GROHS v. LANIGAN et al

Filing 5

OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 7/14/16. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

STEVEN GROHS,
Plaintiff,

Civil Action
No. 15-8184 (JBS-JS)

v.
GARY M. LANIGAN, et al.,

OPINION

Defendants.

APPEARANCES:
Steven Grohs, Plaintiff Pro Se
#594
Special Treatment Unit, South
PO Box 905
Avenel, New Jersey 07001-0905
SIMANDLE, Chief District Judge:
INTRODUCTION
Before the Court is Plaintiff Steven Grohs’ (“Plaintiff”)
submission of a civil rights complaint pursuant to 42 U.S.C. §
1983. Complaint, Docket Entry 1. Plaintiff is a civilly
committed person currently confined at Special Treatment Unit
(“STU”) in Avenel, New Jersey. By Order dated February 24, 2016,
this Court granted Plaintiff's application to proceed in forma
pauperis, Docket Entry 4.
At this time, the Court must review the complaint pursuant
to 28 U.S.C. § 1915(e)(2) 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 the
complaint shall be dismissed. Plaintiff shall be granted leave
to amend certain claims.
II. BACKGROUND
Plaintiff filed this complaint against the New Jersey
Department of Corrections (“DOC”), DOC Commissioner Gary
Lanigan, South Woods State Prison (“SWSP”) Administrator John
Cunningham, Officers John Does 1-45, SWSP Officer Spencer, and
Former SWSP Administrator Karen Balicki (collectively
“Defendants”) alleging violations of his Fifth, Eighth, and
Fourteenth Amendment rights, as well as claims under the New
Jersey Constitution and administrative code. 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.
On March 3, 2011, Plaintiff began the process of
transferring from SWSP to the STU in order to begin his
temporary civil commitment. Complaint ¶¶ 6(1)-(3). The SWSP
Administrator at that time, Defendant Balicki, directed Officers
John Does 1-5 to place Plaintiff in administrative segregation
pending his transfer. Id. ¶¶ 6(3)-(4). After Plaintiff was
removed from his cell, Officer Spencer inventoried Plaintiff’s
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personal property in the cell. Id. ¶ 6(8). “Whist [sic]
Plaintiff was at SWSP, he was not provided with a copy of an
inventory sheet itemizing the property inventoried.” Id. He was
transported to the STU on March 4, 2011, without any of his
property. Id. ¶ 6(11).
Upon arrival at the STU, Plaintiff placed in a cell for two
days with only a mattress, bed linen, hand soap, and toilet
paper. Id. ¶ 6(12). Plaintiff did not have any clothing other
than the clothes he arrived with until his property arrived on
or about March 21, 2011. Id. ¶¶ 6(13)-(14). He received three
large boxes and a copy of an inventory sheet. “[H]owever, it
only listed the property belonging to Plaintiff which had not
been stolen at SWSP.” Id. ¶ 6(14). Plaintiff alleges Defendants
“indirectly caused the theft” of his property as other inmates
were permitted to enter his cell and “have unsupervised access
to Plaintiff’s personal property.” Id. ¶¶ 6(20), 6(17). He
further alleges his television arrived damaged. Id. ¶ 6(21). He
submitted an administrative remedy form for the lost and damaged
property, which was ultimately denied by Administrator
Cunningham. Id. ¶ 6(32). Plaintiff appealed the decision to the
Appellate Division, Grohs v. N.J. Dep't of Corr., No. A-4913-12,
2014 WL 8764096 (N.J. Super. Ct. App. Div. May 4, 2015).1 The

1

See Southern Cross Overseas Agencies, Inc. v. Wah Kwong
Shipping Grp. Ltd., 181 F.3d 410, 426 (3d Cir. 1999) (stating
3

Appellate Division denied the claim, and the New Jersey Supreme
Court denied certification. Complaint ¶¶ 6(32)-(33); Grohs v.
N.J. Dep’t of Corr., 124 A.3d 239 (N.J. 2015). Plaintiff filed
this complaint on November 11, 2015.
Plaintiff argues Defendants Spencer, Balicki, and John Does
1-5 are responsible for the loss and damage to his personal
property. He also alleges Defendants Lanigan and Balicki failed
to implement proper procedures. Id. ¶¶ 6(18)-(19), (25)-(26),
(29). He also argues “the actions of SWSP to remove Plaintiff
from his assigned cell and separate him from his personal
property were actions the defendants did not do to other
similarly situated inmates.” Id. ¶ 6(10).
Plaintiff seeks a declaratory judgment that Defendants
failed to follow the New Jersey Administrative Code in several
respects, id. ¶ 7(1)-(5), and that they violated his Fifth,
Fourteenth, and Eighth Amendment rights under the federal
Constitution, as well as his Due Process and Equal Protection
rights under the New Jersey Constitution, id. ¶ 7(9). He also
seeks damages for the loss and damage to his property as well as

that a court “may take judicial notice of another court's
opinion — not for the truth of the facts recited therein, but
for the existence of the opinion, which is not subject to
reasonable dispute over its authenticity.”).
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the costs of litigation in the state and federal courts. Id. ¶
7(10).
III. STANDARD OF REVIEW
A. Standards for a Sua Sponte Dismissal
This action is subject to sua sponte screening for
dismissal under 28 U.S.C. § 1915(e)(2)(b) because Plaintiff is
proceeding in forma pauperis. The Court must 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.
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
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

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“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)).
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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). However,
“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).
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 ....
§ 1983. 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,
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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).
IV. ANALYSIS
A. Eleventh Amendment
To the extent Plaintiff seeks monetary damages from
Defendants in their official capacities, he is barred by the
Eleventh Amendment. Eleventh Amendment immunity “protects both
states and state agencies ‘as long as the state is the real
party in interest.’” Woodyard v. Cnty. of Essex, 514 F. App’x
177, 182 (3d Cir. 2013) (per curiam) (quoting Fitchik v. N.J.
Transit Rail Operations, 873 F.2d 655, 659 (3d Cir. 1989) (en
banc)). 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). These claims must be dismissed with
prejudice.

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Additionally, Plaintiff alleges the DOC’s failure “to
provide Plaintiff with clothing and other health items, before
it gave his personal property to him . . . was deliberately
indifferent to Plaintiff’s health and safety.” Complaint ¶¶
6(23)-(24). The DOC is a state agency and is entitled to share
in New Jersey’s sovereign immunity. See Chavarriaga v. N.J.
Dep't of Corr., 806 F.3d 210, 224 n.9 (3d Cir. 2015) (“[T]he
Court correctly dismissed the NJDOC from this case on Eleventh
Amendment grounds.”). The Eighth Amendment claim against the DOC
must therefore be dismissed with prejudice.
B. Deprivation of Property
Plaintiff asserts Defendants deprived him of his property
in violation of his Due Process rights under the Fifth and
Fourteenth Amendments. As this claim is legally flawed, it will
be dismissed with prejudice.
Essentially, Plaintiff argues the SWSP officials were
negligent in inventorying, storing, and transporting his
property. “Due process claims for negligent deprivations of
property by prison officials are barred by Daniels v. Williams,
474 U.S. 327, 328 (1986).” Toney v. Sassaman, 588 F. App'x 108,
110 (3d Cir. 2015). To the extent the complaint could be read as
alleging Defendants intentionally deprived Plaintiff of his
property, those claims are barred if there is an adequate postdeprivation remedy available to the plaintiff. Hudson v. Palmer,
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468 U.S. 517, 533 (1984); Tillman v. Lebanon Cnty. Corr.
Facility, 221 F.3d 410, 421–22 (3d Cir. 2000). However, “postdeprivation remedies do not satisfy the Due Process Clause if
the deprivation of property is accomplished pursuant to
established state procedure rather than through random,
unauthorized action.” Stokes v. Lanigan, No. 12-1478, 2012 WL
4662487, at *4 (D.N.J. Oct. 2, 2012) (citing Logan v. Zimmerman
Brush Co., 455 U.S. 422, 435–36 (1982)).
Although Plaintiff cursorily states at one point in his
complaint that Officer John Does 1-5 were acting “in accordance
with the [DOC] practices, policies, and procedures,” Complaint ¶
6(9), the remainder of his complaint clearly indicates his
position that Defendants did not follow the relevant policies.
For example, he asks this Court to enter a declaratory judgment
that Defendants failed to timely secure his property, inventory
his property, pack his property in his presence, timely ship his
property to the STU, provide an inventory sheet “at the time of
or directly following the inventory,” obtain his signature on
the inventory sheet, and “exercise due care in preventing
Plaintiff’s personal property loss, damage and/or destruction”
in violation of the relevant administrative code provisions. Id.
at ¶¶ 7(1)(a)-(n), 7(3). The complaint therefore does not
support a reading that Defendants “deprived [Plaintiff] of
property pursuant to an established state procedure . . . . To
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the contrary, established state procedures require prison
officials to preserve personal property of inmates.” Stokes,
2012 WL 4662487 at *4 (citing N.J. ADMIN. CODE §§ 10A:1–11.1 et.
seq. (2001)).
Plaintiff asserts Defendants acted negligently in securing
and protecting his property. This fails to state a claim under
the Due Process Clause. Daniels v. Williams, 474 U.S. 327, 328
(1986); Toney v. Sassaman, 588 F. App'x 108, 110 (3d Cir. 2015).
Even if the complaint could be read as to claim intentional
deprivation, Plaintiff still could not bring a Due Process claim
as there was an adequate post-deprivation remedy available to
him in the state courts, which he in fact used. Grohs v. N.J.
Dep't of Corr., No. A-4913-12, 2014 WL 8764096 (N.J. Super. Ct.
App. Div. May 4, 2015). As Plaintiff cannot cure this legal
deficiency, the federal Due Process claim shall be dismissed
with prejudice. Toney, 588 F. App’x at 110 (affirming District
Court’s dismissing deprivation of property claim with prejudice
as it was “legally flawed”).3

3

To the extent Plaintiff asks the Court to enter a declaratory
judgment of negligence against Defendants, the Court will
dismiss those claims as well. “The purpose of a declaratory
judgment is to ‘declare the rights of litigants.’ The remedy is
thus by definition prospective in nature.” CMR D.N. Corp. v.
City of Phila., 703 F.3d 612, 628 (3d Cir. 2013) (quoting Wilton
v. Seven Falls Co., 515 U.S. 277, 286 (1995)). Plaintiff “cannot
obtain declaratory relief for past alleged wrongs.” Capozzi v.
Bledsoe, 560 F. App'x 157, 159 (3d Cir. 2014).
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C. Equal Protection
Plaintiff also raises an Equal Protection argument,
asserting he was not treated in the same manner as other inmates
being transferred to the STU for civil commitment.
“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 persons. 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 Vill. 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). Plaintiff fails to state a claim under either theory
as he does not allege that he is a member of a protected class
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or provide facts suggesting Defendants intentionally treated him
differently from all similarly-situated persons.
Although it may be possible for Plaintiff to allege facts
that would sufficiently state an Equal Protection claim, the
Court also notes that the statute of limitations for bringing
the claim appears to have expired before the complaint was filed
in November 2015. The statute of limitations on civil rights
claims is governed by New Jersey's two-year limitations period
for personal injury.4 See Wilson v. Garcia, 471 U.S. 261, 276
(1985); Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir.
2010). The date that a cause of action under § 1983 accrues,
however, is a matter of federal law. See Kach v. Hose, 589 F.3d
626, 634 (3d Cir. 2009) (citing Gentry v. Resolution Trust
Corp., 937 F.2d 899, 919 (3d Cir. 1991)). “Under federal law, a
cause of action accrues, and the statute of limitations begins
to run when the plaintiff knew or should have known of the
injury upon which its action is based.” Id. (internal quotation
marks and citations omitted).

4

“Although the running of the statute of limitations is
ordinarily an affirmative defense, where that defense is obvious
from the face of the complaint and no development of the record
is necessary, a court may dismiss a time-barred complaint sua
sponte under § 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to
state a claim.” Ostuni v. Wa Wa's Mart, 532 F. App’x 110, 111–12
(3d Cir. 2013) (per curiam).
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According to the complaint, the alleged Equal Protection
violation occurred in March 2011. As such, Plaintiff was
required to bring his Equal Protection claim by March 2013, over
two years before he filed his complaint. The claim shall be
dismissed at this time, but shall be done so without prejudice
in order to give Plaintiff an opportunity to amend his claim
based on denial of equal protection by setting forth grounds for
equitable tolling of the two-year statute of limitations and
correcting the other deficiencies noted by the Court.
D. Failure to Supervise
Plaintiff alleges Defendants Lanigan and Balicki failed to
implement and/or enforce polices regarding the handling of
inmates’ property during a transfer.5
To set forth a claim that a supervisor failed to implement
a particular policy in violation of the Eighth Amendment,
Plaintiff must identify a supervisory policy or procedure that
was not implemented and plead facts that suggest “(1) the policy

5

The only mention of Defendant Cunningham in the factual portion
of the complaint is the reference to his denying Plaintiff’s
administrative grievance. Complaint ¶ 6(32). “Merely responding
to or reviewing an inmate grievance does not rise to the level
of personal involvement necessary to allege an Eighth Amendment
deliberate indifference claim.” Tenon v. Dreibelbis, 606 F.
App’x 681, 688 (3d Cir. 2015). The deliberate indifference claim
against Defendant Cunningham is dismissed without prejudice. In
the event Plaintiff elects to move to amend his complaint to add
factual allegations, he should also address the statute of
limitations issue.
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or procedures in effect at the time of the alleged injury
created an unreasonable risk of a constitutional violation; (2)
the defendant-official was aware that the policy created an
unreasonable risk; (3) the defendant was indifferent to that
risk; and (4) the constitutional injury was caused by the
failure to implement the supervisory procedure.” Barkes v. First
Corr. Med., Inc., 766 F.3d 307, 330 (3d Cir. 2014), rev'd on
other grounds sub nom. Taylor v. Barkes, 135 S. Ct. 2042 (2015).
Plaintiff does not allege sufficient facts for an inference
that Defendants Lanigan and Balicki were aware of a risk of a
constitutional violation and that they were deliberately
indifferent to said risk. As such, this claim shall be dismissed
without prejudice. Plaintiff may move to amend this claim, and
should address the statute of limitations issue if he does.
E. Supplemental Jurisdiction
As all of the federal claims are being dismissed, the Court
declines to exercise supplemental jurisdiction over Plaintiff’s
state law claims. 28 U.S.C. § 1367(c)(3).
F. Leave to Amend
As Plaintiff may be able to allege facts that would address
the deficiencies of his claims as noted by the Court, Plaintiff
may move for leave to file an Amended Complaint. Any motion to
amend the complaint must be accompanied by a proposed Amended
Complaint.
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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. The Amended
Complaint may not adopt or repeat claims that have been
dismissed with prejudice by the Court. Any motion to file an
Amended Complaint must be submitted within 30 days and attach a
copy of the proposed Amended Complaint.
V.

CONCLUSION
For the reasons stated above, Plaintiff’s claims for

monetary damages against Defendants in their official capacities
and his Eighth Amendment claim against the Department of
Corrections are dismissed with prejudice as barred by the
Eleventh Amendment. His federal Due Process claim is dismissed
with prejudice for failure to state a claim, and his Eighth
Amendment and federal Equal Protection claims are dismissed
without prejudice as to all Defendants for failure to state a
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claim. The Court declines to exercise supplemental jurisdiction
over any state law claims. Plaintiff may move to amend his
complaint within 30 days, at which time he should also address
the statute of limitations, giving the factual grounds for
extending the two-year deadline for filing his original
Complaint in this Court.
An appropriate order follows.

July 14, 2016
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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