DAVIS v. NEW JERSEY DEPARTMENT OF CORRECTIONS et al

Filing 5

OPINION Filed. Signed by Judge Robert B. Kugler on 8/22/18. n.m.(dd, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 17-6898 (RBK) (KMW)
ANDREW DAVIS,
Plaintiff,
v.
OPINION
NEW JERSEY DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
ROBERT B. KUGLER, U.S.D.J.
I.

INTRODUCTION
Plaintiff, Andrew Davis, is a state prisoner currently incarcerated at East Jersey State Prison

in Rahway, New Jersey. He is proceeding pro se with a civil rights complaint filed pursuant to 42
U.S.C. § 1983. Plaintiff submitted for filing his complaint, together with a motion for the
appointment of pro bono counsel. For the reasons set forth below, the complaint will be permitted
to proceed in part. In addition, the motion for pro bono counsel will be denied without prejudice.
II.

FACTUAL BACKGROUND
The allegations of this complaint will be construed as true for purposes of this screening

opinion. Plaintiff seeks to bring a civil rights complaint pursuant to 42 U.S.C. § 1983 against the
following Defendants: (1) New Jersey Department of Corrections (“NJDOC”); (2) NJDOC
Commissioner Gary Lanigan; (3) Corrections Officer Victor Tapia; (4) Sergeant J. Kuhlen; (5)
Sergeant S. Hunter; (6) Sergeant R. Dunns; (7) Nurse Kyrsten Pierce; (8) Lieutenant J. Sprenger;
(9) Corrections Officer M. Mackeprang; (10) Corrections Officer M. Garcia; (11) Corrections
Officer A. Dooley; (12) Corrections Officer J. Hawk; (13) Corrections Officer S. Lopez; (14)
Corrections Officer J. Elbeuf; (15) Corrections Officer V. Spinelli; (16) Corrections Officer D.
1

West; (17) Corrections Officer L. Toro; (18) Corrections Officer Dennis Mercado; (19) Special
Investigation Division (“SID”) Investigator Donna Alexander; (20) SID Investigator Elizabeth
Adams; (21) SID Investigator Eleazar Spratley; (22) Courtline Hearing Officer Norma MoralesPitre; (23) Assistant Superintendent Lisa Swift; and (24) Administrator R. Riggins. (See ECF No.
1 at pp. 3-12).
Plaintiff’s allegations arise from conduct that occurred while he was incarcerated at South
Woods State Prison (“SWSP”). Plaintiff alleges that on July 26, 2016 at approximately 6:43 p.m.,
he approached the officer podium to speak with Officer Tapia about his mail when Officer Tapia
verbally harassed him and pointed a can of OC chemical spray in Plaintiff’s face. (See id. at p.
14). Plaintiff claims he raised his hands in the air, backed away from Officer Tapia, and returned
to his cell. (See id.). Later that night at approximately 7:55 p.m., Officer Tapia came to Plaintiff’s
cell and ordered Plaintiff out of the cell. (See id.at p. 15). Plaintiff stood up from his bunk and
exited the cell, at which time Officer Tapia punched and pushed Plaintiff from behind. (See id.).
Plaintiff alleges that Officer Tapia began swinging punches and Plaintiff was left with no
other choice but to defend himself against the attack. (See id.). When additional staff responded,
Plaintiff backed away from Officer Tapia with his hands in the air. (See id.). Plaintiff claims he
surrendered and got onto the ground. (See id.). While on the ground, Plaintiff was placed in
handcuffs and was assaulted by Officer Tapia and the responding corrections officers. (See id.).
Plaintiff claims that Officer Tapia sprayed him in the face with OC chemical spray while the other
officers repeatedly struck, punched, and kicked him. (See id. at pp. 15-16).
Following the assault, Plaintiff claims that the SWSP medical department denied him
medical care and treatment for his injuries. (See id. at p. 16). Specifically, Plaintiff alleges that
Nurse Pierce refused to conduct a medical examination or render any medical treatment to him.

2

(See id.). Additionally, Plaintiff claims that Nurse Pierce falsified medical documents to state that
he did not sustain any injuries as a result of the assault. (See id.).
Plaintiff further alleges that he was interviewed by the Special Investigation Division
(“SID”) regarding the incident, but that the SID investigators refused to accept and file his criminal
complaint against Officer Tapia. (See id. at pp. 16-17). Following the investigation, Plaintiff was
charged with assaulting Officer Tapia. (See id. at p. 17). Additionally, Plaintiff claims that
videotape evidence of the assault has been altered to cover up the assault. (See id.).
Plaintiff seeks compensatory, consequential, and punitive damages from each Defendant.
(See id. at p. 28). Additionally, Plaintiff has filed a motion seeking the appointment of pro bono
counsel. (See ECF No. 3).
III.

STANDARD OF REVIEW
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 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. See 28 U.S.C.
§ 1915(e)(2)(B).
In determining the sufficiency of a complaint, the court must be mindful to construe it
liberally in favor of the plaintiff. See United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The
court should “accept as true all of the allegations in the complaint and all reasonable inferences
that can be drawn therefrom, and view them in the light most favorable to the plaintiff.” Morse v.
Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). Thus, “[a] pro se complaint may
3

be dismissed for failure to state a claim only if it appears ‘beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief.’” Milhouse v. Carlson,
652 F.2d 371, 373 (3d Cir. 1981) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
IV.

DISCUSSION
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil

rights guaranteed under the United States Constitution. 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 ....
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); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994).
A. Claims against Defendants in their Official Capacities and the NJDOC
As an initial matter, Plaintiff brings claims against the Defendants in their “official
capacities” as employees of the NJDOC. Additionally, Plaintiff brings claims against the NJDOC.
States and state agencies are not “persons” subject to suit under § 1983. See Will v. Michigan
Dep’t of State Police, 491 U.S. 58, 71 (1989); see also Pettaway v. SCI Albion, 487 F. App’x 766,
768 (3d Cir. 2012) (holding that a state department of corrections is not a “person” under the statute
and cannot be sued under § 1983). Additionally, for purposes of § 1983, “a lawsuit against public
officers in their official capacities is functionally a suit against the public entity that employs
them.” Cuvo v. De Biasi, 169 F. App’x 688, 693 (3d Cir. 2006) (citing McMillian v. Monroe Cnty.,

4

520 U.S. 781, 785 n.2 (1997)). Accordingly, Plaintiff’s claims against the Defendants in their
official capacities and against the NJDOC are dismissed with prejudice.
B. Claims against Commissioner Lanigan and Administrator Riggins
Plaintiff alleges that Commissioner Lanigan and Administrator Riggins are liable under a
respondeat superior theory of liability as they are responsible for the oversight of SWSP and the
safety of prisoners. (See ECF No. 1 at pp. 3-4, 12). “A defendant in a civil rights action must have
personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation
of respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). “Personal
involvement can be shown through allegations of personal direction or of actual knowledge and
acquiescence.” Id.
Plaintiff has not alleged any facts indicating that Commissioner Lanigan and Administrator
Riggins were personally involved in any alleged violations of Plaintiff’s constitutional rights.
Additionally, Plaintiff has not alleged any facts demonstrating that Commissioner Lanigan and
Administrator Riggins had knowledge of the alleged violations of Plaintiff’s constitutional rights.
Accordingly, Plaintiff has failed to state viable § 1983 claims against Commissioner Lanigan and
Administrator Riggins and all claims against these Defendants will be dismissed without prejudice.
C. Eighth Amendment Claims
Plaintiff asserts numerous claims under both the Eighth Amendment and Article 1,
paragraph 12 of the New Jersey Constitution. Article 1, paragraph 12 provides, in relevant part:
“Excessive bail shall not be required, excessive fines shall not be imposed, and cruel and unusual
punishment shall not be inflicted.” N.J. Const. Art. I, Para. 12. This provision of the New Jersey
Constitution is generally interpreted as analogous to the Eighth Amendment. See Jumpp v. Power,
No. 08-4268, 2009 WL 1704307, *4 (D.N.J. June 18, 2009); State v. Ramseur, 524 A.2d 188, 210

5

(N.J. 1987). Therefore, the Court will consider Plaintiff’s state and federal constitutional claims
together.
1. Excessive Force Claim against Officers Tapia, Kuhlen, Hunter, Dunns,
Sprenger, Mackeprang, Garcia, Dooley, Hawk, Lopex, Elbeuf, Spinelli, Toro,
and West
Plaintiff alleges that Officers Tapia, Kuhlen, Hunter, Dunns, Sprenger, Mackeprang,
Garcia, Dooley, Hawk, Lopez, Elbeuf, Spinelli, Toro, and West used excessive force against him
in violation of the Eighth Amendment and New Jersey Constitution. Specifically, Plaintiff claims
that Defendant Tapia attacked him by punching and pushing him from behind. (See ECF No. 1 at
p. 15). After Plaintiff surrendered and was placed in handcuffs, Officer Tapia sprayed him in the
face with OC chemical spray. (See id.). Plaintiff further alleges that the other officers continued
to strike and kick him while he was handcuffed on the ground. (See id.).
“The Eighth Amendment, in only three words, imposes the constitutional limitation upon
punishments: they cannot be ‘cruel and unusual.’” Rhodes v. Chapman, 452 U.S. 337, 345 (1981).
It is well settled that “the treatment a prisoner receives in prison and the conditions under which
he is confined are subject to scrutiny under the Eighth Amendment.” Helling v. McKinney, 509
U.S. 25, 31 (1993). In its prohibition of cruel and unusual punishments, “[t]he Eighth Amendment
also imposes duties on prison officials, ‘who must provide humane conditions of confinement’ . .
. and must take reasonable measures to guarantee the safety of inmates.” Durham v. Dep’t of Corr.,
173 F. App’x 154, 156 (3d Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)).
In other words, the Eighth Amendment prohibits conditions which involve the unnecessary
and wanton infliction of pain or are grossly disproportionate to the severity of the crime warranting
imprisonment. See Rhodes, 452 U.S. at 346-47. “No static ‘test’ can exist by which courts
determine whether conditions of confinement are cruel and unusual, for the Eighth Amendment

6

‘must draw its meaning from the evolving standards of decency that mark the progress of a
maturing society.’” Id. at 346 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).
Construing all inferences in Plaintiff's favor, as the Court must do at this preliminary
screening stage, this Court finds that Plaintiff has pled facts sufficient to state a plausible claim for
relief necessary to withstand summary dismissal at this time. In particular, the facts as alleged by
Plaintiff in his complaint are sufficient to question the use of force exercised by Officer Tapia and
the other officers as well as the manner and purpose for which the force was applied. For instance,
Plaintiff alleges that the officers continued to kick him, use OC chemical spray, and use force
against him even after he was handcuffed on the ground. Therefore, the Court will allow Plaintiff's
excessive force claim to proceed at this time against Officers Tapia, Kuhlen, Hunter, Dunns,
Sprenger, Mackeprang, Garcia, Dooley, Hawk, Lopez, Elbeuf, Spinelli, Toro, and West in their
individual capacities.
2. Denial of Medical Care Claim against Nurse Pierce
Plaintiff also asserts a denial of medical care claim in violation of the Eighth Amendment
and New Jersey Constitution against Nurse Pierce. Specifically, Plaintiff alleges that Nurse Pierce
refused to conduct a medical examination and treat Plaintiff following the assault. (See ECF No.
1 at p. 23). Additionally, Plaintiff claims that Nurse Pierce filed a false medical report stating that
Plaintiff sustained no injuries as a result of the assault. (See id.).
To prevail on a denial of medical care claim under the Eighth Amendment, the inmate must
show that the defendants were deliberately indifferent to his serious medical needs. See Estelle v.
Gamble, 429 U.S. 285, 291 (1995); Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
Falsification of medical records coupled with “a showing of deliberate refusal to provide medical
attention, as opposed to a particular course of treatment” may give rise to an Eighth Amendment
violation. Green v. Branson, 108 F.3d 1296, 1304 (10th Cir. 1997); see also Curbeam v.
7

Montgomery Cnty. Corr. Facility, No. 12-2309, 2013 WL 315719, at *5 (E.D. Pa. Jan. 28, 2013)
(plaintiff stated a claim based on allegations that defendant “personally disliked him and falsified
his chart to the effect that he no longer wanted medical care, thereby causing him to receive no
medical care for a period of 21 days”); Wilkins v. Illinois Dep't of Corr., No. 08-732, 2009 WL
1904414, at *8 (S.D. Ill. July 1, 2009) (“It is at least arguable that falsifying Wilkins’s medical
records implicates his Eighth Amendment rights because the deliberate inaccuracies may prevent
him from receiving adequate medical care”). To the contrary, however, “[t]here is no basis for a
constitutional claim alleging the mere filing of a false report.” Moore v. Casselberry, 584 F. Supp.
2d 580, 582 (W.D.N.Y. 2008); see also Harris v. Pennsylvania Dep't of Corr., No. 13-2888, 2014
WL 941351, at *5 (E.D. Pa. Mar. 11, 2014) (“This allegation of falsifying medical reports, without
more, does not support the inference that Robinson was deliberately indifferent to Plaintiff’s
serious medical need.”); Rivera v. Tennis, No. 09-0888, 2010 WL 2838603, at *7 (M.D. Pa. May
20, 2010) (dismissing claims based on allegations that “defendant Foose filed false medical
reports, and/or that [plaintiff] disagreed with her course of treatment”), report and
recommendation adopted, 2010 WL 2838605 (M.D. Pa. July 19, 2010).
Here, Plaintiff alleges that Nurse Pierce denied him medical treatment following the assault
and falsified his medical reports, preventing Plaintiff from receiving future medical care.
Construing all reasonable inferences in Plaintiff’s favor, Plaintiff has sufficiently stated a denial
of medical treatment claim. Therefore, this Court will permit Plaintiff’s claim against Nurse Pierce
in her individual capacity to proceed past the sua sponte dismissal stage.
3. Failure to Protect Claim against all Defendants
Plaintiff also appears to assert a failure to protect claim in violation of the Eighth
Amendment and New Jersey Constitution, with respect to the excessive force that was used against
him by Officer Tapia and the other officers. (See ECF No. 1 at pp. 21-22). Prison officials have
8

a duty under the Eighth Amendment to “take reasonable measures to guarantee the safety of the
inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). To state a failure-to-protect claim, an
inmate must show that he is objectively “incarcerated under conditions posing a substantial risk of
serious harm” and the defendant knows of and disregards that risk. Id. at 837. “[T]he official must
both be aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” Id.
Plaintiff's claim fails to satisfy either the objective element or the subjective element of the
Eighth Amendment. Plaintiff has not shown that he was incarcerated under conditions posing a
substantial risk of serious harm at the hands of corrections officers. Although an inmate need not
wait until an actual assault takes place, there must be a “pervasive risk of harm.” Riley v. Jeffes,
777 F.2d 143, 147 (3d Cir. 1985). “A pervasive risk of harm may not ordinarily be shown by
pointing to a single incident or isolated incidents, but it may be established by much less than proof
of a reign of violence and terror.” Id. Plaintiff does not mention any prior incidents concerning
the use of excessive force by Officer Tapia or the other corrections officers. Because Plaintiff's
allegations do not show that he faced an excessive risk of assault from the named corrections
officers, they fall “short of alleging that the risk to which he was purportedly subjected was
substantial.” Day v. Fed. Bur. of Prisons, 233 F. App’x 132, 134 (3d Cir. 2007).
Plaintiff's allegations also fail to satisfy the subjective component. Plaintiff does not assert
that any of the Defendants knew that he faced an excessive risk of assault by Officer Tapia and the
other corrections officers, or “that a substantial risk of ... attacks was longstanding, pervasive, welldocumented, or expressly noted by prison officials in the past, and the circumstances suggest that
the defendant-official being sued had been exposed to information concerning the risk and thus
must have known about it.” Farmer, 511 U.S. at 842. Plaintiff's allegations, therefore, do not

9

show that the Defendants knew of and disregarded an excessive risk to his safety. Accordingly,
Plaintiff’s failure to protect claim against all Defendants will be dismissed without prejudice.
D. Due Process Claims against Officer Mercado and Hearing Officer Morales-Pitre
The Court construes Plaintiff’s complaint as asserting claims under § 1983 for denial of
procedural due process and falsification of evidence in connection with his disciplinary hearing.
Specifically, Plaintiff alleges that Officer Mercado falsified a disciplinary report and altered a
videotape of the assault. (See ECF No. 1 at p. 10). Additionally, in connection with the
disciplinary hearing, Plaintiff claims that Hearing Officer Morales-Pitre: (1) denied Plaintiff the
right to be present during the hearing; (2) denied Plaintiff the right to review all evidence against
him; (3) denied Plaintiff the defense of self-defense; (4) denied the admissibility of exculpatory
evidence, including the videotape of the incident; (5) wrote a false summary of the evidence; (6)
refused to take into account witness statements; and (7) denied Plaintiff the right to confront and
cross-examine his accuser. (See id. at p. 24). As a result of the disciplinary hearing, Plaintiff states
he received a sanction of 180 days loss of commutation time. (See id.).
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that before a § 1983
plaintiff may “recover damages for allegedly unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would render a conviction or sentence invalid,”
he must first “prove that the conviction or sentence has been reversed on direct appeal, expunged
by executive order, declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court's issuance of a writ of habeas corpus[.]” Id. at 486-87. The
Supreme Court applied Heck to prison disciplinary proceedings in Edwards v. Balisok, 520 U.S.
641 (1997) (holding claims for declaratory relief and money damages that necessarily implied the
invalidity of the punishment imposed by prison disciplinary proceedings are not cognizable under
§ 1983).
10

Nevertheless, even where there has been no prior invalidation of the resulting judgment, a
prisoner may bring a § 1983 claim for monetary damages based on the denial of due process during
a prison disciplinary hearing, under certain circumstances. See Wolff v. McDonnell, 418 U.S. 539,
554 (1974) (stating that plaintiff’s § 1983 “damages claim was ... properly before the District Court
and required determination of the validity of the procedures employed for imposing sanctions,
including loss of good time, for flagrant or serious misconduct”). More specifically, where a prison
disciplinary hearing has not been previously invalidated, a claim challenging a prison disciplinary
hearing is cognizable under § 1983 when the claim, if successful, would not necessarily
demonstrate the invalidity of the punishment imposed. See Balisok, 520 U.S. 641; Wilkinson v.
Dotson, 544 U.S. 74, 82 (2005) (explaining distinction between challenges cognizable under
§ 1983 and those that are barred); Harris v. Ricci, 595 F. App’x 128, 133 (3d Cir. 2014) (due
process challenge to prison disciplinary hearing was cognizable under § 1983 because it did not
imply the invalidity of the resulting sanctions).
Here, Plaintiff alleges that his due process rights were violated when Hearing Officer
Morales-Pitre denied Plaintiff the right to be present during the disciplinary hearing, call witnesses,
and review and present evidence in his defense. Additionally, Plaintiff claims that Officer
Mercado authored a false disciplinary report regarding the assault. These allegations, if true,
would necessarily imply the invalidity of the disciplinary proceeding. Absent a showing that the
disciplinary charge has already been invalidated, Plaintiff’s procedural due process claims must
be dismissed.
E. Claims against Assistant Superintendent Swift
Plaintiff next claims that Assistant Superintendent Swift violated his constitutional rights
by failing to amend, modify, and correct the administrative appeal of his disciplinary hearing. (See
ECF No. 1 at p. 24). However, “the First Amendment does not impose any affirmative obligation
11

on the government to listen, to respond or ... to recognize [a grievance].” Smith v. Ark. State
Highway Employees, Local 1315, 441 U.S. 463, 465 (1979); see also Minnesota State Bd. for
Community Colleges v. Knight, 465 U.S. 271, 285 (1984) (“[This] Court rejected due process as a
source of an obligation to listen. Nothing in the First Amendment or in this Court’s case law
interpreting it suggests that the rights to speak, associate, and petition require government
policymakers to listen or respond to individuals’ communications”); San Filippo v. Bongiovanni,
30 F .3d 424, 437 (3d Cir. 1994) (“the petition clause does not require the government to respond
to every communication that the communicator may denominate a petition”). Accordingly,
Assistant Superintendent Swift’s failure to reverse the disposition of Plaintiff’s disciplinary
hearing is not actionable under § 1983. Therefore, all claims against Assistant Superintendent
Swift will be dismissed without prejudice.
F. Claims against SID Investigators Alexander, Adams, and Spratley
Plaintiff alleges that SID Investigators Alexander, Adams, and Spratley violated the New
Jersey Attorney General Guidelines and Plaintiff’s due process rights by refusing to accept and
file a criminal complaint1 on his behalf. (See ECF No. 1 at p. 25). “Generally, there is no federal
constitutional right to criminally prosecute another person; that power resides exclusively in the
Executive Branch of the United States Government.” Harris v Anderson, 672 F. App’x 148, 150
(3d Cir. 2017) (citing United States v. Nixon, 418 U.S. 683, 693 (1974)). “Although New Jersey
allows a private citizen to file a criminal complaint alleging a violation of state law, ‘a citizen lacks
standing to contest the policies of the prosecuting authority when he himself is neither prosecuted
nor threatened with prosecution.’” Id. (citing Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)).

1

To the extent that Plaintiff’s § 1983 complaint attempts to assert violations of New Jersey
criminal statutes against the Defendants, such claims must be filed in state court. See N.J. Ct. R.
3:2-1 (explaining procedure for filing private criminal complaint in New Jersey).
12

Moreover, “there is no statutory or common law right, much less a constitutional right, to an ...
investigation [of a private criminal complaint.]” Fuchs v. Mercer Cnty., 260 F. App’x 472, 475
(3d Cir. 2008) (citations and quotations omitted); see also Bey v. Pennsylvania Dep’t of Corr., 98
F. Supp. 2d 650, 664 (E.D. Pa. 2000) (denying prisoner’s § 1983 claim against a prison official on
the basis that the official failed to file a criminal complaint on his behalf). Accordingly, Plaintiff
has failed to state a claim for which relief may be granted against SID Investigators Alexander,
Adams, and Spratley.
G. Equal Protection Claims against all Defendants
Plaintiff further alleges in conclusory terms that the Defendants have deprived him of his
right to equal protection under both the United States Constitution and the New Jersey
Constitution. (See ECF No. 1 at pp. 19, 20, 23-24, 26).
The Equal Protection Clause of the Fourteenth Amendment provides that a state may not
“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. U.S. CONST., amend. XIV;
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyer v. Doe, 457 U.S.
202, 216 (1982)). An equal protection claim can be brought by a “class of one,” a plaintiff alleging
that he has been “intentionally treated differently from others similarly situated and that there is
no rational basis for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564
(2000); Williams v. Morton, 343 F.3d 212, 221 (3d Cir. 2003); see also Jean-Pierre v. Bureau of
Prisons, 497 F. App'x 164, 168 (3d Cir. 2012). To assert a class-of-one claim, “a plaintiff must
allege that (1) the defendant treated him differently from others similarly situated, (2) the defendant
did so intentionally, and (3) there was no rational basis for the difference in treatment.” Hill v.
Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006).

13

A plaintiff who alleges an equal protection violation has the burden of proving the
existence of purposeful discrimination that had a discriminatory effect on him. See McCleskey v.
Kemp, 481 U.S. 279, 292 (1987); Whitus v. Georgia, 385 U.S. 545, 550 (1967). Proof of disparate
impact alone, however, is not sufficient to succeed on an equal protection claim; a plaintiff also
must prove that the defendant intended to discriminate. See Vill. of Arlington Heights v. Metro.
Housing Dev. Corp., 429 U .S. 252, 264-66 (1977); Washington v. Davis, 426 U.S. 229, 242, 24445 (1976). Thus, discriminatory intent must be a motivating factor in the decision, even though it
need not be the sole motivating factor. See Vill. of Arlington Heights, 429 U.S. at 265-66.
The standard for an equal protection claim under the U.S. Constitution is analogous to the
standard for an equal protection claim under the New Jersey Constitution. Article I, paragraph 1,
of the New Jersey Constitution provides: “All persons are by nature free and independent, and
have certain natural and unalienable rights, among which are those of enjoying and defending life
and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety
and happiness.” Although the term “equal protection” does not specifically appear in the New
Jersey Constitution, Article I, paragraph 1 has been interpreted to confer an analogous right to that
available under the Fourteenth Amendment of the U.S. Constitution. Secure Heritage, Inc. v. City
of Cape May, 825 A.2d 534, 545 (N.J. Super. Ct. App .Div. 2003) (citing Doe v. Poritz, 662 A.2d
367 (N.J 1995)).
Here, Plaintiff has failed to allege a plausible equal protection claim. Plaintiff does not
identify any similarly situated persons, nor how others in his position have been treated differently.
Additionally, Plaintiff has failed to allege any facts suggesting that the assault was the result of
purposeful discrimination. See Faruq v. McCollum, 545 F. App’x 84, 87 (3d Cir. 2013) (affirming
dismissal of equal protection claim where prisoner failed to allege that the defendants acted with
discriminatory intent or purpose); Handley v. Pennsylvania, 715 F. Supp. 657, 673 (M.D. Pa. 1989)
14

(noting that the plaintiff could not recover on the basis of equal protection where the alleged
discrimination was based on personal animosity and not as a victim of class prejudice).
Accordingly, Plaintiff’s equal protection claims fail and shall be dismissed without prejudice.
H. Retaliation Claim against all Defendants
Plaintiff further asserts multiple retaliation claims against all Defendants. “Retaliating
against a prisoner for the exercise of his constitutional rights is unconstitutional.” Bistrian v. Levi,
696 F.3d 352, 376 (3d Cir. 2012) (collecting cases); see also White v. Napoleon, 897 F.2d 103,
111-12 (3d Cir. 1990) (“Retaliation for the exercise of constitutionally protected rights is itself a
violation of rights secured by the Constitution actionable under § 1983.”). To state a claim for
retaliation, a plaintiff must allege that: (1) he engaged in constitutionally protected conduct, (2) he
then suffered some adverse action caused by prison officials; and (3) a causal link existed between
the protected conduct and the adverse action. Obiegbu v. Werlinger, 581 F. App'x 119, 122 (3d
Cir. 2014) (citing Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)).
Based on the allegations of Plaintiff’s complaint, it is not clear precisely what conduct led
to the alleged retaliation; nor is it clear what specific adverse action Plaintiff allegedly suffered or
that a connection existed between the constitutionally protected conduct and the alleged adverse
action. Plaintiff makes the conclusory assertion that he was retaliated against for “exercising his
First Amendment Right to Judicial Redress, Intervention, and Protections.” (See ECF No. 1 at p.
26). However, this allegation fails to adequately describe the type of constitutionally protected
behavior Plaintiff engaged in, does not specify any adverse action taken, and fails to provide a link
between the unspecified protected conduct and the unspecified adverse action. Moreover, the
factual assertions of the complaint do not help to clarify Plaintiff's argument. Accordingly,
Plaintiff’s retaliation claims will be dismissed without prejudice for failure to state a claim upon
which relief can be granted.
15

I. Violations of New Jersey Statutes and Policies against all Defendants
Plaintiff claims that the Defendants have violated numerous state statutes and policies
related to the operation of state prisons, including N.J.A.C. Title 10A, N.J.S.A. 30:1B-3, N.J.S.A.
30:1B-6, and the NJDOC Rules and Regulations for Law Enforcement Personnel. These state
statutes and policies, however, do not give rise to independent, private causes of action. See Drake
v. Muniak, No. 13-3868, 2016 WL 1162375, at *7 (D.N.J. March 24, 2016) (“[T]here is no private
cause of action explicitly created by Title 10A of the New Jersey Administrative Code.”); Johnson
v. Dep’t of Corr., No. 14-0896, 2016 WL 1135501, at *8 n.41 (M.D. Pa. Mar. 3, 2016)
(“[V]iolation of DOC policies … are not cognizable under 42 U.S.C. § 1983.”) (citing Bullard v.
Scism, 449 F. App’x 232, 235 (3d Cir. 2011) (per curiam) (“[E]ven if the [BOP’s] regulation were
violated, its violation is not actionable.”)). Therefore, because no private cause of action exists
within the statutes and policies at issue, Plaintiff's claims are dismissed with prejudice.
J. Violation of the Universal Declaration of Human Rights against all Defendants
Plaintiff alleges that the Defendants violated his human rights under the Universal
Declaration of Human Rights. However, “the Universal Declaration of Human Rights is a nonbinding declaration that provides no private rights of action.” United States v. Chatman, 351 F.
App’x 740, 741 (3d Cir. 2009) (citing Sosa v. Alvarez-Machain, 542 U.S. 692, 734 (2004)
(clarifying that the Universal Declaration of Human Rights is merely a resolution of the United
Nations and “does not of its own force impose obligations as a matter of international law”)).
Thus, Plaintiff’s claim under the Universal Declaration of Human Rights will also be dismissed
with prejudice.
K. Violations of the Grievance Process against all Defendants
Plaintiff also claims that all Defendants have violated the prison grievance process by
disregarding filed grievances, combining grievances with other complaints, responding to
16

grievances with falsified responses, and never returning appealed grievances. (See id. at pp. 2627). To the extent Plaintiff seeks to assert a constitutional claim based on the Defendants’ failure
to comply with prison regulations requiring an administrative appeal process, this claim fails.
“Prisoners do not have a constitutional right to prison grievance procedures. Thus,
defendants’ alleged obstruction of such procedures is not independently actionable.” Heleva v.
Kramer, 214 F. App’x 244, 247 (3d Cir. 2007) (citing Massey v. Helman, 259 F.3d 641, 647 (7th
Cir. 2001)); see also Pressley v. Johnson, 268 F. App’x 181, 184 (3d Cir. 2008) (“[The plaintiff]
also complained about the investigation and processing of his inmate grievances. Because there
is no due process right to a prison grievance procedure, [the plaintiff]’s allegations did not give
rise to a Fourteenth Amendment violation”); Stringer v. Bureau of Prisons, 145 F. App’x 751, 753
(3d Cir. 2005). Accordingly, inmate grievance procedures which may set forth or specify an
administrative appeal do not give rise to a liberty interest protected by the Due Process Clause.
See Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Buckley v. Barlow, 997 F.2d 494,
495 (8th Cir. 1993) (per curiam); Mann v. Adams, 855 F.2d 639 (9th Cir.) (per curiam), cert.
denied, 488 U.S. 898 (1988). Thus, Defendants’ failure to properly respond to and process
Plaintiff's administrative grievances is not actionable under § 1983. As it does not appear that
Plaintiff could state a claim regarding the failure to respond to grievances and/or to provide an
administrative appeal under § 1983 by adding additional factual allegations or naming additional
defendants in an amended complaint, this Court will not grant leave to amend this claim.
L. Defamation Claim against all Defendants
Finally, Plaintiff attempts to assert a defamation claim against all Defendants. (See ECF
No. 1 at p. 27). Under New Jersey law, the elements of the cause of action for defamation are:
“(1) that defendants made a false and defamatory statement concerning [plaintiff]; (2) that the
statement was communicated to another person (and not privileged); and (3) that defendants acted
17

negligently or with actual malice.” G.D. v. Kenny, 15 A.3d 300, 310 (N.J. 2011). “In the case of
a complaint charging defamation, plaintiff must plead facts sufficient to identify the defamatory
words, their utterer and the fact of their publication. A vague conclusory allegation is not enough.”
Zoneraich v. Overlook Hosp., 514 A.2d 53, 63 (N.J. Super. Ct. App. Div.), cert. denied, 501 A.2d
945 (N.J. 1986); see also F.D.I.C. v. Bathgate, 27 F.3d 850, 875 (3d Cir. 1994) (citing Zoneraich).
Here, the complaint fails to sufficiently plead a claim of defamation because Plaintiff does
not identify when and by whom the allegedly defamatory statements were published, to whom
these statements were published, or facts suggesting any publication was negligent or malicious.
In the absence of supporting facts for Plaintiff’s allegations, the defamation claim shall be
dismissed without prejudice.
M. Appointment of Pro Bono Counsel
Plaintiff has also filed a motion requesting the appointment of pro bono counsel. (See ECF
No. 3). Plaintiff argues that he should be appointed counsel because he possesses no legal
knowledge or skills to litigate this case. (See id. at p. 3). Additionally, Plaintiff claims that because
he has been transferred out of SWSP he will be unable to conduct a proper investigation. (See id.).
Indigent persons raising civil rights claims have no absolute right to counsel. See Parham
v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997). At a minimum, there must be some merit in fact
or law to the claims the plaintiff is attempting to assert. See Tabron v. Grace, 6 F.3d 147, 155 (3d
Cir. 1993). Once that threshold of merit is crossed, a court determining whether to appoint counsel
will considers the following: (1) the plaintiff's ability to present his or her own case; (2) the
complexity of the legal issues; (3) the degree to which factual investigation will be necessary and
the ability of the plaintiff to pursue such investigation; (4) the amount a case is likely to turn on
credibility determinations; (5) whether the case will require the testimony of expert witnesses; and
(6) whether the plaintiff can attain and afford counsel on his own behalf. See id. at 155-56, 157
18

n.5; see also Cuevas v. United States, 422 F. App’x 142, 144-45 (3d Cir. 2011) (reiterating the
Tabron factors).
Although Plaintiff has established his indigence and has pled claims of at least arguable
merit, this Court finds that the appointment of counsel is not warranted at this time. This Court
reaches this conclusion because Plaintiff’s complaint indicates that Plaintiff is able to put forth his
claims in a clear fashion and because at this early stage in the proceedings, the Court is unable to
determine how much discovery will be needed. While the Court acknowledges that Plaintiff may
be unable to obtain private counsel and that this case may largely rest on credibility determinations,
this Court finds that, on balance, these Tabron factors weigh against the appointment of counsel
at this time. Plaintiff’s request for the appointment of counsel is therefore be denied without
prejudice. Plaintiff may reapply for pro bono counsel at a later date.
V.

CONCLUSION
For the reasons set forth above, Plaintiff’s claims against Defendants in their official

capacities and the New Jersey Department of Corrections are dismissed with prejudice. Plaintiff’s
claims against Commissioner Gary Lanigan, Administrator R. Riggins, Officer Dennis Mercado,
Hearing Officer Norma Morales-Pitre, Assistant Superintendent Lisa Swift, Investigator Donna
Alexander, Investigator Elizabeth Adams, and Investigator Eleazar Spratley in their individual
capacities will be dismissed without prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1) and 42 U.S.C. § 1997e(c)(1), for failure to state a claim. Additionally, Plaintiff’s
failure to protect, equal protection, retaliation, and defamation claims against all Defendants shall
be dismissed without prejudice. Plaintiff’s claims for violations of various New Jersey statutes
and policies, the Universal Declaration of Human Rights, and the prison grievance process against
all Defendants shall be dismissed with prejudice.

19

Moreover, Plaintiff’s excessive force claims against Officer Victor Tapia, Sergeant J.
Kuhlen, Sergeant S. Hunter, Sergeant R. Dunns, Lieutenant J. Sprenger, Officer M. Mackeprang,
Officer M. Garcia, Officer A. Dooley, Officer J. Hawk, Officer S. Lopez, Officer J. Elbeuf, Officer
V. Spinelli, Officer L. Toro, and Officer D. West shall proceed. Plaintiff’s denial of medical care
claim against Nurse Kyrsten Pierce shall proceed. Further, Plaintiff’s motion for the appointment
of pro bono counsel is denied without prejudice. An appropriate order follows.

DATED: August 22 , 2018

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

20