JOHNSON v. DEMICO et al

Filing 9

MEMORANDUM OPINION and ORDER reopening action, etc.; for purposes of the Instant Matter (10-2265), Pltf's letter (doc #8), is construed as Pltf's first amended complaint; Pltf's first amended complaint is Dismissed for failure to state a claim upon which relief can be granted; Clerk shall administratively terminate the Instant Matter (10-2265), etc.; Pltf may have the Instant Matter (10-2265) reopened if, within 45 days from date of entry of this Memorandum Opinion & Order, Pltf files his second amended complaint detailing solely the facts of his "phone list" and ETS claims that were dismissed without prejudice, etc.. Signed by Judge Faith S. Hochberg on 8/31/11. (jd, )

CLOSED
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, initiated three separate civil actions in
this District, i.e., Johnson v. Mash (“Johnson I”), Civil
Action No. 10-1630 (FSH) (D.N.J.) (commenced on March 31,
2010);

Johnson v. Mash (“Johnson II”), Civil Action No. 10-

1945 (SDW) (D.N.J.) (commenced on April 14, 2010); and Johnson
v. Demico (“Instant Matter”), Civil Action No. 10-2265 (FSH)
(D.N.J.) (commenced on May 3, 2010).
2.

In Johnson I, Plaintiff submitted an insufficient in forma
pauperis application; therefore, this Court denied Plaintiff
in forma pauperis status without prejudice.

Plaintiff never

cured the deficiencies of his in forma pauperis application
for the purposes of Johnson I; instead, he initiated Johnson
II by submitting a complaint identical in all substantive
Page -1-

respects to that submitted in Johnson I.

Judge Susan D.

Wigenton (“Judge Wigenton”), presiding over the Johnson II
proceedings,

directed

administrative

termination

of

Plaintiff’s Johnson II action as duplicative of Johnson I.1
Plaintiff’s allegations asserted in Johnson I and duplicated
in Johnson II were, therefore, left unscreened on merits.
3.

In response to this Court’s and Judge Wigenton’s decisions,
Plaintiff submitted his complaint (“Complaint”) that gave rise
to the Instant Matter.

As in Johnson I and Johnson II,

Plaintiff’s Complaint arrived accompanied by a deficient in
forma

pauperis

application.

Correspondingly,

this

Court

denied Plaintiff in forma pauperis status without prejudice
for the purposes of the Instant Matter.

After Plaintiff duly

cured the deficiencies of his in forma pauperis application in
the Instant Matter, this Court screened Plaintiff’s Complaint
on merits.
4.

In the Instant Matter, Plaintiff asserted three claims.
First, he asserted that Defendant Demico did not respond to
Plaintiff’s administrative grievances.

Second, Plaintiff

asserts that Defendant Oliveira did not put Plaintiff’s name
on a certain “phone list” when Plaintiff wished to call his

1

Notably, Plaintiff’s in forma pauperis application
submitted for the purposes of Johnson II was as deficient as
Plaintiff’s in forma pauperis application submitted for the
purposes of Johnson I.
Page -2-

family.

Finally, Plaintiff asserts that either Defendant

Demico or Defendant Oliveira exposed Plaintiff to second-hand
smoking.
5.

On June 1, 2011, this Court issued a Memorandum Opinion and
Order granting Plaintiff in forma pauperis status for the
purposes

of

the

Instant

Matter

and

dismissing

first

Plaintiff’s claim with prejudice and his second and third
claims without prejudice.

Specifically, this Court explained

to Plaintiff that his claim asserting that his grievances were
left

unanswered

was

subject

to

dismissal

with

prejudice

because the First Amendment did not impose an obligation on
the

government

to

respond

to

grievances,

and

because

prisoners did not have a constitutional right to prison
grievance procedures for the purposes of due process inquiry.
Turning to Plaintiff’s second claim (asserting that Defendant
Oliveira refused to put Plaintiff’s name on a certain “phone
list”), the Court explained to Plaintiff that his allegations
were deficient because Plaintiff failed to specify whether the
asserted restriction was a one-time occurrence or a systemic
denial, 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 that “phone list,” and whether Plaintiff had other means of
communication with his family members, e.g., by mail or prison

Page -3-

visits, etc.

The Court, therefore, dismissed this claim

without prejudice and allowed Plaintiff an opportunity to
amend his original pleading by stating, in detail, the facts
of his “phone list” claim.

Finally, addressing Plaintiff’s

allegations that either Defendant Demico or Defendant Oliveira
exposed Plaintiff to second-hand smoking by “walking around
smoking cigars,” the Court explained to Plaintiff that, 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. Since
Plaintiff’s original complaint merely asserted that one of the
named Defendants “walk[ed] around smoking cigars,” the Court
dismissed Plaintiff’s ETS challenges without prejudice and
directed Plaintiff to clarify, in his amended pleading, the
fact of his ETS challenges.
6.

On July 29, 2011, Plaintiff submitted a letter for filing in
the Instant Matter and in Johnson I and Johnson II.

The

letter, being an 18-page-long compilation, presents nothing
but a set of copies of various documents (many copied more
than once) indicating that Plaintiff was submitting grievances
and making phone calls to his prison officials, and the prison
officials were acknowledging his phone calls and grievances.

Page -4-

These grievances reflect on a multitude of issues, focusing
mainly on Plaintiff’s displeasures with the food tray he was
served,

but

they

provide

the

Court

with

no

information

allowing the Court to conduct an intelligent assessment of
Plaintiff’s potentially viable claims raised in the Instant
Matter, i.e., the claims that Plaintiff’s communications with
his family were unduly limited by Plaintiff being placed on
the alleged “phone list” and his ETS claims.
7.

Therefore, as submitted, Plaintiff’s letter suggests that he
has no viable claim because Plaintiff failed to state any
facts in support of his “phone list” and his ETS challenges.
However, being mindful of Plaintiff’s pro se litigant status,
this Court finds it warranted to allow Plaintiff another
opportunity to elaborate on his “phone list” and ETS claims.
IT IS, therefore, on this 31st day of August, 2011,
ORDERED that the Clerk shall reopen the Instant Matter,

Johnson v. Mash, Civil Action No. 10-1630 (FSH) and

Johnson v.

Mash, Civil Action No. 10-1945 (SDW), by making a new and separate
entry on the docket of each of these three matters reading “CIVIL
CASE REOPENED”; and it is further
ORDERED that, for the purposes of Johnson v. Mash, Civil
Action No. 10-1630 (FSH) and

Johnson v. Mash, Civil Action No. 10-

1945 (SDW), Plaintiff's letter shall be deemed mis-docketed as a
result of Plaintiff’s own erroneous reference to all three matters;

Page -5-

and it is further
ORDERED that the Clerk shall docket this Memorandum Opinion
and Order in Johnson v. Mash, Civil Action No. 10-1630 (FSH), and
also make a new and separate entry on the docket of that matter
reading “DOCKET ENTRY No. 5 IS DEEMED STRICKEN FROM THE DOCKET AS
MIS-DOCKETED DUE TO PLAINTIFF’S ERROR IN DESIGNATING THE RELEVANT
INDEX NUMBER OF HIS ACTION”; and it is further
ORDERED that the Clerk shall docket this Memorandum Opinion
and Order in Johnson v. Mash, Civil Action No. 10-1945 (SDW), and
also make a new and separate entry on the docket of that matter
reading “DOCKETED FOR INFORMATIONAL PURPOSES ONLY.

DOCKET ENTRY

No. 3 APPEARS MIS-DOCKETED DUE TO PLAINTIFF’S ERROR IN DESIGNATING
THE RELEVANT INDEX NUMBER OF HIS ACTION”; and it is further
ORDERED that, for the purposes of Johnson v. Mash, Civil
Action No. 10-1630 (FSH) and

Johnson v. Mash, Civil Action No. 10-

1945 (SDW), Plaintiff shall not make any further submissions
associated with his challenges raised in the Instant Matter. Since
this Court terminated Plaintiff’s Johnson v. Mash, Civil Action No.
10-1630 (FSH), action on the grounds of deficiency of Plaintiff’s
in forma pauperis application and without reaching the merits of
Plaintiff’s claims, and Judge Wigenton terminated Johnson v. Mash,
Civil Action No. 10-1945 (SDW), as duplicative, no statement made
in this Memorandum Opinion and Order shall be construed as barring
Plaintiff from raising his challenges (asserted in Johnson v. Mash,

Page -6-

Civil Action No. 10-1630 (FSH), and duplicated in Johnson v. Mash,
Civil Action No. 10-1945 (SDW)) by means of filing a new civil
complaint

stating

those

challenges.2

The

Court

takes

this

opportunity to remind Plaintiff that, in the event Plaintiff elects
to

submit

for

filing

such

new

civil

complaint,

Plaintiff’s

submission shall be accompanied by his filing fee or by a complete
in forma pauperis application; and it is further
ORDERED

that,

for

the

purposes

of

the

Instant

Matter,

Plaintiff’s letter, docketed in the Instant Matter as Docket Entry
No. 8, is construed as Plaintiff’s first amended complaint; and it
is further
ORDERED that Plaintiff’s first amended complaint is dismissed
for failure to state a claim upon which relief can be granted; and
it is further
ORDERED

that

Clerk

shall

administratively

terminate

the

Instant Matter, Johnson v. Mash, Civil Action No. 10-1630 (FSH) and
Johnson v. Mash, Civil Action No. 10-1945 (SDW), by making a new
and separate entry on the docket of each of these three matters

2

Plaintiff’s challenges asserted in Johnson v. Mash, Civil
Action No. 10-1630 (FSH), and duplicated in Johnson v. Mash,
Civil Action No. 10-1945 (SDW), appear qualitatively different
from the claims raised in the Instant Matter, since these
challenges are based on the entirely different set of events and
allege liability by entirely different defendants. No statement
made in this Memorandum Opinion and Order shall be construed as
expressing this Court’s opinion as to procedural or substantive
validity (or invalidity) of Plaintiff’s challenges asserted in
Johnson v. Mash, Civil Action No. 10-1630 (FSH), and duplicated
in Johnson v. Mash, Civil Action No. 10-1945 (SDW).
Page -7-

reading “CIVIL CASE TERMINATED”; and it is further
ORDERED that Plaintiff may have the Instant Matter reopened
if,

within

forty-five

days

from

the

date

of

entry

of

this

Memorandum Opinion and Order, Plaintiff files his second amended
complaint detailing solely the facts of his “phone list” and ETS
claims

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. The Court stresses
that Plaintiff need not submit any copies of letter or grievances,
etc.; rather, at this juncture, Plaintiff shall only detail, in the
clearest way he can, the facts of his claims by stating the “who,
when, where and what” of his challenges); 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
producing his second amended complaint),3 by regular U.S. mail.

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

3

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-calls 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 second amended
complaint.
Page -8-