GREGORIO v. AVILES et al
Filing
7
OPINION fld. Signed by Judge William J. Martini on 3/20/13. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROMULO GREGORIO,
Plaintiff,
v.
OSCAR AVILES, et al.,
Defendants.
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Civil No. 11-2771 (WJM)
OPINION
APPEARANCES:
ROMULO GREGORIO, #225363, Plaintiff Pro Se
Hudson County Correctional Center
35 Hackensack Avenue
Kearny, NJ 07032
MARTINI, District Judge:
Plaintiff, Romulo Gregorio, who is currently incarcerated at Hudson County Correctional
Center (“HCCC”) in Kearny, New Jersey, filed a Complaint asserting violation of his rights
under 42 U.S.C. §1983, arising from his incarceration. By Opinion and Order entered November
3, 2011, this Court dismissed the Complaint, pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A,
without prejudice to the filing of an amended complaint asserting a cognizable federal claim.
Gregorio thereafter filed an Amended Complaint and a Second Amended Complaint. This Court
has screened the Second Amended Complaint, as required by 28 U.S.C. §§ 1915(e)(2)(B) and
1915A, and will dismiss the pleading for failure to state a claim upon which relief may be
granted.
I. BACKGROUND
Romulo Gregorio’s initial Complaint was brought against Oscar Aviles ( Warden of
HCCC), Lt. T. Montelon (corrections officer), R. Day, and Marcie Dressler (ombudsman),
alleging violation of his constitutional rights under 42 U.S.C. § 1983, while he was incarcerated
at HCCC. Plaintiff asserted the following facts:
This is a civil action authorized by 42 U.S.C. 1983 against the
above defendants for unsanitary conditions, denial of religious
freedom, unconstitutional policies and actions, and state and
common law claims of emotional distress, all arising from
defendants actions during the following dates December 27, 2009
through August 10, 2010. defendants refusal to provide plaintiff
constitutional guarantees . . . .
Defendants had plaintiff in a unlawful confinement lockdown and
other unconstitutional prison policies, customs, practices and state
and common law claims.
These complaints and conditions have been grieved to all
defendants by plaintiff, with no response and are futile at this
prison level.
The tables, air vents in rooms are not in any type of human living
conditions, due to years of rust buildup.
All defendants have violated the due process rights of plaintiff by
engaging in illegal lockdown of the C 500 East Wing, which
plaintiff is being housed for pretrial detainee.
Defendants ha[ve] denied plaintiff the right to practice religious
freedom. The C-500-East tier is not allowed to attend any religious
services.
Defendants have violated plaintiff rights to receive outdoor
recreation as well as on wing recreation, since December 2009
through August 2010 . . . .
2
The hudson county jail was locking plaintiff in without due process
of law locking pretrial detainees in two man cells in excess of 22
hours a day 5 days a week and 32 hours 2 days a week.
Defendants disregard for human life and the rights of pretrial
detainees to practice the custom of religion without the interference
of a corporation. Plaintiff is thus entitled to exemplary and
punitive damages . . . .
Plaintiff is allowed one hour per week law library access on
Tuesday only if its room, 10 people can only access the library out
of 65 people once a week.
The court should find as a pretrial detainee charged with a ser[ious]
crime as (homicide) affects plaintiff ability to prepare defense and
a fair trial, to conduct legal research and have access to the courts.
The court can eas[ily] determine this claim is handwritten.
Defendants and they malicious abuse of process to unlawfully
lockdown plaintiff without due process, violate the constitutional
rights of plaintiff. Plaintiff has not violated any rules or
regulations of the facility . . .
All defendants named in action violated clearly constitutional
rights of plaintiff of which a reasonable person would have
know[n], and are not entitled to qualified immunity.
(Dkt. 1 at 7-11) (paragraph numbers omitted).
In an Opinion entered November 3, 2011, his Court construed the Complaint as
attempting to assert the following claims: (A) the conditions of confinement at HCCC inflicted
punishment without due process of law; (B) violation of the Free Exercise Clause of the First
Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”),
see 42 U.S.C. § 2000cc-1; and (C) denial of the First Amendment right of access to courts. This
Court dismissed the conditions of confinement claim because Plaintiff’s allegations did not
satisfy the objective component of the claim, the plausibility standard, or the subjective
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component of a conditions of confinement claim, under the Due Process Clause. (Dkt. 2 at 610.) This Court dismissed the Free Exercise and RLUIPA claims because Plaintiff’s allegations
did not show that Plaintiff made a request based on his own sincerely held religious belief, and
Plaintiff did not allege facts showing that any defendant denied him a reasonable opportunity to
pursue his faith. (Id. at 10-11.) This Court dismissed the First Amendment access to courts
claim because Plaintiff’s allegations did not show that he lost a chance to pursue a nonfrivolous
or arguable legal claim, and that he has no other remedy that may be awarded as recompense for
the lost claim other than in the present denial of access suit. Although this Court dismissed all
the federal claims presented by the Complaint and declined to exercise supplemental jurisdiction
over claims arising under state law, this Court granted Plaintiff leave to file an amended
complaint asserting a cognizable federal claim.
On November 23, 2011, Plaintiff filed a First Amended Complaint. (Dkt. 5.) On May 3,
2012, he filed a Second Amended Complaint. (Dkt. 6.) The Second Amended Complaint is 28
pages long and appears to be complete on its face; in the absence of a specific directive from
Plaintiff, this Court will presume that the Second Amended Complaint supercedes the First
Amended Complaint. Gregorio makes the following factual allegations:
At all times of the alleged inc[i]dents, and at all times pertinent hereto defendants
were personal[l]y involved with the violation of plaintiff[’]s civil rights [and]
acted under color of law of a statute ordinance regulation custom & usage.
Statement of Claim Facts
On September 4, 2009 plaintiff was brought to the Hudson County Correctional
Facility and after being held in administrative segregation for 30-days he was
classified and placed on C-5-East cellblock which is for high bail detainees.
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On January 1, 2010 the aforementioned defendants impl[e]mented their illegal
practices and policies by locking in plaintiff for 22-hours a day 5 days a week and
32 hours 2-days a week.
This illegal practice and policy impl[e]mented by the above aforementioned
defendants was atypical and significant hardship upon plaintiff which was
continued from Jan 1, 2010 thru October 2010 which plaintiff believes the policy
ceased due to 10-3562 (JLL) which was filed July 2010.
Defendants[’] acts w[ere] for the sole purpose of punishment of plaintiff due to
plaintiff did not violate any rules that would subject him to such lockin
experience. Secondly even when inc[i]dent[s] happened in other parts of the jail,
relating to people fighting or jumping someone they have never experienced or
placed in the type of situation of confinement I have suffered in my case there was
no legitim[ate] reason for me to have been subjected to such treatment and in my
case there was never a hearing given to me to plead my case or understand what
was happening to me.
Plaintiff was subjected to 22 hours lockin for more than 250 days continuously
during this period.
During this time[] period plaintiff was denied complete outdoor exercise and fresh
air recreation.
Plaintiff was subjected to this confinement to a two man room in a 12 X 8 cell
with another pretrial detainee in excess of 22 hours a day 5-days a week and 32
hours 2 days a week[.] Such violates common decency privacy personal secret
and safety of plaintiff a pretrial detainee not adjudicated guilty of any crime which
caused plaintiff to become depressed and frustrated which caused the
deteri[o]ration of my mental health and now require[s me] to take medication
twice a day which consist[s] of neurotine & see psychologist.
Plaintiff was not court ordered to this type of segregated confinement.
Plaintiff rec[ei]ved no misbehavior reports [or] discipl[i]nary infractions to
warrant punitive confinement.
Plaintiff rec[ei]ved no administrative or disciplinary hearing which gave
documentation as to why plaintiff was being subject to this type of unlawful
illegal confinement wh[ich] is atypical and severe hardship for more than 250
days.
Plaintiff did not provoke incident.
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All grievances filed relative to this issue were unanswered and all grievances filed
to ombudsman were futile.
As a direct and proximate result of the acts omissions of all the aforementioned
defendants plaintiff has suffered emotional distress and mental anguish as he
because under direct doctors care for stress due to the extended hours of
confinement which is unlawful to impose upon pretrial detainees[.] The plaintiff
has suffered mental anguish and was deprived of his due process rights under
Constitution . . . .
Plaintiff was harmed by preventing of access to law library to obtain
understanding of the charges against me and the right to be able to adequately in
the prep[a]ration of one[’]s defense.
(Dkt. 6 at 8-13) (paragraph numbers omitted).
II. STANDARD OF REVIEW
The Prison Litigation Reform Act (?PLRA”), Pub. L. No. 104-134, §§ 801-810, 110 Stat.
1321-66 to 1321-77 (April 26, 1996), requires a District Court to screen an amended complaint
in a civil action in which a plaintiff is proceeding in forma pauperis or a prisoner is seeking
redress against a government employee or entity, and to sua sponte dismiss any claim if the Court
determines that it is frivolous, malicious, fails to state a claim on which relief may be granted, or
seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §§
1915(e)(2)(B), 1915A.
To survive dismissal for failure to state a claim under Ashcroft v. Iqbal, 556 U.S. 662
(2009), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for
relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.' ” Iqbal, 556 U.S. at 678 (citation omitted). Officials may not be held liable
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under § 1983 for the unconstitutional misconduct of their subordinates. Id. at 677. Rather, the
facts set forth in the complaint must show that each defendant, through the person’s own
individual actions, has violated the plaintiff’s constitutional rights. Id. This Court must
disregard labels, conclusions, legal arguments, and naked assertions. Id. at 678-81. The
plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.
Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops
short of the line between possibility and plausibility of entitlement to relief,” and will be
dismissed. Id. at 678 (citations and internal quotation marks omitted); see also Santiago v.
Warminster Township, 629 F. 3d 121, 130 (3d Cir. 2010); Fowler v. UPMC Shadyside, 578 F.3d
203, 210-211 (3d Cir. 2009) (“a complaint must do more than allege the plaintiff's entitlement to
relief. A complaint has to “show” such an entitlement with its facts”) (emphasis supplied). The
Court is mindful, however, that the sufficiency of this pro se pleading must be construed liberally
in favor of the plaintiff, even after Iqbal. See Erickson v. Pardus, 551 U.S. 89 (2007).
III. DISCUSSION
This Court construes Plaintiff’s Complaint as attempting to assert the following claims:
(A) the conditions of confinement inflicted punishment without due process of law, and (B) lack
of law library access violated the First Amendment right of access to courts. Section 1983 of
Title 28 of the United States Code 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.
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42 U.S.C. § 1983.
A. Conditions of Confinement
In the Amended Complaint, Plaintiff alleges that he was confined at HCCC as a pretrial
detainee and that from January 1, 2010, through October 2010, jail officials confined him with
another inmate in an 8' X 12' cell for 22 hours a day for five days a week, and 16 hours a day for
two days a week, without outdoor recreation. This Court construes these allegations as an
attempt to state a conditions of confinement claim under the Due Process Clause of the
Fourteenth Amendment under the standard set forth in Bell v. Wolfish, 441 U.S. 520 (1979), i.e.,
whether the conditions of confinement amounted to punishment prior to an adjudication of guilt.
As the Supreme Court explained,
[I]f a particular condition or restriction of pretrial detention is
reasonably related to a legitimate governmental objective, it does
not, without more, amount to “punishment.” Conversely, if a
restriction or condition is not reasonably related to a legitimate
goal - if it is arbitrary or purposeless - a court permissibly may
infer that the purpose of the governmental action is punishment
that may not constitutionally be inflicted upon detainees qua
detainees.
Bell v. Wolfish, 441 U.S. at 539 (footnote and citation omitted).
The maintenance of security, internal order, and discipline are essential goals which at
times require “limitation or retraction of . . . retained constitutional rights.” Bell, 411 U.S. at
546. “Restraints that are reasonably related to the institution’s interest in maintaining jail
security do not, without more, constitute unconstitutional punishment, even if they are
discomforting and are restrictions that the detainee would not have experienced had he been
released while awaiting trial.” Id. at 540. “In assessing whether the conditions are reasonably
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related to the assigned purposes, [a court] must further inquire as to whether these conditions
cause [inmates] to endure [such] genuine privations and hardship over an extended period of
time, that the adverse conditions become excessive in relation to the purposes assigned to them.”
Hubbard v. Taylor, 399 F.3d at 159 (quoting Union County Jail Inmates v. DiBuono, 713 F.2d
984, 992 (3d Cir. 1983)).
The Third Circuit has “distilled the Supreme Court’s teachings in Bell into a two-part
test. We must ask, first, whether any legitimate purposes are served by these conditions, and
second, whether these conditions are rationally related to these purposes.” Hubbard v. Taylor,
538 F. 3d 229, 232 (3d Cir. 2008) (citation and internal quotation marks omitted). Moreover, the
Fourteenth Amendment standard of unconstitutional punishment, like the Eighth Amendment’s
cruel and unusual punishments standard, contains both an objective component and a subjective
component:
Unconstitutional punishment typically includes both objective and
subjective components. As the Supreme Court explained in
Wilson v. Seiter, 501 U.S. 294 . . . (1991), the objective component
requires an inquiry into whether “the deprivation [was] sufficiently
serious” and the subjective component asks whether “the officials
act[ed] with a sufficiently culpable state of mind[.]” Id. at 298 . . . .
The Supreme Court did not abandon this bipartite analysis in Bell,
but rather allowed for an inference of mens rea where the
restriction is arbitrary or purposeless, or where the restriction is
excessive, even if it would accomplish a legitimate governmental
objective.
Stevenson, 495 F. 3d at 68.
Objectively, under the Due Process Clause, as well as the Eighth Amendment, prison
officials must satisfy inmates’ “basic human needs - e.g., food, clothing, shelter, medical care,
and reasonable safety.” Helling v. McKinney, 509 U.S. 25, 32 (1993). To satisfy the objective
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component, an inmate must show that he was subjected to genuine privation and hardship over
an extended period of time. See Bell, 441 U.S. at 542 (confining pretrial detainees “in such a
manner as to cause them to endure genuine privations and hardship over an extended period of
time might raise serious questions under the Due Process Clause as to whether those conditions
amounted to punishment”); Hutto v. Finney, 437 U.S. 678, 686-87 (1978) (“the length of
confinement cannot be ignored in deciding whether the confinement meets constitutional
standards. A filthy, overcrowded cell and a diet of ‘grue’ might be tolerable for a few days and
intolerably cruel for weeks or months”).
In this Complaint, Plaintiff alleges that his unit was on lockdown for 10 months and,
during this time, detainees had no access to outdoor recreation and they were confined for 22
hours per day for five days each week (and 16 hours per day for two days each week), with two
persons in an 8' X 12' cell. Plaintiff does not clarify his opportunity for indoor exercise.
Plaintiff’s allegations do not satisfy the objective component because they do not show that
Plaintiff endured genuine privations and hardship over an extended period of time. See Fortune
v. Hamberger, 379 Fed. App’x 116, 122 (3d Cir. 2010) (“Even a minimal provision of time for
exercise and recreation may satisfy constitutional requirements”); Gattis v. Phelps, 344 Fed.
App’x 801, 805 (3d Cir. 2009) (“Gattis’ alleged harm - that his exercise was limited to three days
per week and that he was not guaranteed outdoor exercise at all times - was insufficiently serious
to implicate the Eighth Amendment”); Hubbard, 538 F. 3d at 235 (holding that triple celling of
pretrial detainees and use of floor mattresses did not violate Due Process because the inmates
“were not subjected to genuine privations and hardship over an extended period of time”);
Foreman v. Lowe, 261 Fed. App’x 401 (3d Cir. 2008) (immigration detainee’s confinement in
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maximum security did not violate due process); Peterkin v. Jeffes, 855 F.2d 1021, 1028029 (3d
Cir. 1988) (In considering an alleged deprivation of adequate exercise, courts must consider: (1)
the opportunity to be out of the cell; (2) the availability of recreation within the cell; (3) the size
of the cell; and (4) the duration of the confinement).
Nor do Gregorio’s allegations satisfy Iqbal’s plausibility standard with respect to the
objective component. He complains that the high bail pretrial detainee unit on which he was
housed was on lockdown for 10 months, during which time detainees had no outdoor recreation.
Although his allegations are consistent with a finding that the lockdown and denial of access to
outdoor recreation were arbitrary or even punitive, Plaintiff’s allegations are also consistent with
restrictions that constitute a rational response by jail officials to an incident or other factual
circumstances warranting a need for heightened security during this period.1 Plaintiff’s
allegations do not satisfy the objective component of a conditions of confinement claim under the
Due Process Clause of the Fourteenth Amendment. Id.
As to the subjective component, Plaintiff asserts that “defendants act[ion]s w[ere] for the
sole purpose of punishment of plaintiff due to plaintiff did not violate any rules.” (Dkt. 6 at 10.)
As this allegation is conclusory, and Gregorio does not substantiate his conclusion with facts,
Iqbal requires this Court do disregard this allegation.2 Moreover, Plaintiff’s non-
1
A court must recognize that “judgments regarding prison security ‘are peculiarly within
the province and professional expertise of corrections officials, and, in the absence of substantial
evidence in the record to indicate that the officials have exaggerated their response to these
considerations, courts should ordinarily defer to their expert judgment in such matters.’” Turner
v. Safley, 482 U.S. 78, 86 (1987) (quoting Pell v. Procunier, 417 U.S. 817, 827 (1974)).
2
“[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.
(continued...)
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conclusory allegations do not satisfy the subjective component of a conditions of confinement
claim under the Due Process Clause. First, an individual defendant in a civil rights action must
participate in the alleged wrongdoing and, aside from the conclusory allegation that “defendants
were personal[l]y involved with the violation of plaintiff[’]s civil rights (Dkt. 6 at 8), Gregorio
does not assert facts supporting the conclusion that each (or any) named defendant participated in
the alleged wrongdoing, i.e., arbitrarily placing detainees on lockdown and arbitrarily denying
outdoor recreation for 10 months. See Iqbal, 556 U.S. at 676 (“Because vicarious liability is
inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution”); Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (“A defendant in a civil rights action must
have personal involvement in the alleged wrongs”). Second, Gregorio does not assert facts
showing that each named individual defendant was deliberately indifferent to his health or safety.
To establish deliberate indifference, a plaintiff must set forth facts “show[ing] that the official
was subjectively aware” of the allegedly substandard conditions. See Farmer v. Brennan, 511
U.S. 825, 829 (1994). Moreover, “prison officials who actually knew of a substantial risk to
inmate health or safety may be found free from liability if they responded reasonably to the risk,
even if the harm ultimately was not averted.” Id. at 844.
2
(...continued)
While legal conclusions can provide the framework of a complaint, they must be supported by
factual allegations . . . . Iqbal, 556 U.S. at 679. For example, in Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), the Court held that the plaintiffs’ assertion that the defendants had entered
into a conspiracy to prevent competition was a “legal conclusion” that was “not entitled to the
assumption of truth. Had the Court simply credited the allegation of a conspiracy, the plaintiffs
would have stated a claim for relief and been entitled to proceed perforce.” Iqbal, 556 U.S. at
680 (citation omitted).
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In addition, Plaintiff’s allegations do not satisfy Iqbal’s plausibility standard with respect
to the subjective component, since the allegations are consistent with the conclusion that
defendants reasonably responded to a security concern. See n.1. Because the Second Amended
Complaint makes no non-conclusory factual allegations showing the deliberate indifference of
each named defendant, and because vicarious liability does not apply under § 1983, the Second
Amended Complaint fails to cure the defects found in the Complaint. As this is Plaintiff’s
second opportunity to assert non-conclusory allegations, leave to amend another time would be
futile.
B. Access to Courts
Under the First and Fourteenth Amendments, prisoners retain a right of access to the
courts, but that right does not include a freestanding right to a minimum amount of time in a law
library. See Lewis v. Casey, 518 U.S. 343, 346 (1996); Monroe v. Beard, 536 F. 3d 198, 205 (3d
Cir.), cert. denied, Stover v. Beard, 129 S. Ct. 1647 (2008). “Where prisoners assert that
defendants’ actions have inhibited their opportunity to present a past legal claim, they must show
(1) that they suffered an ‘actual injury’ - that they lost a chance to pursue a ‘nonfrivolous’ or
‘arguable’ underlying claim; and (2) that they have no other ‘remedy’ that may be awarded as
recompense’ for the lost claim other than in the present denial of access suit.” Monroe at 205
(quoting Christopher v. Harbury, 536 U.S. 403, 415 (2002)). To establish standing, “[t]he
complaint must describe the underlying arguable claim well enough to show that it is ‘more than
mere hope,’ and it must describe the ‘lost remedy.’” Monroe at 205-206 (quoting Christopher at
416-17).
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The sole reference in the Second Amended Complaint to a First Amendment access to
courts claim is this sentence: “Plaintiff was harmed by preventing of access to law library to
obtain understanding of the charges against me and the right to be able to adequately in the
prep[a]ration of one[’]s defense.” (Dkt. 6 at 13.) Gregorio provides no facts showing that the
denial of access to a law library caused actual injury to his pursuit of a non-frivolous legal claim
(and, in any event, this would be difficult to show in a criminal proceeding where the state
provides counsel for defendants). Nor does he describe the “‘lost remedy.’” Monroe at 205-206
(quoting Christopher at 416-17). Accordingly, this Court will dismiss the access to courts claim
for failure to state a claim upon which relief may be granted. As this is Gregorio’s second
opportunity to assert non-conclusory allegations, leave to amend another time would be futile.
C. Supplemental Jurisdiction
"Supplemental jurisdiction allows federal courts to hear and decide state-law claims along
with federal-law claims when they are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy." Wisconsin Dept. of
Corrections v. Schacht, 524 U.S. 381, 387 (1998) (citation and internal quotation marks omitted).
Where a district court has original jurisdiction pursuant to 28 U.S.C. § 1331 over federal claims
and supplemental jurisdiction over state claims pursuant to 28 U.S.C. § 1367(a), the district court
has discretion to decline to exercise supplemental jurisdiction if it has dismissed all claims over
which it has original jurisdiction. 28 U.S.C. § 1367(c)(3); Growth Horizons, Inc. v. Delaware
County, Pennsylvania, 983 F.2d 1277, 1284-1285 (3d Cir. 1993). In exercising its discretion,
?the district court should take into account generally accepted principles of
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