BULLOCK v. COHEN et al

Filing 7

OPINION FILED. Signed by Judge Noel L. Hillman on 3/12/18. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Plaintiff,
:
:
v.
:
:
WARDEN GERALDINE D. COHEN, et al., :
:
Defendants.
:
___________________________________:
THOMAS L. BULLOCK,

Civ. No. 17-1376(NLH)(JS)
OPINION

APPEARANCE:
Thomas L. Bullock
524 E. Pine Street
Millville, NJ 08330
Plaintiff Pro se
HILLMAN, District Judge
Plaintiff Thomas L. Bullock (“Plaintiff”) seeks to bring a
civil rights complaint pursuant to 42 U.S.C. § 1983.
1.)

(ECF No.

Based on his affidavit of indigence (ECF No. 4), the Court

previously granted Plaintiff leave to proceed in forma pauperis
and ordered the Clerk of the Court to file the Complaint.

(ECF

No. 5.)
At this time, the Court must review Plaintiff’s 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

that Plaintiff’s Complaint will be dismissed with prejudice as
against Defendant State of New Jersey and will be dismissed
without prejudice as against all other defendants.
I. BACKGROUND 1
Plaintiff brings this civil rights action, pursuant to 42
U.S.C. § 1983, against the following defendants: (1) Geraldine
D. Cohen, Warden of Atlantic County Justice Facility (“ACJF”);
(2) Atlantic County Freeholder Frank Formica; (3) Atlantic
County Executive Dennis Levinson; and (4) the State of New
Jersey. 2
Plaintiff asserts that ACJF’s lack of a law library has
hindered his ability “to adequately contest [his] court
proceedings” in a pending criminal matter in which Plaintiff is
represented by counsel, 3 and that this has resulted in “the
deprivation of [Plaintiff’s] constitutional right to access

1

The factual allegations detailed herein are taken from
Plaintiff’s Complaint, and are accepted as true for purposes of
this screening only. The Court makes no findings as to the
veracity of Plaintiff’s allegations.
2

While the caption of Plaintiff’s Complaint formally lists
this defendant as the “State of New Jersey Risk Management –
Trenton N.J.”, the substantive information set forth throughout
Plaintiff’s pleading makes clear that this defendant is simply
the State of New Jersey. (See Compl. at Attached Sheet, p. 2.)
3

The Court notes, however, that Plaintiff is proceeding pro
se in this civil lawsuit, and is also unrepresented in the two
other civil lawsuits which he filed in this District at docket
numbers 1:16-cv-8067 (NLH) and 1:17-cv-271 (NLH).
2

[the] court[s].”

(See Compl. at ¶ 5; see also id. at ¶ 3

(detailing the procedure at ACJF for inmates to request and
obtain case law and other legal information and discussing, in
general terms, the adverse effects of this system on ACJF
inmates who wish to prepare for pending criminal matters).)
Plaintiff further alleges the he has been detained at ACJF
since June 4, 2016. 4

(Id. at ¶ 4.)

On October 26, 2016,

Plaintiff received a flash drive from his attorney, Kevin S.
Smith, containing pertinent “discovery” related to his pending
criminal matter.

(Id.)

On November 2, 2016 – before Plaintiff

had the opportunity to use a computer to review those discovery
files – an ACJF official, Sgt. Montanya, confiscated Plaintiff’s
flash drive.

(Id.)

Plaintiff sought to have the flash drive

returned to him through ACJF’s formal grievance procedure and by
sending letters to, inter alia, Warden Cohen.

(Id.)

Ultimately, the flash drive was returned to Plaintiff after
Plaintiff met with another ACJF official, Sgt. Robinson, on
December 12, 2016.

(Id.)

When Plaintiff thereafter obtained

access to a computer to review the discovery materials

4

On June 23, 2017, the Court received a letter from Plaintiff
requesting that all correspondence from the Court in this matter
be sent to the Millville, New Jersey address listed above. (See
ECF No. 6.) It therefore appears that Plaintiff may no longer
be detained at ACJF.
3

purportedly uploaded to the flash drive, there were no data or
files available on that drive for Plaintiff to review.

(Id.)

Plaintiff made a direct complaint about this problem to a
different ACJF official, Officer Wallace.

(Id.)

Plaintiff also

made his attorney and Warden Cohen aware of this issue.

(Id.)

Plaintiff never received a response from Warden Cohen and now
asserts that “it is obvious” that Warden Cohen’s failure to
respond “is a form of retaliation because she [is] named” as a
defendant in several lawsuits filed by Plaintiff.

(Id.)

Plaintiff further claims that Warden Cohen has “intentionally
ignor[ed] the fact that [ACJF] does not provide prisoners with a
law library where [they] can conduct [their] own independent
research.”

(Id. at ¶ 3.)

Plaintiff makes no specific factual allegations against any
of the other defendants named in this lawsuit, i.e., Atlantic
County Executive Dennis Levinson, Atlantic County Chairman Frank
Formica, and the State of New Jersey.

Plaintiff nonetheless

asserts – in wholly conclusory fashion – that each of these
defendants has intentionally ignored ACJF’s lack of “a law
library where independent research can be conducted.”

(Id. at

Attached Sheet.)
Plaintiff seeks $2,000,000.00 “for the deprivation of [his]
constitutional right to access to court.”

4

(Id. at ¶ 5.)

II. DISCUSSION
A. Legal Standard
1. Standards for a Sua Sponte Dismissal
District courts must review complaints in those civil
actions in which a person is proceeding in forma pauperis.
28 U.S.C. § 1915(e)(2)(B).

See

This statute directs district courts

to 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.

Id.

This action is subject to sua sponte screening for

dismissal under 28 U.S.C. §§ 1915(e)(2)(B) because Plaintiff is
proceeding as indigent.
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, 5 the complaint must
allege “sufficient factual matter” to show that the claim is
facially plausible.

Fowler v. UPMC Shadyside, 578 F.3d 203, 210

5

“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)).
5

(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.”

Belmont v. MB

Inv. Partners, Inc., 708 F.3d 470, 483 n.17 (3d Cir. 2012)
(quoting Iqbal, 556 U.S. at 678); see also Iqbal, 556 U.S. 662,
679 (2009) (“Determining whether a complaint states a plausible
claim for relief [is] a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.”).
Moreover, while pro se pleadings are liberally construed,
“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).
2. 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. . . .
42 U.S.C. § 1983.

6

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.

See West v. Atkins, 487 U.S. 42, 48

(1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
B. Analysis
1. The State of New Jersey
As an initial matter, the State of New Jersey must be
dismissed from this action pursuant to the Eleventh Amendment.
See U.S. CONST. amend. XI (“[t]he Judicial power of the United
States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States
by citizens of another State, or by Citizens or Subjects of any
Foreign State.”).
As a general proposition, a suit by private parties seeking
to impose a liability which must be paid from public funds in a
state treasury is barred from federal court by the Eleventh
Amendment, unless Eleventh Amendment immunity is waived by the
state itself or by federal statute.
Jordan, 415 U.S. 651, 663 (1974).

See, e.g., Edelman v.
See also Pennhurst State

School and Hospital v. Halderman, 465 U.S. 89, 100 (1984) (the
Eleventh Amendment protects states and their agencies and
departments from suit in federal court regardless of the type of

7

relief sought).
Similarly, absent consent by a state, the Eleventh
Amendment bars federal court suits for money damages against
state officers in their official capacities.
Graham, 473 U.S. 159, 169 (1985).

See Kentucky v.

And Section 1983 does not

override a state's Eleventh Amendment immunity.

Quern v.

Jordan, 440 U.S. 332 (1979).
In light of the foregoing considerations, this Court will
dismiss the State of New Jersey as a defendant in this matter.
This dismissal is with prejudice.
2. Access to Courts
As noted above, Plaintiff asserts that ACJF’s lack of a law
library has resulted in “the deprivation of [Plaintiff’s]
constitutional right to access [the] court[s].”

(See Compl. at

¶ 5.)
Prisoners have a right of access to the courts under the
First and Fourteenth Amendments.
821 (1977).

Bounds v. Smith, 430 U.S. 817,

This right requires that “adequate, effective, and

meaningful” access be provided for inmates who wish to challenge
their criminal charge, conviction, or conditions of confinement.
Id. at 822.
courts.”

“[T]he touchstone . . . is meaningful access to the

Id. at 823; see also Peterkin v. Jeffes, 855 F.2d

1021, 1037 (3d Cir. 1988).

In other words, prison officials

must “give prisoners a reasonably adequate opportunity to

8

present claimed violations of fundamental constitutional rights
to the Courts.”

Bounds at 825.

In Bounds, the Supreme Court held that “the fundamental
constitutional right of access to the courts requires prison
authorities to assist inmates in the preparation and filing of
meaningful legal papers by providing prisoners with adequate law
libraries or adequate assistance from persons trained in the
law.”

Id. at 828.

This constitutional right of access to the

courts is not, however, unlimited:
Bounds does not guarantee inmates the wherewithal to
transform themselves into litigating engines capable of
filing everything from shareholder derivative actions to
slip-and-fall claims. The tools [that Bounds] requires
to be provided are those that the inmates need in order
to attack their sentences, directly or collaterally, and
in order to challenge the conditions of their
confinement.
Impairment of any other litigating
capacity is simply one of the incidental (and perfectly
constitutional)
consequences
of
conviction
and
incarceration.
Lewis v. Casey, 518 U.S. 343, 355 (1996)(emphasis omitted).
Pretrial detainees, e.g., persons who have pending criminal
charges but have not yet been convicted, enjoy a similar right
of access to the courts with respect to legal assistance and
participation in one's own defense against pending criminal
charges.

See, e.g., May v. Sheahan, 226 F.3d 876, 883–84 (7th

Cir. 2000); Hargis v. Atl. Cty. Justice Facility, No. 1:10-cv1006 (JBS), 2010 WL 1999303, at *6 (D.N.J. May 18, 2010).
Regardless of whether Plaintiff is a convicted prisoner or

9

a pretrial detainee, in order for Plaintiff’s Section 1983 right
of access to courts claim to survive sua sponte dismissal, he
must allege sufficient facts which, inter alia, “demonstrate
that the alleged shortcomings in the library or legal assistance
program hindered his efforts to pursue a legal claim” and that
he suffered an “actual injury” as a result.

Casey, 518 U.S. at

351-52.
One example of an “actual injury” would be dismissal of a
complaint “for failure to satisfy some technical requirement
which, because of deficiencies in the prison's legal assistance
facilities, [an inmate] could not have known” about; another is
a situation in which an inmate “was so stymied by inadequacies
of the law library that he was unable even to file a complaint.”
Id. at 351.

Indeed, as explained by the Third Circuit:

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.
To that end, prisoners must
satisfy certain pleading requirements:
The 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.’
Monroe v. Beard, 536 F.3d 198, 205-06 (3d Cir. 2008) (internal
citations omitted).
Here, Plaintiff asserts that he has been hindered in his

10

efforts “to adequately contest [his] court proceedings by not
having a law library.”

(See Compl. ¶ 5.)

Plaintiff also

specifically alleges that he has been unable to review pertinent
“discovery” on the flash drive which his attorney gave him.
(Id. at ¶ 4).

For the reasons detailed infra, these factual

allegations are insufficient for Plaintiff’s Section 1983 denial
of access to courts claim to survive sua sponte dismissal under
the foregoing standard.
As an initial matter, there is no constitutional
requirement that ACJF have a law library at all.

Plaintiff’s

assertion that he has a constitutional right to “a law library
where independent research can be conducted” is simply incorrect
as a matter of law.

See Bounds, 430 U.S. at 828 (“the

fundamental constitutional right of access to the courts
requires prison authorities to assist inmates in the preparation
and filing of meaningful legal papers by providing prisoners
with adequate law libraries or adequate assistance from persons
trained in the law.”) (emphasis added).

Again, “the touchstone

[of this right] is meaningful access to the courts.”

Bounds at

823.
Moreover, the factual allegations in Plaintiff’s Complaint
indicate that he is represented by an attorney in his pending
criminal matter.

(See Compl. at ¶ 4).

Plaintiff, therefore,

has not been denied access to the courts in a manner which can

11

give rise to a cognizable Section 1983 claim with respect to his
criminal case.

See Diaz v. Holder, 532 F. App’x. 61, 63 (3d

Cir. 2013) (citing Degrate v. Godwin, 84 F.3d 768, 768–69 (5th
Cir. 1996) (holding that prisoner did not have right to access
law library because he had court-appointed counsel)); see also
Roary v. Atl. Cty Justice Facility, No. 1:17-cv-2674 (RMB), 2017
WL 6316628, at *2 (D.N.J. Dec. 11, 2017) (“if Plaintiff was
appointed an attorney for his defense, then he was not denied
access to the courts.”).
Furthermore, Plaintiff has not pled sufficient facts which
demonstrate that he suffered an “actual injury” as a result of
the alleged shortcomings of ACJF’s legal assistance program and
lack of a law library, e.g., that he lost a chance to pursue a
nonfrivolous underlying claim, and that there is no remedy
outside of his current lawsuit to address this deficiency.
Plaintiff has not, for example, specifically described any of
the “discovery” files which his attorney purportedly placed on
the flash drive, much less pled any facts showing how his
inability to view those files has precluded him from pursuing a
nonfrivolous defense in his pending criminal mater.

See, e.g.,

Roary, 2017 WL 6316628 at *2 (citing Casey, 518 U.S. at 534).
Finally, to the extent Plaintiff’s unspecified “court
proceedings” also encompass the pending civil matters in this
District in which Plaintiff is proceeding pro se, Plaintiff’s

12

current pleading similarly fails to state a cognizable denial of
access to courts claim.

Plaintiff’s Complaint in no way

suggests that he was unable to file this or any other pleading.
Indeed, the public records of this Court show that Plaintiff has
in fact commenced three separate Section 1983 actions in the
District of New Jersey.

See Casey, 518 U.S. at 354 (the right

of access to courts is not a guarantee that a State enable a
prisoner to litigate effectively once in court).
3. Retaliation
Plaintiff’s Complaint appears to relatedly allege that
Warden Cohen has purposely ignored Plaintiff’s grievance
regarding his inability to review the files on his flash drive
in retaliation for being named as a defendant in Plaintiff’s
lawsuits.

(See, generally, Compl. at ¶ 4.)

“[R]etaliation for the exercise of constitutionally
protected rights . . . ‘is itself a violation of rights secured
by the Constitution actionable under section 1983.’”

Miller v.

Mitchell, 598 F.3d 139, 147 (3d Cir. 2010) (quoting White v.
Napoleon, 897 F.2d 103, 111-12 (3d Cir. 1990)).

And “the filing

of grievances and lawsuits against prison officials constitutes
constitutionally protected activity.”

Mearin v. Vidonish, 450

F. App’x 100, 102 (3d Cir. 2011) (per curiam).
In order for Plaintiff’s retaliation claim to survive sua
sponte dismissal, Plaintiff must allege sufficient facts

13

demonstrating that “he suffered, at the hands of a state actor,
[an] adverse action sufficient to deter a person of ordinary
firmness from exercising his constitutional rights” and that his
filing of grievances and lawsuits was “a substantial or
motivating factor in the state actor’s decision to take adverse
action.”

Fantone v. Latini, 780 F.3d 184, 191 (3d Cir. 2015),

as amended (Mar. 24, 2015).
The facts alleged in Plaintiff’s Complaint fail to satisfy
these pleading requirements.

As an initial matter, it is

entirely uncertain if Warden Cohen is even aware that Plaintiff
has initiated lawsuits against her.

It is clear that none of

Plaintiff’s civil rights lawsuits in this District have yet
proceeded beyond sua sponte screening, and therefore, Warden
Cohen has never been formally served with copies of Plaintiff’s
pleadings in which she is named as defendant.
Moreover, Plaintiff has not alleged that he spoke with or
otherwise directly interacted with Warden Cohen about his
inability to access files on his flash drive.

Plaintiff

similarly fails to suggest that Warden Cohen is directly
involved in reviewing, receiving, or resolving ACJF inmate
grievances regarding confiscated legal materials.

The facts

alleged in Plaintiff’s Complaint do, however, make clear that
Warden Cohen was not directly involved in the initial
confiscation and subsequent return of Plaintiff’s flash drive;

14

those actions were instead taken by a number of other ACJF
officials.

(Compl. at ¶ 4.)

Plaintiff nonetheless claims that “it is obvious” that
Warden Cohen’s failure to respond to his grievance about missing
files on his flash drive “is a form of retaliation because she
[is] named” as a defendant in several of Plaintiff’s lawsuits.
(Id.)

Plaintiff, however, has not plead any facts that would

allow this Court to reasonably infer that Warden Cohen’s failure
to directly respond was in any way related to – much less
motivated by – Plaintiff’s initiation of federal civil rights
suits against her.

As such, Plaintiff’s bald assertion that the

retaliatory motivation behind Warden Cohen’s non-response “is
obvious” represents wholly speculative – and non-actionable –
conjecture.

See Bragg v. Ellis, No. 3:15-cv-7638 (AET), 2015 WL

8491471, at *4 (D.N.J. Dec. 9, 2015) (dismissing § 1983
retaliation claim against prison warden in light of inmate’s
speculative, factually-unsupported claim that he “believe[d that
prison warden] ordered him to be placed in disciplinary
detention” in retaliation for filing lawsuits against prison
employees).
Finally, even if Plaintiff did plead facts upon which this
Court could reasonably infer that Warden Cohen’s non-response to
his grievance was retaliatory in nature – and he has not –
dismissal of Plaintiff’s retaliation claim would still be

15

appropriate as there is nothing in Plaintiff’s Complaint which
even remotely suggests that Plaintiff suffered an “adverse
action sufficient to deter a person of ordinary firmness” from
filing lawsuits against ACJF officials in the future.
In sum, Plaintiff’s Complaint, as pled, fails to allege
sufficient facts suggesting that his rights to have access to
the courts and to file lawsuits against ACJF officials while
confined at ACJF have been hindered in a constitutionally
deficient manner. 6

As such, Plaintiff has failed to state a

cognizable claim for federal relief 7 and his Complaint will be
dismissed.
III. CONCLUSION
For the foregoing reasons, Plaintiff’s Complaint will be
dismissed with prejudice as to Defendant State of New Jersey and
will be dismissed without prejudice as to all other defendants,

6

Even if Plaintiff’s Complaint alleged sufficient facts to
support facially plausible constitutional violations of these
rights – and he has not – the Court would still dismiss
Plaintiff’s Complaint against Defendants Formica and Levinson –
as well as Defendant Cohen – because there are no factual
allegations which plausibly suggest that any of those defendants
had any personal involvement in the decisions and actions
Plaintiff complains of. See Iqbal, 556 U.S. at 676 (“a
plaintiff must plead that each Government official defendant,
through the official’s own individual actions, has violated the
Constitution.”).
7

As pled, Plaintiff’s Complaint does not allege any
additional causes of action arising under state law.
16

i.e., Warden Geraldine D. Cohen, Atlantic County Chairman Frank
Formica, and Atlantic County Executive Dennis Levinson.
Because it is conceivable that Plaintiff may be able to
supplement his pleading with facts sufficient to overcome the
deficiencies noted herein, Plaintiff shall be given the
opportunity to file a proposed amended complaint should he elect
to do so that shall also be subject to screening. 8

An

appropriate Order follows.

Dated: March 12, 2018
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

8

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.
17