OLIVER et al v. DEPARTMENT OF HUMAN SERVICES, SPECIAL TREATMENT UNIT et al

Filing 60

OPINION. Signed by Judge Jose L. Linares on 7/15/13. (DD, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LORENZO OLIVER,

Plaintiff,

Civil Action No.: 09-5336 (JLL)

V.

OPINION

DEPARTMENT OF HUMAN SERVICES et aL,
Defendants.
LINARES, District Judge.
Currently before the Court is a motion to dismiss Plaintiff Lorenzo Oliver’s
(“Plaintiff’ or “Oliver”) Second Amended Complaint (“SAC”) pursuant to Federal Rule of Civil
Procedure l2(b)(6) by Defendant Steve Johnson (“Defendant” or “Johnson”). (CM/ECF No.
55). Plaintiff filed an Opposition on June 21, 2013. (CMJECF No. 59). Defendant did not file a

Reply. The Court has considered the submissions of the parties and decides the matter without
oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons detailed below,
the Court grants Defendant Johnson’s motion to dismiss.

I.

BACKGROUND

The Court will not set forth the procedural history and factual background in detail, as it
has previously done so. On July 16, 2012, this Court dismissed Plaintiffs Amended Complaint
for failure to state a claim. (CM/ECF Nos. 29-30). On August 22, 2012, Plaintiff filed a Second

Amended Complaint (“SAC”) in which he alleged various violations of 42 U.S.C.
U.S.C.

§ 1983 and 29

§ 794. (CM/ECF No. 31).
In addition to Defendant Johnson, the Second Amended Complaint also leveled claims

against Defendants Clerke Bruno, George W. Hayman, and Dr. Merril Main. Defendants
Hayman and Main filed motions to dismiss for failure to state a claim. (CMIECF Nos. 32, 34).
The Court dismissed the SAC with prejudice as to Defendant Main, and without prejudice as to
Defendant Hayman.’ (CM/ECF Nos. 38-39). For the same reasons stated in that Opinion, the
SAC was subsequently dismissed with prejudice as to Defendant Bruno. (CMIECF No. 46).
Defendant Johnson now moves to dismiss the SAC as well.
Defendant Johnson is the former Assistant Superintendent of the Special Treatment Unit
(“STU”), where Plaintiff is civilly committed pursuant to the New Jersey Sexually Violent
Predator Act (“SVPA”), N.J.S.A. 30:4-27.24 et seq. Plaintiffs claims stem from the denial of
his request to create a “Residents Legal Association” (“RLA”), an organization which would
allegedly “give residents the freedom to provide legal services, [and] social advocacy for the
protection of their [fjederal and [s]tate [c]onstitutional and [s]tatutory [nights.” (SAC 1). As
¶
discussed in greater detail in the Court’s previous Opinion, Plaintiff submitted the proposal to
Defendant Dr. Natali Barone, Defendant Clerke Bruno, and Defendant George W. Hayman.
Plaintiff also alleges that he submitted the proposal to Defendant Johnson through an
individual identified as “Chief Buchanan” on June 9, 2009. (SAC 10). Plaintiff alleges that he
¶
received no response from Defendant Johnson. (SAC 12). As Assistant Superintendent of the
¶
STU, Defendant Johnson was allegedly “responsible for the custody, care and daily runnin of
g

‘The Court granted Plaintiff thirty days to amend the complaint as to claims dismissed against
Defendant Hayman, as well as any other administrators against whom Plaintiff had claims.
(CM/ECF No. 39). Plaintiff did not do so.
2

the institution. He was also responsible of [sic] [STU’s] employees, policies and procedures.”
(SAC ¶ 5). Accordingly, Oliver asserts that pursuant to N.J.A.C IOA:12-2, Defendant Johnson
had a duty to review his request to create a resident organization within a reasonable period of
time, and that the lapse of this duty failed to protect plaintiffs rights. (SAC

¶

11).

On July 21, 2009, Plaintiff allegedly received a response from Bettie Narris, “Director of
the Division of [O]peration for the Department of Corrections,” denying Plaintiffs request due
to the following: “the Department of Public Advocate has been designed to represent STU
residents in legal matters, there for [sic] no further action is necessary at this time.” (SAC

¶

15).

The SAC asserts the following causes of action against Defendant Johnson: (1) violation
of Plaintiffs “right to Association, Freedom of Expression, Due Process[,] and to Assemble”
pursuant to the First and Fourteenth Amendments to the United States Constitution (Count 1); (2)
Defendant Johnson’s “fail[ing] to make any policies or take any action to protect Plaintiffs
[c]onstitutional right to form, join or operate a residents group,” in violation of the First and
Fourteenth Amendments (Count III); and (3) “knowingly discriminat[ingj against the plaintiff,
because of his classification as a [sjexual[ly] [v]iolent [p]redator” in violation of the
Rehabilitation Act, 29 U.S.C.

§ 794 for “restricting him” from creating the Residents Legal

Association (Count IV).

II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 8(a)(2) requires that a complaint set forth “a short and
plain statement of the claim showing that the pleader is entitled to relief.” For a complaint to
survive dismissal, it “must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.” Ashcroft v. Jqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.

3

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plaintiff’s short and plain statement of the

claim must “give the defendant fair notice of what the.. claim is and the grounds upon which it
.

rests.” Twombly, 550 U.S. at 545 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
In evaluating the sufficiency of a complaint, a court must accept all well-pleaded factual
allegations as true and draw all reasonable inferences in favor of the non-moving party. See

Phillips v, Cnty. ofAllegheny, 515 F.3d 224, 233 (3d Cir. 2008). “Factual allegations must be
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Further,
“[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a
cause of action will not do. Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid
of ‘further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S.
at 555, 557). Accordingly, “conclusory or ‘bare-bones’ allegations” will not survive a 12(b)(6)
motion to dismiss. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (“[T]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”).
While the requirements of the Federal Rules of Civil Procedure apply to all parties, the
allegations of a pro se plaintiff, “however inartfully pleaded,” are held to less stringent standards
than those pleadings prepared by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v.
Kerner, 404 U.S. 519, 520 (1972); Aiston v. Parker, 363 F.3d 229, 23 3-34 (3d Cir. 2004).
Courts must also apply the applicable law, irrespective of whether the pro se litigant has
mentioned it by name. DhLhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003) (citing Higgins v.
Beyer, 293 F.3d 683, 688 (3d Cir. 2002)).
While the Third Circuit has adopted a liberal approach to the amendment of pleadings,
leave to amend a complaint should not be permitted if it would be futile. See Grayson v.

4

Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). “Futility means that the complaint, as

amended, would fail to state a claim upon which relief could be granted.” Shane v. Fauver, 213
F.3d 113, 115 (3d Cir. 2000) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,
1434 (3d Cir. 1997)) (internal quotations omitted).

III.

LEGAL DISCUSSION

Plaintiff’s causes of action primarily two distinct types of claims: 1) claims brought under
42 U.S.C.

§ 1983 regarding the alleged denial of the request to form the RLA; and 2) violation of

section 504 of the Rehabilitation Act, 29 U.S.C.

§ 794. The Court will discuss each in turn.

As an initial matter, however, in opposition to the instant motion, Plaintiff alleges facts
not contained in the SAC. “[1]t is axiomatic that the complaint may not be amended by the briefs
in opposition to a motion to dismiss.” Corn. ofPa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d
173, 181 (3d Cir. 1988). Thus, the Court will limit its consideration to only those allegations in
the SAC.

A.

§ 1983 Claims
Plaintiff alleges that Defendant violated his constitutional rights by denying his request to

form the RLA, and sues him in his individual capacity under 42 U.S.C.

§ 1983. 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.

5

42 U.S.C.

§

§ 1983. Therefore, as previously stated by this Court, to state a claim for relief under

1983, a plaintiff must allege two elements: (1) a person deprived him or caused him to be

deprived of a right, privilege, or immunity secured by the Constitution or laws of the United
States; and (2) the deprivation was committed by a person acting under color of state law. See
Westv. Atkins, 487 U.S. 42,48(1988); Piecknickv. Pennsylvania, 36 F.3d 1250, 1255-56 (3d

Cir. 1994).
“A[n individual government] defendant in a civil rights action must have personal
involvement in the alleged wrongdoing; liability cannot be predicated solely on the operation of
respondeat superior. Personal involvement can be shown through allegations of personal
direction or of actual knowledge and acquiescence.” Evancho v. Fisher, 423 F.3d 347, 353 (3d
Cir. 2005) (citing Rode v. Dellarczrete, 845 F.2d 1195, 1207 (3d Cir. 1988)) (alteration
supplied). Plaintiff does not sufficiently allege individual involvement on the part of Defendant
Johnson. Accordingly, as currently pled, the SAC fails to state a claim upon which relief may be
granted as to Defendant Johnson as well.
Plaintiffs Complaint provides that Defendant Johnson had a duty to review Plaintiffs
request to form the RLA. The Complaint alleges that Defendant Johnson was the Assistant
Superintendent of the STU and that he was “responsible for the custody, care and daily runnin
g
of the institution.. [and] responsible of [sic] STU’s employees, policies and procedures.”
.

(SAC ¶ 5). Further, it provides that “[u]nder the Department of Corrections Administrative
Code, only the Commissioner or the Asst. Commissioner can approve or disapprove a reques
t to
establish a group, (organization) under the Department of Corrections jurisdiction, N.J.A.C.
lOA:12-2.l.” (SACJ 14).

6

As this Court explained in its previous Opinion dismissing the SAC as to Defendants
Main and Hayman, the Supreme Court has held that:
Government officials may not be held liable for the unconstitutional conduct of
their subordinates under a theory of respondeat superior.
[A] plaintiff must
plead that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.
[P]urpose rather than
knowledge is required to impose [constitutional] liability on. an official
charged with violations arising from his or her superintendent responsibilities.
.

.

.

.

.

.

.

.

Iqbal, 556 U.S. at 676. See also Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981) (“Section
1983 will not support a claim based on a respondeat superior theory of liability.”). Accordingly,
Defendant Johnson argues, and the Court agrees, that the Complaint does not allege sufficient
individual involvement by Defendant Johnson.
2
In opposition to the instant motion, Plaintiff states that “[d]uring a community meeting at
STU’s Annex at the beginning of July 2009 the plaintiff asked Mr. Johnson was he going to let
him form the [RLA]. Mr. Johnson told the plaintiff that he got the proposal, but did not reach a
decision on whether he would permit the creation of the Residents Legal Association.” (Pl.’s
Opp’n. 3-4). As discussed above, however, Plaintiff may not amend the SAC through his
Opposition.
In any event, the Department of Corrections ultimately denied the proposal to create the
RLA on July 21, 2009. Plaintiff allegedly received a response from Bettie Narris, “Director of
the Division of [O]peration for the Department of Corrections,” denying Plaintiff’s request due
to the following: “the Department of Public Advocate has been designed to represent STU
residents in legal matters, there for [sic] no further action is necessary at this time.” (SAC 15).
¶
Plaintiff dedicates much of his Opposition to arguing that Defendant Johnson shirked his duties
2

In addition, in its previous opinion, the Court explained that the SAC fails to sufficiently allege
a constitutional violation based on a failure to create policies or take action to protect Plaintiff’s
right to create the RLA. (CM/ECF No. 38, 5-8).
7

by failing to “send plaintiff an answer to his proposal, even after plaintiff asked.” (Pl.’s Opp’n
.
8-9). However, there is no indication that any of the individual defendants, including Defend
ant
Johnson, were obligated to respond separately.
3
For these reasons, Plaintiffs

§ 1983 claims fail to establish sufficient personal

involvement by Defendant Johnson, or are based solely on an impermissible theory
of
respondeat superior liability. Accordingly, the Court dismisses Oliver’s

§ 1983 claims without

prejudice, insofar as he can allege constitutional violations committed by Defend
ant Johnson.

B. Rehabilitation Act

Plaintiff additionally asserts that Defendant’s actions violate Section 504 of the
Rehabilitation Act. The Court previously dismissed this claim as to all other Defend
ants because
the SAC does not allege a disability within the meaning of the Rehabilitation Act.
As explained
in the Court’s previous Opinion, Section 504 provides, in relevant part, as follow
s:
No otherwise qualified individual with a disability in the United States, as detined
in section 705(20) of this title, shall, solely by reason of his or her disability, be
excluded from the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial assista
nce
or under any program or activity conducted by any Executive agency...
29 U.S.C.

§ 794(a).

As stated in the SAC, Plaintiff alleges that Defendant “knowingly discriminated
against
the [Pjlaintiff, because of his classification as a [s]exual [v]iolent [p]reda
tor[] (a civil [sic]
committed person).” (SAC ¶ 21). The Court previously explained, howev
er, that the
Rehabilitation Act categorically exempts certain disorders from the definition
of disability,
The Court notes, for the sake of completeness, that Plaintiff argues in Oppos
ition that the
request was not sent “as soon as possible,” which he takes to mean within
ten days.
Accordingly, Oliver submits that the response, received five weeks after submis
sion of the
proposal, violated the statute. However, Plaintiff points to no authority in
support of that
position.
8

including that alleged in the SAC. (CM/ECF No. 38, 11-12); 29 U.S.C.
purposes of [29 U.S.C.

§ 705(20)(F)(i) (“For the

§ 794j.. the term ‘individual with a disability’ does not include an
.

individual on the basis of (i) transvestism, transsexualism, pedophilia, exhibitionism, voyeur
ism,
gender identity disorders not resulting from physical impairments, or other sexual behavior
disorders.”); see Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007); see also Yeskey v. Pa.
Dep ‘t of Corr., 118 F.3d 168, 170 (3d Cir. 1997). Therefore, insofar as Plaintiff is allegin
g that
he was discriminated against on the basis of his classification as a sexually violent predato
r, he
does not have a viable Rehabilitation Act claim.
As addressed in the Court’s previous opinion, Plaintiff’s Opposition once again refers to
conditions not referenced in the SAC. As discussed above, however, in considering a motion
to
dismiss pursuant to Federal Rule of Civil Procedure 1 2(b)(6), a court may only consid
er facts
alleged in the complaint. Accordingly, Plaintiff’s Rehabilitation Act Claim premised
upon his
“classification as a sexually violent predator” is dismissed with prejudice. The Court
dismisses
Oliver’s Rehabilitation Act claim without prejudice only insofar as he can allege
a disability
within the meaning of the Act.

IV.

CONCLUSION

For the foregoing reasons, the Court grants Defendant’s motion to dismis the
s
SAC.
Accordingly, the Court dismisses without prejudice Plaintiff’s

§ 1983 claim as to Defendant

Johnson insofar as Plaintiff can articulate allegations which raise a plausible
right to relief under

§ 1983. The Court also dismisses Plaintiff’s Rehabilitation Act Claim without prejudice, to the
extent that Plaintiff can allege a disability within the meaning of the Act. The
Court dismisses

9

with prejudice Plaintiffs Rehabilitation Act claim premised upon his “classification as a sexual
ly
violent predator.”

An appropriate Order accompanies this Opinion.

)

Dated:
/

mares
United States District Judge

10