GRAHAM v. SHARP et al
Filing
8
OPINION. Signed by Judge Stanley R. Chesler on 6/20/11. (dc, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RAFIEEK GRAHAM,
Plaintiff,
v.
KENNETH SHARP, et al.,
Defendants.
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Civil Action No. 10-5563 (SRC)
OPINION
APPEARANCES:
RAFIEEK GRAHAM, Plaintiff pro se
#00083
East Jersey State Prison, Special Treatment Unit
CN 905, 8 Production Way
Avenel, New Jersey 07001
SHERIDAN, District Judge
Plaintiff, Rafieek Graham, an involuntarily committed person
pursuant to the Sexually Violent Predator Act (“SVPA”), N.J.S.A.
30:4-27.24, et seq., seeks to bring this action in forma
pauperis.
Based on his affidavit of indigence, the Court will
grant plaintiff’s application to proceed in forma pauperis
(“IFP”) pursuant to 28 U.S.C. § 1915(a) (1998) and order the
Clerk of the Court to file the Complaint.
At this time, the Court must review the Complaint and
plaintiff’s several addendums, pursuant to 28 U.S.C.
§ 1915(e)(2), to determine whether the action should be dismissed
as frivolous or malicious, for 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.
For the reasons
set forth below, the Court concludes that this action should be
dismissed as duplicative, and for failure to state a claim.
I.
BACKGROUND
Plaintiff, Rafieek Graham (“Graham”), brings this civil
rights action, pursuant to 42 U.S.C. § 1983, against the
following defendants: Kenneth Sharp, Assistant Attorney General
for the State of New Jersey; Jennifer Velez, Commissioner of the
New Jersey Department of Human Services (“NJDHS”); John Main,
Chief Executive Officer of Mental Health at the Ann Klein
Forensic Center; Dr. Merril Main, Clinical Director of the East
Jersey State Prison, Special Treatment Unit (“EJSP-STU”); Steven
Johnson, Assistant Superintendent at the EJSP-STU; Shantay Brame
Adams, Assistant Director at the EJSP-STU; and Jackie Ottino,
Program Coordinator at the EJSP STU.
4b-4h).
(Complaint, Caption and ¶¶
The following factual allegations are taken from the
Complaint, and are accepted for purposes of this screening only.
The Court has made no findings as to the veracity of plaintiff’s
allegations.
The Court notes that this is the third action filed by
Graham with regard to his civil confinement at the STU in EJSP.
His first action, Graham v. Christie, et al., Civil No. 10-2010
(KSH), was dismissed without prejudice by Opinion and Order
2
issued by the Honorable Katharine S. Hayden on or about October
18, 2010.
In that action, he raised similar claims against three
of the same defendants named in this present matter, namely,
NJDHS Commissioner Velez, Steven Johnson, and Merril Main.
The instant Complaint also alleges the same or similar
claims against many of the same defendants in a second, earlierfiled action submitted on or about September 25, 2010, in Graham
v. Main, et al., Civil No. 10-5027 (SRC).
In particular,
defendants, Velez, John Main, Merril Main, Shantay Brame Adams
and Jackie Ottino are named defendants in both actions.
The
second action recently has been dismissed by this Court for
failure to state a claim upon which relief may be granted.
Only defendant Kenneth Sharp is named in this action and not
in the earlier matters.
In this third action, Graham continues
to complain about his confinement at the EJSP STU, and what he
alleges are unconstitutional restrictions and conditions placed
on him as a civilly committed person.
In this Complaint, Graham alleges that defendants Kenneth
Sharpe, John Main, and Steve Johnson, have disregarded that
plaintiff is a civilly committed resident and not a prisoner.
Graham states that these defendants have allowed the New Jersey
Department of Corrections (“NJDOC”) to house plaintiff on prison
property in a unit designed for 23 hour lock down, which is a
violation of his constitutional rights.
3
Further, these
defendants have placed plaintiff under prison policy and
guidelines.
(Compl., ¶¶ 4b, 4d and 4f).
Graham also contends that Commissioner Velez failed to
oversee the conditions at EJSP-STU, which had gated tiers and
boarded therapy rooms.
He complains that Velez and defendant
Merril Main allowed plaintiff to be placed under prison
guidelines and to be treated as a problem prisoner.
Velez
further allowed the NJDOC to “force” the therapy staff off the
EJSP-STU premises after 4 p.m.
(Compl, ¶ 4c, 4e).
Next, Graham alleges that defendant Adams had plaintiff
placed on a unit that is segregated from the therapy groups,
causing plaintiff to be labeled as a threat, and sexually
harassed by correctional officers because Graham had expressed
concern about being placed back in a prison.
(Compl., ¶ 4g).
Graham alleges that defendant Ottino has authorized the
correctional officers to harass plaintiff and try to get
plaintiff placed on “MAP” status because Graham writes
grievances.(Compl., ¶ 4h).
In particular, Graham alleges that, on May 12, 2010, when he
arrived at EJSP-STU, he was placed on the South Unit, which is
segregated from the general resident population.
Graham admits
that he was told he was on the South Unit because he had refused
treatment, but denies that he had refused treatment.
4
He
complains that his segregation keeps him from attending groups
and other treatment programs.
(Compl., ¶ 6).
On May 27, 2010, there were no therapists or other NJDHS
staff on EJSP-STU grounds after 4 p.m., because the NJDOC had the
staff move their office supplies off the grounds to a building in
Edison, New Jersey.
Thus, there is no on-site psychiatrist to
talk to after 4 p.m.
(Id.).
On July 16, 2010, Graham states
that he almost was placed on treatment probation for not
attending groups because the NJDOC officers dictated how therapy
groups were to be run.
The treatment probation was threatened by
his group therapist Ms. Vega and by defendant Adams.
On July 26,
2010, Graham was told that he had to “move to groups on [the
NJDOC’s] call.”
(Id.).
Graham next complains that his mail and packages are sent to
two different facilities in Avenel, New Jersey, not at EJSP-STU,
where plaintiff resides.
Graham also alleges that he has filed
grievances with defendants, Main, Adams and Johnson and with
NJDOC Chief Cathy Buchannan, about the correctional officers
treating Graham like a problem prisoner.
(Id.).
On August 25, 2010, plaintiff was verbally harassed by
correctional officers while he was in the yard.
that he was humiliated and mentally degraded.
Graham complains
On September 28,
2010, Graham states that he was called a “fag,” “homo,” and was
sexually harassed verbally about his “gender of life” by
5
correctional officers who were authorized to do so by defendants
Ottino and Adams.
(Id.).
On September 24, 2010, Graham states that defendants Adams
and Ottino had his “only mental support moved off the unit”
because plaintiff was filing too many grievances.
Graham
complains that his mental support, apparently another resident,
was his support for the last ten years.
(Id.).
Graham further alleges that therapy groups are conducted by
NJDOC movements, causing plaintiff to be taken out of groups.
He
says that groups are held in a caged area boarded up by a fence.
There is limited participation in open recreation areas.
(Id.).
Graham asks to be placed in a federally funded treatment
facility, He also seeks monetary compensation for being placed in
a prison environment where he has suffered mental anguish,
harassment, discrimination, and having to start all over with
treatment after being in for ten years.
(Compl., ¶ 7).
On or about November 29, 2010, Graham submitted an amended
Complaint to the Court seeking to add additional defendants to
this action.
(Docket entry no. 3).
He seeks to add Mark Singer,
Deputy Attorney General (for overlooking and disregarding the
fact that plaintiff is a civilly committed resident to be placed
in a treatment facility and not a prisoner in a prison facility);
David L. DaCosta (for failing to oversee and correct conditions
at EJSP-STU where plaintiff is humiliated by NJDOC officers and
subjected to 10:A prison policy); and Brian Friedman, Psychology
6
Director at EJSP-STU (for having knowledge about the
“untherapeutic” system at EJSP-STU and overlooking the NJDOC’s
termination of groups, dictating group movements and placing
residents under prison policy).
(Id., at ¶ 4b, 4c and 4d).
Graham repeats his general allegations against defendant Velez.
(Id., at ¶ 4e).
In particular, Graham states that, on November 27, 2010, he
was strip searched.
On November 1, 2010, he was presented with a
memo stating that certain electronic equipment would not be
permitted subject to a policy change.
The memo was attached to
the amended Complaint at Docket entry no. 3-1.
Plaintiff also
was told that he and other civilly committed residents would be
placed under prison policy.
(Id., at ¶ 6).
These claims and
allegations were raised in Graham’s second and earlier filed
action, Graham v. Main, et al., Civil No. 10-5027 (SRC), and are
thus, duplicative.1
Graham also submitted a letter on December 6, 2010 (Docket
entry no. 6), in which he complains that in June 2010, a staff
psychologist stated to plaintiff “off the record” that plaintiff
“does not belong here.”
But, on August 9, 2010, Graham’s public
advocacy attorney stopped the psychologist from testifying in
court, preventing plaintiff from being released to an outpatient
program.
(Id.).
Graham states that he filed an attorney ethics
1
Also on November 29, 2010, Graham sent an addendum to the
Court. (Docket entry no. 4). The addendum relates the very same
claims as set forth in his Complaint.
7
grievance in October 2010.
He claims that since he filed his
Complaints, he was placed on treatment refusal and his job was
taken by the treatment team, allegedly for no other reason than
his filing complaints.
II.
(Id.).
STANDARDS FOR A SUA SPONTE DISMISSAL
A district court is required to review a complaint in a
civil action where the litigant is proceeding in forma pauperis.
Specifically, the court is required to identify cognizable claims
and to sua sponte dismiss any claim that is frivolous, malicious,
fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief,
pursuant to 28 U.S.C. § 1915(e)(2)(B).
Accordingly, because Boss
is proceeding in forma pauperis in this matter, this action is
subject to sua sponte screening for dismissal under 28 U.S.C. §
1915(e)(2)(B).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff.
See Erickson v. Pardus, 551 U.S. 89, 93-94
(2007)(following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and
Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
See also United
The Court must
“accept as true all of the allegations in the complaint and all
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).
8
The Court
need not, however, credit a pro se plaintiff’s “bald assertions”
or “legal conclusions.”
Id.
A complaint is frivolous if it “lacks an arguable basis
either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319,
325 (1989) (interpreting the predecessor of § 1915(e)(2), the
former § 1915(d)).
The standard for evaluating whether a
complaint is “frivolous” is an objective one.
Deutsch v. United
States, 67 F.3d 1080, 1086-87 (3d Cir. 1995).
A pro se complaint may be dismissed for failure to state a
claim only if it appears “‘beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief.’”
Haines, 404 U.S. at 521 (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)).
See also Erickson, 551 U.S.
at 93-94 (In a pro se prisoner civil rights complaint, the Court
reviewed whether the complaint complied with the pleading
requirements of Rule 8(a)(2)).
However, recently, the Supreme Court revised this standard
for summary dismissal of a Complaint that fails to state a claim
in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009).
The issue before
the Supreme Court was whether Iqbal’s civil rights complaint
adequately alleged defendants’ personal involvement in
discriminatory decisions regarding Iqbal’s treatment during
detention at the Metropolitan Detention Center which, if true,
violated his constitutional rights.
Id.
The Court examined Rule
8(a)(2) of the Federal Rules of Civil Procedure which provides
9
that a complaint 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).2
Citing its recent opinion in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), for the
proposition that “[a] pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a
cause of action will not do,’ “Iqbal, 129 S.Ct. at 1949 (quoting
Twombly, 550 U.S. at 555), the Supreme Court identified two
working principles underlying the failure to state a claim
standard:
First, the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice ... . Rule 8 ... does not unlock the doors of
discovery for a plaintiff armed with nothing more than
conclusions. Second, only a complaint that states a
plausible claim for relief survives a motion to dismiss.
Determining whether a complaint states a plausible claim for
relief will ... be a context-specific task that requires the
reviewing court to draw on its judicial experience and
common sense. But where the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not
“show[n]”-“that the pleader is entitled to relief.” Fed.
Rule Civ. Proc. 8(a)(2).
Iqbal, 129 S.Ct. at 1949-1950 (citations omitted).
The Court further explained that
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.
While legal conclusions can provide the framework of a
2
Rule 8(d)(1) provides that “[e]ach allegation must be
simple, concise, and direct. No technical form is required.”
Fed.R.Civ.P. 8(d).
10
complaint, they must be supported by factual allegations.
When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.
Iqbal, 129 S.Ct. at 1950.
Thus, to prevent a summary dismissal, civil complaints must
now allege “sufficient factual matter” to show that a claim is
facially plausible.
This then “allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”
Id. at 1948.
The Supreme Court’s ruling in
Iqbal emphasizes that a plaintiff must demonstrate that the
allegations of his complaint are plausible.
Id. at 1949-50; see
also Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC Shadyside,
578 F.3d 203, 210(3d Cir. 2009).
Consequently, the Third Circuit observed that Iqbal provides
the “final nail-in-the-coffin for the ‘no set of facts’ standard”
set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),3 that
applied to federal complaints before Twombly.
at 210.
Fowler, 578 F.3d
The Third Circuit now requires that a district court
must conduct the two-part analysis set forth in Iqbal when
presented with a motion to dismiss:
3
In Conley, as stated above, a district court was
permitted to summarily dismiss a complaint for failure to state a
claim only if “it appear[ed] beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief. Id., 355 U.S. at 45-46. Under this “no set of
facts” standard, a complaint could effectively survive a motion
to dismiss so long as it contained a bare recitation of the
claim’s legal elements.
11
First, the factual and legal elements of a claim should be
separated. The District Court must accept all of the
complaint’s well-pleaded facts as true, but may disregard
any legal conclusions. [Iqbal, 129 S.Ct. at 1949-50].
Second, a District Court must then determine whether the
facts alleged in the complaint are sufficient to show that
the plaintiff has a “plausible claim for relief.” [Id.] In
other words, a complaint must do more than allege the
plaintiff's entitlement to relief. A complaint has to
“show” such an entitlement with its facts. See Phillips,
515 F.3d at 234-35. As the Supreme Court instructed in
Iqbal, “[w]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct,
the complaint has alleged-but it has not ‘show [n]’-‘that
the pleader is entitled to relief.’” Iqbal, [129 S.Ct. at
1949-50]. This “plausibility” determination will be “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Id.
Fowler, 578 F.3d at 210-211.
This Court is mindful, however, that the sufficiency of this
pro se pleading must be construed liberally in favor of
Plaintiff, even after Iqbal.
(2007).
See Erickson v. Pardus, 551 U.S. 89
Moreover, a court should not dismiss a complaint with
prejudice for failure to state a claim without granting leave to
amend, unless it finds bad faith, undue delay, prejudice or
futility. See Grayson v. Mayview State Hosp., 293 F.3d 103, 110111 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 117 (3d Cir.
2000).
12
III.
SECTION 1983 ACTIONS
Graham brings this action pursuant to 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 ... .
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.
West v. Atkins, 487 U.S. 42, 48
(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.
1994).
IV.
THE NEW JERSEY SEXUALLY VIOLENT PREDATOR ACT
The New Jersey SVPA, N.J.S.A. 30:4-27.24 et seq., provides
for the custody, care and treatment of involuntarily committed
persons who are deemed to be sexually violent predators (“SVP”).
N.J.S.A. 30:4-27.26.
The New Jersey Department of Corrections
(“DOC”) operates the facilities designated for SVPs, N.J.S.A.
30:4-27.34(a); and the New Jersey Department of Human Services
(“DHS”) provides for their treatment.
N.J.S.A. 30:4-27.34(b).
The SVPA was amended in 2003 to require that regulations be
promulgated jointly by the DOC and the DHS, in consultation with
13
of the Attorney General, taking “into consideration the rights of
the patients as set forth in section ten of P.L. 1965, c. 59 (C.
30:4-24.2) ... [to] specifically address the differing needs and
specific characteristics of, and treatment protocols related to,
sexually violent predators.”
N.J.S.A. 30:4-27.34(d).
In passing the SVPA, the New Jersey Legislature made
specific findings regarding SVPs.
N.J.S.A. 30:4-27.25.
The
Legislature noted that it was necessary to modify the previous
civil commitment framework and additionally separate SVPs from
other persons who have been civilly committed.
Id.
The SVPA
defines a SVP as:
... a person who has been convicted, adjudicated delinquent
or found not guilty by reason of insanity for commission of
a sexually violent offense, or has been charged with a
sexually violent offense but found to be incompetent to
stand trial, and suffers from a mental abnormality or
personality disorder that makes the person likely to engage
in acts of sexual violence if not confined in a secure
facility for control, care and treatment.
N.J.S.A. 30:4-27.26(b).
Those persons committed under the SVPA shall receive annual
review hearings.
N.J.S.A. 30:4-27.35.
A SVP may be released
from involuntary civil commitment upon recommendation of the DHS
or by the SVP’s own petition for discharge.
V.
A.
N.J.S.A. 30:4-27.36.
ANALYSIS
Transfer to Prison Facility Claim
Graham reiterates his primary complaint in Graham v.
Christie, et al., Civil No. 10-2010 (KSH), which was dismissed in
October 2010.
Namely, Graham complains that he has been
14
transferred to a prison facility, as a civilly committed person
under the SVPA, and that such placement is unconstitutional where
he is subject to the prison policies in place for the orderly
operation and security of a prison facility.
The Honorable
Katharine S. Hayden, U.S.D.J., dismissed this claim, with
prejudice, in her Opinion and Order issued on or about October
18, 2010, based on the Supreme Court’s ruling in Kansas v.
Hendricks, 521 U.S. 346 (1997).
In Kansas v. Hendricks, the Supreme Court examined the
conditions of confinement provided by Kansas’ Sexually Violent
Predator Act.
The Act called for the confinement of sexually
violent predators in a secure facility because they were
dangerous to the community.
Id., 521 U.S. at 363-64.
Pertinent
here, the Supreme Court was aware that the sexually violent
predators in Kansas were to be held in a segregated unit within
the prison system.
However, the Court noted that the conditions
within the unit were essentially the same as conditions for other
involuntarily committed persons in mental hospitals.
Moreover,
confinement under the Act was not necessarily indefinite in
duration, and the Act provided for treatment.
363, 364, 365-368.
Id., 521 U.S. at
Thus, the Supreme Court held that involuntary
confinement under Kansas’ SVPA was not unconstitutional so long
as such civilly-confined persons are segregated from the general
prison population and afforded the same status as others who have
been civilly committed.
Id., 521 U.S. at 368-69.
15
See also
Seling v. Young, 531 U.S. 250, 261062 (2001)(holding same with
respect to the State of Washington’s SVPA).
Here, the New Jersey SVPA is essentially the same as the
Kansas and Washington SVP statutes that were examined and upheld
as constitutional by the Supreme Court in Hendricks and Seling,
respectively.4
See Bagarozy v. Goodwin, Civil Action No. 08-468
(SRC), 2008 WL 4416455, *7-8 (D.N.J. Sept. 23, 2008); In re
Commitment of W.Z., 173 N.J. 109, 801 A.2d 205, 211 (2002).
Therefore, this Court finds that Graham’s placement and
confinement in a Special Treatment Unit for SVP residents that is
a segregated unit in the East Jersey State Prison, does not, in
and of itself, violate the U.S. Constitution’s Due Process Clause
or the Eighth Amendment’s prohibition against cruel and unusual
punishment.
Accordingly, Graham’s claim that his continued
confinement in a segregated unit within a prison facility is
unconstitutional will be dismissed with prejudice for failure to
state a cognizable claim of a constitutional deprivation.
B.
Conditions of Confinement Claim
Although plaintiff’s placement in a segregated unit within a
prison facility is not, in and of itself, a constitutional
4
Recently, the Supreme Court held constitutional under the
Necessary and Proper Clause, a federal statute that allowed a
district court to order the civil commitment of a sexually
dangerous federal prisoner beyond the date the prisoner would
otherwise be released. United States v. Comstock, No. 08-1224,
__ U.S. __, 130 S.Ct. 1949 (May 17, 2010). Although these
civilly committed persons remained confined at a federal prison,
namely, FCI Butner, the Court did not address their place of
civil confinement as being unconstitutional.
16
violation, Graham makes additional allegations concerning the
conditions of confinement at the EJSP facility.
For instance, he
complains that he is housed in a prison facility subject to
restrictions.
See Youngberg v. Romeo, 457 U.S. 307, 321-22
(1982)(“Persons who have been involuntarily committed are
entitled to more considerate treatment and conditions of
confinement than criminals whose conditions of confinement are
designed to punish.”).
Generally, the Fourteenth Amendment requires that civilly
committed persons not be subjected to conditions that amount to
punishment, Bell v. Wolfish, 441 U.S. 520, 536 (1979),5 within
the bounds of professional discretion, Youngberg, 457 U.S. at
321-22.
Specifically, in Youngberg, the Supreme Court held that
civilly committed persons do have constitutionally protected
interests, but that these rights must be balanced against the
reasons put forth by the State for restricting their liberties.
Id. at 307.
The Constitution is not concerned with de minimis
restrictions on patients’ liberties.
Id. at 320.
Moreover, “due
process requires that the conditions and duration of confinement
[for civilly confined persons] bear some reasonable relation to
the purpose for which persons are committed.”
5
Seling, 531 U.S.
In Bell v. Wolfish, the Supreme Court held that whether a
condition of confinement of pretrial detainees violated their
constitutional rights turns on whether the disability is imposed
for the purpose of punishment or whether it is but an incident of
some other legitimate government purpose. 441 U.S. 520, 535-39,
(1979).
17
at 265.
While the nature of an SVP’s confinement may factor in
this balance of what is reasonable, it is clearly established
that the substantive due process protections of the Fourteenth
Amendment apply to SVPs. See Andrews v. Neer, 253 F.3d 1052, 1061
(8th Cir. 2001)(applying the Fourteenth Amendment’s “objective
reasonableness” standard to excessive force claims brought by
civilly committed SVPs).
Graham’s main allegation with respect to the conditions of
his confinement relates to his contention that he is now housed
in a prison facility and has been treated like a prisoner and
subjected to prison rules.
For instance, he complains that his
electronic equipment was seized in October 2010, pursuant to a
policy memorandum.
Graham also complains that he was subjected
to a strip search on one occasion.
Movement to group sessions
are controlled by the prison staff, mail is sent to a different
location, and any resident who complains will be placed in MAP
status.
The Third Circuit has held that placement of a civilly
committed SVP in segregated confinement does not violate due
process unless the deprivation of liberty is in some way extreme.
See Deavers v. Santiago, 243 Fed. Appx. 719, 721 (3d Cir.
2007)(applying Sandin v. Conner, 515 U.S. 472 (1995),6 to
6
In Sandin, the Supreme Court held that there was no
cognizable liberty interest in freedom from additional restraint
in a prison setting. See 515 U.S. at 486 (“We hold that [the
prisoner’s] discipline in segregated confinement did not present
the type of atypical, significant deprivation in which a State
18
segregated confinement of civilly committed SVPs).
See also
Thielman v. Leean, 282 F.3d 478 (7th Cir. 2002)(likewise
extending Sandin to civil commitment settings).
Thus, Graham’s
general allegation that disruptive and agitative residents may be
placed in MAP status, and that general movement is monitored and
restricted, without more, fails to articulate a cognizable claim
of constitutional magnitude, in light of Deavers.
Graham fails
to allege any facts to show that MAP restrictions and movements
within the EJSP facility are unduly extreme and unrelated to the
purposes for which such restrictions are imposed.
Moreover, he
admits that he has not been placed on MAP status at this time.
This is Graham’s third attempt to articulate a claim for relief,
and he has failed to do so yet again.
Therefore, his general
conditions claim will be dismissed with prejudice for failure to
state a claim.
Additionally, for the following reasons, this Court finds
that Graham’s complaints about the mail restrictions, strip
search, and confiscation of electronic devises are not extreme
conditions of plaintiff’s confinement as a civilly committed
person, and thus, do not violate due process.
1.
Unlawful Search Claim
Graham alleges that residents are subjected to cell
searches, “pat down” searches, or strip searches when
leaving/returning to the STU at EJSP for yard recreation or for
might conceivably create a liberty interest.”).
19
visitation.
In particular, Graham alleges that he was strip
searched on one occasion after returning from the yard.
He
asserts that as a civilly committed person, such searches are
unconstitutional and violate his rights under the Fourth
Amendment.
The Fourth Amendment protects “[t]he right of the people to
be secure in their persons ... against unreasonable searches and
seizures.”
U.S. CONST. amend. IV.
Reasonableness under the
Fourth Amendment “depends on all of the circumstances surrounding
the search or seizure and the nature of the search or seizure
itself.”
Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602,
618 (1988)(quoting United States v. Montoya de Hernandez, 473
U.S. 531, 537 (1985)).
“Thus, the permissibility of a particular
practice is judged by balancing its intrusion on the individual’s
Fourth Amendment interests against its promotion of legitimate
governmental interests.”
Id. at 619 (quotation marks and
internal citation omitted).
In Hudson v. Palmer, 468 U.S. 517, 530 (1984), a prisoner
argued that a cell search conducted to harass him was
unreasonable because a prisoner has a reasonable expectation of
privacy not to have his cell, locker, personal effects, person
invaded for such a purpose.
Id. at 529.
The Supreme Court
rejected the claim because “prisoners have no legitimate
expectation of privacy.”
Id. at 530.
20
The Court observed that:
A right of privacy in traditional Fourth Amendment terms is
fundamentally incompatible with the close and continual
surveillance of inmates and their cells required to ensure
institutional security and internal order.... [S]ociety
would insist that the prisoner’s expectation of privacy
always yield to what must be considered the paramount
interest in institutional security.... [I]t is accepted by
our society that loss of freedom of choice and privacy are
inherent incidents of confinement.
Id. at 527-28 (footnotes, citations and internal quotation marks
omitted).
The same conclusion was reached with respect to
pretrial detainees other than convicted prisoners.
See Bell v.
Wolfish, 441 U.S. 520, 558-560 (1979)(finding that a body cavity
searches of pretrial detainees do not violate the Fourth
Amendment).7
Consequently, involuntarily committed patients and SVPs,
like pretrial detainees, are entitled to some protection under
the Fourth Amendment, but they do not have an expectation of
privacy equal to an individual in society generally.
See Serna
v. Goodno, 567 F.3d 944, 948 (8th Cir. 2009)(noting that pretrial
detainees are kept in custody because there is cause to believe
7
In Bell v. Wolfish, the United States Supreme Court, in
determining the constitutionality of post-visitation body cavity
searches, held that a reasonableness test should be employed when
examining the constitutionality of a search that encroaches upon
the personal privacy of an inmate and the integrity of the
inmate’s body. In other words, courts must balance the need for
the particular search against the invasion of personal rights
that the search entails. Courts must consider the scope of the
particular intrusion, the manner in which it is conducted, the
justification for initiating it, and the place in which it is
conducted. 441 U.S. 520, 559 (1979); see also Turner v. Safley,
482 U.S. 78 (1987) (a prison regulation which infringes upon an
inmate’s constitutionally recognized right is valid only if it is
reasonably related to a legitimate penological interest).
21
they are dangerous; similarly, commitment under Minnesota law as
a sexually dangerous person requires a finding of dangerousness),
cert. denied, 130 S.Ct. 465 (2009); Allison v. Snyder, 332 F.3d
1076-79 (7th Cir. 2003)(SVPs may be subjected to conditions that
advance goals such as preventing escape and assuring the safety
of others, even though they may not technically be “punished”),
cert. denied, 540 U.S. 985 (2003); Aiken v. Nixon, 236 F. Supp.2d
211, 233 (N.D.N.Y. 2002), aff’d 80 Fed. Appx. 146 (2d Cir. 2003);
see also, Jennings v. New York State Office of Mental Health, 786
F. Supp. 376, 382, 384 (S.D.N.Y. 1992), aff’d, 977 F.2d 731 (2d
Cir. 1992).
Similarly, the United States Court of Appeals for the Ninth
Circuit has held that, because SVPs have been civilly committed
subsequent to criminal convictions and have been adjudged to pose
a danger to the health and safety of others, they are subject to
“[l]egitimate, non-punitive government interests” such as
“maintaining jail security, and effective management of [the]
detention facility.” Jones v. Blanas, 393 F.3d 918, 932 (9th Cir.
2004).
Thus, the reasonableness of a particular search or
seizure is determined by reference to the detention context and
is a fact-intensive inquiry.
Id.
Here, with respect to his Fourth Amendment claim, Graham’s
primary argument appears to be that any prison actions that did
not specifically take into account his classification as a SVP is
per se a constitutional violation.
22
Applying the balancing test
employed by Wolfish, this Court finds that general pat searches
conducted on residents entering the yard or returning to the unit
from yard time are plainly reasonable and do not violate
plaintiff’s Fourth Amendment rights.
See Semler v. Ludeman, 2010
WL 145275, *19, D. Minn. Jan. 8, 2010)(finding no Fourth
Amendment violation where plaintiffs were required to submit to
pat searches following gym use and kitchen work assignments that
included removal of socks and shoes, opening their mouths,
showing their zippers, showing behind their ears and running
their fingers through their hair; search was “not highly
intrusive” and was “not unlike the scope of searches of the
general public at airport security checkpoints).
See also Serna
v. Goodno, 567 F.3d 944, 955-56 (upholding reasonableness of a
facility-wide visual body cavity search after a cell phone case
(cell phones considered contraband) was found, because, while
invasive, the searches were conducted privately, safely, and
professionally, and the facility was reacting to a recurring
problem involving contraband cell phones0, cert. denied, 130 S.
Ct. 465 (Oct. 20, 2009).
Moreover, there are no allegations that the guards conducted
any pat search or the cell search for electronic equipment in a
menacing or degrading manner.
Graham does not allege that there
was physical force used or that the search was done in a menacing
manner.
See Kitchens v. Mims, 2010 WL 1240980 (E.D.Cal. March
25, 2010).
23
Likewise, the single strip search incident fails to state a
claim of constitutional magnitude.
The strip search was done
after Graham had been to the yard.
While Graham alleges that the
strip search was not performed in a private area and that the
officers were verbally degrading him, Graham does not allege any
physical force was used, or that it was conducted solely for the
purpose of punishment.
Therefore, based on all of these factors, this Court will
dismiss Graham’s Fourth Amendment unlawful search claim, pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a
cognizable claim under § 1983.
2.
Interference With Mail
Next, Graham seems to complain that his mail must be sent to
Avenel rather than directly to the EJSP unit where he is
confined.
The Court perceives this claim as asserting a
violation of plaintiff’s First Amendment rights.
However, Graham
does not indicate that he has not received mail or packages, or
that his mail has been opened outside his presence.
Rather, he
merely alleges that he believes his mail is being monitored
without any factual support for the bald claim.
This claim is
essentially duplicative of a claim Graham raised in his second
action, which was dismissed by this Court.
As a general rule, inmates have a limited liberty interest
in their mail under the First and Fourteenth Amendments.
Jones
v. Brown, 461 F.3d 353, 358 (3d Cir. 2006), cert. denied, 549
24
U.S. 1286 (2007).8
However, an inmate’s constitutional right to
send and receive mail may be restricted for legitimate
penological interests.
See Thornburgh v. Abbott, 490 U.S. 401,
407 (1989); Turner v. Safley, 482 U.S. 78, 89 (1987).
In Turner,
the Supreme Court of the United States found that a prison
regulation infringing on an inmate’s constitutional rights is
valid so long as it is reasonably related to a legitimate
penological interest.
Id. at 89.
The Court established a
balancing test pursuant to which courts analyze prohibitions on
prisoners’ exercise of their constitutional rights by considering
the following four factors: (1) whether prohibiting an inmate
from exercising a constitutional right is rationally related to a
legitimate governmental interest; (2) whether there are
alternative means of exercising that right; (3) what effect
8
In Jones v. Brown, the United States Court of Appeals for
the Third Circuit held that the legal mail policy of state prison
in opening legal mail outside the presence of the inmate violated
the inmate’s First Amendment right to freedom of speech, and was
not reasonably related to prison’s legitimate penological
interest in protecting health and safety of prisoners and staff.
461 F.3d at 358. The Third Circuit also has held that “a pattern
and practice of opening properly marked incoming court mail
outside an inmate’s presence infringes communication protected by
the right to free speech. Such a practice chills protected
expression and may inhibit the inmate’s ability to speak,
protest, and complain openly, directly, and without reservation
with the court.” Bieregu v. Reno, 59 F.3d 1445, 1452 (3d Cir.
1995) (applying the Turner analysis), implied overruling on other
grounds recognized in Oliver v. Fauver, 118 F.3d 175, 177-78 (3d
Cir. 1997). Thus, the assertion that legal mail is intentionally
opened and read, delayed for an inordinate period of time, or
stolen may state a First Amendment claim. See, e.g., Antonelli
v. Sheahan, 81 F.3d 1422, 1431-32 (7th Cir. 1996); Castillo v.
Cook County Mail Room Dep’t, 990 F.2d 304 (7th Cir. 1993).
25
accommodation of the interest would have on guards, other
inmates, and the allocation of prison resources; and (4) whether
there are ready alternatives available that continue to serve the
prison’s interest without impinging constitutional rights.
Turner, 482 U.S. at 89-91.
The Court also recognized that
deference should be given to the decisions of prison
administrators, especially when those decisions deal with issues
of prison safety and security.
Id.
The United States Court of Appeals for the Third Circuit has
applied Turner in analyzing constitutional claims by civilly
committed SVPs.
See Rivera v. Rogers, 224 Fed. Appx. 148, 2007
WL 934413 (3d Cir. March 29, 2007)(applying Turner in analyzing
claims of SVPs that opening of their packages violated their
First Amendment rights).
Other courts likewise have applied
Turner when analyzing claims brought by civilly committed SVPs
alleging First Amendment violations.9
See Willis v. Smith, 2005
WL 550528 (N.D. Iowa Feb. 28, 2005)(noting that status of SVPs
was substantially similar to that of prisoners and applying
Turner to SVP claims concerning mail handling procedures); Ivey
v. Mooney, 2008 WL 4527792, at *4 n. 7 (D. Minn. Sept. 30,
9
Essentially, the First Amendment analysis under Turner
mirrors the due process analysis under Youngberg; in both
instances, courts must balance the constitutional interests of
confined persons against the legitimate interests of the staterun institution in which they reside. See Beaulieu v. Ludeman,
2008 WL 2498241, at *20 n. 15 (finding Turner to be consistent
with Youngberg because “it will not allow a Program detainee’s
right to be restricted unless there is a valid institutional
reason for doing so”).
26
2008)(applying Turner, but noting that a civil confinement is
significantly different from a criminal confinement); Francis v.
Watson, 2006 WL 2716452, at *3 (D.S.C. Sept. 22, 2006)(citing
cases that have applied Turner in cases involving civilly
confined persons); Marsh v. Liberty Behavioral Health Care, Inc.,
2008 WL 821623, at *5 (M.D. Fla. Mar. 27, 2008), aff’d 330 Fed.
Appx. 179 (11th Cir. 2009); Beaulieu v. Ludeman, 2008 WL 2498241,
at *20 (D. Minn. June 18, 2008).
In Rivera, the Third Circuit affirmed the district court’s
ruling that a facility housing civilly committed SVPs has a
legitimate interest in both the safety of its facility and the
rehabilitation of its patients.
Rivera, 224 Fed. Appx. at 151
(citing Waterman v. Farmer, 183 F.3d 208, 215 (3d Cir.
1999)(“[I]t is beyond dispute that New Jersey has a legitimate
penological interest in rehabilitating its most dangerous and
compulsive sex offenders.”)).
Specifically, the court upheld as
constitutional the STU’s policy that allows staff to open
packages not marked as “legal mail” to assure that the packages
do not contain contraband (i.e., items either harmful to staff
and residents, or detrimental to rehabilitation).
The court
found that plaintiff was free to send and receive mail so long as
the content of his mail was not sexually explicit.
Moreover, the
Third Circuit found no error in the district court’s conclusion
that there were no ready alternatives to mail security and that
the STU’s policy appeared to be the only viable alternative, thus
27
supporting the reasonableness of the mail policy.
Rivera, 224
Fed. Appx. at 151.
Here, this Court likewise finds that it is beyond dispute
that the staff at EJSP, where plaintiff and other SVP residents
are newly housed, has a legitimate interest in both the safety of
its facility and rehabilitating its patients.
As noted above,
these civilly committed persons are convicted sexual predators,
which makes safety at EJSP a very important concern.
The staff
clearly must determine if any items coming through the mail pose
a threat to the safety of the staff or the other residents.
They
also must decide if any of the materials passing through the mail
could be detrimental to a resident’s therapy.
Consequently, as
set forth by the Supreme Court and the Third Circuit, the Court
must defer to the prison officials when it comes to issues of
managing a safe and operational prison facility.
In this case,
delivery of letters and packages at the Avenel facility located
close by, where the staff is trained with respect to SVP issues
unlike the general NJDOC staff at EJSP, assures that harmful
materials are not being passed through the mail, but also allows
for specialized treatment regarding SVP residents.
This mail
policy, which appears to be instituted because of the recent
transfer of the SVP residents to EJSP, clearly bears a rational
relationship to both interests discussed above.
Moreover, in his interference with the mail claim, Graham
fails to allege even a single incident of interference with his
28
mail.
A single interference with the delivery of an inmate’s
personal mail, without more, does not rise to the level of a
constitutional deprivation.
Morgan v. Montayne, 516 F.2d 1367
(2d Cir. 1975), cert. denied, 424 U.S. 973 (1976).
Thus, the
only continuing complaint seems to be that his mail is sent to
another facility instead of EJSP where he now resides.
Graham
fails again to articulate a claim that prison officials are
intentionally delaying or opening his mail.
Therefore, the Court
will dismiss this claim with prejudice for failure to state a
claim for relief under § 1983.
3.
Confiscation of Electronic Devices
Graham also complains about a new policy memo issued on
November 1, 2010 that restricts certain electronic equipment
(memory sticks; flash drives; thumb drives; detachable or
external drives; data storage devices; X-box Elite, Play Station
3 and Wii game systems; and remote controls with digital read out
or viewing screens) for SVP residents in the EJSP STU.
He
complains that anyone in possession of such electronic devices
will have such equipment confiscated in violation of his
constitutional rights.
It would appear that plaintiff is
asserting a duplicative deprivation of property claim and/or a
First Amendment violation, as an identical claim was raised by
Graham in his second action, Graham v. Main, et al., Civil No.
10-5027 (SRC), which this Court dismissed for the reasons
reiterated below.
29
This Court finds that a First Amendment claim, if asserted,
is governed by the standard in Turner v. Safely, supra, which
sets out the standard for challenges to regulations that restrict
a prisoner’s fundamental constitutional rights.
Although the
courts have not defined the contours of a civilly detained
person’s right to free speech, Graham’s rights are at least coextensive with the rights of prisoners with respect to
institutional regulations that curtail First Amendment rights.
E.g., City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239,
244 (1983)(“[T]he due process rights of a [pretrial detainee or
other persons in state custody] are at least as great as the
Eighth Amendment protections available to a convicted prisoner”).
Thus, a Turner analysis is applicable here despite the fact that
plaintiff is not a prisoner.
See e.g., Bell v. Wolfish, 441 U.S.
at 545-46 (“A detainee simply does not possess the full range of
freedoms of an unincarcerated individual” because “[t]he fact of
confinement as well as the legitimate goals and policies” of the
institution limit constitutional rights.); Allison v. Snyder, 332
F.3d 1076, 1079 (7th Cir. 2002)(persons confined as sexually
violent “may be subjected to the ordinary conditions of
confinement”).
In the prison setting, regulations that restrict a
prisoner’s access to use and own electronic equipment are “valid
[if they] are reasonably related to legitimate penological
interests.”
Thornburgh v. Abbott, 490 U.S. 401, 413 (1989)
30
(citing Turner, 482 U.S. at 89).
Applying the Turner rule to an
institutional setting such as EJSP, institution regulations that
restrict a patient’s First Amendment rights are valid if they are
reasonably related to a legitimate institutional interests, such
as maintaining security, preserving internal order and
rehabilitation.
McKune v. Lile, 536 U.S. 24, 36 (2002)
(“[R]ehabilitation is a legitimate penological interest that must
be weighed against the exercise of an inmate’s liberty.”);
Turner, 482 U.S. at 91 (rehabilitation and maintaining security
are legitimate penological interests); Allison, 332 F.3d at 1079
(preventing escape and assuring safety of others are legitimate
institutional interests).
Here, this Court finds that the first Turner factor is
satisfied because the EJSP STU new rule prohibiting these
delineated electronic devices are reasonably related to the
legitimate institutional interests of security and the orderly
running of the EJSP.
The November 1, 2010 memo regarding the new
rule, which was attached by plaintiff to his Complaint, expressly
states that security and orderly operation of the facility is the
purpose of the rule change.
Indeed, this Court finds that EJSP
STU has a legitimate interest in maintaining security of its
facility by preventing residents from improperly using computers
to engage in fraud, extortion and other criminal activity and
preventing discord that could occur between residents owning the
electronic equipment targeted with those who do not.
31
See Semler
v. Ludeman, 2010 WL 145275, *9-16 (D. Minn. Jan. 8, 2010)
(institution rules governing media, mail, personal property,
telephone access and association between patients confined as
sexually violent persons are valid under Turner because they are
reasonably related to legitimate security and rehabilitative
interests); Spicer v. Richards, 2008 WL 3540182, *7-8 (W.D. Wash.
Aug. 11, 2008)(state facility for civil detainee’s “ban on the
possession of electronic devices is reasonably related to the
security and safety risks posed to [its] residents, staff,
visitors, and the public,” and therefore not violative of civil
detainee’s constitutional rights).
In addition, the EJSP STU has
an interest in promoting rehabilitation and a therapeutic
environment by preventing patients from accessing pornography,
contacting their victims, viewing movies that may reinforce
cognitive distortions or sexual deviance and playing video games
that may encourage anti-social or obsessive behavior.
See
Hedgespeth v. Bartow, 2010 WL 2990897 at *6-7 (W.D. Wisc. July
27, 2010).
Moreover, defendants have a legitimate security interest in
making uniform rules regarding property ownership and media
restrictions to prevent discord, extortion and unauthorized
property exchanges among patients, as well as legitimate security
and rehabilitative interests in keeping potential damaging
materials out of the institution altogether.
32
See Allison, 332
F.3d at 1079 (security is legitimate institutional interest);
Hedgespeth, 2010 WL 2990897 at *8.
The third Turner factor also weighs heavily in favor of the
defendants’ new electronic restrictions.
Allowing residents to
own digital storage devices, video game systems and the other
listed electronic devices would be a security, treatment and
administrative nightmare.
Security staff would need to screen
each resident’s electronic equipment for unauthorized content
regularly and frequently.
Additionally, because it is relatively
easy to hide and transfer digital files by these restricted
devices, some residents likely would succeed in caching and
accessing unlawful or counter-therapeutic data.
Thus,
unrestricted access to the internet and video games at EJSP STU
likely would interfere with the efforts to treat the patients and
operate the facility in a secure and orderly manner.
Hedgespeth,
supra.
Finally, this Court notes that Graham has failed to
articulate any reason or alternative that would refute the
clearly expressed security need for the new restriction on
electronic devices.
He simply states a legal claim that his
constitutional rights will be violated without any factual
support.
Such claim does not pass muster for statement of a
claim under the Iqbal standard.
Facilities that house and deal with residents who have been
involuntarily committed for sexual disorders are “‘volatile’
33
environments whose day-to-day operations cannot be managed from
on high.”
Thielman v. Leean, 282 F.3d 478, 483 (7th Cir. 2002).
Courts must presume that the judgment exercised by the
appropriate professionals in these facilities is reasonable.
Id.
(citing Youngberg v. Romeo, 457 U.S. 307, 312-24 (1982)
(extending “professional judgment” standard to substantive due
process claim brought by involuntarily committed mental patient
and noting that such a presumption was “necessary to enable
institutions of this type-often, unfortunately, overcrowded and
understaffed-to continue to function”); see also Hedgespeth, 2010
WL 2990897 at *9.
Accordingly, this Court finds that Graham has
failed to state a claim of constitutional magnitude in this
regard.
Finally, to the extent that plaintiff is raising a
deprivation of property claim, his claim must be dismissed for
failure to state a claim.
The Fourteenth Amendment provides, in
pertinent part here, that the State may not “deprive any person
of life, liberty, or property, without due process of law[.]”
The “due process of law” essentially requires that the government
provide a person notice and opportunity to be heard in connection
with the deprivation of life, liberty or property.
Zappan v.
Pennsylvania Board of Probation and Parole, 152 Fed. Appx. 211,
220 (3d Cir. 2005)(“The essential requirements of any procedural
due process claim are notice and the opportunity to be heard.”).
Hence, to establish a prima facie case of a procedural due
34
process violation, a plaintiff must establish: (1) a deprivation
of a constitutionally protected liberty or property interest, (2)
state action, and (3) constitutionally inadequate process.
See
Rusnak v. Williams, 44 Fed. Appx. 555, 558 (3d Cir. 2002)
(“Procedural due process claims, to be valid, must allege state
sponsored-deprivation of a protected interest in life, liberty or
property.
If such an interest has been or will be deprived,
procedural due process requires that the governmental unit
provide the individual with notice and a reasonable opportunity
to be heard.”)(citation omitted).
To have a property interest, Graham must demonstrate “more
than an abstract need or desire for it. ... He must, instead,
have a legitimate claim of entitlement to it” under state or
federal law.
Board of Regents v. Roth, 408 U.S. 564, 577 (1972).
For present purposes, a procedural due process analysis involves
a two step inquiry: the first question to be asked is whether the
complaining party has a protected liberty or property interest
within the contemplation of the Due Process clause of which he
has been deprived and, if so, the second question is whether the
process afforded the complaining party to deprive him of that
interest comported with constitutional requirements.
Shoats v.
Horn, 213 F.3d 140, 143 (3d Cir. 2000).
Here, as demonstrated above, the restrictions on electronic
devices are neither arbitrary or capricious, but plainly were
implemented in order to address the security and operational
concerns of a prison facility, which also houses civilly
35
committed sex offenders.
Graham has not demonstrated a
constitutionally-recognized property interest in the continued
possession of unrestricted electronic devices necessary to
satisfy the threshold requirement of a deprivation of property
interest.
See Semler v. Ludeman, 2010 WL 145275, *25 (D. Minn.
Jan. 8, 2010).
Furthermore, to the extent that Graham may have had
electronic equipment confiscated, as alleged, he has a postdeprivation remedy.
Property loss caused by the intentional acts
of government officials does not give rise to a procedural due
process claim under § 1983 where a post-deprivation remedy
satisfying minimum procedural due process requirements is
available under state law.
See Parratt v. Taylor, 451 U.S. 527
(1981) (overruled in part on other grounds by Daniels v.
Williams, 474 U.S. 327 (1986)); see also Zinermon v. Burch, 494
U.S. 113, 115 (1990); Hudson v. Palmer, 468 U.S. 517 (1984);
Holman, 712 F.2d at 856.10
The New Jersey Tort Claims Act
(“NJTCA”), N.J. STAT. ANN. § 59:1-1 et seq., provides a postdeprivation judicial remedy to persons who believe they were
10
In Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982),
the Supreme Court explained, however, that post-deprivation
remedies do not satisfy the Due Process Clause if the deprivation
of property is accomplished pursuant to established state
procedure rather than through random, unauthorized action. 455
U.S. at 435-36. But see Tillman v. Lebanon Co. Correctional
Facility, 221 F.3d 410, 421 n.12 (3d. Cir. 2000)(citing United
States v. James Daneil Good Real Property, 510 U.S. 43, 53
(1993))(in “extraordinary situations” such as routine deduction
of fees from a prisoner’s account even without authorization,
post-deprivation remedies may be adequate).
36
deprived of property at the hands of the State or local
government.
See
Holman, 712 F.2d at 857; Asquith v. Volunteers
of America, 1 F. Supp.2d 405, 419 (D.N.J. 1998), aff’d 186 F.3d
407 (3d Cir. 1999).
Therefore, any deprivation of property claim asserted by
Graham here will be dismissed with prejudice for failure to state
a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
C.
Denial of Treatment Claim
Graham also continues to assert that therapy/treatment
sessions have been disrupted or denied because of the prison
setting and control by NJDOC officials over movements and conduct
of the residents in the EJSP-STU.
In particular, Graham alleges
that he has been restricted from participating in therapy and
treatment sessions with his “mental support” group, who are
housed elsewhere at the EJSP-STU.
He complains that his “mental
support” has been taken off his unit, and that he has been placed
on treatment probation.
Graham further alleges that staff
psychologists have no offices at the EJSP-STU and that there is
no on-site psychiatrist at the facility after 4:00 p.m.
Therapy
groups are conducted on gated tiers and boarded rooms, and the
NJDOC staff conduct or dictate group movements, making an
“untherapeutic” environment.
Thus, Graham appears to argue that
he is denied the right to adequate treatment and reasonable care
applicable to civilly committed SVPs, in violation of the
Fourteenth Amendment.
This claim had been raised in Graham’s
earlier action, Civil No. 10-5027 (SRC), in which this Court
37
found no constitutional violation sufficient to state a claim
under § 1983.
Because these allegations are mostly duplicative
of the claim raised in Graham’s earlier action before this Court,
the Court reiterates its finding, as follows, that Graham’s claim
for relief must be dismissed for failure to state a claim of any
constitutional deprivation.
The Fourteenth Amendment to the United States Constitution,
§ 1, guarantees that “[n]o State shall ... deprive any person of
life, liberty, or property, without due process of law.”
This
due process guarantee has been interpreted to have both
procedural and substantive components, the latter which protects
fundamental rights that are so “implicit in the concept of
ordered liberty” that “neither liberty nor justice would exist if
they were sacrificed.”
Palko v. Conn., 302 U.S. 319, 325 (1937).
These fundamental rights include those guaranteed by the Bill of
Rights, as well as certain liberty and privacy interests
implicitly protected by the Due Process Clause, such as the right
to marry.
Washington v. Glucksberg, 521 U.S. 702, 720 (1997).
Substantive due process also protects against government conduct
that is so egregious that it “shocks the conscience,” even where
the conduct does not implicate any specific fundamental right.
See United States v. Salerno, 481 U.S. 739, 746 (1987).
Laws disturbing fundamental rights receive strict scrutiny
and will be upheld if they are “narrowly tailored to serve a
compelling state interest.”
(1993).
Reno v. Flores, 507 U.S. 292, 302
However, regulations not implicating fundamental rights
38
(in other words, those claims attacking particularly egregious or
arbitrary governmental actions) are analyzed under the
deferential standard referred to as the rational basis review,
and will generally succeed only if the government action shocks
the conscience.
See Glucksberg, 521 U.S. at 728.
With respect to Graham’s claim, it appears that he is
asserting that he has a fundamental right to adequate treatment
as a civilly committed sex offender, and that as a result of the
prison setting he is not being afforded adequate treatment.
The
Supreme Court established that there exists a constitutionally
protected right of mentally retarded persons confined at a state
institution to minimally adequate treatment.
Specifically, the
Supreme Court held that there is a constitutional right of
mentally disabled persons confined at a state institution to
“minimally adequate habilitation”, self-care treatment or
training to the extent necessary to protect their recognized
fundamental rights to safety and freedom from physical
restraints.
Youngberg, 457 U.S. at 316, 319 and 322.
The Supreme Court further held that, where a fundamental
right is at issue, a district court must balance “the liberty of
the individual and the demands of an organized society” to
determine whether such right has been violated.
U.S. at 320.
Youngberg, 457
Although restrictions burdening a fundamental right
generally receive strict scrutiny, in Youngberg, the Supreme
Court found that this sort of rigorous analysis would unduly
burden the ability of states, specifically their professional
39
employees, to administer mental health institutions.
Id. at 322.
Consequently, the Court concluded that “the Constitution only
requires that the courts make certain that professional judgment
was in fact exercised,” because “[i]t is not appropriate for the
courts to specify which of several professionally acceptable
choices should have been made.”
and citation omitted).
Id. at 321 (internal quotation
Thus, a decision, “if made by a
professional, is presumptively valid; liability may be imposed
only when the decision by the professional is such a substantial
departure from accepted professional judgment, practice, or
standards as to demonstrate that the person responsible actually
did not base the decision on such judgment.”
Id. at 323.
In Leamer v. Fauver, 288 F.3d 532 (3d Cir. 2002), the United
States Court of Appeals for the Third Circuit held that New
Jersey’s unique former statutory scheme for sex offenders that
predicated the term of sentence on a prisoner’s response to
treatment and created a right to treatment created a fundamental
and cognizable liberty interest in treatment, for purposes of
both procedural and substantive due process analyses.
at 545.
288 F.3d
Leamer was not a civilly committed sex offender like
plaintiff here.
Rather, Leamer was a convicted sex offender
whose confinement and treatment were inextricably linked pursuant
to statute.
The sentencing court had classified Leamer as having
a “mental aberration” and in need of “specialized treatment,”
which automatically subjected Leamer to the maximum incarceration
permitted by law unless he is cured prior to that point.
40
Leamer
could not reduce his sentence through good behavior credits,
parole policies or other credits.
Instead, he could only shorten
his incarceration through successful therapy, which was an
“inherent and integral element” of the statutory scheme.
Consequently, the Third Circuit found that deprivation of
treatment would be a grievous loss not emanating from the
sentence.
Leamer, 288 F.3d at 544.
Apart from that recognized in Youngberg to prevent the
violation of recognized fundamental rights to safety and freedom
from physical restraints, this Court finds the Third Circuit’s
holding in Leamer to clearly extend to an involuntarily committed
sex offender under New Jersey’s SVPA.
Like Leamer, the length of
Graham’s confinement under the SVPA is predicated on his response
to treatment.
Indeed, the provisions of the SVPA explicitly
recognize New Jersey’s obligation to provide treatment to SVPs
for their eventual release based on successful therapy.
See
N.J.S.A. 30:4-27.32(a)(“If the court finds by clear and
convincing evidence that the person needs continued involuntary
commitment as a sexually violent predator, it shall issue an
order authorizing the involuntary commitment of the person to a
facility designated for the custody, care and treatment of
sexually violent predators”)(emphasis added); N.J.S.A. 30:434(b)(“The Division of Mental Health Services in the Department
of Human Services shall provide or arrange for treatment for a
person committed pursuant to this act.
Such treatment shall be
appropriately tailored to address the specific needs of sexually
41
violent predators.”); N.J.S.A. 30:4-27.36(a)(At any time during
the involuntary commitment of a person under this act, if the
person’s treatment team determines that the person’s mental
condition has so changed that the person is not likely to engage
in acts of sexual violence if released, the treatment team shall
recommend that the Department of Human Services authorize the
person to petition the court for discharge from involuntary
commitment status”); see also Kansas v. Hendricks, 521 U.S. 346,
367 (1997)(concluding from similarly-worded provisions of Kansas
SVP Act that “the State has a statutory obligation to provide
‘care and treatment for [persons adjudged sexually dangerous]
designed to effect recovery ....”)(alterations in
original)(internal citations omitted).
Therefore, based on Youngberg and Leamer, this Court
concludes that Graham may have a fundamental liberty interest in
treatment, but again has failed to state a cognizable claim for
purposes of both procedural and substantive due process analyses.
See Bailey v. Gardebring, 940 F.2d 1150, 1154 (8th Cir. 1991),
cert. denied, 503 U.S. 952 (1992)(where the Eighth Circuit noted
that Youngberg did not establish a right for the civilly
committed to treatment per se; the Supreme Court only “held that
the Constitution required only such ‘minimally adequate training
... as may be reasonable in light of [the] liberty interest[ ] in
safety and freedom from unreasonable restraints.’”)(quoting
Youngberg, 457 U.S. at 322).
In Bailey, the Eighth Circuit
concluded that plaintiff had no right to “psychiatric treatment
42
to overcome a ‘sexual offender condition’”
because he “was
neither in danger during his civil commitment nor was he subject
to any restraints beyond the ordinary incidents of any
involuntary confinement.”
Id. at 1153, 1154.
Citing Bailey,
district courts in the Eighth Circuit have since concluded that
civilly committed sexual predators have no substantive due
process right to mental health treatment, adequate or otherwise.
See Semler v. Ludeman, 2010 WL 145275, at *26 (D. Minn. Jan. 8,
2010)(“Because this Court has not recognized a constitutional
right to effective ‘treatment’ in the context of civilly
committed sex offenders, Plaintiffs [alleging substantive due
process violations through ineffective treatment] have failed to
allege a due process claim ....”)(citing Nicolaison v. Ludeman,
2008 WL 508549, at *8 (D. Minn. Feb. 11, 2008)(finding, in
ultimately concluding that involuntarily committed sex offender’s
right to treatment is not “clearly established” for purposes of
28 U.S.C. § 2254(d)(1), that Youngberg “only recognized a right
to ‘minimally adequate’ treatment that reduces the need for
restraints,” and not a “comparable right to treatment that
facilitates release”)).
Indeed, based on the allegations and admissions by plaintiff
in his Complaint, Graham again has failed to show any procedural
or substantive due process violations.
He is merely reiterating
the same arguments and allegations that failed to pass muster in
his earlier actions, Civil No. 10-2010 (KSH) and Civil No. 105027 (SRC).
Graham does not demonstrate a categorical denial of
43
therapy and treatment sessions due to the prison setting in which
he receives his treatment.
Rather, his duplicative allegations
simply demonstrate his continued dissatisfaction with his
therapist’s determination or treatment plan that has plaintiff
separated from his “mental support” group.
Moreover, Graham
admits that the restrictions have been based on his own treatment
refusal, although Graham does not fully concede that he himself
has been uncooperative.
Indeed, this Court takes judicial notice
of Graham’s earlier-filed action, Civil No. 10-5027 (SSRC), in
which he raises the very same claim and arguments, and where the
allegations in that action show that his treatment phase dropped
due to his missing sessions, for refusing to follow treatment
plan recommendations, and not because of his filing grievances.
In fact, a treatment refusal status memo attached to one of
Graham’s addendums in the earlier matter confirms that the status
restriction was imposed due to plaintiff’s continued failure to
participate meaningfully or attend his scheduled process group on
a regular basis.
There are simply no factual assertions other
than Graham’s bald allegation that his treatment is curtailed as
punishment for filing grievances or complaining.
In Leamer, the Third Circuit, relying on Sandin, found that
Leamer would face “significant obstacles” in establishing a
procedural due process claim based on his placement on RAP
(restricted activities program) status because the mere fact of
placement in administrative segregation is not in and of itself
enough to implicate a liberty interest.
44
Leamer, 288 F.3d at 546.
Similarly, in the instant case, although Graham and other
disruptive and agitative residents may be placed in MAP status in
response to their behavior or uncooperation, there is no
indication from the allegations here that these residents have
been or will be denied treatment.
Moreover, as noted earlier,
Graham has not been placed on MAP status.
Indeed, there are no factual allegations of an absolute
denial of treatment.
Graham alleges only that prison staff
regulate movement and conduct searches and other policy measures
for the orderly running and security of the EJSP facility as a
whole, which he feels affects his access to the treatment
sessions of his choice.
Graham does not allege that he has been
denied treatment altogether.
Further, Graham merely recites
legal conclusions in his complaint about being made to feel like
a “prisoner” rather than a civilly committed person rather than
allege any facts to support a claim that he has been denied
treatment.
Indeed, he seems mostly fixated on the idea of being
in a “prison setting” and does not allege any real disruption or
interference with his treatment, except through his own
contumacious conduct in being in a “prison setting.”
In short,
Graham asserts no new or different factual allegations in this
third Complaint that would support a claim that he has been
denied treatment or that his treatment is constitutionally
inadequate.
This Court likewise finds no substantive due process
violation at this time.
Substantive due process prevents the
45
government from engaging in conduct that “shocks the conscience,”
or interferes with rights “implicit in the concept of ordered
liberty.”
Glucksberg, 521 U.S. at 721.
Under this standard,
Defendants’ actions in denying Graham his statutory right to
treatment will be found unconstitutional under the Fourteenth
Amendment if they were so arbitrary or egregious as to shock the
conscience.
See Leamer, 288 F.3d at 546-47 (substantive due
process claim alleging inadequate treatment for committed sex
offender “must focus on the challenged abuse of power by
officials in denying [the plaintiff] the treatment regimen that
was statutorily mandated and was necessary in order for his
condition to improve, and thus for him to advance toward
release”).
Here, as demonstrated above, defendants have not
categorically declined to provide any mental health treatment to
Graham.
Thus, this Court cannot readily conclude that
Defendants’ actions were conscience-shocking and in violation of
Graham’s substantive due process rights.
Indeed, plaintiff’s
allegations, as set forth above, are merely conclusory and
factually unsubstantiated.
of treatment.
Graham has not shown any disruption
Instead, he simply objects to the manner and place
in which treatment and sessions are provided.
Thus, the Court concludes that treatment has not been denied
to Graham, as alleged because there is no demonstrated
interruption of adequate treatment that would rise to the level
of a constitutional due process deprivation as alleged.
46
Further,
this Court concludes that the allegations asserted in Graham’s
Complaints do not show such egregious conduct or disruption as to
render mental treatment at EJSP conscience-shockingly deficient.
Accordingly, Graham’s claim alleging inadequate treatment,
his third and essentially duplicative effort, will be dismissed
with prejudice for failure to state a cognizable claim of a
federal constitutional deprivation.
D.
Harassment Claim
Graham further complains that he has been verbally harassed
by correctional officers at EJSP on two occasions.
He states
that he was called a “homo” or “fag” and “gender of life” remarks
have been made in his presence.
He contends that the verbal
harassment has made him feel humiliated and “mentally degraded.”
These allegations also are repetitive of a similar claim asserted
in his second action, Civil No. 10-5027 (SRC).
Allegations of verbal abuse or threats, unaccompanied by
injury or damage, are not cognizable under § 1983, regardless of
whether the inmate is a pretrial detainee or sentenced prisoner.
See Jean-Laurent v. Wilkerson, 438 F. Supp.2d 318, 324-25
(S.D.N.Y. 2006)(pretrial detainee’s claim of verbal abuse not
cognizable under § 1983 because verbal intimidation did not rise
to the level of a constitutional violation); Ramirez v. Holmes,
921 F. Supp. 204, 210 (S.D.N.Y. 1996)(threats and verbal
harassment without physical injury or damage not cognizable in
claim filed by sentenced inmate under § 1983).
See also Price v.
Lighthart, 2010 WL 1741385 (W.D. Mich. Apr. 28, 2010); Glenn v.
47
Hayman, 2007 WL 894213, *10 (D.N.J. Mar. 21, 2007); Stepney v.
Gilliard, 2005 WL 3338370 (D.N.J. Dec. 8, 2005)(“[V]erbal
harassment and taunting is neither ‘sufficiently serious’ nor ‘an
unnecessary and wanton infliction of pain’ under the common
meaning of those terms. ‘Verbal harassment or profanity alone ...
no matter how inappropriate, unprofessional, or reprehensible it
might seem,’ does not constitute the violation of any federally
protected right and therefore is not actionable under [Section]
1983”) (quoting Aziz Zarif Shabazz v. Pico, 994 F. Supp. 460, 474
(S.D.N.Y. 1998), and citing Collins v. Graham, 377 F. Supp.2d
241, 244 (D.Me. 2005)).
See also Moore v. Morris, 116 Fed. Appx.
203, 205 (10th Cir. 2004)(mere verbal harassment does not give
rise to a constitutional violation, even if it is inexcusable and
offensive, it does not establish liability under section 1983),
cert. denied, 544 U.S. 925 (2005); Collins v. Cundy, 603 F.2d
825, 827 (10th Cir. 1979) (dismissing prisoner’s claim that
defendant laughed at prisoner and threatened to hang him);
Prisoners’ Legal Ass’n v. Roberson, 822 F. Supp. 185, 187-89
(D.N.J. 1993)); Abuhouran v. Acker, 2005 WL 1532496 (E.D. Pa.
June 29, 2005)(“It is well established ... that ... verbal
harassment, ... standing alone, do[es] not state a constitutional
claim”)(citing Dewalt v. Carter, 224 F.3d 607, 612 (7th Cir.
1999); Williams v. Bramer, 180 F.3d 699, 706 (5th Cir. 1999);
Maclean v. Secor, 876 F. Supp. 695, 698 (E.D.Pa. 1995)).
See
also Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987)
(holding that verbal harassment and abuse are not recoverable
48
under § 1983); Patton v. Przybylski, 822 F.2d 697, 700 (7th Cir.
1987)(holding that racially derogatory remarks, although
“unprofessional and inexcusable,” are not “a deprivation of
liberty within the meaning of the due process clause”).
Here, Graham does not allege an accompanying violation that
might allow the gender and homophobic slurs to state a separate
due process violation or equal protection claim.
At most, Graham
alleges that he was humiliated and made to feel like a prisoner.
These general allegations of “injury” are nothing more than the
mere recitation of a legal conclusion without factual allegations
sufficient at this time to support a claim that the defendants
were verbally harassing plaintiff as an intended form of
punishment.
Consequently, because the alleged verbal harassment
of Graham was not accompanied by any injurious actions - or
physical actions of any kind - by the correction officials,
Graham fails to state a cognizable § 1983 claim for a violation
of his Fourteenth Amendment due process or Fourteenth Amendment
equal protection rights, and his claim will be dismissed with
prejudice accordingly.
E.
Retaliation Claim
It would appear that Graham also may be asserting a claim of
retaliation against defendants for exercising his right to file
grievances.
Graham’s Complaint generally alleges that he was
placed on the South Unit because he complained and that he is
threatened with MAP status.
49
"Retaliation for the exercise of constitutionally protected
rights is itself a violation of rights secured by the
Constitution ... ."
Cir. 1990).
White v. Napoleon, 897 F.2d 103, 111-12 (3d
To prevail on a retaliation claim, plaintiff must
demonstrate that (1) he engaged in constitutionally-protected
activity; (2) he suffered, at the hands of a state actor, adverse
action “sufficient to deter a person of ordinary firmness from
exercising his [constitutional] rights;” and (3) the protected
activity was a substantial or motivating factor in the state
actor’s decision to take adverse action.
Rauser v. Horn, 241
F.3d 330, 333 (3d Cir. 2001) (quoting Allah v. Seiverling, 229
F.3d 220, 225 (3d Cir. 2000)).
See also Anderson v. Davila, 125
F.3d 148, 160 (3d Cir. 1997) (citing Mt. Healthy City Sch. Dist.
Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)); Thaddeus-X v.
Blatter, 175 F.3d 378, 386-99 (6th Cir. 1999), cited with
approval in Allah, 229 F.3d at 225.
This Court finds that the allegations of the Complaint and
plaintiff’s addendums are insufficient to state a claim of
retaliation.
Graham has not shown that he was engaging in a
constitutionally protected activity that was the substantial or
motivating factor in the defendants’ decision to take adverse
action.
The allegations of the Complaint also fail to show that
Graham has suffered adverse action sufficient to deter him from
exercising his constitutional rights.
He continues to file
grievances, as well as civil complaints in this Court, and he has
not yet been placed on MAP status because of this activity.
50
Moreover, by Graham’s own admission in his earlier filed action,
Civil No. 10-5027 (SRC), the alleged “threats” of MAP status have
been more consistently in response to Graham’s contumacious
refusal to comply with his treatment program at the EJSP-STU.
Rather, it is plain that Graham’s allegations are nothing more
than a recitation of “labels and conclusions” or the “formulaic
recitation of the elements of a cause of action” of retaliation,
which is not sufficient to support such a claim of constitutional
deprivation.
Iqbal, 129 S.Ct. at 1949.
He has shown no
correlation between his grievances and complaints filed and
purported adverse action.
Indeed, as noted above, Graham has not
yet been placed on MAP status, and his treatment restrictions are
based on his treatment refusals and not on any constitutionally
protected activity.
Therefore, Graham’s repetitive claim of
retaliation will be dismissed with prejudice for failure to state
a claim.
F.
Claim Against Public Advocacy Attorney
Graham also complains that his public advocacy attorney
prevented plaintiff from being released to an outpatient program
by stopping a staff psychologist to testify in court.
The staff
psychologist allegedly told Graham “off the record’ that Graham
“does not belong” at the EJSP-STU.
ethics grievance.
Graham filed an attorney
Graham raised this claim in an addendum to
this action as well as an addendum in his earlier filed action,
Civil No. 10-5027 (SRC).
It is yet another duplicative claim
asserted by Graham.
51
It appears that Graham may be asserting an ineffective
assistance of counsel claim, as well as seeking his release from
the EJSP-STU.
Graham’s potential ineffective assistance of
counsel claim against his assigned counsel is not actionable at
this time in a § 1983 action.
First, assigned counsel is not
subject to liability under § 1983 because the attorney is not a
state actor.
See Polk Co. v. Dodson, 454 U.S. 312, 325 (1981) (a
public defender performing a lawyer’s traditional functions as
counsel to a defendant, such as determining trial strategy and
whether to plead guilty, is not acting under color of state law);
Thomas v. Howard, 455 F.2d 228 (3d Cir. 1972) (court-appointed
pool attorney does not act under color of state law).
Even if
assigned counsel was a privately retained lawyer, counsel would
not be subject to liability under § 1983.
Steward v. Meeker, 459
F.2d 669 (3d Cir. 1972) (privately-retained counsel does not act
under color of state law when representing client).
Moreover, even if Graham had pleaded facts establishing that
his attorney was acting under color of state law, any claim
concerning a violation of plaintiff’s right to effective
assistance of counsel must first be raised in plaintiff’s ongoing
state civil commitment proceedings.
A federal court generally
will not intercede to consider issues that the plaintiff has an
opportunity to raise before the state court.
See Younger v.
Harris, 401 U.S. 37 (1971).
To the extent that Graham’s civil commitment proceedings are
no longer pending, and his continued civil commitment has been
52
adjudicated, which is not apparent from the Complaint and
numerous addendums, any claim of ineffective assistance of
counsel in this regard must first be exhausted via state court
remedies, i.e., by direct appeal or other available state court
review; and then, if appropriate, by filing a federal habeas
application, under 28 U.S.C. § 2254, to assert any violations of
federal constitutional or statutory law, namely, his claim of
ineffective assistance of counsel.
Preiser v. Rodriguez, 411
U.S. 475 (1973).
Therefore, plaintiff’s claim against counsel asserting any
liability under § 1983, if alleged, must be dismissed for failure
to state a claim at this time, pursuant to 28 U.S.C. §
1915A(b)(1).
V.
CONCLUSION
For the reasons set forth above, plaintiff’s Complaint will
be dismissed with prejudice, in its entirety as against all named
defendants, for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) and because the Complaint is duplicative and
repetitive of the claims asserted in plaintiff’s earlier-filed
action, Civil No. 10-5027 (SRC).
An appropriate order follows.
s/ Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge
53
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