ALFORD v. WISENHOWER et al
Filing
8
OPINION. Signed by Judge Renee Marie Bumb on 1/31/18. (jbk, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
CRAIG ALFORD,
Civ. No. 17-6259 (RMB)
Plaintiff,
v.
MR. WISENHOWER, WARDEN TAYLOR,
CAMDEN COUNTY HALL OF JUSTICE,
MR. LEONARD, AND NJ STATE
PAROLE BOARD,
OPINION
Defendants.
BUMB, District Judge
Plaintiff Craig Alford brings this civil rights complaint
under 42 U.S.C. § 1983. (Compl., ECF No. 1.) Plaintiff has filed
an application to proceed
in forma pauperis
(“IFP”) that is
deficient because he did not submit “the trust fund account
statement (or institutional equivalent) for the prisoner for the
6-month period immediately preceding the filing of the complaint”
as required by 28 U.S.C. § 1915(a)(2). (IFP App., ECF No. 1-3.)1
Thus,
the
Court
will
administratively
terminate
this
action,
subject to reopening if Petitioner files a complete IFP application
or pays the filing fee.
1
The Court received Plaintiff’s account certification by a prison
official but did not receive the 6-month account statement.
Plaintiff should be aware that if he is granted in forma
pauperis status, he must pay the full amount of the $350 filing
fee in installments. 28 U.S.C. § 1915(b)(1). In each month that
the amount in the prisoner’s account exceeds $10.00, until the
$350.00 filing fee is paid, the agency having custody of the
prisoner shall assess, deduct from the prisoner’s account, and
forward to the Clerk of the Court, payment equal to 20% of the
preceding month’s income credited to the prisoner’s account. 28
U.S.C. § 1915(b)(2).
Even if the full filing fee, or any part of it, has been paid,
the Court must dismiss the case if it finds that the action is:
(1) frivolous or malicious; (2) fails to state a claim upon which
relief may be granted; or (3) seeks monetary relief against a
defendant
who
is
immune
from
such
relief.
28
U.S.C.
§§
1915(e)(2)(B), 1915A. If the Court dismisses the case for any of
these reasons, the Act does not permit the prisoner to get his
filing fee back.
After Plaintiff completes his IFP application by submitting
his inmate trust fund account statement for the six-month period
immediately preceding the filing of his complaint, the Court must
review the complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B); 1915A
to determine whether it should be dismissed as frivolous or
malicious, for failure to state a claim upon which relief may be
2
granted, or because it seeks monetary relief from a defendant who
is immune from such relief.2
I.
STANDARDS FOR A SUA SPONTE DISMISSAL
A pleading must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “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.” Id. (quoting Twombly, 550 U.S. at 556.)
“[A]
court
must
accept
as
true
all
of
the
allegations
contained in a complaint.” Id. A court need not accept legal
conclusions
as
true.
Id.
Legal
conclusions,
together
with
threadbare recitals of the elements of a cause of action, do not
suffice to state a claim.
Id.
Thus, “a court considering a motion
to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled to the
2
This Court’s conclusive screening of Plaintiff’s claims is
reserved until he obtains in forma pauperis status. See Izquierdo
v. New Jersey, 532 F. App’x 71, 72-73 (3d Cir. July 25, 2013)
(district court may decide whether to dismiss the complaint under
28 U.S.C. § 1915(e)(2) after leave to proceed IFP is granted).
3
assumption of truth.” Id. at 679. “While legal conclusions can
provide the framework of a complaint, they must be supported by
factual allegations.” Id. If a complaint can be remedied by an
amendment, a district court may not dismiss the complaint with
prejudice, but must permit the amendment. Grayson v. Mayview State
Hospital, 293 F.3d 103, 108 (3d Cir. 2002).
II.
DISCUSSION
A.
The Complaint
Plaintiff alleges that Defendant Wisenhower, Warden Taylor,
and the New Jersey State Parole Board violated his right to due
process because they are aware that his confinement is illegal.
(Compl., ECF No. 1, ¶6.) Plaintiff asserts his confinement is
illegal based on the Parole Board’s failure to provide him with a
preliminary
hearing
within
fourteen
days
of
his
arrest
for
technical parole violations. (Id.) Plaintiff states that he also
filed a petition for writ of habeas corpus challenging the Parole
Board’s actions. (Id.)
Plaintiff further alleges Warden Taylor and Defendant Leonard3
denied him access to the law library. (Id.) In response to his
requests to go to the law library, Plaintiff was told “to request
legal work,” but when he requested materials, they told him they
did not know what he was talking about. (Id.) Plaintiff concluded
3
The caption of the Complaint indicates that Defendant Leonard is
the law librarian at Camden County Jail.
4
that either the law library was inadequate or there was no law
library. (Id.) He attached copies of his requests for legal
materials to the Complaint. (ECF No. 1-2.) Additionally, Plaintiff
alleged someone was reading his confidential legal mail. (Compl.,
ECF No. 1 at 4.)
Plaintiff alleged Warden Taylor, Defendant Leonard, and the
Camden County Court denied his right to a public defender in his
parole
revocation
proceeding.
(Compl.,
ECF
No.
1
at
5.)
Additionally, although not named in the caption of the Complaint,
Plaintiff alleges the “Camden County Jail Psychiatrist” failed to
provide him with the medication trazadone since August 18, 2017.
(Id.)
After
submitting
his
complaint
to
the
court,
Plaintiff
submitted a series of letters seeking to add new claims based on
events that occurred after filing. (Letters, ECF Nos. 2-6.) The
Court does not permit amendment of a complaint by letter. An
amended complaint must comply with Federal Rules of Civil Procedure
8 (General Rules of Pleading), 10 (Form of Pleadings,) and 15
(Amended and Supplemental Pleadings).
An
amended
complaint
completely
replaces
the
previous
complaint; therefore, it must contain all of the claims against
all of the defendants. See Oleson v. Bureau of Prisons, Civ. No.
09-5706 (NLH), 2012 WL 6697274 (D.N.J. Dec. 21, 2012) (citing 6
Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d §
5
1476 (1990)). Federal Rule of Civil Procedure 20 permits defendants
to be joined in one action only if: “any right to relief is asserted
against them jointly, severally, or in the alternative with respect
to or arising out of the same transaction, occurrence, or series
of transactions or occurrences” and “any question of law or fact
common to all defendants will arise in the action.” Fed. R. Civ.
P. 20(a)(2).
If Plaintiff’s claims against the various defendants do not
meet the requirements of Rule 20, he must file separate complaints,
each with either payment of the filing fee or an application to
proceed in forma pauperis. In the instant complaint, Plaintiff’s
claim against the psychiatrist at Camden County Jail does not meet
the joinder requirements of Rule 20. Plaintiff should file a
separate action if he wishes to pursue a claim regarding his
medical care.
B.
Section 1983 claims
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
6
equity, or
redress.
other
proper
proceeding
for
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. West v. Atkins, 487 U.S. 42, 48 (1988);
Piecknick v. Pennsylvania, 36 F.3d 1250, 1255–56 (3d Cir. 1994).
1.
Camden County Jail, Camden County Hall of Justice
and Camden County Court are not a proper defendants
A court, courthouse and a prison are not “person[s]” subject
to liability under § 1983. See Ray v. New Jersey, 219 F. App’x
121, 124 (3d Cir. 2007) (holding Superior Court of New Jersey is
not a person under § 1983, and the Eleventh Amendment also bars
the plaintiff from obtaining relief against the court); Lenhart v.
Pennsylvania, 528 F. App’x 111, 114 (3d Cir. 2013) (county prison
was not a “person” capable of being sued under § 1983.”) Therefore,
the claims against Camden County Jail, Camden County Hall of
Justice, and Camden County Court fail to state a claim upon which
relief may be granted, and such claims would be dismissed upon
review under 28 U.S.C. §§ 1915(e)(2)(B), § 1915A.
2.
The New Jersey State Parole Board is not a proper
defendant
The New Jersey State Parole Board is not a “person” who can
be sued within the language of § 1983. Madden v. New Jersey State
7
Parole Board, 438 F.2d 1189, 1190 (3d Cir. 1971); accord Thrower
v. The New Jersey State Parole Board, 438 F. App’x 71 (3d Cir.
2011) (per curiam). Instead, a plaintiff may sue the individual
Parole Board members in their personal/individual capacity. See
Hafer v. Melo, 502 U.S. 21, 27 (1991) (“[a] government official in
the role of personal-capacity defendant thus fits comfortably
within the statutory term ‘person.’”)
3.
Plaintiff fails to state a Due Process Claim based
on the New Jersey Parole Board’s failure to hold a
preliminary hearing within fourteen days of his
arrest for parole violation
Plaintiff seeks to hold Defendant Wisenhower, Warden Taylor
and the New Jersey State Parole Board liable because they were
aware his confinement was illegal due to the Parole Board’s failure
to hold a preliminary hearing within fourteen days of his arrest.
First, Plaintiff has not alleged who Defendant Wisenhower is or
what control he had over Plaintiff’s custody in jail. Therefore,
he
has
not
stated
a
deprivation
of
his
liberty
interest
by
Wisenhower.
Second,
illegally
Plaintiff’s
confined
claim
knowing
that
that
the
Warden
New
Taylor
Jersey
kept
Parole
him
Board
violated his right to due process is barred by Heck v. Humphrey
and Wilkinson v. Dotson.
[W]hen a state prisoner seeks damages in a §
1983 suit, the district court must consider
whether a judgment in favor of the plaintiff
would necessarily imply the invalidity of his
8
conviction or sentence; if it would, the
complaint must be dismissed unless the
plaintiff can demonstrate that the conviction
or sentence has already been invalidated.
Butler v. Pennsylvania Bd. of Probation and Parole, 613 F. App’x
119, 123 (3d Cir. 2015) (quoting Heck v. Humphrey, 512 U.S. 477,
487 (1994)).
In Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005), the Supreme
Court refined its decision in Heck. See Butler, 613 F. App’x at
123. The Supreme Court explained that “a state prisoner's § 1983
action is barred (absent prior invalidation)—no matter the relief
sought … no matter the target of the prisoner's suit … —if success
in that action would necessarily demonstrate the invalidity of
confinement or its duration.” Id. (quoting Wilkinson, 544 U.S. at
81-82.) Thus, the Third Circuit held that Ҥ 1983 actions that, if
successful, would necessarily demonstrate the invalidity of a
parole board's decision regarding the length or revocation of
parole, are also not cognizable under Heck unless and until the
board's decision has been invalidated.” Id. (citing Williams v.
Consovoy, 453 F.3d 173, 177 (3d Cir. 2006)).
In Butler, the Third Circuit held that the plaintiff’s claim
was Heck-barred based on his argument that the Parole Board lost
all legal authority to revoke his parole because the revocation
hearing was untimely. Id. at 124. The same is true here of
Plaintiff’s
claim
that
Warden
9
Taylor
kept
him
in
illegal
confinement when the New Jersey State Parole Board failed to hold
a preliminary revocation hearing within fourteen days. Plaintiff
alleged he filed a habeas petition, but he did not allege that the
Parole
Board’s
Plaintiff’s
decision
complaint,
was
this
invalidated.
Court
would
Thus,
find
in
screening
Plaintiff’s
due
process claim against Warden Taylor Heck-barred.4
3.
Plaintiff fails to state a claim for deprivation of
a right to counsel in his parole revocation
proceeding
First, Plaintiff has not named a proper defendant to his claim
that he was denied counsel in his parole revocation proceeding
because
prison
officials
do
not
determine
whether
an
inmate
receives counsel in a parole revocation hearing, and the New Jersey
State Parole Board and the Camden County Court are not proper
defendants. Second, whether there is a due process right to counsel
in a parole revocation hearing is determined on a case-by-case
basis. Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973). The Supreme
Court has provided some guidance in the case-by-case analysis:
Presumptively, it may be said that counsel
should be provided in cases where, after being
informed of his right to request counsel, the
probationer or parolee makes such a request,
based on a timely and colorable claim (i) that
he has not committed the alleged violation of
4
Not all Section 1983 claims based on due process violations in
the parole revocation context are subject to Heck-bar. Butler, 613
F. App’x at 125, n. 5. For example, if success on the due process
claim would result in a speedier hearing as opposed to immediate
release or a shorter stay in prison, the claims are not barred by
Heck. Id.
10
the conditions upon which he is at liberty; or
(ii) that, even if the violation is a matter
of public record or is uncontested, there are
substantial
reasons
which
justified
or
mitigated the violation and make revocation
inappropriate, and that the reasons are
complex or otherwise difficult to develop or
present. In passing on a request for the
appointment of counsel, the responsible agency
also should consider, especially in doubtful
cases, whether the probationer appears to be
capable of speaking effectively for himself.
In every case in which a request for counsel
at a preliminary or final hearing is refused,
the grounds for refusal should be stated
succinctly in the record.
Id.
Plaintiff has not pled sufficient facts to establish that he
was entitled to counsel in his parole revocation hearing. Even if
he named a proper defendant to this claim, he fails to state a
claim, and the claim would be dismissed on screening pursuant to
28 U.S.C. §§ 1915(e)(2)(B); 1915A.
3.
Plaintiff fails to state a First Amendment access
to courts claim
Plaintiff alleges he requested certain legal materials, and
the materials were not provided to him because prison personnel
could not find what he was asking for. Therefore, Plaintiff
concludes the law library at the jail is either inadequate or it
does not actually exist.
The right to access the courts is not a right to a prison
legal library or legal assistance in prison, those are just
examples
of
“the
means
for
ensuring
11
‘a
reasonably
adequate
opportunity
to
present
claimed
violations
of
fundamental
constitutional rights to the courts.’” Lewis v. Casey, 518 U.S.
343, 351 (1996) (quoting Bounds v. Smith, 430 U.S. 817, 823
(1977)). To state a claim for denial of access to courts, a
plaintiff must allege actual injury such that a “nonfrivolous legal
claim had been frustrated or was being impeded.” Casey, 518 U.S.
at 353. Plaintiff’s right of access to courts claim would not
survive screening under §§ 1915(e)(2)(B), 1915A because he has not
alleged an actual injury to his right of access to courts.
4.
Plaintiff fails to state a First Amendment right to
freedom of speech claim
Plaintiff alleged that someone is reading his legal mail. He
did not identify who read his legal mail or how he learned of this.
To state a § 1983 claim, a plaintiff must allege the personal
involvement of a defendant in the constitutional violation. Iqbal,
556 U.S. at 676 (“a plaintiff must plead that each Governmentofficial defendant, through the official’s own individual actions,
has violated the Constitution.”) Moreover, prisoners do not have
an unfettered constitutional right to privacy of their legal mail.
See Jones v. Brown, 461 F.3d 353, 360 (3d Cir. 2006) (“[t]e fact
that the legal mail policy burdens prisoners’ First Amendment
rights does not … tell whether the policy is constitutional.”)
Without more facts about the circumstances of prison personnel
12
reading Plaintiff’s legal mail, he does not state a claim that
would survive screening under 28 U.S.C. §§ 1915(e)(2)(B); 1915A.
III. CONCLUSION
The Court will administratively terminate this matter without
prejudice
because
Plaintiff
failed
submit
a
complete
IFP
application under 28 U.S.C. § 1915(a)(2). Plaintiff is advised
that if he cures the deficiencies in his IFP application and
reopens
this
action,
his
civil
rights
complaint,
without
amendment, would be dismissed without prejudice upon screening
pursuant to 28 U.S.C. §§ 1915(e)(2)(B); 1915A.
An appropriate order follows.
Dated: January 31, 2018
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?