JACKSON v. MURPHY et al

Filing 57

OPINION. Signed by Chief Judge Renee Marie Bumb on 5/8/2024. (jab,N.M.)

F.*NOT FOR PUBLICATION

ECF NO. 35

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
KEVIN JACKSON,

: CIV. NO. 22-1630 (RMB/AMD)
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OPINION
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Plaintiff,
v.
PHILIP D. MURPHY, et al.,
Defendants
______________________________
APPEARANCES:
Kevin Jackson
207013/291833B
Bayside State Prison
PO Box F-1
Leesburg, NJ 08327
Plaintiff, Pro Se

Michael Ezra Vomacka, Deputy Attorney General
Office of the New Jersey Attorney General
Richard J. Hughes Justice Complex
25 Market Street, 2nd Floor
P.O. Box 112
Trenton, NJ 08625
On behalf of Defendants Victoria Kuhn, Keisha Fisher and Jay Cisrow
RENÉE MARIE BUMB, Chief United States District Judge
This matter comes before the Court upon the motion to dismiss Plaintiff’s
complaint by Defendants Victoria Kuhn, Keisha Fisher and Jay Cisrow (collectively
“Defendants”) (Mot. to Dismiss, Dkt. No. 53, and Defs’ Brief in Supp. of Mot. to

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Dismiss, Dkt. No. 53-1), Plaintiff’s response in opposition to Defendants’ motion to
dismiss (“Pl’s Opp. Brief” Dkt. No. 54); and Defendants’ reply brief (Defs’ Reply
Brief, Docket No. 56). The Court will decide the motion on the briefs without an
oral hearing, pursuant to Federal Rule of Civil Procedure 78(b). For the reasons
discussed below, the Court will grant in part and deny in part the motion to dismiss.
I.

PROCEDURAL HISTORY
This case arises out of the alleged destruction of Plaintiff Kevin Jackson’s

(“Plaintiff”) newly purchased legal reference book by Sergeant Cisrow, a mailroom
supervisor in South Woods State Prison (“SWSP”) and allegations that other
mailroom supervisors illegally confiscated or destroyed legal reference materials
purchased by prisoners within the New Jersey Department of Corrections
(“NJDOC”). (Compl., Dkt. No. 1.) Plaintiff and three other inmates filed this
putative class action against prison mailroom supervisors and administrators of the
prisons and New Jersey Department of Corrections. (Id.) This Court
administratively terminated from this action Plaintiffs Anthony Casale, Dano Tokley
and Ariel Fernandez for failing to pay the filing fee or submit an IFP application
under 28 U.S.C. § 1915(a). These plaintiffs were given an opportunity to cure the
filing fee defect but failed to do so. (Order, Dkt. No. 3.) Therefore, Plaintiff Kevin
Jackson is the sole remaining plaintiff.
By order dated March 24, 2022, this Court granted Plaintiff’s application to
proceed without prepayment of fees pursuant to 28 U.S.C. § 1915(a). (Order, Dkt.
No. 3.) Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court sua sponte screened the
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complaint for dismissal 1 based on frivolity, failure to state a claim, or immunity of
the defendants. (Order, Dkt. No. 3.) The Court dismissed the claims against
Governor Philip D. Murphy and otherwise permitted the complaint to proceed
beyond screening for sua sponte dismissal. (Id.) Plaintiff filed a motion for a
temporary restraining order (“TRO”) with his complaint, but he failed to establish
that a hearing on the TRO should proceed without notice to the defendants. (Mot.
for TRO, Dkt. No. 2.; Order, Dkt. No. 3.) The Court reserved judgment on the TRO
motion until Defendants were notified and provided an opportunity to respond. (Id.)
On June 21, 2023, this Court granted Defendant Jonathan Gramp’s motion to
dismiss with prejudice Plaintiff’s claims of First Amendment Retaliation, First
Amendment Access to Courts, and First Amendment Freedom of Speech under 42
U.S.C. § 1983; this Court also dismissed without prejudice Plaintiff’s § 1983 claims
against Defendants John Powell and Marcus O. Hicks. (Opinion and Order, Dkt.
Nos. 42, 43). This matter is now before the Court on the first motion to dismiss the
complaint in its entirety with prejudice by Sergeant Jay Cisrow, Administrator
Fisher, and Commissioner Kuhn. (Mot. to Dismiss, Dkt. No. 53.)
II.

THE COMPLAINT
The complaint contains the following factual allegations against Sergeant

Cisrow, Administrator Fisher and Commissioner Kuhn in support of Plaintiff’s First
Amendment Retaliation, First Amendment Access to Courts, and First Amendment

The complaint was screened before it was known whether all plaintiffs would remain in
the action by paying the filing fee or submitting an IFP application.
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Freedom of Speech claims under 42 U.S.C. § 1983 and the parallel provisions of the
New Jersey Constitution. 2 Acting NJDOC Commissioner Kuhn (recently appointed
by the Governor as the NJDOC Commissioner) “was responsible for all matters of
policy enacted within the NJDOC….” (Compl. ¶ 6, Dkt. No. 1.) She has “personal
knowledge of various aspects of the unlawful conditions through written pleas . . .
from Class-plaintiffs but [has] permitted the unlawful conditions to persist in the
illegal confiscation of Class-plaintiffs’ law books and legal reference books and
documents.” (Id.)
Keisha Fisher was recently appointed Administrator of SWSP, and she “was
in charge” when Sergeant Cisrow engaged in the “common practice” of confiscating
books that were not on the NJDOC banned book list. (Compl. ¶ 8, Dkt. No. 1.)
Administrator Fisher was responsible for overseeing SWSP’s policies relating to the
possession of law books and legal reference materials by prisoners. (Id.) Plaintiff
alleges “Defendants failed to make reasonable modification and/or provide a stern
warning to the mailroom [sergeants] in South Woods State Prison… .” (Id., ¶ 29.)
Defendants further failed to change the New Jersey regulations regarding prison

“New Jersey courts ‘have consistently looked to federal § 1983 jurisprudence for guidance’
[on NJCRA claims] and have ‘repeatedly interpreted [the New Jersey Civil Rights Act,
N.J.S.A. 10:6-2 et seq.] analogously to § 1983.’” Ingram v. Twp. of Deptford, 911 F. Supp. 2d
289, 298 (D.N.J. 2012) (quoting Gonzalez v. Auto Mall 46, Inc., 2012 WL 2505733, at *4 (N.J.
Super. Ct. App. Div. July 2, 2012) (citing Rezem Family Assocs., LP v. Borough of Millstone, 423
N.J. Super. 103, 30 A.3d 1061 (2011), cert. denied, 208 N.J. 366, 29 A.3d 739 (2011)
(additional citations omitted, alteration added)). Therefore, the Court addresses these
claims together.
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management or the SWSP rule book relating to the confiscation and destruction of
legal reference books. (Id., ¶¶ 31, 32.)
Sergeant Cisrow, SWSP mailroom supervisor, confiscated law books that
prisoners were permitted to purchase because they were not on the NJDOC banned
books list of 2019, 2020 or 2021. (Compl. ¶¶ 10, 12, Dkt. No. 1.) Sergeant Cisrow
destroyed Plaintiff’s legal reference book, the New Jersey Lawyer’s Diary Manual
2021, while his administrative appeal of her confiscation of the book was pending.
(Compl. ¶¶ 10, 17, 31.) The complaint suggests that Sergeant Cisrow created a
mailroom policy, which does not appear in the inmate handbook or prison
regulations, which allowed her to confiscate and perhaps even destroy the legal
reference book Plaintiff had purchased by mail. (Compl., ¶ 13, 25, 26.) The
complaint does not clearly allege what policy or policies Sergeant Cisrow created,
but it suggests she may have required inmates to obtain her advance permission to
“purchase a law book from a source of sale.”) (Id. ¶ 13.)
Plaintiff alleges:
Defendants have failed to change the N.J.A.C. 10A:
where it will be lodged of the legal changes via Notice of
the questionable law books, legal reference documents,
legal reference books, that’s allegedly illegal[] to have but
the contrary and defendants confiscated and destroyed
them despite the appeal process.
Defendants have failed to change the S.W.S.P. and
N.J.S.P. Rule Book, as well, that also would have notified
class-plaintiffs of the alleged changes, via. the S.W.S.P.
Rule Book.
(Compl. ¶¶ 31, 32, Dkt. No. 1.)
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For relief, Plaintiff seeks costs, fees, and damages (Compl., Dkt. No. 1 at 1920), and injunctive relief preventing Defendants from seizing Plaintiff’s legal papers,
documentary evidence, and legal reference books “where no institutional policy
exists specifically limiting the amount of legal materials a prisoner is allowed to
retain or possess.” (Mot. for TRO, Dkt. No. 2 at 2.)
The Class-plaintiffs, of whom only Kevin Jackson remains in this action,
submitted the following certification in support of his motion for a TRO:
Class Plaintiff herein, submit[s] that there’s years of
incarceration involved and vary between [all plaintiffs] but
they have all persistently pursued relief in the courts
regarding their criminal case, and also have varying civil
litigation ongoing between them and thereby accumulating
a significant amount of legal materials and reference
materials required to advance their pursuit of justice via.
the U.S. Const. and N.J. Const. Specifically, that the
defendants refus[ed] to allow class-plaintiffs various nonbanned legal reference materials only behind a/or some
unwritten custody knowingly, intelligently, and deliberate
indifference own rules and own [remainder of sentence
omitted in certification].
(Certification of Class Plaintiffs, Dkt. No. 1-3 at 2) (emphasis in original, alterations
added).
III.

DISCUSSION
A.

Motion to Dismiss Rule 12(b)(6)

District courts addressing a Rule 12(b)(6) motion to dismiss for failure to state
a claim, “must ‘accept all factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under any reasonable reading
of the complaint, the plaintiff may be entitled to relief.’” Bruni v. City of Pittsburgh, 824
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F.3d 353, 360 (3d Cir. 2016) (quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
Cir. 2009) (internal quotation marks omitted). In determining whether a plaintiff has
failed to state a claim, courts must disregard allegations that are no more than legal
conclusions. Id. In performing this analysis, courts may consider exhibits attached to
the complaint, documents upon which the claims are based, and matters of public
record, but may not otherwise go beyond the facts alleged in the complaint. Id.
(citations omitted).

Additionally, courts typically will not consider new factual

allegations that a plaintiff provides in opposition to a motion to dismiss. Buchanan v.
Ingram Content Grp., No. 20-CV-2421, 2022 WL 2063607, at *3 (D.N.J. June 8, 2022)
(citing Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (quoting
Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)).
B.

The Parties’ Arguments

In support of their motion to dismiss the complaint, Defendants assert that: (1)
Plaintiff has failed to allege non-conclusory facts sufficient to state a claim; (2) Plaintiff
has failed to state a claim against Defendants Fisher and Kuhn because he does not
plead facts supporting their personal involvement or supervisory liability; (3) Plaintiff
fails to state a retaliation claim; (4) Plaintiff fails to state a right of access to courts
claim; and (5) the Court should dismiss Plaintiff’s freedom of speech claim because
Plaintiff has not identified any regulation that Defendants were enforcing when
allegedly confiscating/destroying Plaintiff’s materials. Plaintiff opposes the motion to
dismiss as premature and because the complaint contains sufficient factual allegations
to state a claim for relief. (Pl’s Opp. Brief, Dkt. No. 54.) In reply, Defendants submit
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that: (1) Plaintiff failed to plead sufficient facts to support supervisory liability of
Defendants Kuhn and Fisher; (2) Plaintiff failed to address the sufficiency of his First
Amendment Retaliation claim; and (3) Plaintiff failed to plead a First Amendment
Access to Courts claim. (Reply Brief, Dkt. No. 56.) The Court will first address the
claims against Sergeant Cisrow, followed by the claims against her supervisors.
C.

First Amendment Retaliation Claim Against Defendant Cisrow

The elements of a First Amendment retaliation claim are that: (1) the plaintiff
engaged in constitutionally protected conduct; (2) the plaintiff suffered an adverse
action at the hands of the defendants; and (3) the plaintiff’s constitutionally protected
conduct was a substantial or motivating factor in the adverse action by the defendants.
Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016) (citing Rauser v. Horn, 241 F.3d 330
(3d Cir. 2001). “An adverse action is one ‘sufficient to deter a person of ordinary
firmness from exercising his First Amendment rights.’” Id. at 422, n. 6 (quoting Allah
v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (internal quotation marks omitted in
Watson). The third element can be established by allegations “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 (citing Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259,
267 (3d Cir. 2007); Rauser, 241 F.3d at 334.))
In support of his First Amendment Retaliation claim against Sergeant Cisrow,
Plaintiff alleges the following facts. (Compl., Dkt. No. 1.) Sergeant Cisrow, a
mailroom supervisor at SWSP, confiscated “law books and legally authorized
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reference books/documents … contrary to central office, dept. of corr. banned books
list for 2019, and 2020, 2021.” (Compl. ¶¶ 10-12, Dkt. No. 1.) Specifically, Sergeant
Cisrow destroyed a copy of the New Jersey Lawyer’s Diary Manual 2021 that Plaintiff
purchased by mail, while Plaintiff’s appeal of Sergeant Cisrow’s confiscation of the
book was pending before the administrator of SWSP, John Powell. (Id. ¶¶ 10-13, Dkt.
No. 1.) This book was not on the NJDOC banned book list, and Plaintiff was not
required to obtain advance permission to purchase the book. (Id.)
The Court construes the complaint as alleging that Sergeant Cisrow destroyed
Plaintiff’s legal reference book in retaliation for his appeal to Administrator Powell
after she confiscated his book. Filing a prison grievance is constitutionally protected
conduct. See, e.g., Mack v. Warden Loretto, FCI, 839 F.3d 286, 298 (3d Cir. 2016)
(holding prisoner’s grievance made for the purpose of seeking redress was
constitutionally protected conduct). Destruction of legal materials is a sufficient
adverse action for a retaliation claim. Lawson v. Ferguson, No. 22-2365, 2023 WL
2770820, at *1 (3d Cir. Apr. 4, 2023). Finally, the timing of the destruction of
Plaintiff’s book suggests a sufficient temporal connection between his protected
conduct, filing the appeal, and the adverse action, destroying the book. Therefore, the
Court denies Defendant Cisrow’s motion to dismiss Plaintiff’s First Amendment
Retaliation claim. The Court, however, notes that “prison officials may still prevail
[on a First Amendment Retaliation claim] if they establish that ‘they would have made
the same decision absent the protected conduct for reasons reasonably related to a

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legitimate penological interest.’” Watson, 834 F.3d at 422 (quoting Rauser, 241 F.3d
at 334).
D.

First Amendment Retaliation Claim against Fisher and
Kuhn

Under § 1983, supervisors “are liable only for their own unconstitutional
actions.” Barkes v. First Corr. Med., Inc., 766 F.3d 307, 319 (3d Cir. 2014), cert. granted,
judgment rev'd sub nom. on other grounds, Taylor v. Barkes, 575 U.S. 822 (2015)); Ashcroft
v. Iqbal, 556 U.S. 662, 676 (2009) (holding “a plaintiff must plead that each
Government-official defendant, through the official’s own individual actions, has
violated the Constitution.”). “[T]he level of intent necessary to establish supervisory
liability will vary with the underlying constitutional tort alleged.” Barkes, 766 F.3d at
319. “[T]o establish a claim against a policymaker under § 1983 a plaintiff must allege
and prove that the official established or enforced policies and practices directly
causing the constitutional violation.” Id. at 1114. Chavarriaga v. New Jersey Dep't of
Corr., 806 F.3d 210, 223 (3d Cir. 2015) (citations omitted). Supervisors may also be
liable “if [they] participated in violating the plaintiff's rights, directed others to violate
them, or, as the person in charge, had knowledge of and acquiesced in the
subordinate's unconstitutional conduct.” Id. (citations omitted). “Threadbare recitals
of the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. (citations omitted).
Plaintiff seeks to hold Commissioner Kuhn and Administrator Fisher
responsible for Sergeant Cisrow’s alleged constitutional violations, including her
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retaliation for his appeal. Plaintiff has not alleged any facts supporting Kuhn and
Fisher’s prior knowledge and acquiescence in Sergeant Cisrow’s confiscation and
destruction of his legal reference book. Although Plaintiff has alleged there is a custom
among mailroom supervisors in the NJDOC of arbitrarily confiscating and destroying
prisoners’ legal reference books, he has not alleged how frequently such acts occurred
or how Commissioner Kuhn and Administrator Fisher, both of whom he alleges were
newly appointed to their positions, became aware that custom required their response
to prevent constitutional violations from recurring. In sum, the complaint does not
allege a plausible claim of supervisory liability for retaliatory destruction of property
by mailroom supervisors. Therefore, Plaintiffs’ First Amendment Retaliation claims
against Commissioner Kuhn and Administrator Fisher will be dismissed without
prejudice for failure to state a claim.
E.

First Amendment Access to Courts Claim

“[A] prisoner has a valid access-to-courts claim when he alleges that the denial
of access to legal materials—before and/or during trial—caused a potentially
meritorious claim to fail.” Rivera v. Monko, 37 F.4th 909, 922 (3d Cir. 2022). Plaintiff
has not identified a potentially meritorious legal claim that he was unable to pursue
without his personal copy of the New Jersey Lawyer’s Diary Manual. Amendment of
this claim, based solely on deprivation of his personal copy of this legal reference book,
would be futile because alternative legal resources are available for NJDOC prisoners
to pursue legal claims. Therefore, the First Amendment Access to Courts claims

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against Sergeant Cisrow, Commissioner Kuhn, and Administrator Fisher will be
dismissed with prejudice.
F.

First Amendment Freedom of Speech Claim

“If the First Amendment means anything, it means that a State has no business
telling a man, sitting alone in his own house, what books he may read or what films
he may watch.” Stanley v. Georgia, 394 U.S. 557, 565 (1969). Plaintiff, however, is
incarcerated. Therefore, he does not receive the same constitutional protections as he
would outside of prison because courts defer to the expertise of prison authorities in
the “inordinately difficulty undertaking” of managing a prison. Turner v. Safely, 482
U.S. 78, 85 (1987)). Therefore, “when a prison regulation impinges on inmates'
constitutional rights, the regulation is valid if it is reasonably related to legitimate
penological interests.” Id. at 89.
Plaintiff alleges Sergeant Cisrow’s arbitrary and capricious confiscation and
destruction of his legal reference book denied his First Amendment right to freedom
of speech. (See, e.g., Compl. ¶ 18 (asserting right to possess personal copies of law
books), Dkt. No. 1.) The book allegedly was not on the NJDOC’s banned book list,
and it was allegedly not confiscated and destroyed based on a limitation to the amount
of property a prisoner is permitted to possess. The complaint, however, suggests that
Sergeant Cisrow, as mailroom supervisor, created a mailroom policy that formed the
basis for her confiscation of the book. It is not clear, however. In the prison context,
a regulation that burdens an inmate’s right to freedom of speech is valid “if it is
reasonably related to legitimate penological interests.” Therefore, Plaintiff must allege
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more, i.e. the nature of the policy Sergeant Cisrow allegedly created that formed the
basis for her confiscation of Plaintiff’s legal reference book. The nature of the claim is
not clear. This claim will, therefore, be dismissed without prejudice.
As with Plaintiff’s First Amendment Retaliation claim, Plaintiff has not alleged
sufficient facts to state a plausible claim that Commissioner Kuhn or Administrator
Fisher had advance knowledge of and acquiesced in Sergeant Cisrow’s confiscation or
destruction of his legal reference book or how Kuhn and Fisher became aware that
there was a custom of mailroom supervisors arbitrarily confiscating and destroying
inmates’ books, such that their failure to take any action would suggest their deliberate
indifference to the recurrence of constitutional violations. See Phillips v. Northhampton
Co., PA, 687 F. App’x 129, 132 (3d Cir. 2017) (per curiam) (holding that wholly
conclusory and generalized assertions about patters of misconduct are insufficient
allege municipal liability for federal constitutional violations).

Therefore, the

supervisory liability claims against Commissioner Kuhn and Administrator Fisher for
violating Plaintiff’s First Amendment right to freedom of speech will be dismissed
without prejudice.
IV.

MOTION FOR TRO
The claim remaining in this action is Plaintiff’s First Amendment Retaliation

claim. Relevant to this claim, Petitioner seeks a temporary restraining order or
preliminary injunction under Federal Rule of Civil Procedure 65, prohibiting NJDOC
from confiscating and destroying his personal legal reference books during the pending
of this lawsuit. (Mot. for TRO, Dkt. No. 2.) “A party seeking a preliminary injunction
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[under Federal Rule of Civil Procedure 65(b)] must satisfy the traditional four-factor
test: (1) a likelihood of success on the merits; (2) he or she will suffer irreparable harm
if the injunction is denied; (3) granting relief will not result in even greater harm to the
nonmoving party; and (4) the public interest favors such relief.” Miller v. Mitchell, 598
F.3d 139, 147 (3d Cir. 2010) (citing Child Evangelism Fellowship of N.J. Inc. v. Stafford
Twp. Sch. Dist., 386 F.3d 514, 524 (3d Cir. 2004)). “[T]o demonstrate irreparable harm
the plaintiff must demonstrate potential harm which cannot be redressed by a legal or
an equitable remedy following a trial.” Instant Air Freight Co. v. C.F. Air Freight, Inc.,
882 F.2d 797, 801 (3d Cir. 1989). Thus, a preliminary injunction should be entered
when it is “the only way of protecting the plaintiff from harm.” Id.
Prisons must provide legal reference materials through a prison law library or a
legal assistance program. 3 Therefore, Plaintiff may continue to pursue legal claims
without his personal copy of the New Jersey Lawyer’s Diary and Manual or other
legal books he might lawfully purchase. Plaintiff also has the availability of a damages
suit under state tort law if his legal reference materials are destroyed. 4 Plaintiff has not
shown that he will suffer irreparable harm if preliminary injunctive relief is not
granted. Therefore, the Court will deny Plaintiff’s motion for a preliminary injunction.

Prisons are required to provide inmates with adequate tools “to attack their sentences,
directly or collaterally, and in order to challenge the conditions of their confinement.” Lewis
v. Casey, 518 U.S. 343, 355 (1996) (citing Bounds v. Smith, 430 U.S. 817, 826-27 (1977)).
3

The New Jersey Tort Claims Act, N.J. Stat. Ann. 59:1-1, et seq., provides an adequate postdeprivation remedy for unauthorized acts of destruction of an inmate’s property by a state
employee. Ragland v. Commissioner New Jersey Department of Corrections, 717 F. App’x 175,
177-78 (3d Cir. 2017) (citations omitted).

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V.

CONCLUSION
In summary, the Court will grant in part and deny in part Defendants’ motion

to dismiss the complaint. Plaintiff’s First Amendment Retaliation claim against
Sergeant Cisrow may proceed, and the remainder of the claims in the complaint will
be dismissed. Plaintiff’s motion for a temporary restraining order or preliminary
injunction on his First Amendment Retaliation claim against Sergeant Cisrow will be
denied, and the motion for TRO is otherwise moot.

An appropriate Order follows.
Date: May 8, 2024
s/Renée Marie Bumb
RENÉE MARIE BUMB
Chief United States District Judge

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