BRYANT v. EARLING et al
Filing
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OPINION. Signed by Judge Jerome B. Simandle on 7/23/2018. (tf, n.m.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
PONTELL BRYANT,
Plaintiff,
Civil Action
No. 18-0623 (JBS-AMD)
v.
BARBARA EARLING, et al.,
OPINION
Defendants.
APPEARANCES:
Pontell Bryant, Plaintiff Pro Se
#552782/311381-C
Northern State Prison
PO Box 2300
168 Frontage Road
Newark, New Jersey 07114
SIMANDLE, U.S. District Judge:
INTRODUCTION
Before the Court is Plaintiff Pontell Bryant’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 relief. For the reasons set
forth below, the Court concludes the complaint shall proceed in
part.
BACKGROUND
Plaintiff alleges Senior Officer Barbara Earling
“intentionally destroyed noncontraband property” that had been
confiscated during a search of his cell at South Woods State
Prison (“SWSP”) on March 12, 2017.1 Complaint at 6. He further
alleges she threatened him with physical violence for filing
grievances. Plaintiff asserts SWSP Administrator Willie Bonds
and Superintendent Kippie Langford witnessed Officer Earling’s
destruction of Plaintiff’s property but did not intervene or
stop her misconduct. Id. at 7. Plaintiff also alleges that he
has been subjected to retaliatory disciplinary proceedings and
misconduct reports since he began filing grievances about
defendants’ actions. He asserts unnamed officers destroyed his
television, and defendants replaced it with a new television.
Id.
III. STANDARD OF REVIEW
A. Standards for a Sua Sponte Dismissal
This action is subject to sua sponte screening for
dismissal under 28 U.S.C. § 1915(e)(2)(b) because Plaintiff is
proceeding in forma pauperis. The Court must dismiss any claim
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Plaintiff is presently confined in Northern State Prison.
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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.
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,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)
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“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)).
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(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).
B. 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 ....
§ 1983. 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).
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IV. ANALYSIS
A. Deprivation of Property
Plaintiff asserts Officer Earling deprived him of his
property in violation of the Eighth and Fourteenth Amendments.
As this claim is legally flawed, it will be dismissed with
prejudice.
Plaintiff’s claim that Officer Earling intentionally
deprived him of his property is barred if there is an adequate
post-deprivation remedy available to him. Hudson v. Palmer, 468
U.S. 517, 533 (1984); Tillman v. Lebanon Cnty. Corr. Facility,
221 F.3d 410, 421–22 (3d Cir. 2000). Plaintiff “cannot prevail
on his due process claim if the state's post-deprivation
procedures, including state tort remedies, are adequate.” Revell
v. Port Auth. of New York, New Jersey, 598 F.3d 128, 139 (3d
Cir. 2010). “[P]ost-deprivation remedies do not satisfy the Due
Process Clause if the deprivation of property is accomplished
pursuant to established state procedure rather than through
random, unauthorized action.” Stokes v. Lanigan, No. 12-1478,
2012 WL 4662487, at *4 (D.N.J. Oct. 2, 2012) (citing Logan v.
Zimmerman Brush Co., 455 U.S. 422, 435–36 (1982)).
Plaintiff does not allege Officer Earling acted pursuant to
official state procedure. He instead alleges the destruction was
an act of retaliation for pursuing remedies through the prison
grievance system. Complaint at 6. He indicates he filed a
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property claim against SWSP. Id. ¶ 5. Therefore, there was an
adequate post-deprivation remedy available to him. See also N.J.
Ct. R. 2:2-3(a)(2) (providing for review in the New Jersey
Superior Court Appellate Division of final agency decisions). As
Plaintiff cannot cure this legal deficiency, the federal Due
Process claim shall be dismissed with prejudice. Toney v.
Sassaman, 588 F. App'x 108, 110 (3d Cir. 2015) (per curiam)
(affirming District Court’s dismissing deprivation of property
claim with prejudice as it was “legally flawed”).
B. Verbal Harassment
Plaintiff also alleges defendants have consistently
verbally harassed him. “Verbal harassment of a prisoner,
although distasteful, does not violate the Eighth Amendment.”
Washington v. Rozich, No. 18-1027, 2018 WL 2446659, at *2 (3d
Cir. May 31, 2018) (non-precedential) (citing McBride v. Deer,
240 F.3d 1287, 1291 n.3 (10th Cir. 2001); DeWalt v. Carter, 224
F.3d 607, 612 (7th Cir. 2000)). Plaintiff has failed to state an
Eighth Amendment claim based on verbal harassment, and the Court
will dismiss the verbal harassment claims with prejudice.
C. Retaliation
Plaintiff further alleges Officer Earling destroyed his
property as an act of retaliation. He also alleges defendants
have retaliated against him for filing grievances by filing
false misconduct reports against him.
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To state a First Amendment retaliation claim, Plaintiff
must plead facts suggesting: (1) he engaged in constitutionally
protected conduct; (2) an adverse action was taken against him
by prison officials sufficient to deter him from exercising his
constitutional rights; and (3) there was a causal link between
the exercise of his constitutional rights and the adverse action
taken against him. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.
2001).
“‘[G]overnment actions, which standing alone do not violate
the Constitution, may nonetheless be constitutional torts if
motivated in substantial part by a desire to punish an
individual for exercise of a constitutional right.’” Allah v.
Seiverling, 229 F.3d 220, 224–25 (3d Cir. 2000) (quoting
(Thaddeus–X v. Blatter, 175 F.3d 378, 386 (6th Cir. 1999) (en
banc)) (alteration in original). Therefore, Plaintiff may have a
claim under the First Amendment if Officer Earling had a
retaliatory motive even if he does not have a constitutional
claim for the destruction of his property.
Construing the complaint liberally and giving Plaintiff the
benefit of all reasonable inferences, he has sufficiently
alleged retaliation claims against defendants. The act of filing
grievances in prison is a constitutionally protected activity.
See Mack v. Warden Loretto FCI, 839 F.3d 286, 300 (3d Cir. 2016)
(noting retaliating against prisoner for filing grievances, oral
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or written, is unlawful). Plaintiff alleged Officer Earling
threatened him on March 9, 2017 for filing grievances, and three
days later she confiscated and destroyed his property. After he
began filing grievances about the destruction, defendants began
filing misconduct reports. Taking Plaintiff’s allegations as
true for purposes of this review, it is plausible that this
unusually suggestive timeframe sufficiently alleges retaliation
was a motive. The Court will permit the retaliation claim to
proceed against all defendants.
D. Failure to Intervene
Plaintiff finally alleges Administrator Bond and
Superintendent Langford witnessed Officer Earling destroy his
property but did not “correct this misconduct.” Complaint at 7.
To plead a failure to intervene claim, Plaintiff must plead
facts indicating that: (1) the officer failed or refused to
intervene when a constitutional violation took place in his
presence or with his knowledge; and (2) there was a “realistic
and reasonable opportunity to intervene.” Smith v. Mensinger,
293 F.3d 641, 650–51 (3d Cir. 2002). Construing the complaint
liberally and giving Plaintiff the benefit of all reasonable
inferences, he has sufficiently alleged a failure to intervene
claim against Administrator Bond and Superintendent Langford as
Plaintiff has alleged facts indicating they were aware of
Officer Earling’s unconstitutional, retaliatory actions but did
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not act to stop her while witnessing those actions and having a
reasonable opportunity to intervene.
V.
CONCLUSION
For the reasons stated above, Plaintiff’s claims for
deprivation of property and verbal harassment are dismissed with
prejudice for failure to state a claim. Plaintiff’s retaliation
and failure to intervene claims shall be permitted to proceed.
The Court makes no determination as to the truth of any matters
discussed herein.
An appropriate order follows.
July 23, 2018
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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