BROWN v. SCHMIDT et al

Filing 3

OPINION. Signed by Judge Renee Marie Bumb on 1/6/2021. (cry, )

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NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
KEISHAWN BROWN,

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Plaintiff
v.
SGT. N. SCHMIDT, et al.,
Defendants

CIV. NO. 20-15672 (RMB-AMD)

OPINION

BUMB, DISTRICT JUDGE
Plaintiff Keishawn Brown, a prisoner incarcerated in Garden
State Correctional Facility (“GSCF”) in Yardville, New Jersey,
filed this civil rights action pro se on November 5, 2020. (Compl.,
Dkt.

No.

establishes

1.)

Plaintiff

his

has

financial

submitted
eligibility

an
to

application
proceed

which

without

prepayment of the filing fee under 28 U.S.C. § 1915(a) (“IFP
application,” Dkt. No. 1-1.)
I.

SUA SPONTE DISMISSAL
When a prisoner is permitted to proceed without prepayment of

the filing fee for a civil action against a government entity or
employee or based on prison conditions, 28 U.S.C. §§ 1915(e)(2)(B),
1915A(b)(1), and 42 U.S.C. § 1997e(c)(1) require courts to review
the complaint and sua sponte dismiss any claims that are (1)
frivolous or malicious; (2) fail to state a claim on which relief

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may be granted; or (3) seek monetary relief against a defendant
who is immune from such relief.
Courts must liberally construe pleadings that are filed pro
se. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). Thus, “a pro se complaint,
however

inartfully

standards

than

pleaded,

formal

must

pleadings

be

held

to

drafted

by

‘less

stringent

lawyers.’”

Id.

(internal quotation marks omitted). 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.) 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 assumption of truth.” Id. at
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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

For the purpose of screening the complaint under 28 U.S.C.
§§ 1915, 1915A and 42 U.S.C. § 1997e, the Court accepts Plaintiff’s
allegations

as

true.

Plaintiff

asserts

jurisdiction

under

42

U.S.C. § 1983. On June 2, 2020, Plaintiff returned to his cell in
the

West

Compound

at

GSCF,

after

recreation

in

the

yard.

Plaintiff’s property was strewn about the cell, indicating there
had been a cell search. Plaintiff learned that an officer had
poured milk and shampoo in his sneakers. Defendant Sgt. N. Schmidt
(“Schmidt”) then moved Plaintiff’s cellmate to an empty cell.
Schmidt and two other officers escorted Plaintiff to the East
Compound, where they took an elevator to the third floor. Plaintiff
asked why they had put milk and shampoo in his sneakers. Schmidt
said Plaintiff liked fighting his officers, and he had separated
Plaintiff from his roommate so an unintended target would not
suffer for something meant only for Plaintiff. Plaintiff refused
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his housing assignment for fear of his safety. A riot team arrived
on the third floor to extract Plaintiff. Schmidt sprayed pepper
spray in Plaintiff’s face, and Plaintiff tried to block the spray
from his eyes. While he was lying on the floor and handcuffed, the
officers punched and kicked Plaintiff. Defendant Officer Salanitro
(“Salanitro”) landed multiple punches. After putting Plaintiff in
a shower to wash the pepper spray off, he was placed in a suicide
room.
Plaintiff

was

visited

by

a

discipline

hearing

officer

(“DHO”). He told the DHO that Schmidt was targeting him over
something that happened at another facility. The DHO said everyone
as GSCF knew about it. Plaintiff asked the DHO for a transfer to
another

facility.

The

DHO

forwarded

Plaintiff’s

statement

to

S.I.D.
Plaintiff was placed on camera-move status in the suicide
room, then moved to Room 102 in the West Compound. Plaintiff
requested to use the phone, but Schmidt told the tier officer that
Plaintiff could not use the phone or J-Pay email. On June 6, 2020,
Plaintiff had to ask another inmate to file an S.I.D. remedy for
him via J-Pay. Several days later, during an S.I.D. interview,
Plaintiff described the incident with the cell search and his
sneakers, and the assault on him. S.I.D. told Plaintiff they were

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working on approving a transfer. Plaintiff also complained to
S.I.D. that he was prohibited from using the phone or J-Pay.
While on camera-move status, officers made Plaintiff wait
seven days for a shower. After he was allowed to shower on June
16, 2020, Plaintiff protested the conditions by refusing his
housing assignment. This led to another extraction of Plaintiff by
officers in riot gear. Plaintiff was sprayed with pepper spray,
and Schmidt and other officers punched Plaintiff while he laid on
the floor. After he was brought to medical, bruised and bloody,
Plaintiff was placed in a suicide room on the East Compound.
The DHO visited Plaintiff in the suicide room and took his
statement about the beating, which she forwarded to S.I.D. The DHO
requested that Plaintiff be transferred. For fifty days, Plaintiff
was prevented from using the phone or J-Pay and was permitted to
shower only once per seven days. When an East Compound supervisor
learned Plaintiff was being prevented from using the phone or JPay, she intervened and allowed Plaintiff to use the phone and
take a shower. Plaintiff remained on camera-move status at that
time. From June 2 through July 19, 2020, Plaintiff was not allowed
any recreational time outside his cell.
Plaintiff went on a hunger strike on July 19, 2020, to protest
that he had not been transferred to another facility. The next
day, LT. Long explained to Plaintiff that the rules required the
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water to be turned off when a prisoner was on a hunger strike.
Defendant Ganesh visited Plaintiff on July 21, 2020, to ask about
his hunger strike. Plaintiff complained that an officer had turned
off his drinking water. Ganesh told Plaintiff that happens when
you go on a hunger strike. Plaintiff requested a transfer. Ganesh
told Plaintiff that the Governor had locked down the prisons due
to COVID and prohibited transfers.
After going a full day without water, Plaintiff complained to
medical staff. Nurses gave Plaintiff water and told custody staff
that Plaintiff could have drinking water during his hunger strike.
They did not turn his water back on. Plaintiff spent two weeks off
and on his hunger strike, until his phone and J-Pay privileges
were restored. He spent a total of 80 days in his cell without
recreation time.
Plaintiff alleges the following constitutional violations.
Schmidt violated the Fourth Amendment by searching Plaintiff’s
cell in a manner intended to harass, intimidate or punish. Schmidt,
Salanitro, and John Does used excessive force against Plaintiff in
violation of the Eighth Amendment. Lt. Long violated the Eighth
Amendment by permitting Plaintiff only one shower every seven days.
Lt.

Long

violated

the

Eighth

Amendment

by

authorizing

that

Plaintiff’s drinking water be turned off during his hunger strike,
and he violated the First Amendment by preventing Plaintiff from
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communicating with this family and friends by phone or J-Pay for
50 days. Shimonis and Ganesh violated the Eighth Amendment by
placing

Plaintiff

on

camera-move

status

for

80

days

without

recreational time outside the cell. Shimonis and Ganesh violated
Plaintiff’s

due

process

rights

“regarding

transfers

and

segregation.” Plaintiff alleges that Shimonis and Ganesh subjected
him to harsh conditions because he complained of conditions in the
facility,

which

the

Court

construes

as

a

First

Amendment

retaliation claim. For relief, Plaintiff seeks money damages and
declaratory and injunctive relief. Therefore, the Court construes
the claims as alleged against Defendants in their individual
capacities

(for

damages

and

declaratory

relief)

and

official

capacities (for injunctive relief).
B.

Section 1983 Claims

42 U.S.C. § 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
the violation of a right secured by the Constitution or laws of
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the United States, and that the constitutional deprivation was
caused by a person acting under color of state law. West v. Atkins,
487 U.S. 42, 48 (1998); Malleus v. George, 641 F.3d 560, 563 (3d
Cir. 2011).
1.

Fourth Amendment Claim

Plaintiff claims that Schmidt’s search of his cell, where
Schmidt

filled

Plaintiff’s

sneakers

with

milk

and

shampoo,

violated the Fourth Amendment because it was intended to harass,
intimidate

or

punish

him.

“[T]he

Fourth

Amendment

has

no

applicability to the contents of a prisoner's cell.” Humphrey v.
Sec'y Pennsylvania Dep't of Corr., 712 F. App'x 122, 125 (3d Cir.
2017)

(citing

Hudson

v.

Palmer,

468

U.S.

517,

536

(1984)

(additional citation omitted). The Court will dismiss the Fourth
Amendment claim with prejudice.
2.

Eighth Amendment Claims

Plaintiff’s Eighth Amendment excessive force claims against
Schmidt, Salanitro, and John Does may proceed. Plaintiff’s Eighth
Amendment claims against Lt. Long and Defendant Ganesh for turning
off his water while he was on a hunger strike may also proceed.
Plaintiff

brings

several

more

Eighth

Amendment

conditions

of

confinement claims. First, a claim against Lt. Long for limiting
Plaintiff to one shower a week, over the course of fifty days. The

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Eighth Amendment standard for a conditions of confinement claim
requires a showing that
the alleged deprivation is “sufficiently
serious” and … the inmate has been deprived of
the “minimal civilized measure of life's
necessities.” Farmer v. Brennan, 511 U.S. 825,
834 … (1994) (citing Rhodes v. Chapman, 452
U.S. 337 … (1981)). An inmate must demonstrate
that “he is incarcerated under conditions
posing a substantial risk of serious harm” and
that
prison
officials
demonstrated
“deliberate indifference” to his health or
safety.
Id.
However,
only
“extreme
deprivations” are sufficient to present a
claim for unconstitutional conditions of
confinement. Hudson [v. McMillian], 503 U.S.
[1,] 8–9 [1992]…. “Relevant considerations
include the length of confinement, the amount
of time prisoners must spend in their cells
each day, sanitation, lighting, bedding,
ventilation,
noise,
education
and
rehabilitation programs, opportunities for
activities outside the cells, and the repair
and functioning of basic physical activities
such as plumbing, ventilation and showers.”
Nami v. Fauver, 82 F.3d 63, 67 (3d Cir.1996)
(citing Tillery v. Owens, 907 F.2d 418, 427
(3d Cir.1990)).
Dockery v. Beard, 509 F. App'x 107, 112 (3d Cir. 2013). Limiting
showers to once a week for fifty days is not an extreme deprivation
that denies the minimal civilized measure of life’s necessities.
Id. at 113 (citing Davenport v. DeRobertis, 844 F.2d 1310, 1316
(7th Cir.1988) (limiting inmates to one shower per week does not
violate the Eighth Amendment)). The Eighth Amendment claim against

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Lt. Long regarding shower restrictions will be dismissed with
prejudice for failure to state a claim.
Plaintiff has also alleged that Shimonis and Ganesh violated
the Eighth Amendment by denying him recreational time outside of
his cell for eighty days. “[A] temporary denial of outdoor exercise
with no medical effects is not a substantial deprivation.” Fantone
v. Herbik, 528 F. App'x 123, 127 (3d Cir. 2013) (quoting May v.
Baldwin, 109 F.3d 557, 565 (9th Cir.1997)). Plaintiff has not
alleged that he had no opportunity for any type of exercise or
that he suffered any medical effects from the deprivation of
exercise outside his cell. The Court will dismiss this claim
without prejudice.
3.

Due Process Claims

Plaintiff alleges Shimonis and Ganesh violated his right to
due process “regarding transfers and segregation.” A prisoner is
deprived of a legally cognizable liberty interest when “the prison
‘imposes

atypical

and

significant

hardship

on

the

inmate

in

relation to the ordinary incidents of prison life.’” Jones v.
Davidson, 666 F. App'x 143, 147 (3d Cir. 2016) (quoting Sandin v.
Conner, 515 U.S. 472, 484 (1995)). The Third Circuit has held that
imposition of disciplinary segregation for as long as fifteen
months does not impose an atypical and significant hardship in
relation to the ordinary incidents of prison life. Id. (citing
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Smith v. Mensinger, 293 F.3d 641, 653 (3d Cir. 2002) (holding seven
months

of

disciplinary

confinement

did

not

implicate

liberty

interest); Torres v. Fauver, 292 F.3d 141, 151–52 (3d Cir. 2002)
(holding

disciplinary

detention

for

fifteen

days

and

administrative segregation for 120 days did not implicate liberty
interest); Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997)
(holding

administrative

detention

for

fifteen

months

did

not

implicate liberty interest)). Plaintiff has not alleged that he
was deprived of a protected liberty interest by his placement on
camera-move status for eighty days. Furthermore, the Due Process
Clause does not create a liberty interest in a particular housing
location

or

custody

level

while

under

the

jurisdiction

of

correctional authorities. Green v. Williamson, 241 F. App'x 820,
822 (3d Cir. 2007) (citing Meachum v. Fano, 427 U.S. 215, 224–25
(1976); Montanye v. Haymes, 427 U.S. 236, 242 (1976); Olim v.
Wakinekona, 461 U.S. 238, 244–45 (1983)). The Court will dismiss
Plaintiff’s Due Process claims with prejudice.
4.

First Amendment Claims
a.

Freedom of association

Plaintiff alleges that Lt. Long violated his First Amendment
right to have contact with his family and friends by denying him
access to a phone and J-Pay email for fifty days while he was on
camera-move status. “[F]reedom of association is among the rights
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least compatible with incarceration.” Overton v. Bazzetta, 539
U.S. 126, 131 (2003) (citing Jones v. North Carolina Prisoners’
Labor Union, Inc., 433 U.S. 119, 125–126 (1977); Hewitt v. Helms,
459 U.S. 460 (1983)). Although prisoners retain some right to
association,
four factors are relevant in deciding whether
a prison regulation affecting a constitutional
right that survives incarceration withstands
constitutional
challenge:
whether
the
regulation
has
a
“‘valid,
rational
connection’” to a legitimate governmental
interest; whether alternative means are open
to inmates to exercise the asserted right;
what impact an accommodation of the right
would have on guards and inmates and prison
resources; and whether there are “ready
alternatives” to the regulation. [Turner v.
Safely], 482 U.S. [78 ] 89–91 [1987].
Id. at 132. The burden is on the prisoner to disprove the validity
of a prison regulation that infringes a constitutional right. Id.
Plaintiff alleged that he was placed on camera-move status
during the 50-day period where he was restricted from using the
phone or J-Pay email. He has not explained the reason given to him
for placing him on camera-move status or whether there is a prison
regulation that restricts phone and J-Pay use while on camera-move
status. If a prison regulation imposes the restriction, Plaintiff
must allege why the restriction is not rationally related to a
legitimate governmental interest, pursuant to the four factors
discussed above. Therefore, the Court will dismiss Plaintiff’s
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First Amendment freedom of association claim against Lt. Long
without prejudice.
b.

Retaliation

Plaintiff alleges that Shimonis and Ganesh subjected him to
harsh conditions on camera-move status for eighty days because he
complained of conditions in the facility. “In order to establish
illegal

retaliation

for

engaging

in

protected

conduct,”

a

plaintiff must allege that: “(1) his conduct was constitutionally
protected; (2) he suffered an adverse action at the hands of prison
officials; and (3) his constitutionally protected conduct was a
substantial or motivating factor” in the adverse action. Watson v.
Rozum, 834 F.3d 417, 422 (3d Cir. 2016). The third element of a
prima facie case of retaliation can be established with evidence
of: “(1) an unusually suggestive temporal proximity between the
protected activity and the allegedly retaliatory action, or (2) a
pattern of antagonism coupled with timing to establish a causal
link.” Id. at 424 (citations omitted). “‘[T]he timing of the
alleged

retaliatory

action

must

be

‘unusually

suggestive’

of

retaliatory motive before a causal link will be inferred.’” Id.
(quoting Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir.
2003) (internal quotation marks omitted) (quoting Krouse v. Am.
Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997)).

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Plaintiff has not established how the decision to place him
on camera-move status was connected in time to a specific complaint
that he made about the conditions of confinement, nor did he allege
any

other

facts

indicating

that

Shimonis

and

Ganesh

had

a

retaliatory motive. Further, Plaintiff alleged he was placed in a
suicide room, but he did not explain if this was related to his
camera-move status. Plaintiff has not provided sufficient facts to
establish a retaliation claim. Therefore, the Court will dismiss
the

retaliation

claims

against

Shimonis

and

Ganesh

without

prejudice.
C.

New Jersey Tort Claims

Plaintiff seeks to bring each of his claims under the New
Jersey Tort Claims Act (“TCA”), N.J. Stat. Ann. 59:1-1 et seq.
Prior to bringing a personal injury claim against public employees
under the TCA, a plaintiff must file a notice of claim not later
than the 90th day after accrual of the cause of action. N.J. Stat.
Ann. § 59:8-8 (West). § 59:8-3 and 59:8-8. A plaintiff is “forever
barred from recovering against a public entity or public employee
if he “failed to file the claim with the public entity within 90
days of accrual of the claim except as otherwise provided in N.J.S.
59:8-9[.]” N.J. Stat. Ann. § 59:8-8. The claim must be filed “with
(1) the Attorney General or (2) the department or agency involved
in the alleged wrongful act or omission.” N.J. Stat. Ann. 59:8-7.
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“A claimant who fails to file notice of his claim within 90 days
as provided in section 59:8-8 of this act, may, in the discretion
of a judge of the Superior Court, be permitted to file such notice
at any time within one year after the accrual of his claim provided
that

the

public

entity

or

the

public

employee

has

not

been

substantially prejudiced thereby.” N.J. Stat. Ann. § 59:8-9.
Based on the allegations in the complaint, Plaintiff’s claims
accrued on August 26, 2019. Plaintiff has not alleged that he
timely satisfied the notice of claim requirement of the TCA.
Therefore, the Court will dismiss Plaintiff’s state tort claims
without prejudice. See Melber v. United States, 527 F. App'x 183,
186 n. 2 (3d Cir. 2013) (noting the New Jersey Superior Court
Appellate Division has suggested the TCA claim notice requirement
is jurisdictional) (citing State v. J.R.S., 939 A.2d 226, 229 (N.J.
Super. Ct. App. Div. 2008)).
III. CONCLUSION
The Court will grant Plaintiff’s application to proceed in
forma pauperis under 28 U.S.C. § 1915, and proceed his Complaint
in part and dismiss it in part.

DATE:

January 6, 2021
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

15