ASHLEY v. METELOW et al
Filing
3
OPINION filed. Signed by Chief Judge Jerome B. Simandle on 1/21/2016. (drw)n.m.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
KEITH ASHLEY,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 15-3153 (JBS-AMD)
v.
DAVID METELOW, et al.,
OPINION
Defendants.
APPEARANCES:
Keith Ashley, Plaintiff Pro Se
#575398/589308B
Northern State Prison
168 Frontage Road
Newark, NJ 07114
SIMANDLE, Chief Judge:
INTRODUCTION
Before the Court is Plaintiff Keith Ashley’s (“Plaintiff”),
submission of a civil rights complaint pursuant to 42 U.S.C. §
1983. Plaintiff is a convicted and sentenced state prisoner
currently confined at Northern State Prison, Newark, New Jersey.
By Order dated May 27, 2015, this Court granted Plaintiff's
application to proceed in forma pauperis pursuant to 28 U.S.C. §
1915(a) and ordered the Clerk to file the complaint. (Docket
Entry 2). At this time, the Court must review the complaint,
pursuant to 28 U.S.C. §§ 1915(e)(2) 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 such relief. For the reasons set forth below, the Court
concludes that the complaint will proceed against Defendants
Siebert and Marrocco only.
II. BACKGROUND
Plaintiff brings this civil rights action against
Defendants David Metelow and Don Siebert, Supervisors of
Education at South Woods State Prison (“SWSP”), Mr. Marrocco,
Teacher for the Culinary Arts program, and Tanya Steltz,
Secretary for Facility III. The following factual allegations
are taken from the complaint and are accepted for purposes of
this screening only. The Court has made no findings as to the
truth of Plaintiff’s allegations.
Plaintiff applied to join the SWSP Culinary Arts Program at
various points in time between October 2007 and July 2014 during
his confinement at that facility. (Complaint, Docket Entry 1 at
4 ¶ 1). On October 23, 2007, Plaintiff was informed that he
would be placed on the program’s waiting list, but he was not
actually placed onto the list until June 2, 2008. (Id. at 4 ¶
1(A)). Plaintiff reapplied to the program on September 28, 2009,
and his request was returned to him with the note: “Your P.E.D.
[parole eligibility date] is 2025. Mr. Marrocco takes students
within 2-year[s] of their P.E.D.” (Id. at 4 ¶ 1(B)). In spite of
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this statement, Plaintiff completed another Programs and
Services Request form on December 9, 2009, as the inmate
handbook indicated the program based admission on a first-comefirst-served basis. (Id. at 4 ¶ 1(E)). The response he received
indicated he had been placed on the waiting list the next day,
December 10. (Id. at 4 ¶ 1(C)).
Plaintiff alleges he was scheduled for an entry interview
on August 20, 2013, but he was turned away from the interview
site as his name was not on the interview list. (Id. at 4 ¶
1(D)). Plaintiff filled out a grievance form objecting to his
absence from the list, and he received a response indicating he
had been erroneously deleted from the appointment list. (Id. at
4 ¶ 1(D)). Plaintiff thereafter submitted another request form
on September 22, 2013, and the response was a curt “will
advise.” (Id. at 4 ¶ 1(E)). Plaintiff later received a letter
from Defendant Seibert indicating that the certificate earned
through the program expired after five years, therefore inmates
with parole eligibility or maximum release dates within the next
two years are given preference for entry into the program. (Id.
at 5 ¶ 4). Defendant Seibert invited Plaintiff to reapply when
he was within the two-year time frame.1 (Id. at 5 ¶ 4). Plaintiff
1
According to the State of New Jersey’s Inmate Locator,
available at https://www20.state.nj.us/DOC_Inmate/inmatefinder,
Plaintiff’s maximum release date is January 27, 2023, and has no
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filed an administrative appeal with SWSP Administrator Kenneth
Nelson, who responded Plaintiff was “not banned from Culinary
Arts class. A review of your Education Department record
revealed that you have been off and on the Culinary Arts Waiting
List since 2007.” (Id. at 5 ¶ 4).
Plaintiff filled out one more request form for the Culinary
Arts Program on July 11, 2014, and he was denied entry into the
program because his high school diploma had not been verified.
(Id. at 4 ¶ 1(F)). Defendant Steltz’s initials appeared on the
form denying Plaintiff entry. (Id. at 4 ¶ 1(F)).
Plaintiff argues that the Education Department has a
policy, stated in the SWSP prisoner handbook, that “any
education Programs waiting list will be developed on a firstcome, first-serve basis.” (Id. at 4 ¶ 1(F)). He asserts
Defendants violated his right to Free Association under the
First Amendment, the Equal Protection Clause of the Fourteenth
Amendment, and N.J. ADMIN. CODE § 10A:4-3.1 by failing to inform
Plaintiff of the complete requirements for entry into the
program.
Plaintiff asks this Court to require SWSP to admit
prisoners into the Culinary Arts program on a first-come, first
current parole eligibility date. (Last visited January 21,
2016).
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serve basis. He also seeks $500,000 in compensatory damages and
$200,000 in punitive damages from each defendant. (Id. at 7).
III. STANDARD OF REVIEW
A. Standards for a Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub. L. No. 104-134,
§§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 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. This action is subject
to sua sponte screening for dismissal under 28 U.S.C. §§
1915(e)(2)(b) because Plaintiff is a prisoner proceeding in
forma pauperis.
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
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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.” Fair Wind
Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)
(quoting Iqbal, 556 U.S. at 678).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93–94 (2007)
(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). Although
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).
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) (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 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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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 ... 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 ....
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 West v. Atkins, 487 U.S. 42, 48
(1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011);
Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994).
IV. ANALYSIS
A.
Eleventh Amendment
To the extent Plaintiff seeks relief against Defendants in
their official capacities, they are immune from suit under the
Eleventh Amendment. The Eleventh Amendment to the United States
Constitution provides: “The Judicial power of the United States
shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by
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Citizens of another State, or by Citizens or Subjects of any
Foreign State.” U.S. Const. amend. XI. A suit against a public
official “‘in his or her official capacity is not a suit against
the official but rather is a suit against the official's office
. . . .’” Printz v. United States, 521 U.S. 898, 930–31 (1997)
(quoting Will v. Mich. Dep't of State Police, 491 U.S. 58, 71
(1989)). The Will Court concluded that “neither a State nor its
officials acting in their official capacities are ‘persons'
under § 1983.” 491 U.S. at 71; see also Smith v. New Jersey, 908
F. Supp. 2d 560, 563-64 (D.N.J. 2012).
As Defendants are state officials, the complaint must be
dismissed against them in their official capacities because it
cannot proceed in federal court. This Court must still assess
Defendants’ individual liability, however.
B. First Amendment Right of Association
Plaintiff argues Defendants violated his First Amendment
right to free association by depriving him of the opportunity to
take the Culinary Arts Program and associate with other
prisoners.
“[F]reedom of association is among the rights least
compatible with incarceration. Some curtailment of that freedom
must be expected in the prison context.” Overton v. Bazzetta,
539 U.S. 126, 131 (2003) (internal citations omitted). In spite
of this observation, the Supreme Court declined to hold or imply
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“that any right to intimate association is altogether terminated
by incarceration or is always irrelevant to claims made by
prisoners.” Id.; see also Pell v. Procunier, 417 U.S. 817, 822
(1974). (“[A] prison inmate retains those First Amendment rights
that are not inconsistent with his status as a prisoner or with
the legitimate penological objectives of the corrections
system.”). “[C]hallenges to prison restrictions that are
asserted to inhibit First Amendment interests must be analyzed
in terms of the legitimate policies and goals of the corrections
system . . . .” Pell, 417 U.S. at 822; see also Overton, 539
U.S. at 132; Turner v. Safley, 482 U.S. 78, 89-91 (1987).
Plaintiff appears to be “alleging that the restrictions
were not rationally related to legitimate penological
interests[,]” Cordero v. Warren, 612 F. App'x 650, 653 (3d Cir.
2015), but were rather the result of racial discrimination. On
the other hand, it is quite unclear that denial of entry into a
prison training program should be viewed as the denial of some
“associational” right merely because the Plaintiff will not be
among those in the training program. It may be more appropriate
to view such a claim through the doctrine of equal protection
instead, and the Court does not decide the issue at this stage
without benefit of briefing. “Although the defendants may
ultimately show that their actions were justified, at this early
stage we must accept [Plaintiff’s] allegations as true.” Id.
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(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (holding
sua sponte dismissal of free association claim was premature).
Plaintiff’s First Amendment Free Association claim shall be
permitted to proceed at this time against Defendants Marrocco
and Seibert only, as he has not stated factual grounds for the
direct involvement of the other named defendants.3
C. Equal Protection
Plaintiff asserts Defendants violated his Fourteenth
Amendment right to Equal Protection by admitting Caucasian
prisoners into the Culinary Arts program while denying similarly
situated African American prisoners, including Plaintiff, entry
into the program. “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.
3
Stelz’s and Metelow’s individual liabilities are analyzed
infra, Part IV.E.
10
Plaintiff has sufficiently pled an Equal Protection
violation to withstand summary dismissal under 28 U.S.C. § 1915.
Plaintiff states he is member of a protected class as a racial
minority. Plaintiff indicates he was informed Defendant Marrocco
did not admit students with more than two years before their
PEDs, (Complaint at 4 ¶ 1(B)), but he alleges that Caucasian
prisoners with more than two years left before their PEDs, and
who have not been on the program’s waiting list as long as
African American prisoners, were admitted into the program while
he was not. (Id. at 7). His Equal Protection claim shall
therefore be permitted to proceed at this time against
Defendants Marrocco and Seibert only, as he has not sufficiently
alleged direct involvement by the other named defendants.4
D. State Law Claim
Plaintiff argues Defendants violated his Inmate Rights and
Responsibilities, N.J. ADMIN. CODE § 10A:4-3.1.5 Included in the
section on inmates’ rights is “the right to be informed of the
rules, procedures and schedules concerning the operation of the
correctional facility[,]” and the “right to participate in
counseling, education, vocational training, and employment as
far as resources are available and in keeping with your
4
See infra, Part IV.E.
This Court has supplemental jurisdiction over Plaintiff’s state
law claim, 28 U.S.C. 1367(a).
5
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interests, needs and abilities.” N.J. ADMIN. CODE § 10A:43.1(a)(2),(10) (West, WestlawNext, Current through 48 N.J. Reg.
Issue 2 (Jan. 19, 2016)). Inmates have the corresponding
“responsibility to know and abide by the rules, procedures and
schedules concerning the operation of the correctional
facility[,]” and “to take advantage of activities (such as
counseling, education, vocational training and employment) which
may help [them] live a successful and law abiding life within
the correctional facility and in the community.” N.J. ADMIN. CODE
§ 10A:4-3.1(b)(2),(11) (West, WestlawNext, Current through 48
N.J. Reg. Issue 2 (Jan. 19, 2016)).
Plaintiff asserts Defendants’ failure to advise him of the
additional admission requirements of the culinary arts program,
that inmates be within two years of their PEDs and have a high
school diploma, violated his rights to notice of the rules and
to participation in the program.
Assuming without deciding that a private right of action
does exist,6 Plaintiff has set forth sufficient facts to indicate
6
New Jersey courts and at least one court in this District have
entertained claims under N.J. ADMIN. CODE § 10A:4–3.1. See Allah
v. Hayman, No. 08–1177, 2011 WL 1322186 at *4 (D.N.J. Apr. 1,
2011) (dismissing the claim for lack of sufficient factual
allegations), appeal dismissed as frivolous, 422 F. App'x 632
(3d Cir. 2011); Bryant v. Dep't of Corr., 2006 WL 59819 (N.J.
Super. Ct. App. Div. Jan. 12, 2006) (rejecting the petitioner's
appeal under N.J. ADMIN. CODE § 10A:4–3.1(a) based on the
substantive record). Without the benefit of any briefing on the
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that Defendants Marrocco and Seibert failed to provide
sufficient notice to Plaintiff of the admission requirements. As
he has not stated factual grounds for the other named
defendants’ direct involvement,7 this claim shall be dismissed
against them.
E. Defendants Steltz and Metelow
The claims against Defendants Steltz and Metelow must be
dismissed for failure state a claim upon which relief may be
granted pursuant to 28 U.S.C. § 1915(e)(2)(B). The sole mention
of Defendant Steltz in Plaintiff’s complaint is that she
attached her initials to the form denying Plaintiff admittance
to the culinary arts program. (Complaint, Docket Entry 1 at 4 ¶
1(F)). There is no indication in the complaint that she was
involved in the decision to deny Plaintiff entry, nor can a
reasonable inference be drawn in Plaintiff’s favor on that
point. As Plaintiff has not set forth a factual basis for
holding Defendant Stelz personally liable, she must be dismissed
from the case.
Likewise, Plaintiff fails to state a factual basis for
holding Defendant Metelow liable. Plaintiff identifies Defendant
Metelow as the Supervisor of Education as SWSP, (Id. at 3), and
issue, the Court declines to rule that a private right of action
to enforce N.J. ADMIN. CODE § 10A:4–3.1 does or does not exist.
7 See infra, Part IV.E.
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alleges he notified Metelow of his inability to enter the
program, (Id. at 5 ¶ 6). Plaintiff states no other basis of
liability. Failure to process or respond to an inmate’s
grievances, however, have been held to not violate any right to
due process, see, e.g., Glenn v. DelBalso, 599 F. App'x 457, 459
(3d Cir. 2015); Rode v. Dellarciprete, 845 F.2d 1195, 1207-08
(3d Cir. 1988); Stringer v. Bureau of Prisons, Federal Agency,
145 F. App’x 751, 753 (3d Cir. 2005) (alleged failure to process
or respond to inmate’s grievances did not violate his rights to
due process and is not actionable); Hoover v. Watson, 886 F.
Supp. 410, 418 (D. Del.) aff'd, 74 F.3d 1226 (3d Cir. 1995)
(holding that if a state elects to provide a grievance
mechanism, violations of its procedures do not give rise to a §
1983 claim), therefore Defendant Metelow cannot be liable under
§ 1983 on this basis.
To the extent Plaintiff asserts a claim against Defendant
Metelow based on his position as the supervisor in charge of the
Education Department, his complaint still fails to state a basis
for individual liability. “Government officials may not be held
liable for the unconstitutional conduct of their subordinates
under a theory of respondeat superior.” Ashcroft v. Iqbal, 556
U.S. 662, 676 (2009). State actors are liable only for their own
unconstitutional conduct. Bistrian v. Levi, 696 F.3d 352, 366
(3d Cir. 2012).
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The Third Circuit has identified two general ways in which
a supervisor-defendant may be liable for unconstitutional acts
undertaken by subordinates: (1) “liability may attach if they,
with deliberate indifference to the consequences, established
and maintained a policy, practice or custom which directly
caused [the] constitutional harm”; or (2) “a supervisor may be
personally liable under § 1983 if he or she participated in
violating the plaintiffs rights, directed others to violate
them, or, as the person in charge, had knowledge of and
acquiesced in the subordinate's unconstitutional conduct.”
Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir.
2014) (internal citations omitted), rev’d on other grounds sub
nom Taylor v. Barkes, 135 S. Ct. 2042 (2015). “[U]nder Iqbal,
the level of intent necessary to establish supervisory liability
will vary with the underlying constitutional tort alleged.” Id.
at 319. This Court cannot plausibly find liability under either
theory as Plaintiff has not set forth any facts indicating
Defendant Metelow either established a discriminatory policy
himself, or that he was aware of and condoned his staff’s
discriminatory actions. See Fowler v. UPMC Shadyside, 578 F.3d
203, 211 (3d Cir. 2009) (“[A] complaint must do more than allege
the plaintiff's entitlement to relief. A complaint has to ‘show’
such an entitlement with its facts.”).
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Defendant Metelow must be dismissed from the case at this
time without prejudice to Plaintiff’s right to move to amend his
claims.
F. Leave to Amend
As Plaintiff may be able to set forth facts that would
correct the deficiencies noted herein, he shall be given leave
to move to amend the complaint. Plaintiff should note that when
an amended complaint is filed, the original complaint no longer
performs any function in the case and cannot be utilized to cure
defects in the amended complaint, unless the relevant portion is
specifically incorporated in the new complaint. 6 Wright, Miller
& Kane, Federal Practice and Procedure 1476 (2d ed. 1990)
(footnotes omitted). An amended complaint may adopt some or all
of the allegations in the original complaint, but the
identification of the particular allegations to be adopted must
be clear and explicit. Id. To avoid confusion, the safer course
is to file an amended complaint that is complete in itself. Id.
Plaintiff is also advised that he may not re-plead claims that
have been dismissed with prejudice.
V.
CONCLUSION
For the reasons stated above, Plaintiff’s claims shall be
permitted to go forward against Defendants Siebert and Marrocco
only. If Plaintiff seeks to reinstate claims that have been
dismissed without prejudice, he may move for leave to file an
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amended complaint, which shall be subject to this Court’s
screening, if he can cure the deficiencies noted herein, within
30 days hereof.
An appropriate order follows.
January 21, 2016
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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