ASHLEY v. METELOW et al
Filing
53
OPINION. Signed by Judge Jerome B. Simandle on 9/17/2018. (tf, 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, #575398/589308B
East Jersey State Prison
Lock Bag R
Rahway, NJ 07065
Plaintiff pro se
GURBIR GREWAL, ATTORNEY GENERAL OF NEW JERSEY
By: SUZANNE DAVIES, Deputy Attorney General
R.J. Hughes Justice Complex
25 Market Street
Trenton, NJ 08625
Attorneys for Defendants David Metelow, Don Siebert, Mr.
Marrocco, Tanya Stelz
SIMANDLE, District Judge:
INTRODUCTION
Defendants David Metelow, Don Siebert, Mr. Marrocco, and
Tanya Stelz have moved to dismiss Plaintiff Keith Ashley’s civil
rights complaint. Motion, Docket Entry 46. Plaintiff opposes the
motion. Opposition, Docket Entry 48. The motion is being decided
on the papers pursuant to Federal Rule of Civil Procedure 78. For
the reasons set forth below, the motion is granted in part, but
denied as to Plaintiff’s equal protection claim.
II. BACKGROUND
Plaintiff originally filed 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 alleging they violated his right to Free Association
under the First Amendment, the Equal Protection Clause of the
Fourteenth Amendment, and the New Jersey Administrative Code for
denying him entrance into the SWSP Culinary Arts Program and for
failing to inform him of the complete requirements for entry.
After reviewing the complaint, the Court permitted the complaint
to proceed only against Siebert and Marrocco as Plaintiff had not
sufficiently alleged personal involvement by the other named
defendants. January 22, 2016 Order, Docket Entry 4. On February 7,
2017, the Court permitted Plaintiff to amend his complaint and
reinstated the claims against Steltz and Metelow. February 7, 2017
Order, Docket Entry 19.
According to the amended complaint, 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. Amended Complaint, Docket Entry 11 ¶ 1. He specifically
alleges he applied to the program on October 23, 2007, September
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28, 2009, December 9, 2009, June 24, 2013, August 28, 2013,
September 22, 2013, April 24, 2014, July 7, 2014, and July 11,
2014. Id. ¶ 1(B)(1) n.16. He alleges Steltz placed him on the
computer literacy class waiting list without verifying his high
school diploma but rejected him from the culinary arts program for
failure to verify his diploma. Id. ¶ 1(B)(1)(a)-(b) n.17-18.
Plaintiff also alleges he was scheduled for an entry
interview on August 20, 2013, but Officer Lynch turned him away
from the interview site stating Plaintiff’s name was not on the
interview list. Id. ¶4(F). Plaintiff states he saw his name on the
list and that Officer Lynch had a “personal vendetta” against him.
Id. ¶ 4(F) n.32.1 He filled out a grievance form objecting to his
absence from the list, and he received a letter from Seibert
indicating that the certificate earned through the program expired
after five years, and therefore that inmates with parole
eligibility or maximum release dates within the next two years are
given preference for entry into the program. Id. ¶ 4(H). Plaintiff
alleges Caucasian inmates with more than two years left before
their parole eligibility dates (“PEDs”) and who were put on the
waiting list after Plaintiff were permitted to enroll in the
program. See id. ¶¶ 4(D)(9)(a), (G).
1
The Court dismissed Plaintiff’s claims against Officer Lynch on
February 7, 2017. Docket Entry 19.
3
Plaintiff wrote to SWSP Administrator Nelsen regarding the
difficulty he was having enrolling in the program. Nelsen
responded: “This office is in receipt of your appeal received on
October 8, 2013, in reference to participating in the Culinary
Arts Program. Be advised that you are 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. ¶ 4(H). Plaintiff states he wrote to Nelsen, Metelow,
and Siebert about being denied entry into the class on several
occasions over the years regarding his repeated denials of entry
into the program and alleged discrimination by SWSP staff.2 Id. ¶
6(VI).
Defendants now move to dismiss the amended complaint for
failure to state a claim. Fed. R. Civ. P. 12(b)(6). Plaintiff
opposes the motion. Opposition, Docket Entry 48.
III. STANDARD OF REVIEW
When considering a motion to dismiss a complaint for failure
to state a claim, Fed. R. Civ. P. 12(b)(6), the Court must accept
all well-pleaded allegations in the complaint as true and view
them in the light most favorable to the non-moving party. A motion
to dismiss may be granted only if the plaintiff has failed to set
forth fair notice of what the claim is and the grounds upon which
2
Nelsen is also named as a defendant in this matter but has not
been served with the amended complaint. See Docket Entry 42.
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it rests that make such a claim plausible on its face. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Although Rule 8
does not require “detailed factual allegations,” it requires “more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550
U.S. at 555).
In reviewing the sufficiency of a complaint, the Court must
“tak[e] note of the elements [the] plaintiff must plead to state a
claim. Second, it should identify allegations that, because they
are no more than conclusions, are not entitled to the assumption
of truth. Finally, [w]hen there are well-pleaded factual
allegations, [the] court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to
relief.” Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir.
2016) (alterations in original) (internal citations and quotation
marks omitted).
IV. ANALYSIS
A. First Amendment Right of Association
Defendants move to dismiss Plaintiff’s First Amendment free
association claim, asserting the rights protected by the amendment
are limited to “certain intimate human relationships” and “the
right to associate for the purpose of engaging in activities
protected by the First Amendment – speech, assembly, petition for
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redress of grievances and the exercise of religion.” Motion at 1516.
“[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). However, the
Supreme Court has declined to hold or imply “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).
“The Court also has recognized that the right to engage in
activities protected by the First Amendment implies ‘a
corresponding right to associate with others in pursuit of a wide
variety of political, social, economic, educational, religious,
and cultural ends.’” Bd. of Directors of Rotary Int'l v. Rotary
6
Club of Duarte, 481 U.S. 537, 548 (1987) (quoting Roberts v.
United States Jaycees, 468 U.S. 609, 622 (1984)) (emphasis added).
Here, Plaintiff alleges Defendants wrongly denied him the
opportunity to associate with other prisoners interested in
pursuing culinary education. Although denial of entry into a
prison training program could theoretically be viewed as the
denial of some “associational” right, Plaintiff’s particular claim
does not appear to be properly viewed as such because he does not
challenge a policy that allegedly denied him the ability to
associate with his fellow hopeful chefs, e.g., the requirement to
have one’s parole eligibility or maximum release dates within the
next two years in order to enter the program. See also Roberts,
468 U.S. 609 (challenge to policy denying women membership in the
United States Jaycees). Rather, he alleges that Defendants are
refusing him entry into the program not because of an official
policy but because of racial discrimination. It therefore appears
more appropriate to view Plaintiff’s allegations through the
doctrine of equal protection.
The First Amendment claim shall be dismissed.
B. Equal Protection
Defendants argue Plaintiff’s non-enrollment into the culinary
arts program was not motivated by race but was due to his being
more than two years from his PED. They argue this policy is
rationally related to a legitimate government interest because the
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culinary certificates expire after five years. “Therefore, the
Department of Corrections must give preference, for financial and
pragmatic reasons, to inmates whose Parole Eligibility and maximum
release dates are within the next two years.” Motion at 14-15.
“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.
Plaintiff has alleged that SWSP “allows the Caucasian
prisoners, who are not within their two (2) years of their Parole
Eligibility Date (P.E.D.) or Maximum Date and be allowed to take
the vocational training (culinary arts program) . . . .” Amended
Complaint ¶ 6(2)(a). As the Court must accept Plaintiff’s
allegations as true for purposes of the motion to dismiss, he has
sufficiently alleged an equal protection claim, namely, that a
state official discriminated against him pertaining to prison
training classes based upon race, as similarly situated
individuals of a different race were treated more favorably and
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admitted to the program.
Whether Plaintiff’s race played a
significant role in the decision remains to be proved by
Plaintiff.
Defendants’ motion to dismiss this claim is denied.
C. Administrative Code Claim
Plaintiff argues Defendants violated his Inmate Rights and
Responsibilities, N.J. ADMIN. CODE § 10A:4-3.1. 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 interests,
needs and abilities.” N.J. ADMIN. CODE § 10A:4-3.1(a)(2),(10).
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). Defendants
argue these code provisions do not provide for a private cause of
action.
The portions of the administrative code cited by Plaintiff do
not explicitly provide for a private cause of action. When a
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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., 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, 440 A.2d 21, 26 (N.J. Super. Ct. App. Div. 1981)). See also
Ferraro v. City of Long Branch, 714 A.2d 945, 955 (N.J. Super. Ct.
App. Div. 1998) (“[T]he breach of administrative regulations does
not of itself give rise to a private cause of action.”).
Plaintiff is clearly among the class of persons meant to
benefit from these provisions, but “[t]here is no support that the
Legislature intended these provisions to provide a basis for a
civil suit for damages, or authorized the Commissioner of the
Department of Corrections to create a basis for state civil
liability in the administrative code.” Turner v. Johnson, No. 170541, 2018 WL 2859678, at *6 (D.N.J. June 11, 2018). See also
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Drury v. Debellis, No. 15-2137, 2017 WL 2968393, at *6–7 (D.N.J.
July 12, 2017). The state court cases citing the Rights and
Responsibilities are appeals of administrative actions, not
private suits for damages. See, e.g., Delgado v. New Jersey Dep't
of Corr., No. A-0923-14, 2015 WL 8547359, at *1 (N.J. Super. Ct.
App. Div. Dec. 14, 2015); 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); Smith v. New Jersey Dep't of Corr., 786
A.2d 165 (N.J. Super. Ct. App. Div. 2001). These claims shall be
dismissed.
D. Statute of Limitations
Finally, Defendants ask the Court to dismiss Plaintiff’s
claims that accrued prior to May 5, 2013, two years before
Plaintiff filed his initial complaint.
“The running of the statute of limitations is an affirmative
defense.” Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017)
(citing Fed. R. Civ. P. 8(c)(1)). “A complaint is subject to
dismissal for failure to state a claim on statute of limitations
grounds only when the statute of limitations defense is apparent
on the face of the complaint.” Id. The statute of limitations for
§ 1983 claims in New Jersey is two years. See Wilson v. Garcia,
471 U.S. 261, 276 (1985); Dique v. N.J. State Police, 603 F.3d
181, 185 (3d Cir. 2010) (“[S]tate law provides the statute of
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limitations applicable to a section 1983 claim.”); N.J. STAT. ANN.
§ 2A:14-2(a). “Under federal law, a cause of action accrues ‘when
the plaintiff knew or should have known of the injury upon which
the action is based.’” Montanez v. Sec'y Pa. Dep't of Corr., 773
F.3d 472, 480 (3d Cir. 2014) (quoting Kach v. Hose, 589 F.3d 626,
634 (3d Cir. 2009)). “State law, unless inconsistent with federal
law, also governs the concomitant issue of whether a limitations
period should be tolled.” Dique, 603 F.3d at 185.
New Jersey recognizes the continuing violation theory, which
is “an equitable exception to the statute of limitations.” Roa v.
Roa, 985 A.2d 1225, 1231 (N.J. 2010) (internal citation and
quotation marks omitted). “The doctrine provides that when an
individual experiences a ‘continual, cumulative pattern of
tortious conduct, the statute of limitations does not begin to run
until the wrongful action ceases.’” Id. (quoting Wilson v. WalMart Stores, 729 A.2d 1006, 1010 (N.J. 1999)). See also Cibula v.
Fox, 570 F. App'x 129, 135 (3d Cir. 2014).
In reviewing the amended complaint and attached documents,
there are enough facts for the Court to plausibly infer that the
continuing violation theory may be applicable to Plaintiff’s
claim. The Court does not find facts when it addresses a Rule
12(b)(6) motion. At this stage of the proceedings, the Court is
required to assume the veracity of Plaintiff’s well-pleaded
allegations. See Connelly v. Lane Const. Corp., 809 F.3d 780, 787
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(3d Cir. 2016). Plaintiff has alleged that Defendants have
continuously discriminated against him, a racial minority, since
2007 by denying him entry into the culinary arts program but
admitting Caucasian prisoners with more time remaining on their
sentences. At least one such act of alleged discrimination
occurred within the two-year statute of limitations. See Amended
Complaint ¶ D(11). As such, dismissing Plaintiff’s claims under
Rule 12(b)(6) on the face of the complaint would be inappropriate.
V.
CONCLUSION
For the reasons stated above, Defendants’ motion to dismiss
is granted in part. Plaintiff’s free association and New Jersey
Administrative Code claims are dismissed. Defendants shall answer
the equal protection claim within 14 days of the entry of this
order. Fed. R. Civ. P. 12(a)(4).
An appropriate order follows.
September 17, 2018
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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