JOHNSON v. DEMICO et al

Filing 5

OPINION AND ORDER; ORDER Granting IFP and directing the Clerk to file the Complaint; ORDERED that the Clerk shall reopen this matter by making a new and separate entry on the docket reading CIVIL CASE REOPENED; ORDERED that Plaintiffs complaint, Dock et Entry No. 1, is dismissed; ORDERED that Plaintiffs challenges based on the alleged lack of Defendant Demicos responses to Plaintiffs grievances are dismissed with prejudice; ORDERED that Plaintiff's challenges based on the alleged Defendant O liveiras refusal to put Plaintiffs name on the phone list" are dismissed without prejudice, etc.,ORDERED that, within forty-five days from the date of entry of this Memorandum Opinion and Order, Plaintiff shall file an amended complaint detailin g solely the facts of the two above-stated lines of challenges that were dismissed without prejudice ORDERED that the Clerk shall administratively terminate this matter, by making a new and separate entry on the docket reading CIVIL CASE TERMINATED, subject to reopening upon timely receipt of Plaintiffs amended complaint; ORDERED that the Clerk shall serve a copy of this MemorandumOpinion and Order upon Plaintiff, together with a blank civil complaint (which Plaintiff may utilize for the purposes of producing his amended complaint, by certified mail, return receipt requested. Signed by Judge Faith S. Hochberg on 6/1/2011. (ld, ) Modified on 6/2/2011 (ld).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
_______________________________
:
:
:
Plaintiff,
:
:
v.
:
:
NSP L.T. DENNIS DEMICO, et al.,:
:
Defendants.
:
_______________________________:
LARRY O. JOHNSON,

Civil Action No.
10-2265 (FSH)
MEMORANDUM OPINION
AND ORDER

IT APPEARING THAT:
1.

Plaintiff, an inmate confined at the Northern State Prison,
Newark, New Jersey, seeks to bring this action in forma
pauperis, pursuant to 42 U.S.C. § 1983, alleging violations of
his

constitutional

rights.1

Based

on

his

affidavit

of

indigence and the absence of three qualifying dismissals,
within the meaning of 28 U.S.C. § 1915(g), the Court will
grant Plaintiff's application to proceed in forma pauperis,
pursuant to 28 U.S.C. § 1915(a), and will order the Clerk of
the Court to file the Complaint.
2.

At this time, the Court must review the Complaint to determine
whether it should be dismissed as frivolous or malicious, for

1

Plaintiff’s initial submission did not contain a full
application to proceed in forma pauperis, see Docket Entry No. 1,
causing the Court to deny Plaintiff in forma pauperis status.
See Docket Entry No. 2. Upon the Court’s directive, see id.,
Plaintiff duly cured the shortcomings of his in forma pauperis
application. See Docket Entries No. 3 and 4.
Page -1-

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.
3.

Plaintiff asserts three claims.

First, he asserts that

Defendant Demico did not respond to Plaintiff’s administrative
grievances.
Plaintiff

See Docket Entry No. 1, at 3 and 5.
asserts

that

Defendant

Oliveira

did

Second,
not

put

Plaintiff’s name on the “phone list” when Plaintiff wished to
call his family.

See id. at 4 and 5.

Finally, Plaintiff

asserts that either Defendant Demico or Defendant Oliveira
exposed Plaintiff to second-hand smoking.
4.

See id. at 5.

In determining the sufficiency of a complaint, the Court
must be mindful to construe the facts stated in the
complaint liberally in favor of the plaintiff.

See Erickson

v. Pardus, 551 U.S. 89 (2007); Haines v. Kerner, 404 U.S.
519 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir.
1992).

Indeed, it is long established that a court should

“accept as true all of the [factual] allegations in the
complaint and 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).

However, while a court will accept

well-pled allegations as true, it will not accept bald
assertions, unsupported conclusions, unwarranted inferences,

Page -2-

or sweeping legal conclusions cast in the form of factual
allegations.

See id.

Addressing the clarifications as to

the litigant's pleading requirement stated in the United
States Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007), the Court of Appeals for the Third Circuit
provided the courts in this Circuit with detailed and
careful guidance as to what kind of allegations qualify as
pleadings sufficient to pass muster under the Rule 8
standard.

See Phillips v. County of Allegheny, 515 F.3d

224, 230-34 (3d Cir. 2008).

Specifically, the Court of

Appeals observed as follows:
“While a complaint . . . does not need detailed
factual allegations, a plaintiff's obligation
[is] to provide the 'grounds' of his
'entitle[ment] to relief' [by stating] more than
labels and conclusions, and a formulaic
recitation of the elements of a cause of action .
. . ." Twombly, 127 S. Ct. at 1964-65 . . . Rule
8 “requires a 'showing,' rather than a blanket
assertion, of entitlement to relief." Id. at
1965 n.3. . . . “[T]he threshold requirement of
Rule 8(a)(2) [is] that the 'plain statement
[must] possess enough heft to 'sho[w] that the
pleader is entitled to relief.'" Id. at 1966.
[Hence] "factual allegations must be enough to
raise a right to relief above the speculative
level." Id. at 1965 & n.3. . . . [Indeed, it is
not] sufficient to allege mere elements of a
cause of action; instead “a complaint must allege
facts suggestive of the proscribed conduct." Id.
Id. at 230-34 (original brackets removed).

This pleading

standard was further refined by the United States Supreme
Court in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009):

Page -3-

[In any civil action, t]he pleading standard . .
. demands more than an unadorned
[“]the-defendant- unlawfully-harmed-me[”]
accusation. [Twombly, 550 U.S.] at 555 . . . . A
pleading that offers “labels and conclusions" or
“a formulaic recitation of the elements of a
cause of action will not do.” [Id.] at 555. Nor
does a complaint suffice if it tenders “naked
assertion[s]" devoid of “further factual
enhancement." Id. at 557. . . . A claim has
facial plausibility [only] when the plaintiff
pleads factual content . . . . Id. at 556.
[Moreover,] the plausibility standard . . . asks
for more than a sheer possibility that a
defendant has acted unlawfully. Id. [Indeed,
even w]here a complaint pleads facts that are
“merely consistent with” a defendant's liability,
[the so-alleging complaint still] “stops short of
[showing] plausibility of 'entitlement to
relief.'” Id. at 557 (brackets omitted). [A
fortiori,] the tenet that a court must accept as
true all of the allegations contained in a
complaint is inapplicable to legal conclusions
[or to t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory
statements [,i.e., by] legal conclusion[s]
couched as a factual allegation [e.g.,] the
plaintiffs' assertion of an unlawful agreement
[or] that [defendants] adopted a policy “'because
of,' not merely 'in spite of,' its adverse
effects upon an identifiable group." . . . . [W]e
do not reject these bald allegations on the
ground that they are unrealistic or nonsensical.
. . . It is the conclusory nature of [these]
allegations, rather than their extravagantly
fanciful nature, that disentitles them to the
presumption of truth. . . . [Finally,] the
question [of sufficiency of] pleadings does not
turn . . . the discovery process. Twombly, 550
U.S.] at 559 . . . . [The plaintiff] is not
entitled to discovery [where the complaint
alleges any of the elements] “generally," [i.e.,
as] a conclusory allegation [since] Rule 8 does
not [allow] pleading the bare elements of [the]
cause of action [and] affix[ing] the label
“general allegation" [in hope to develop facts
through discovery].

Page -4-

Iqbal, 129 S. Ct. at 1949-54.
5.

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 . . . .
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); Piecknick v. Pennsylvania, 36 F.3d 1250,
1255-56 (3d Cir. 1994).
6.

Plaintiff’s

claims

asserting

that

his

civil

rights

were

violated because his grievances were left unanswered are
facially subject to dismissal.

“[T]he First Amendment does

not impose any affirmative obligation 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
Page -5-

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

Bongiovanni, 30 F. 3d 424, 437 (3d Cir. 1994)

Filippo

v.

(“the petition

clause does not require the government to respond to every
communication
petition”).

that

assert

a

the

communicator

may

denominate

a

Moreover, to the extent Plaintiff might seek to

constitutional

claim

based

on

the

government's

failure to provide an administrative appeal or to comply with
prison regulations requiring an administrative appeal process,
this claim also 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 Fed. 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 Fed. App'x 181,
184 (3d Cir. 2008) (“[plaintiff] also complained about the
investigation

and

processing

of

his

inmate

grievances.

Because there is no due process right to a prison grievance
procedure, [plaintiff’s] allegations did not give rise to a
Fourteenth

Amendment

violation”);

Stringer

v.

Bureau

of

Prisons, 145 Fed. App'x 751, 753 (3d Cir. 2005). Accordingly,

Page -6-

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).

Therefore, Demico’s failure to respond

to Plaintiff's administrative grievances is not actionable
under § 1983.

See Graw v. Fantasky, 68 Fed. App’x 378 (3d

Cir. 2003) (observing that “an allegation of a failure to
investigate,

without

another

recognizable

constitutional

right, is not sufficient to sustain a section 1983 claim” and
citing DeShaney v. Winnebago County Dep't of Soc. Servs., 489
U.S. 189, 195-96 (1989)); cf. Burnside v. Moser, 138 Fed.
App’x 414, 416 (3d Cir. 2005) (prisoners do not have a
constitutionally

protected

right

to

a

prison

grievance

process); Lewis v. Williams, 2006 U.S. Dist. LEXIS 8444, *7
(D. Del. 2006) (failure to investigate a grievance does not
raise

a

constitutional

Plaintiff’s

claims

based

issue)
on

(collecting

Demico’s

cases).

alleged

respond to his grievances must be dismissed.

Thus,

failure

to

Since the

shortcomings of this line of Plaintiff’s claims cannot be
cured by repleading, such dismissal will be with prejudice.
7.

Plaintiff’s second line of claims asserts that Defendant

Page -7-

Oliveira refused to put Plaintiff’s name on a certain “phone
list” when Plaintiff wished to call his family members.

The

constitutional right at issue has been described as the right
to communicate with people outside prison walls, and “a
telephone provides a means of exercising this right.” Almahdi
v.

Ashcroft,

310

Fed. App’x

519, 521-22

(3d

Cir.

2009)

(quoting Valdez v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir.
2002)).

However, prisoners “ha[ve] no right to unlimited

telephone

use,” and

reasonable

restrictions

on

telephone

privileges do not violate their First Amendment rights.
id.

At

522

(quoting

Washington

1099-1100 (6th Cir. 1994)).

v.

Reno,

35

F.3d

See
1093,

Rather, a prisoner's right to

telephone access is “subject to rational limitations in the
face

of

legitimate

institution.”
F.2d

744,

747

security

interests

of

the

penal

Id. (quoting Strandberg v. City of Helena, 791
(9th

Cir.

1986)).

Regulations

limiting

telephone use by inmates have been routinely sustained as
reasonable. See id. (citing Pope v. Hightower, 101 F.3d 1382,
1384-85 (11th Cir. 1996)). Moreover, telephone restrictions
are viewed as more serious if the litigant asserts facts
showing that he lacked alternative means of communicating with
persons outside the prison, e.g., by mail. See id. (citing
Valdez, 302 F.3d at 1049).

Therefore, here, the Court must

determine: (a) whether the telephone restrictions asserted by

Page -8-

Plaintiff

violated

Plaintiff's

right

by

falling

outside

reasonable limitations associated with rational penological
interests; and (b) whether Plaintiff had alternative means to
communicate with his family members, e.g., by mail or their
visits to prison. However, Plaintiff’s Complaint provides the
Court with no facts detailing the alleged restriction, i.e.,
it does not specify whether the restriction was a one-time
occurrence or a systemic denial, it does not state what
explanation – if any – was given to Plaintiff by Defendant
Oliveira (or any other prison official) in connection with the
alleged denial of putting Plaintiff’s name on the “phone
list,” and it does not enlighten the Court as to whether
Plaintiff was allowed other means of communication with his
family members, e.g., by mail or prison visits, etc.
as

drafted,

Plaintiff’s

Complaint

falls

“plausibility” standard articulated in Iqbal.

short

Hence,
of

the

However, this

Court cannot rule out that Plaintiff, if allowed to amend his
Complaint by stating the facts of his challenges, might be
able to articulate a viable claim. Therefore, the Court finds
it warranted to allow Plaintiff an opportunity to amend his
Complaint by stating, in detail, the facts of his claim based
on the alleged denial of putting Plaintiff’s name on the
“phone list.”
8.

Finally, Plaintiff alleges that either Defendant Demico or

Page -9-

Defendant Oliveira exposed Plaintiff to second-hand smoking by
“walking around smoking cigars.”

However, Plaintiff does not

clarify which Defendant allegedly committed these acts.
Moreover, Plaintiff’s Complaint does not allow the Court to
intelligently evaluate this line of Plaintiff’s challenges.
For the purposes of the Eighth Amendment, liability based on
exposure to environmental tobacco smoke (“ETS”) requires proof
of: (a) exposure to unreasonably high

levels of ETS contrary

to contemporary standards of decency; and (b) deliberate
indifference by the authorities to the exposure to ETS. See
Turner v. Leggett, 2011 U.S. App. LEXIS 7095 (3d Cir. Apr. 6,
2011) (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)).
Where an inmate complains of occasional ETS exposure in common
areas

of

the

prison

facility,

e.g.,

in

the

outside

recreational yard, such allegations do not state an actionable
claim.

Compare, e.g., Helling, 509 U.S. at 35 (holding that

bunking with a cellmate who smoked five packs of cigarettes
per day exposed an inmate to an unreasonable risk of future
harm from ETS exposure), and Atkinson v. Taylor, 316 F.3d 257,
259 (3d Cir. 2003) (holding that a prisoner who claimed that
he had shared a cell with constant smokers for many months
stated a claim for a violation of a clearly established
right), with Richardson v. Spurlock, 260 F.3d 495, 498 (5th
Cir. 2001) (holding that sitting near some smokers sometimes

Page -10-

is not an unreasonable exposure to ETS) and Pryor-El v. Kelly,
892 F. Supp. 261, 267 (D.D.C. 1995) (dismissing an ETS claim
in which the plaintiff alleged “only that various unnamed
inmates and prison officials smoke ‘in the TV room, games
room, and the letter writing room’”).

Here, since Plaintiff

merely asserted that one of the named Defendants “walk[ed]
around smoking cigars,” the Court has no basis to conclude
that

the

rights.

ETS

Plaintiff

is

alleging

violated

Plaintiff’s

Hence, as drafted, Plaintiff’s Complaint also falls

short of the “plausibility” standard articulated in Iqbal with
regard to Plaintiff’s ETS claim.

However, this Court cannot

rule out the possibility that Plaintiff, if allowed to amend
his Complaint by stating the fact of his ETS challenges, might
be able to articulate a viable claim.

Therefore, the Court

finds it warranted to allow Plaintiff an opportunity to amend
his Complaint by stating, in detail, the facts of his claim
based on the alleged ETS exposure.
IT IS, therefore, on this 1st day of June, 2011,
ORDERED that the Clerk shall reopen this matter by making a
new and separate entry on the docket reading “CIVIL CASE REOPENED”;
and it is further
ORDERED that Plaintiff's

application to proceed in this

matter in forma pauperis is granted; and it is further
ORDERED that the Clerk shall file Plaintiff's complaint,

Page -11-

Docket Entry No. 1; and it is further
ORDERED that Plaintiff is assessed a filing fee of $350.00
which shall be deducted from his prison account pursuant to 28
U.S.C. § 1915(b)(2) in the manner set forth below; and it is
further
ORDERED that, pursuant to 28 U.S.C. § 1915(b)(1)(A), Plaintiff
is assessed an initial partial filing fee and, when funds exist,
the agency having custody of Plaintiff shall deduct said initial
fee from Plaintiff’s prison account and forward it to the Clerk of
the Court; and it is further
ORDERED that, pursuant to 28 U.S.C. § 1915(b)(2), until the
$350.00 filing fee is paid, each subsequent month that the amount
in Plaintiff's prison account exceeds $10.00, the agency having
custody of the plaintiff shall assess, deduct from Plaintiff's
account, and forward to the Clerk of the Court payments equal to
20% of the preceding month's income credited to Plaintiff's prison
account, with each payment referencing the docket number of this
action; and it is further
ORDERED that Plaintiff’s complaint, Docket Entry No. 1, is
dismissed; and it is further
ORDERED that Plaintiff’s challenges based on the alleged lack
of Defendant Denico’s responses to Plaintiff’s grievances are
dismissed with prejudice; and it is further
ORDERED that Plaintiff’s challenges based on the alleged

Page -12-

Defendant Oliveira’s refusal to put Plaintiff’s name on the “phone
list” are dismissed without prejudice; and it is further
ORDERED
unspecified

that

Plaintiff’s

Defendant

exposed

challenges
Plaintiff

to

alleging
ETS

are

that

an

dismissed

without prejudice; and it is further
ORDERED that, within forty-five days from the date of entry of
this Memorandum Opinion and Order, Plaintiff shall file an amended
complaint detailing solely the facts of the two above-stated lines
of challenges that were dismissed without prejudice (such detailed
statement shall be made in accordance with the guidance provided to
Plaintiff in this Memorandum Opinion and Order) and clarifying the
identity of Defendant who, allegedly, exposed Plaintiff to ETS; and
it is further
ORDERED that the Clerk shall administratively terminate this
matter, by making a new and separate entry on the docket reading
“CIVIL CASE TERMINATED,” subject to reopening upon timely receipt
of Plaintiff’s amended complaint; and it is finally
ORDERED that the Clerk shall serve a copy of this Memorandum
Opinion and Order upon Plaintiff, together with a blank civil
complaint form (which Plaintiff may utilize for the purposes of

Page -13-

producing

his

amended

complaint),2

by

certified

mail,

return

receipt requested.

s/ Faith S. Hochberg
FAITH S. HOCHBERG,
United States District Judge

2

Plaintiff may, but not must, utilize the pre-printed
complaint form; in alternative, Plaintiff may submit a concise
but, nonetheless, detailed statement of his ETS and denial-ofphone-call claims. Taking notice of Plaintiff’s hard-tocomprehend penmanship, the Court strongly encourages Plaintiff to
either type his challenges or to undertake Plaintiff’s best
efforts to produce a legible hand-written amended complaint.
Page -14-