WALSH v. N.J. DEPARTMENT OF CORRECTIONS et al
OPINION. Signed by Judge Jerome B. Simandle on 8/31/17. (dd, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JASON B. WALSH,
No. 17-2442 (JBS-AMD)
N.J. DEPARTMENT OF
CORRECTIONS; SOUTHERN STATE
CORRECTIONAL FACILITY; SGT. P.
NORTON; SPECIAL INVESTIGATIONS
DIVISION; COMMISSIONER GARY M.
LANIGAN; ADMINISTRATOR C. RAY
Jason B. Walsh, Plaintiff Pro Se
4305 Norma Pl.
Toms River, New Jersey 08755
SIMANDLE, District Judge:
Before the Court is Plaintiff Jason B. Walsh’s
(“Plaintiff”), submission of a civil rights complaint pursuant
to 42 U.S.C. § 1983. Complaint, Docket Entry 1.
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
For the reasons set forth below, the Court concludes
the complaint will be dismissed for failure to state a claim,
but Plaintiff shall be given leave to amend.
Plaintiff alleges that he reported a sexual assault to
the Special Investigation Division (“SID”) at Southern State
Correctional Facility (“SSCF”) in January 2017. Complaint ¶ 6.
He states SID did not conduct an adequate investigation and
failed to move him to a different custody level or prison after
the assault as required by the Prison Rape Elimination Act
(“PREA”), 42 U.S.C. § 15601, et seq. Id.
Plaintiff further alleges various supervisory
defendants, including the Commissioner of the Department of
Corrections and the SSCF administrator, failed to train their
employees how to conduct a PREA investigation. Id. The principal
issue to be decided is whether the PREA is a federal statute
that gives a prisoner a private right of action under 42 U.S.C.
§ 1983 for money damages.
Plaintiff later submitted a letter indicating he
wished to amend his complaint to include “financial bull[y]ing”
and “financial intimidation” claims. May 10, 2017 Letter, Docket
Entry 4. He alleged he was called into a multi-purpose room on
May 1 and told to sign a form regarding the PREA investigation.
Id. at 3.
Per the Prison Litigation Reform Act, Pub. L. No. 104-
134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996)
(“PLRA”), district courts must review complaints in those civil
actions in which a prisoner is proceeding in forma pauperis, see
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 42 U.S.C. § 1997e. The
PLRA 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.
This action is subject to sua sponte screening for
dismissal under §§ 1915(e)(2)(B) and 1915A because Plaintiff is
a prisoner proceeding in forma pauperis and is seeking relief
from government employees.1
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
Plaintiff was confined in SSCF at the time he filed his
complaint. He is therefore considered a “prisoner” subject to
the PLRA’s requirements even though he has subsequently been
released from prison. George v. Chronister, 319 F. App'x 134,
136–37 (3d Cir. 2009).
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
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).
“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)); Mitchell v. Beard, 492 F. App’x 230,
232 (3d Cir. 2012) (discussing 42 U.S.C. § 1997e(c)(1));
Courteau v. United States, 287 F. App’x 159, 162 (3d Cir. 2008)
(discussing 28 U.S.C. § 1915A(b)).
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. See West v. Atkins, 487 U.S.
42, 48 (1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir.
Plaintiff alleges Defendants violated the PREA by
failing to conduct an adequate investigation, failing to
transfer him to a different custody level or prison, and failing
to train subordinate employees how to conduct a PREA
Any claims against the New Jersey Department of
Corrections and the individual defendants in their official
capacities must be dismissed with prejudice as barred by the
The Eleventh Amendment to the United States
Constitution provides: “The 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.” U.S. CONST. amend. XI. The Department of
Corrections, a state agency, is entitled to Eleventh Amendment
immunity from suit in federal court. 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.”). 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)). These
claims are dismissed with prejudice.
The claims against SSCF are also dismissed with
prejudice as the prison is not a “person” subject to suit under
§ 1983. See Crawford v. McMillian, 660 F. App'x 113, 116 (3d
Cir. 2016) (“[T]he prison is not an entity subject to suit under
42 U.S.C. § 1983.”) (citing Fischer v. Cahill, 474 F.2d 991, 992
(3d Cir. 1973)); Grabow v. S. State Corr. Facility, 726 F. Supp.
537, 538–39 (D.N.J. 1989) (correctional facility is not a
“person” under § 1983).
Congress passed the PREA in 2003 in recognition of the
pernicious problems caused by the “high incidence of prison
rape” which “undermines the effectiveness and efficiency of
United States Government expenditures through grant programs”
including “prison construction, maintenance, and operation.” 42
U.S.C. § 15601(14). Congress identified multiple purposes,
including: “mak[ing] the prevention of prison rape a top
priority in each prison system”; implementing national standards
for prison rape prevention and punishment; “protect[ing] the
Eighth Amendment rights of Federal, State, and local prisoners”;
and “increase[ing] the efficiency and effectiveness of Federal
expenditures through grant programs such as those dealing with .
. . prison construction, maintenance, and operation.” 42 U.S.C.
§ 15602 (2)-(3), (7)-(8).
The Act authorizes funding for various prison rape
prevention programs, including for protecting inmates by
“investigating incidents of prison rape” and “prosecuting
incidents of prison rape.” Id. § 15605(b)(1)(B)-(C). To receive
such grants, a state must certify that it has adopted all
national prison rape standards that have been promulgated under
the Act. Id. § 15605(d)(2). The Department of Justice
promulgated national standards in 2012 by regulations at 28
C.F.R. § 115.5 (eff. Aug. 20, 2012). Enforcement of the national
standards is embedded only in the Act’s funding mechanism,
providing for a five percent reduction in the amount of a
federal grant that a state would otherwise receive if the
grantee is not in compliance with the national standards. 42
U.S.C. § 15607(e)(2). There is no provision in the PREA for an
individual prisoner to enforce these standards or to assert a
private right of action for money damages if the prisoner is the
victim of prison rape. Id. §§ 15601-15609. Therefore, the PREA
is a federal statute that attaches certain conditions to the
funding of certain federal prison programs without specifying
that a prisoner may bring a private right of action that asserts
a violation of those standards.3
The Supreme Court has held that where the language of
a funding statute “provide[s] no indication that Congress
intend[ed] to create new individual rights, there is no basis
for a private suit, whether under § 1983 or under an implied
right of action.” Gonzaga Univ. v. Doe, 536 U.S. 273, 286
(2002). As is Gonzaga, which involved the spending statute under
Further, in announcing the adoption of the regulations
containing the national standards at 28 C.F.R. § 115.5,
President Obama also indicated that the regulation “does not,
create any right or benefit, substantive or procedural,
enforceable at law or in equity by any party against the United
States . . . or any other person.” Implementing the Prison Rape
Elimination Act, 77 Fed. Reg. 30873 (May 17, 2012).
the Family Education Rights and Privacy Act of 1974 (FERPA), the
present statute in the PREA is concerned with conditions placed
upon federal grants, not with the creation of new individual
rights, and is therefore merely a funding statute. Unless a
federal funding statute also contains an unambiguous intent to
create individually enforceable rights, federal funding
provisions provide no basis for private enforcement under 42
U.S.C § 1983. Gonzaga, 536 U.S. at 283. The Court holds that
Congress has not manifested any intent to create a new right
enforceable under § 1983 on behalf of a prisoner under the PREA.
Plaintiff’s PREA claims, including the failure to train claims,4
are dismissed with prejudice for failure to state a claim.5
“[T]o establish liability on a failure to train claim under §
1983, plaintiffs ‘must identify a failure to provide specific
training that has a causal nexus with their 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.’”
Gilles v. Davis, 427 F.3d 197, 207 n.7 (3d Cir. 2005) (quoting
Reitz v. County of Bucks, 125 F.3d 139, 145 (3d Cir. 1997)). As
there is no underlying constitutional deprivation in a PREA
claim, Plaintiff cannot satisfy this test.
5 That the PREA does not create a private cause of action on
behalf of a prisoner does not mean that this statute and the
national standards are meaningless in litigation. If a prisoner
has a constitutional cause of action, such as for a deliberate
indifference to dangerous conditions of confinement, the fact
that a prison facility may have failed to adopt and enforce the
national standards may, or may not, be evidence of deliberate
indifference depending on the circumstances. That issue is not
presented in this case since Plaintiff presents no cognizable
Other courts are in agreement that PREA does not
create a private cause of action. “While the PREA was intended
in part to ‘increase the accountability of prison officials’ and
to ‘protect the Eighth Amendment rights of Federal, State, and
local prisoners, nothing in the language of the statute
establishes a private right of action.” Amaya v. Butler, No. 16CV-1390, 2017 WL 2255607, at *5 (S.D. Ill. May 23, 2017)
(quoting 42 U.S.C. § 15602). See also Green v. Martin, 224 F.
Supp. 3d 154, 170–71 (D. Conn. 2016) (“[T]here is no private
right of action under the Prison Rape Elimination Act.”); Nestor
v. Dir. of Ne. Region Bureau of Prisons, No. 11-4683, 2012 WL
6691791, at *3 (D.N.J. Dec. 20, 2012).
To the extent Plaintiff’s May 10, 2017 Letter is an
attempt to amend the complaint to include additional, the claims
must be dismissed because Plaintiff does not sufficiently state
his claims in a form that complies with the Federal Rules of
Civil Procedure. The “amendments” consist of various grievance
responses from SSCF employees and letters to various government
officials. Plaintiff does not set out “a short and plain
statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). Thus, it is not clear to the
Court what claims Plaintiff is attempting to assert, if any, in
his May 10th letter.
In the interests of justice, Plaintiff shall be given
leave to move to amend his complaint to include the claims he
was attempting to assert in his May 10, 2017 letter. Plaintiff’s
amended complaint may not include the claims that were dismissed
with prejudice by this Court under the PREA.
Any motion for permission to file an amended complaint
must be filed within thirty (30) days of the date of this
Opinion and Order. Plaintiff must submit a proposed amended
complaint with his motion, and the proposed amended complaint
shall be subject to preliminary screening under § 1915(e)(2).
An appropriate order follows.
August 31, 2017
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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