KILLION v. COHEN et al

Filing 16

OPINION FILED. Signed by Judge Robert B. Kugler on 6/2/17. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
BRIAN KILLION,
:
:
Plaintiff,
:
Civ. No. 16-5356 (RBK) (JS)
:
v.
:
:
GERALDINE COHEN, et al.,
:
OPINION
:
Defendants.
:
_________________________________________ :
ROBERT B. KUGLER, U.S.D.J.
I.

INTRODUCTION

Plaintiff is incarcerated at the New Jersey State Prison in Trenton, New Jersey. However,
he was previously detained at the Atlantic County Justice Facility from 2011 to 2014. He initially
brought this civil rights action in the Superior Court of New Jersey, Law Division, Atlantic
County. Subsequently, this matter was removed to this Court by the defendants. Presently before
this Court is defendants’ motion to dismiss the complaint for failure to state a claim and
plaintiff’s motion to file an amended complaint. For the following reasons, defendants’ motion to
dismiss will be granted and plaintiff’s motion to amend will be denied. Plaintiff shall be given
time to file a proposed second amended complaint should he elect to do so.
II.

BACKGROUND

Plaintiff’s complaint filed in state court1 named the following as defendants: (1) Atlantic
County Justice Facility; (2) Geraldine Cohen, Warden; (3) Brian McNew; and (4) Yvonne
Hickman. The allegations of the removed complaint are as follows:
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It appears that plaintiff filed a original complaint in state court in March, 2016, and an amended
complaint in state court a few weeks later. (Compare Dkt. No. 1 at p.7 with Dkt. No. 1 at p.5)
For purposes of this opinion, this Court will examine the more recent state filed complaint that
was removed.

On or about April 1, 2014, Atlantic County Justice Facility;
Geraldine Doe, Brian McNew and Yvonne Hickman, Defendants
A. Failed to obtain an N.J.A.C. 10A:31 rule
exemption permitting above named facility to deny
direct personal access to the Inmate Law Library.
B. Provided little to no access to legal research
material.
C. Failed to provide any legal assistance for the
filing of meaningful legal papers.
D. Failed to comply with N.J.A.C. 10A:31-14 and
10A:31-15.1 et seq.
(Dkt. No. 1 at p.5) Plaintiff states that defendants delayed the preparation of his legal materials.
He requests monetary damages.
On September 1, 2016, defendants removed this case from state to federal court. On
September 8, 2016, defendants filed a motion to dismiss the complaint for failure to state a
claim. In filings dated October 7, 2016 and October 8, 2016, plaintiff requested additional time
to respond to the motion to dismiss. (See Dkt. Nos. 3 & 4) Ultimately, plaintiff was given until
December 8, 2016 in which to file a response to the motion to dismiss.
Subsequently, in documents dated December 8, 2016, plaintiff filed a response in
opposition to the motion to dismiss (see Dkt. No. 8) as well as a motion to amend the complaint.
(See Dkt. No. 9) Defendants then filed a reply in support of their motion to dismiss (see Dkt. No.
11) as well as a response in opposition to the motion to amend. (See Dkt. No. 10) Thereafter,
plaintiff filed a reply brief in support of his motion to amend. (See Dkt. No. 14)
III.

STANDARDS OF REVIEW

A. Motion to Dismiss Pursuant to Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in
whole or in part, if it fails to state a claim upon which relief can be granted. The moving party
bears the burden of showing that no claim has been stated. See Hedges v. United States, 404 F.3d
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744, 750 (3d Cir. 2005). In deciding a motion to dismiss, a court must take all allegations in the
complaint as true and view them in the light most favorable to the plaintiff. See Worth v. Seldin,
422 U.S. 490, 501 (1975); Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d
478, 483 (3d Cir. 1998); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.
2008) (“reasonable inferences” principle not undermined by later Supreme Court Twombly case,
infra).
Federal Rule of Civil Procedure 8(a) does not require that a complaint contain detailed
factual allegations. Nevertheless, “a plaintiff's obligation to provide the ‘grounds' of his
“entitlement to relief requires more than labels and conclusions, and formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Thus, the factual allegations must be sufficient to raise a plaintiff's right to relief above a
speculative level, such that it is “plausible on its face.” See id. at 570; see also Umland v.
PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). 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). While “[t]he plausibility standard is not akin to a ‘probability
requirement’ ... it asks for more than a sheer possibility.” Iqbal, 556 U.S. at 678 (2009).
Where, as here, plaintiff is proceeding pro se, the complaint is “to be liberally construed,”
and, “however inartfully pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). Nevertheless, it must meet
some minimal standard. “While a litigant's pro se status requires a court to construe the
allegations in the complaint liberally, a litigant is not absolved from complying with Twombly

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and the federal pleading requirements merely because s/he proceeds pro se.” Thakar v. Tan, 372
F. App’x 325, 328 (3d Cir. 2010) (citation omitted).
B. Motion to Amend
Federal Rule of Civil Procedure 15(a)(2) provides that “[t]he court should freely give
leave [to amend] when justice so requires.” However, a motion to amend the complaint may be
denied where there is undue delay, bad faith, dilatory motive, unfair prejudice, or futility of
amendment.2 See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (citing
Foman v. Davis, 371 U.S. 178, 182 (1962); In re Burlington Coat Factory Sec. Litig., 114 F.3d
1410, 1434 (3d Cir. 1997)). ‘“Futility’ means that the complaint, as amended, would fail to state
a claim upon which relief could be granted.” Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000)
(citation omitted). “In assessing ‘futility,’ the District Court applies the same standard of legal
sufficiency as applies under Rule 12(b)(6).” Id. (citations omitted).

Rule 15(a)(1)(B) permits a party to amend its pleading once as a matter of course “if the
pleading is one to which the responsive pleading is required, 21 days after service of a
responsive pleading or 21 days after service of a motion under Rule 12(b), (e) or (f), whichever
is earlier” FED. R. CIV. P. 15(a)(1)(B) (emphasis added). Comparatively, Rule 15(a)(2) states that
“in all other cases, a party may amend its pleading only with the opposing party’s written
consent or the court’s leave.” FED. R. CIV. P. 15(a)(2). Defendants filed their motion to dismiss
on September 8, 2016. (See Dkt. No. 2) Plaintiff did not file his motion to amend until December
15, 2016. (See Dkt. No. 9) While it is true that plaintiff sought and received two extensions of
time to file a response to the motion to dismiss, these extensions did not act to extend the time
for plaintiff to amend his complaint without leave of court under Rule 15(a)(1)(B). Plaintiff did
not request an extension of the twenty-one day period in Rule 15(a)(1)(B), and this Court did not
otherwise extend that period when granting plaintiff’s requests to respond to the motion to
dismiss. See Harrington v. City of Attleboro, 172 F. Supp. 3d 337, 351 (D. Mass. 2016) (citing
Hayes v. D.C., 275 F.R.D. 343, 345 (D.D.C. 2011)). Therefore, the motion to amend will be
analyzed under Rule 15(a)(2).
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IV.

DISCUSSION

A. Motion to Dismiss
Plaintiff raises an access to court claim in his removed complaint. “Under the First and
Fourteenth Amendments, prisoners retain a right of access to the courts.” Monroe v. Beard, 536
F.3d 198, 205 (3d Cir. 2008) (citing Lewis v. Casey, 518 U.S. 343, 346 (1996)). “Where
prisoners assert that defendants' actions have inhibited their opportunity to present a past legal
claim, they must show (1) that they suffered an ‘actual injury’—that they lost a chance to pursue
a ‘nonfrivolous' or ‘arguable’ underlying claim; and (2) that they have no other “remedy that
may be awarded as recompense” for the lost claim other than in the present denial of access
suit.” Id. (citing Christopher v. Harbury, 536 U.S. 403, 415 (2002)). Thus, to satisfy the requisite
pleading requirements, “[t]he complaint must describe the underlying arguable claim well
enough to show that it is ‘more than mere hope,’ and it must describe the ‘lost remedy.’” Id. at
205-06 (footnote omitted) (citing Christopher, 536 U.S. at 416-17). Conclusory allegations that
an inmate suffered prejudice will not support an access-to-courts claim. Duran v. Merline, 923 F.
Supp. 2d 702, 723 (D.N.J. 2013) (citing Arce v. Walker, 58 F.Supp.2d 39, 44 (W.D.N.Y. 1999)
(internal citations omitted)). Furthermore, it is worth noting that an access to courts claim even
for a non-prisoner such as a pretrial detainee will be subject to dismissal where “the Court [is]
left to guess whether the suit had any merit.” Sanders v. Rose, 576 F. App’x 91, 94 (3d Cir.
2014) (citing Christopher, 536 U.S. at 416). This is important to note as it appears as if plaintiff
may have been a pretrial detainee during some or all of the relevant period of time.
Plaintiff fails to state an access to courts claim because he does not allege actual injury.
Indeed, he fails to plead with the required specificity the nonfrivolous or arguable underlying
claims that he was prevented from bringing. Instead, his removed complaint is conclusory and

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insufficient to state a federal access to courts claim as this Court is left to guess whether his
claims had any merit. See Sanders, 576 F. App’x at 94.
There are now no more federal claims remaining from the removed complaint as plaintiff
failed to state a federal access to courts claim. Thus, the remaining potential basis for plaintiff's
state law claims is supplemental jurisdiction pursuant to 28 U.S.C. § 1367. However, when a
court has dismissed all claims over which it had federal question jurisdiction, it has the discretion
to decline to exercise supplemental jurisdiction over the remaining state law claims. See id. §
1367(c)(3). Because plaintiff's federal claims against the defendants no longer remain, this Court
will exercise its discretion to decline supplemental jurisdiction over plaintiff's state law claims in
his removed complaint.
B. Motion to Amend
Plaintiff’s proposed amended complaint in his motion to amend names the following as
defendants: (1) Atlantic County; (2) Atlantic County Justice Facility; (3) Geraldine Cohen; (4)
Brian McNew – Law Library Represenative; and (5) Yvonne Hickman – Clerk. Plaintiff states
that from June, 2011 until April 2, 2014 he was detained at the Atlantic County Justice Facility.
According to plaintiff, he:
made several requests to defendant Justice Facility [to] provide
him with specific legal authorities, and was denied pursuant to its
policy, prevailing practice or procedure of only providing prisoners
with legal authorities directly related to the offense they are
currently being detained on and a 50 page per week limit on the
amount of legal materials defendant Justice Facility would provide
him with.
(Dkt. No. 9-1 at p.3) In terms of actual injury, plaintiff alleges that:
[i]n 2014, [he] submitted a motion for new trial based on newly
discovered evidence. Because this did not involve the criminal
charges plaintiff was detained on, defendants wouldn’t retrieve the

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legal authorities to support position, therefore his motion was
inadequate and subsequently dismissed.
(Id. at p.6) Plaintiff alleges that his First and Fourteenth Amendment rights were violated as he
was denied meaningful access to the courts. He further alleges that the defendants denied him
access to the courts by failing to hire persons skilled in legal research or studies to service the
legal needs of pretrial detainees as well as failed to adequately train McNew. Plaintiff requests
monetary damages in his proposed amended complaint.
Defendants oppose the motion to amend the complaint. Defendants argue that plaintiff’s
amended complaint is barred by the statute of limitations. They state that plaintiff did not file his
complaint with the state court until March, 2016.3 Anything occurring prior to March 16, 2014
would be outside the applicable statute of limitations according to defendants.
Section 1983 claims are subject to New Jersey's two-year personal injury tort statute of
limitations. See N.J. STAT. ANN. § 2A:14-2(a). See Patyrak v. Apgar, 511 F. App'x 193, 195 (3d
Cir. 2013) (citing Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010)). As previously
described , plaintiff states that he lost a litigation opportunity in 2014 with respect to when he
submitted a motion for a new trial based on newly discovered evidence. While plaintiff does not
give the precise date or even month of this discreet event, this Court cannot determine on the
face of the proposed amended complaint whether it would be deemed to be within the applicable
statute of limitations. Therefore, out of the abundance of caution, this Court will not deny the
motion to amend the complaint based on timeliness grounds as argued by defendants.

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Defendants state that plaintiff filed his original complaint on March 16, 2016. However, it is
dated March 10, 2016. (See Dkt. No. 1 at p.7) Nevertheless, as this Court is denying the motion
to amend on different grounds, the issue of when plaintiff is deemed to have “filed” his original
complaint on the date it was dated as opposed to the date it was received by the state court need
not be decided.
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However, bypassing the statute of limitations issue does not end this Court’s inquiry with
respect to analyzing the proposed amended complaint. Instead, this Court must screen the
proposed amended complaint pursuant to 28 U.S.C. § 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 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. District courts may 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. §
1915A(b).
The legal standard for dismissing a complaint for failure to state a claim pursuant to 28
U.S.C. § 1915A(b)(1) is the same as that for dismissing a complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). See Courteau v. United States, 287 F. App’x 159, 162 (3d Cir. 2008)
(discussing 28 U.S.C. § 1915A(b)). That standard is set forth in Iqbal, 556 U.S. 662 and
Twombly, 550 U.S. 544, as explicated by the United States Court of Appeals for the Third
Circuit. To survive the court's screening for failure to state a claim, the complaint must allege
‘sufficient factual matter’ to show that the claim is facially plausible. See Fowler v. UPMC
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). “[A] pleading that offers
‘labels or conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.’
” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

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Plaintiff’s access to courts claims in his proposed amended complaint suffer from a
similar defect as did his removed complaint. More specifically, plaintiff fails to state an access to
courts claim because he does not allege actual injury. Indeed, he fails to plead with the required
specificity the nonfrivolous or arguable underlying claims that he was prevented from bringing
as a result of this purported denial of access to courts. Therefore, the motion to amend the
complaint is futile as he fails to state a federal access to courts claim.
It is not clear whether plaintiff is seeking to raise state law claims in his proposed
amended complaint. Nonetheless, even if plaintiff were seeking to bring state law claims in his
proposed amended complaint, this Court would decline to exercise supplemental jurisdiction
over them because he failed to state a federal claim. See 28 U.S.C. § 1367(c)(3). Therefore,
plaintiff’s motion to amend will be denied.
While this Court is dismissing plaintiff’s removed complaint and denying his motion to
amend, plaintiff shall be given leave to file second amended complaint that attempts to correct
the deficiencies outlined in this opinion.
V.

CONCLUSION

For the foregoing reasons, defendants motion to dismiss the complaint is granted.
Plaintiff’s motion to amend his complaint is denied. Plaintiff shall be given thirty days in which
to submit a second amended complaint that corrects the deficiencies of his removed complaint
and proposed amended complaint described in this opinion. An appropriate order will be entered.

DATED: June 2, 2017

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

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