SHELTON v. CAPE MAY COUNTY CORRECTIONAL FACILITY et al

Filing 7

OPINION filed. Signed by Judge Noel L. Hillman on 12/4/2015. (drw)n.m.

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
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Plaintiff,
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v.
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CAPE MAY COUNTY CORRECTIONAL
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FACILITY, et al.,
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Defendants.
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___________________________________:
AARON LEWIS SHELTON, V,

Civ. No.

15-4603 (NLH)

OPINION

APPEARANCES:
Aaron Lewis Shelton, V, #37837
Cape May County Correctional Center
4 Moore Road
Cape May Court House, NJ 08210
Plaintiff Pro se

HILLMAN, District Judge
Plaintiff Aaron Lewis Shelton, V, an inmate formerly
confined at Cape May County Correctional Center in Cape May, New
Jersey, brings this civil rights action pursuant to 42 U.S.C. §
1983.

On July 14, 2015, the Court granted Plaintiff’s

application to proceed in forma pauperis.

On July 24, 2015,

mail sent to Plaintiff at the address provided on his Complaint
was returned to the Court as undeliverable. (ECF No. 4).

As a

result, the case was administratively terminated due to
Plaintiff’s failure to comply with Local Civil Rule 10.1. (ECF
No. 5).

However, on September 11, 2015, Plaintiff provided a

Notice of Change of Address. (ECF No. 6).

Accordingly, the case

is now under review by a judicial officer.
At this time, the Court must screen the 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 pursuant to 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 28 U.S.C. § 1997e.

For the reasons set forth

below, the Complaint will be DISMISSED WITHOUT PREJUDICE.
I.

BACKGROUND

The allegations of the Complaint are as follows:
On Sat[urday], May 9th, 2015 Sgt. Caldwell confiscated
a pair of flip-flops from me that were “not jail
issued.” Knowing that her claim about there being a
rule covering “non-jail issued” footwear in the
rulebook was false, I asked her to please show me the
rule. After I relinquished the flip-flops, Sgt.
Caldwell informed me that she couldn’t find the rule,
but it was a directive from her superiors. I informed
her that I knew it wasn’t a rule and I also expressed
to her that I felt as though her real issue derived
from a run-in she and I had regarding my right to
practice my religion. Her response was “watch your
mouth your [sic] being disrespectful.” I replied,
“I’m not being disrespectful, I’m excercising [sic] my
Constitutional right to Free Speech.” She then said,
“I’m writing you up and the Constitution doesn’t apply
to you guys.” She walked off, then returned with my
“write up,” and asked did I want a conference on the
matter. I told her I want to appeal the matter. She
informed me that “on the spot write-ups” weren’t
subject to appeal. I told her that’s a lie, she said

if I wanted a conference it would be held then and
there. I asked where my impartial panel was and she
informed me that the conference would be held between
herself and I and that she’d already decided on my
guilt. I informed her that she had just violated the
Due Process Clause of the Fourteenth Amendment, at
which time she turned and walked away. I said “bye”
so she wrote me up again. The Warden is guilty of not
keeping his staff informed of the Constitutional
rights of prisoners.
(Compl. 5-6, ECF No. 1).
Plaintiff names Donald J. Lombardo, the Warden of Cape May
County Correctional Center, as a defendant in this matter
because “he is directly in charge of all officers in the
facility [and] he failed to make Sgt. Caldwell aware of the
Constitutional rights of prisoners.” (Compl. 4, ECF No. 1).
Plaintiff also names Christine Caldwell, a sergeant at the
Cape May County Correctional Center, as a defendant.

Based on

the allegations quoted above, Plaintiff asserts that she
violated his constitutional rights because: (1) she told
Plaintiff that “the Constitution doesn’t apply to ‘you guys’”;
(2) she violated the due process clause of the Fourteenth
Amendment by denying Plaintiff an appeal and denying him a
disciplinary hearing; and (3) she retaliated against Plaintiff
for knowing and quoting his Constitutional rights. (Compl. 4,
ECF No. 1).
Plaintiff seeks financial compensation for these alleged
constitutional violations. (Compl. 6, ECF No. 1).

II.

STANDARDS FOR A SUA SPONTE DISMISSAL

Every complaint must comply with the pleading requirements
of the Federal Rules of Civil Procedure.

Rule 8(a)(2) requires

that a complaint contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
“Specific facts are not necessary; the statement need only ‘give
the defendant fair notice of what the ... claim is and the
grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89,
93 (2007) (citations omitted).
While a complaint ... does not need detailed factual
allegations, a plaintiff’s obligation to provide the
“grounds” of his “entitle[ment] to relief” requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will
not do ... . Factual allegations must be enough to
raise a right to relief above the speculative level
... .
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations omitted).
That is, a complaint must assert “enough facts to state a
claim to relief that is plausible on its face.” Id. at 570.

“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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550
U.S. at 556).

The determination of whether the factual

allegations plausibly give rise to an entitlement to relief is

“‘a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.’” Bistrian v.
Levi, 696 F.3d 352, 365 (3d Cir. 2012) (citations omitted).
Thus, a court is “not bound to accept as true a legal conclusion
couched as a factual allegation,” and “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678
(citations omitted).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to accept its factual allegations as true,
see James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir.
2012), and to construe it liberally in favor of the plaintiff,
see Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United States
v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
In general, where a complaint subject to statutory
screening can be remedied by amendment, a district court should
not dismiss the complaint with prejudice, but should permit the
amendment. Denton v. Hernandez, 504 U.S. 25, 34 (1992); Grayson
v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002)
(noting that leave to amend should be granted “in the absence of
undue delay, bad faith, dilatory motive, unfair prejudice, or
futility of amendment”), cited in Thomaston v. Meyer, 519 F.
App’x 118, 120 n.2 (3d Cir. 2013); Urrutia v. Harrisburg County
Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).

III. 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. West v. Atkins, 487 U.S. 42, 48, 108
S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988); Malleus v. George, 641
F.3d 560, 563 (3d Cir. 2011).
IV.

ANALYSIS

A. Claims against Defendant Caldwell
As set forth above, Plaintiff alleges that Defendant
Caldwell violated his constitutional rights because: (1) she
told Plaintiff that “the Constitution doesn’t apply to ‘you
guys’”; (2) she violated the due process clause of the
Fourteenth Amendment by denying Plaintiff an appeal and denying
him a disciplinary hearing; and (3) she retaliated against

Plaintiff for knowing and quoting his Constitutional rights.
(Compl. 4, ECF No. 1).

The Court will address each allegation

in turn.
1. Defendant Caldwell’s statement to Plaintiff
According to the Complaint, Defendant Caldwell allegedly
told Plaintiff, “[T]he Constitution doesn’t apply to ‘you
guys.’” (Comp. 4, ECF No. 1).

To extent Plaintiff asserts that

Defendant Caldwell’s statement, in itself, violated his
constitutional rights, Plaintiff is mistaken.

It is well-

established that mere words spoken to a prisoner by a
correctional officer — even when those words are harsh — do not
amount to a violation of the prisoner's civil rights by the
officer. See, e.g., Gannaway v. Berks Cnty. Prison, 439 F. App'x
86, 91 (3d Cir. 2011) (citing DeWalt v. Carter, 224 F.3d 607,
612 (7th Cir. 2000) (“Standing alone, simple verbal harassment
does not constitute cruel and unusual punishment, deprive a
prisoner of a protected liberty interest or deny a prisoner
equal protection of the laws.”).
Accordingly, any claim based on Defendant Caldwell’s
statement that “the Constitution doesn’t apply to ‘you guys’” is
dismissed for failure to state a claim upon which relief can be
granted.

2. Due Process Claim
Plaintiff next asserts that Defendant Caldwell violated
Plaintiff’s right to due process by failing to allow him to
appeal his “write-up” and by denying him a disciplinary hearing
on the issue.
It is well established that “[p]risoners ... may not be
deprived of life, liberty or property without due process of
law.” Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 41
L.Ed.2d 935 (1974).

“However, inmates are generally not

entitled to procedural due process in prison disciplinary
hearings because the sanctions resulting from those hearings do
not usually affect a protected liberty interest.” Burns v. PA
Dep't of Corr., 642 F.3d 163, 170-71 (3d Cir. 2011) (citing
Sandin v. Conner, 515 U.S. 472, 483–84, 115 S.Ct. 2293, 132
L.Ed.2d 418 (1995) (holding that not all sanctions resulting
from prison disciplinary hearings affect protected liberty
interests)); see also Robinson v. Danberg, 729 F. Supp. 2d 666,
678 (D. Del. 2010) (collecting cases) (holding that, the right
to appeal a disciplinary conviction is not within the narrow set
of due process rights delineated in Wolff).
Further, the filing of a false disciplinary charge and
related disciplinary sanctions, without more, does not violate a
plaintiff's constitutional rights under the Due Process Clause.
See Smith v. Mensinger, 293 F.3d 641, 653–54 (3d Cir. 2002).

Rather, a plaintiff's due process rights are triggered by a
deprivation of a legally cognizable liberty interest.

For a

prisoner, such a deprivation occurs when the prison “imposes
atypical and significant hardship on the inmate in relation to
the ordinary incidents of prison life.” Sandin, 515 U.S. at 484.
Here, Plaintiff does not indicate what sanctions, if any,
he received as a result of the “write-ups” or the alleged
finding of guilt by Defendant Caldwell.

Therefore, Plaintiff

has failed to establish that the “write-ups” issued by Defendant
Caldwell implicated a protected liberty interest sufficient to
trigger the protections of procedural due process.

Accordingly,

as alleged, the Complaint fails to state a claim upon which
relief can be granted.

However, Plaintiff will be permitted to

amend his Complaint to assert facts sufficient to state a
procedural due process claim.
3. Retaliation
Finally, Plaintiff asserts a retaliation claim against
Defendant Caldwell.
“Retaliating against a prisoner for the exercise of his
constitutional rights is unconstitutional.” Bistrian v. Levi,
696 F.3d 352, 376 (3d Cir. 2012) (collecting cases); see also
White v. Napoleon, 897 F.2d 103, 111–12 (3d Cir. 1990)
(“Retaliation for the exercise of constitutionally protected
rights is itself a violation of rights secured by the

Constitution actionable under § 1983.”).

To state a claim for

retaliation, a plaintiff must allege that: (1) he engaged in
constitutionally protected conduct, (2) he then suffered some
adverse action caused by prison officials; and (3) a causal link
existed between the protected conduct and the adverse action.
Obiegbu v. Werlinger, 581 F. App'x 119, 122 (3d Cir. 2014)
(citing Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)).

With

respect to the second prong of a claim for retaliation, “a
prisoner-plaintiff satisfies this requirement by demonstrating
that the action ‘was sufficient to deter a person of ordinary
firmness from exercising his [constitutional] rights.’” Rauser,
241 F.3d at 333 (quoting Allah v. Seiverling, 229 F.3d 220, 225
(3d Cir. 2000)).

As for the third prong, “[t]he requisite

causal connection can be demonstrated by ‘(1) an unusually
suggestive temporal proximity between the protected activity and
the allegedly retaliatory action, or (2) a pattern of antagonism
coupled with timing to establish a causal link.’” Obiegbu, 581
F. App'x at 122 (citing Lauren W. ex rel. Jean W. v. DeFlaminis,
480 F.3d 259, 267 (3d Cir. 2007)).
Based on the allegations of the Complaint, it is not clear
precisely what conduct led to the alleged retaliation; nor is it
clear what specific adverse action Plaintiff allegedly suffered;
or that a connection existed between the constitutionally
protected conduct and the alleged adverse action.

Plaintiff

vaguely asserts that he was retaliated against for
“knowing/quoting” his constitutional rights.

However, this

allegation fails to state that Plaintiff was engaged in any type
of constitutionally protected behavior; it does not describe any
adverse action; and it offers only a conclusory statement that
there was a link between the unspecified protected conduct and
the unspecified adverse action.
Moreover, the factual assertions of the Complaint do not
help to clarify Plaintiff’s argument.

Plaintiff first contends

that Defendant Caldwell gave him a “write-up 1” in response to
Plaintiff exercising his right to free speech. (Id.).

Plaintiff

then states that Defendant Caldwell gave him another “write-up”
for saying “bye” at the conclusion of their discussion on due
process. (Id.). 2

Even assuming that Plaintiff was engaged in

constitutionally protected conduct, Plaintiff’s assertion that

1

Based on the context in which the term “write-up” appears in
the Complaint, the Court assumes for purposes of this Opinion
that a “write-up” is a type of prison disciplinary report.
2

Plaintiff also suggests that Defendant Caldwell confiscated his
flip-flops in response to a prior “run-in” that she and
Plaintiff allegedly had regarding his right to practice his
religion. (Compl. 6, ECF No. 1). The Court notes, however, that
Plaintiff does not allege that his right to practice his
religion serves as the basis for his retaliation claim. Rather,
Plaintiff specifically states that he was “retaliated against []
for knowing/quoting [his] Constitutional rights.” (Compl. 4, ECF
No. 1).

he received “write-ups” does not, in itself, constitute an
adverse action.
“[W]hether a prisoner-plaintiff has met [the adverse
action] prong of his or her retaliation claim will depend on the
facts of the particular case.” Allah, 229 F.3d at 225.

Although

the filing of a “write-up,” or misconduct report can — in
certain circumstances — constitute an adverse action for
purposes of a retaliation claim, Plaintiff in this case has not
plead sufficient information to establish that those
circumstances exist here. Cf. Mitchell, 318 F.3d at 530
(allegations of a false misconduct charge which resulted in
several months in disciplinary confinement would deter a
reasonably firm prisoner from exercising his First Amendment
rights); Mensinger, 293 F.3d at 653 (falsifying misconduct
reports in retaliation for an inmate's resort to legal process
is a violation of the First Amendment guarantee of access to the
courts); see also, e.g., Smith v. Governor for Alabama, 562 F.
App'x 806, 814 (11th Cir. 2014) (disciplinary write-up based on
allegedly knowingly false information which resulted in
disciplinary proceeding during which prisoner was not allowed to
call witnesses made out prima facie case for retaliation); King
v. Zamiara, 150 F. App'x 485, 493 (6th Cir. 2005) (“Charging an
inmate with misconduct is an adverse action because serious
consequences can flow from erroneous charges.”); Robinson v.

Danberg, 729 F. Supp. 2d 666, 681 (D. Del. 2010) (plaintiff’s
allegations that, in addition to receiving write-ups, he
received false charges, accusations from defendants, was placed
in “the hole” or in isolation on numerous occasions, received
numerous threats, was denied food and had foreign objects placed
in his food represented a sufficient chronology of events from
which retaliation may be inferred).
In this case, it is unknown what the consequences, if any,
of the “write-ups” were.

Plaintiff does not allege that he was

adversely affected by these write-ups; nor does he allege that
they were based on falsified information.

Therefore, the

factual allegations of the Complaint do not suggest that the
action taken by Defendant Caldwell was sufficiently adverse to
deter a person of ordinary firmness from exercising his
constitutional rights.

Given the lack of details in these

allegations, the contours of Plaintiff’s argument remain unclear
and he has failed to set forth a claim for retaliation.
Accordingly, this claim will be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B) for failure to state a claim upon which
relief can be granted.

However, because it is possible that

Plaintiff may be able to clarify his argument and provide
details sufficient to state a claim for retaliation, this claim
will be dismissed without prejudice.

B. Claims Against Warden Lombardo
As set forth above, Plaintiff alleges that Defendant
Lombardo violated Plaintiff’s constitutional rights because “he
is directly in charge of all officers in the facility [and] he
failed to make Sgt. Caldwell aware of the Constitutional rights
of prisoners.” (Compl. 4, ECF No. 1).

In liberally construing

the Complaint, as this Court must, see Haines, 404 U.S. at 52021, this Court perceives two distinct claims against Defendant
Lombardo: one premised on the theory of respondeat superior; and
the other based on an alleged failure to train.
1. Respondeat Superior
As an initial matter, liability under § 1983 cannot attach
to Defendant Lombardo simply because he oversees employees at
the prison. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir. 1988) (“A defendant in a civil rights action must have
personal involvement in the alleged wrongs; liability cannot be
predicated solely on the operation of respondeat superior.”);
Solan v. Ranck, 326 F. App'x 97, 100-101 (3d Cir. 2009) (quoting
Rode); see also Iqbal, 556 U.S. 662 (government officials may
not be held liable, under Bivens or § 1983, for unconstitutional
conduct of their subordinates under theory of respondeat
superior; because vicarious liability is inapplicable, plaintiff
must plead that each government official-defendant, through his
or her own actions, has violated Constitution); Tenon v.

Dreibelbis, 606 F. App'x 681, 688 (3d Cir. 2015) (§ 1983 claims
may not be based on vicarious liability, each defendant must
have “personal involvement, including participation, or actual
knowledge and acquiescence, to be liable”).
Here, Plaintiff has not alleged that Defendant Lombardo had
any personal, direct involvement.
2. Failure to Train
Absent direct involvement, a plaintiff can hold a
supervisor liable for failure to train or supervise under § 1983
if the supervisor has shown deliberate indifference to the
plight of the person involved. See Aruanno v. Booker, 384 F.
App'x 69, 70 (3d Cir. 2010) (citing Gilles v. Davis, 427 F.3d
197, 207 n. 7 (3d Cir. 2005) (noting deliberate indifference
requirement for failure-to-train claim)); see also Carter v.
City of Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999).

More

specifically, to state a claim for relief for failure to train,
a plaintiff “must identify a failure to provide specific
training that has a causal nexus with [his] injuries and must
demonstrate that the absence of that specific training can
reasonably be said to reflect a deliberate indifference to
whether the alleged constitutional deprivations occurred.” See
Gilles, 427 F.3d at 207 n.7 (quoting Reitz v. County of Bucks,
125 F.3d 139, 145 (3d Cir. 1997)).

Here, Plaintiff has failed to adequately plead a cause of
action for failure to train.

In the Complaint, Plaintiff

broadly states that Defendant Lombardo failed to make Defendant
Caldwell aware of the prisoners’ constitutional rights.
However, Plaintiff has not alleged the specific constitutional
rights to which he refers.

Moreover, as set forth above,

Plaintiff has not sufficiently pled that he suffered any
constitutional deprivation which could possibly be linked to the
alleged failure to train.

Finally, the Complaint is completely

devoid of any factual allegations which suggest deliberate
indifference on the part of Defendant Lombardo.
In the Complaint, Plaintiff simply offers an unsupported,
conclusory allegation regarding Defendant Lomardo which — even
under the most liberal interpretation — cannot be construed to
state a claim under § 1983. See, e.g., Aruanno v. Booker, No.
08-305, 2009 WL 1173438, at *4 (D.N.J. Apr. 29, 2009) aff'd, 384
F. App'x 69 (3d Cir. 2010) (dismissing failure to train claims
that were based on legal conclusions which were unsupported in
the amended complaint); see also Pair v. Danberg, No. 08–458,
2008 WL 4570537 at *2 (D. Del. Oct. 14, 2008) (dismissing
conclusory failure to train or supervise claim for failing to
meet the pleading requirements of Twombly and Iqbal).
Accordingly, to the extent Plaintiff intended to assert a
claim against Defendant Lombardo for failure to train, it will

be dismissed.

However, because it is conceivable that Plaintiff

could plead facts sufficient to properly state a claim, this
dismissal is without prejudice.
V.

CONCLUSION

For the foregoing reasons, the Complaint will be dismissed
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) for failure to state
a claim upon which relief may be granted.

Because it is

possible that Plaintiff may be able to amend or supplement his
complaint with facts sufficient to overcome the deficiencies
noted herein, Plaintiff shall be given leave to file, within 45
days, an application to re-open accompanied by a proposed
amended complaint. 3 See Denton, 504 U.S. at 34; Grayson, 293 F.3d
at 108.
An appropriate Order follows.

s/ Noel L. Hillman___
NOEL L. HILLMAN
United States District Judge
Dated: December 4, 2015
At Camden, New Jersey

3

Plaintiff should note that when an amended complaint is filed,
it supersedes the original and renders it of no legal effect,
unless the amended complaint specifically refers to or adopts
the earlier pleading. See West Run Student Housing Associates,
LLC v. Huntington National Bank, 712 F.3d 165, 171 (3d Cir.
2013)(collecting cases); see also 6 CHARLES ALAN WRIGHT ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE § 1476 (3d ed. 2008). To avoid
confusion, the safer practice is to submit an amended complaint
that is complete in itself. Id.