectfully,
impartially and fairly by all personnel. . . .
10. You have the right to participate in counseling,
education, vocational training, and employment as
far as resources are available and in keeping with
your interests, needs and abilities.
(b) The following responsibilities are found in the Handbook on
Discipline that is provided to each inmate as a part of reception
into the Department of Corrections. . . .
7. You have the responsibility to present honestly
and fairly your petitions, questions and problems to
the court. . . .
11. You have the responsibility to take advantage of
activities (such as counseling, education, vocational
training and employment) which may help you live
a successful and law abiding life within the
correctional facility and in the community. You will
be expected to abide by the regulations governing
the use of such activities.

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N.J.A.C. § 10A:4-3.1(a), (b). The issue is whether this section creates a private right of action.
As one court in this District has explained:
When a statute does not expressly provide a private right of action,
New Jersey courts “have been reluctant to infer” such a right. R.J.
Gaydos Ins. Agency, Inc. v. Nat'l Consumer Ins. Co., 168 N.J. 255,
773 A.2d 1132, 1142 (N.J. 2001). The factors used by courts to
determine whether a statute confers an implied private right of
action include whether:
(1) plaintiff is a member of the class for whose
special benefit the statute was enacted; (2) there is
any evidence that the Legislature intended to create
a private right of action under the statute; and (3) it
is consistent with the underlying purposes of the
legislative scheme to infer the existence of such a
remedy
Id. at 1143. While courts give weight to all three factors, “the
primary goal has almost invariably been a search for the
underlying legislative intent.” Id. (quoting Jalowiecki v. Leuc, 182
N.J. Super. 22, 440 A.2d 21, 26 (N.J. Super. Ct. App. Div.1981)).
Oliver v. Roquet, No. 13-1881, 2014 WL 4271628, at *4 (D.N.J. Aug. 24, 2017).
N.J.A.C. § 10A:4-3.1 does not expressly provide a private right of action. Mr. Drury
comes forward with no evidence (nor has this Court found any) that the Legislature intended to
create an implied right of action. See Drake v. Muniak, No. 13-3868, 2016 WL 1162375, at *7
(D.N.J. Mar. 24, 2016) (holding that § 10A:4-3.1 does not provide for a private right of action);
but see White v. Taylor, No. 10-5485, 2014 WL 2196509, at *7 (D.N.J. May 24, 2017) (declining
to rule on whether there is a private right of action to enforce N.J.A.C. § 10A:4-3.1).
Accordingly, Mr. Drury’s claims brought under the N.J.A.C. § 10A:4-3.1 against M. Debellis
will be dismissed with prejudice. Therefore, Mr. Drury has failed to state a claim against M.
Debellis that warrants this Court proceeding the amended complaint against him past screening.

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V.

CONCLUSION

For the foregoing reasons, Mr. Drury’s July 10, 2017 letter which has been construed as a
motion for reconsideration from this Court’s June 28, 2017 opinion and order will be granted.
The June 28, 2017 opinion and order that granted M. Debellis’ motion to dismiss will be vacated
in light of the service issues. However, pursuant to this Court’s screening the amended
complaint, Mr. Drury’s claims in the amended complaint against M. Debellis alleging equal
protection and retaliation are dismissed without prejudice. The remaining claims against M.
Debellis in the amended complaint are dismissed with prejudice. This Court will screen the
amended complaint as it relates to the other defendants in due course. An appropriate order will
be entered.

DATED: July 12, 2017

s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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