O'CARROLL v. LANIGAN et al

Filing 16

OPINION. Signed by Judge Robert B. Kugler on 10/5/2017. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
BRENDAN O'CARROLL,
:
:
Plaintiff,
:
Civ. No. 17-0808 (RBK) (KMW)
:
v.
:
:
COMMISSIONER GARY M. LANIGAN, et al., :
OPINION
:
Defendants.
:
_________________________________________ :
ROBERT B. KUGLER, U.S.D.J.
I.

INTRODUCTION

Plaintiff Brendan O’Carroll is a state prisoner who is proceeding pro se with a civil rights
complaint. Currently pending before this Court is defendants’ motion to dismiss the complaint
pursuant to Rule 12(b)(6). For the following reasons, the motion to dismiss will be granted in
part.
II.

BACKGROUND

The Court recites the facts in the light most favorable to plaintiff. Mr. O’Carroll is a
convicted and sentenced state prisoner presently confined in Southern State Correctional Facility
(“SSCF”), New Jersey. He practices Odinism, also known as Asatru, a religion worshipping the
Norse pantheon. Prior to November 2016, Odinist inmates in SSCF were permitted to wear
metal Thor’s Hammer medallions as the symbol of their faith.
Mr. O’Carroll sought to order a medallion from an approved vendor following the New
Jersey Department of Corrections’ (“NJDOC”) specifications: “must be from source of sale,
Maximum value of $25.00, no larger than 2” x 2”, gold or silver in color, and a maximum chain
length of 24 inches and the chains value can not exceed $5.00.” A fellow practitioner informed

plaintiff that there was a notice from SSCF’s mailroom stating metal Thor’s Hammer medallions
were no longer allowed in the facility. Any medallion had to be constructed out of wood.
Plaintiff and two other practitioners approached a sergeant and asked why metal hammer
medallions were no longer permitted. After making a phone call, the sergeant informed the
inmates that the policy had changed on March 18, 2016. A memo from SSCF Administrator C.
Ray Hughes dated December 12, 2016 confirming this policy was posted in the inmates’ living
areas on December 16, 2016.
Plaintiff alleges Christian and Muslim prisoners are permitted to wear metal medallions
with their religious symbols and are provided other benefits within SSCF that Odinist inmates
are not, i.e., regular religious services and religious texts. He filed suit alleging violations of the
First and Fourteenth Amendments to the Constitution, Article 1 of the New Jersey Constitution,
the Religious Land Use and Institutionalized Persons Act of 2000, (“RLUIPA”), and New
Jersey’s “Fundamental Fairness Act”. This Court granted Plaintiff’s in forma pauperis
application and permitted the complaint to proceed after screening pursuant to 28 U.S.C. § 1915.
Defendants have filed a motion to dismiss the complaint for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6). Mr. O’Carroll did not file a response in
opposition to the motion.
III.

LEGAL STANDARD

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 it rests that make such a claim plausible on its face. Bell Atlantic Corp. v. Twombly,

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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. DISCUSSION
i.

First Amendment Claims

Mr. O’Carroll alleges defendants violated his First Amendment rights to practice his
religion and to free speech. “[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.” Pell v. Procunier, 417 U.S. 817, 822 (1974). “[W]hen a prison regulation
impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to
legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). To make out a claim
for denial of an individual's free exercise rights under the First Amendment, an individual must
allege the regulation impinges on a sincerely held religious belief. DeHart v. Horn, 227 F.3d 47,
51-52 (3d Cir. 2000) (en banc).
The Court considers four factors in assessing the overall reasonableness of a prison
regulation: (1) “there must be a ‘valid, rational connection’ between the prison regulation and the

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legitimate governmental interest put forward to justify it” ; (2) “whether there are alternative
means of exercising the right that remain open to prison inmates” ; (3) “the impact
accommodation of the asserted constitutional right will have on guards and other inmates, and on
the allocation of prison resources generally”; and (4) whether there are alternatives to the
regulation that “fully accommodate[ ] the prisoner's rights at de minimis cost to valid penological
interests.” Turner, 482 U.S. at 89-91.
There are sufficient facts in the complaint for a plausible inference that the regulation is
not reasonably related to a legitimate institutional interest. Defendants summarily assert that a
metal hammer medallion is more dangerous than a wooden medallion. Safety is a legitimate
penological goal; however, there are enough facts in the complaint to suggest the policy against
metal hammer medallions is arbitrary since metal crosses and other religious jewelry are
permitted.
Furthermore, accepting the facts in the complaint as true for purposes of the motion to
dismiss, “none of the catalogs that sell Thor’s Hammer sell it at specifications that are allowed
by the Mail Room standards at [SSCF]. The wooden versions of the Hammer are simply too big
to [wear] as a medallion . . . .” Between the ban on metal medallions and the inability to purchase
wooden medallions that comply with NJDOC regulations, Odinist inmates are effectively
prohibited from possessing Thor’s Hammer medallions. According to the NJDOC manual
submitted with the complaint, a hammer medallion is the sole representation of Thor’s Hammer
that is permitted inside a prison and is the only representation of the hammer that may be used
for the Blot ritual.1 The complaint also claims there are no regularly scheduled Odinist services

The NJDOC guidelines for the practice of Odinism/Asatru define Blot as “a ritual that is
celebrated when a symbolic sacrifice is made in honor of a god or goddess within the faith of
Odinism/Asatru.”
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or religious texts available to inmates. It is therefore not clear that there are other means by
which Mr. O’Carroll can express his faith.
Under the third factor, Mr. O’Carroll’s assertion that Christian and Muslim inmates are
permitted to wear metal medallions “casts substantial doubt on [SSCF’s] assertion that
accommodating [plaintiff’s] request would result in significant problems for the prison
community.” DeHart, 227 F.3d at 58 (noting prison officials needed to provide more evidence of
impact of accommodation when prison denied an accommodation to Buddhist inmate that it
provided for another religion). Finally, it is a reasonable inference based on the facts alleged in
the complaint that permitting metal medallions would not be a heavy burden on SSCF since
inmates were permitted to wear them up until 2016. Plaintiff plausibly sets forth a claim the
defendants violated his First Amendment rights.
Defendants’ motion to dismiss these claims is denied.2
ii.

Liberty Interest

Plaintiff further alleges the ban on metal hammer medallions violates his liberty interests
under New Jersey’s constitution. “[D]etermining whether a fundamental right exists involves a
two-step inquiry. First, the asserted fundamental liberty interest must be clearly identified.
Second, that liberty interest must be objectively and deeply rooted in the traditions, history, and
conscience of the people of this State.” Lewis v. Harris, 908 A.2d 196, 207 (N.J. 2006). The
complaint plausibly alleges that the right to practice one’s religion is “deeply rooted” in the
history of the state. The motion to dismiss this claim is likewise denied.
Defendants argue Mr. O’Carroll failed to state in his complaint that he exhausted his
administrative remedies. Such a statement is not a pleading requirement. See Ray v. Kertes, 285
F.3d 287, 297 (3d Cir. 2002) (“[N]o provision of the [Prison Litigation Reform Act] requires
pleading exhaustion with particularity.”).
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iii.

Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-1 et
seq.

Mr. O’Carroll also states the ban on metal medallions violates RLUIPA. “RLUIPA
protects ‘any exercise of religion, whether or not compelled by, or central to, a system of
religious belief[.]’” Holt v. Hobbs, 135 S. Ct. 853, 862 (2015) (quoting 42 U.S.C. § 2000cc–
5(7)(A)). RLUIPA provides “‘greater protection’ for religious liberty than is provided by the
First Amendment. . . . [C]ourts must be careful not to import reasoning from cases such as
Turner involving First Amendment rights.” Payne v. Doe, 636 F. App'x 120, 124 (3d Cir. 2016)
(per curiam) (citing Hobbs, 135 S. Ct. at 863) (internal citation omitted). “Where the prisoner
meets his burden of showing that the prison's policy substantially burdened his exercise of
religion, the burden shifts to the prison to show its policy ‘(1) [was] in furtherance of a
compelling governmental interest; and (2) [was] the least restrictive means of furthering that
compelling governmental interest.’” Id. (quoting Schlemm v. Wall, 784 F.3d 362, 364-65 (7th
Cir. 2015)) (alterations in original).
“RLUIPA's ‘substantial burden’ inquiry asks whether the government has substantially
burdened religious exercise . . ., not whether the RLUIPA claimant is able to engage in other
forms of religious exercise.” Hobbs, 135 S. Ct. at 862. Plaintiff alleges metal medallions are
banned from the prison and he is unable to purchase a wooden medallion that complies with
NJDOC regulations from SSCF’s approved vendors. Under the facts alleged in the complaint,
prison regulations essentially prohibit plaintiff from having any Thor’s Hammer medallion,
which is part of a ritual that is a dictate of his religious faith. Therefore, he has sufficiently pled a
RLUIPA claim. See id. Defendants’ motion to dismiss this claim is denied.

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iv.

Equal Protection Claim

“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 alleges he and other Odinist inmates are treated differently than other inmates
because of their religion. Specifically, inmates practicing other faiths are permitted to possess
metal religious jewelry. This is sufficient to state an Equal Protection claim of a facially
discriminatory policy based on religion. See Hassan v. City of New York, 804 F.3d 277 (3d Cir.
2015), as amended (Feb. 2, 2016). The motion to dismiss this ground is denied.
v.

Conspiracy to violate constitutional rights

Mr. O’Carroll further alleges defendants conspired to violate his constitutional rights.
“To make out a § 1983 conspiracy claim, the plaintiff must make specific factual allegations of a
combination, agreement, or understanding among all or between any of the defendants to plot,
plan, or conspire to carry out the alleged chain of events in order to deprive plaintiff of a
federally protected right.” Fioriglio v. City of Atl. City, 996 F. Supp. 379, 385 (D.N.J. 1998),
aff'd, 185 F.3d 861 (3d Cir. 1999)
Plaintiff does not allege any facts suggesting defendants entered into an agreement with
each other for the specific purpose of violating his rights. The Court will dismiss this claim.

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vi.

New Jersey “Fundamental Fairness” Act

Finally, defendants assert the claims based on New Jersey’s Fundamental Fairness Act
should be dismissed because the statute does not exist. Although the Court was unable to locate a
statute known as the Fundamental Fairness Act, its research revealed a fundamental fairness
doctrine created by the New Jersey Supreme Court.
“[T]he fairness and rightness doctrine does not rest on any provision of the federal
Constitution. Nor does it spring from the guarantee of due process that the state supreme court
has found implicit in Article I, paragraph 1 of the New Jersey Constitution.” Bruce D.
Greenberg, New Jersey’s “Fairness and Rightness” Doctrine, 15 RUTGERS L.J. 927, 938 (1984).
New Jersey courts have applied this doctrine to address “governmental action that is
constitutional but that, nonetheless, includes elements of oppression or harassment requiring
court intervention.” State v. P.Z, 703 A.2d 901, 917 (N.J. 1997). “In those rare cases where
government action does not comport with ‘commonly accepted standards of decency of conduct
to which government must adhere,’ and where existing constitutional protections do not provide
adequate safeguards, [the New Jersey Supreme Court] has not hesitated to declare that
government must be restrained.” Id. (quoting State v. Talbot, 364 A.2d 9 (N.J. 1976)).
The New Jersey Supreme Court has applied the fairness and rightness doctrine in a
variety of situations, but “there is one common denominator in all of those cases: a determination
that someone was being subjected to potentially unfair treatment and there was no explicit
statutory or constitutional protection to be invoked.” Doe v. Poritz, 662 A.2d 367, 422 (N.J.
1995). Mr. O’Carroll’s allegations that he is not able to practice his religion and that Odinist
inmates are being treated differently than inmates practicing other religions are appropriately and

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sufficiently addressed under the First and Fourteenth Amendments of the federal Constitution
and similar provisions of the New Jersey Constitution. He therefore does not state a “fairness and
rightness” claim.
IV.

CONCLUSION

For the foregoing reasons, defendants’ motion to dismiss the claims will be granted as to
the conspiracy and fairness and rightness claims. Defendants shall file an answer to the
remainder of the complaint within 14 days of entry of this Opinion and Order. An appropriate
order will be entered.

DATED: October 5, 2017
s/Robert B. Kugler ___
ROBERT B. KUGLER
United States District Judge

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