FERGUSON v. ISABELLA et al

Filing 10

OPINION. Signed by Judge Dickinson R. Debevoise on 1/21/14. (gmd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RAYMOND FERGUSON,
Plaintiff,
v.
JOSEPH ISABELLA, et al.,
Defendants.

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Civil Action No. 12-2662(DRD)
OPINION

APPEARANCES:
Raymond Ferguson
Southern State Correctional Facility
4295 Rt. 47
Delmont, NJ 08314
Plaintiff pro se
DEBEVOISE, Senior District Judge
Plaintiff Raymond Ferguson, a prisoner confined at Southern
State Correctional Facility in Delmont, New Jersey, seeks to
bring this action in forma pauperis pursuant to 42 U.S.C. § 1983,
alleging violations of his constitutional rights.
At this time, the Court must review the Complaint to
determine whether it 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.
I.

BACKGROUND

This matter was originally opened to the Court by
Plaintiff’s submission of a Complaint [1] challenging the length
of his sentence and the conduct of the prosecutor at his
criminal trial.

He named as Defendants Judge Joseph V.

Isabella, prosecutor Christopher J. Ruzich, the Essex County
Correctional Facility, the Central Reception and Assignment
Facility, Bayside State Prison, and an unnamed Superior Court
Clerk.

By Memorandum and Order [2] entered October 14, 2012,

this Court denied Plaintiff’s application for leave to proceed
in forma pauperis and administratively terminated this action.
Thereafter, Plaintiff applied to re-open this matter, and
submitted a new application for leave to proceed in forma
pauperis1 and an Amended Complaint [4].
In the Amended Complaint, including later supplements,
Plaintiff names as Defendants only the New Jersey State Parole
Board and the Classification department of Southern State
Correctional Facility.2

Although the pleading is rambling, it

1

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

As none of the Defendants named in the original Complaint are
named as Defendants in the Amended Complaint, all claims against
2

appears that Plaintiff is challenging his classification and
override, as a result of which he was denied “full minimum”
status, on the basis that prison and parole officials have
obtained inaccurate information regarding his criminal history.3
He seeks injunctive relief in the form of help to obtain
accurate copies of his judgments of conviction.
II.

STANDARDS FOR A SUA SPONTE DISMISSAL

Per the Prison Litigation Reform Act, Pub. L. No. 104-134,
§§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996)
(“PLRA”), district courts must review complaints in those civil
actions in which a prisoner is proceeding in forma pauperis, see
28 U.S.C. § 1915(e)(2)(B), seeks redress against a governmental
employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim
with respect to prison conditions, see 42 U.S.C. § 1997e.

The

them will be dismissed. See, e.g., West Run Student Housing
Associates, LLC v. Huntington National Bank, No. 12-2430, 2013
WL 1338986, *5 (3d Cir. April 4, 2013) (collecting cases)
(“[T]he amended complaint ‘supersedes the original and renders
it of no legal effect, unless the amended complaint specifically
refers to or adopts the earlier pleading.’” (citation omitted));
6 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1476 (3d ed. 2008).
3

The classification system is set forth in the New Jersey
Administrative Code and “includes an objective scoring system
for determining the appropriate level of custody for an inmate,
as well as a series of overrides to the objective classification
system for application in prescribed circumstances.” Hampton v.
Dept. of Corrections, 336 N.J. Super. 520, 525 (N.J. Super. App.
Div. 2001) (citing N.J.A.C. 10A:9-1.1 to -8.12). The E-2
override to which Plaintiff objects imposes “medium” custody
status to prisoners due to certain sexual offense convictions.
See N.J.A.C. 10A-9-2.14.
3

PLRA directs district courts to sua sponte dismiss any claim
that is frivolous, is 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.

This action is

subject to sua sponte screening for dismissal under all of the
aforementioned provisions.
According to the Supreme Court’s decision in Ashcroft v.
Iqbal, “a pleading that offers ‘labels or conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will
not do.’”

556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 555 (2007)).

To survive sua sponte

screening for failure to state a claim4, the complaint must
allege “sufficient factual matter” to show that the claim is
facially plausible.

Fowler v. UPMS Shadyside, 578 F.3d 203, 210

(3d Cir. 2009) (citation omitted).

“‘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.’”

Belmont v. MB

Inv. Partners, Inc., 708 F.3d 470, 483 n.17 (3d Cir. 2012)
4

“The legal standard for dismissing a complaint for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the
same as that for dismissing a complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x
120, 122 (3d Cir. 2012) (citing Allah v. Seiverling, 229 F.3d
220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App’x 230,
232 (3d Cir. 2012) (discussing 28 U.S.C. § 1997e(c)(1));
Courteau v. United States, 287 F. App’x 159, 162 (3d Cir. 2008)
(discussing 28 U.S.C. § 1915A(b)).
4

(quoting Iqbal, 556 U.S. at 678).

Moreover, while pro se

pleadings are liberally construed, “pro se litigants still must
allege sufficient facts in their complaints to support a claim.”
Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013)
(citation omitted) (emphasis added).
Where a complaint can be remedied by an amendment, a
district court may not dismiss the complaint with prejudice, but
must permit the amendment.

Denton v. Hernandez, 504 U.S. 25, 34

(1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d
Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)), cited
in Thomaston v. Meyer, No. 12-4563, 2013 WL 2420891, *2 n.1 (3d
Cir. June 5, 2013); Shane v. Fauver, 213 F.3d 113, 116-17 (3d
Cir. 2000) (dismissal pursuant to 42 U.S.C. § 1997e(c)(1));
Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 453 (3d
Cir. 1996).
III.

SECTION 1983 ACTIONS

A plaintiff may have a cause of action under 42 U.S.C.
§ 1983 for certain violations of his constitutional rights.
Section 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory ... subjects, or causes to be subjected,
any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress ... .
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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); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
IV.
A.

ANALYSIS

Eleventh Amendment
The Eleventh Amendment to the U.S. Constitution provides

that, “The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by citizens of
another State, or by Citizens or Subjects of any Foreign State.”
As a general proposition, a suit by private parties seeking
to impose a liability which must be paid from public funds in a
state treasury is barred from federal court by the Eleventh
Amendment, unless Eleventh Amendment immunity is waived by the
state itself or by federal statute. See, e.g., Edelman v.
Jordan, 415 U.S. 651, 663 (1974). The Eleventh Amendment
protects states and their agencies and departments from suit in
federal court regardless of the type of relief sought. Pennhurst
State School and Hospital v. Halderman, 465 U.S. 89, 100 (1984).
Section 1983 does not override a state’s Eleventh Amendment

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immunity. Quern v. Jordan, 440 U.S. 332 (1979). See also Hurst
v. City of Rehoboth Beach, 288 F.App’x 20, 24-25 (3d Cir. 2008)
(citing Edelman, Pennhurst, and Quern).
To determine whether Eleventh Amendment immunity applies to
a state agency, a court must consider three factors: (1) the
source of the agency’s funding, i.e., whether payment of any
judgment would come from the state’s treasury, (2) the status of
the agency under state law, and (3) the degree of autonomy from
state regulation. See Flitchik v. New Jersey Transit Rail
Operations, 873 F.2d 655, 659 (3d Cir.) (en banc), cert. denied,
493 U.S. 850 (1989).
Courts in this District have consistently found that the
New Jersey State Parole Board is a state agency entitled to
Eleventh Amendment immunity from suit in federal court.

See,

e.g., Graves v. N.J. State Parole Board, Civil No. 11-7563, 2012
WL 2878074 (D.N.J. July 12, 2012); Dastas v. Ross, Civil No. 114062, 2012 WL 665630 (D.N.J. Feb. 29, 2012); McCargo v. Hall,
Civil No. 11-0533, 2011 WL 6725613 (D.N.J. Dec. 20, 2011); Davis
v. New Jersey Dept. of Corrections, Civil No. 10-6007, 2010 WL
4878748 (D.N.J. Nov. 23, 2010).

See also Goodman v. McVey, 428

F.App’x 125 (3d Cir. 2011) (Pennsylvania Board of Probation and
Parole is a state agency entitled to Eleventh Amendment
immunity).

Similarly, courts in this District have uniformly

held that New Jersey state prison facilities are arms of the
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state entitled to Eleventh Amendment immunity.

See, e.g., Love

v. Dept. of Corrections, Civil No. 13-1050, 2014 WL 46776
(D.N.J. Jan. 6, 2014); Jones v. Central Reception and Assignment
Facility, Civil No. 12-0041, 2013 WL 4588775 (D.N.J. Aug. 27,
2013); Cipolla v. Hayman, Civil No. 10-0889, 2013 WL 1288166, *5
(D.N.J. March 26, 2013).

Accordingly, the Amended Complaint

must be dismissed without prejudice for lack of jurisdiction.
B.

The Classification Claim
In the alternative, to the extent this Court can exercise

jurisdiction over this claim, it is meritless.
A liberty interest protected by the Due Process Clause of
the Fourteenth Amendment may arise from either of two sources:
the Due Process Clause itself or State law.

See Hewitt v.

Helms, 459 U.S. 460, 466 (1983); Asquith v. Department of
Corrections, 186 F.3d 407, 409 (3d Cir. 1999).

With respect to

convicted and sentenced prisoners, “[a]s long as the conditions
or degree of confinement to which the prisoner is subjected is
within the sentence imposed upon him and is not otherwise
violative of the Constitution, the Due Process Clause does not
in itself subject an inmate’s treatment by prison authorities to
judicial oversight.”

Montanye v. Haymes, 427 U.S. 236, 242

(1976), quoted in Hewitt, 459 U.S. at 468 and Sandin v. Conner,
515 U.S. 472, 480 (1995).

States may confer on prisoners

liberty interests that are protected by the Due Process Clause,
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“[b]ut these interests will be generally limited to freedom from
restraint which, while not exceeding the sentence in such an
unexpected manner as to give rise to protection by the Due
Process Clause of its own force, nonetheless imposes atypical
and significant hardship on the inmate in relation to the
ordinary incidents of prison life.”

Sanding, 515 U.S. at 484.

The Supreme Court has noted that, “[i]n Sandin’s wake the
Courts of Appeals have not reached consistent conclusions for
identifying the baseline from which to measure what is atypical
and significant in any particular prison system.”

Wilkinson v.

Austin, 545 U.S. 209, 223 (2005) (finding confinement in Ohio’s
“supermax” prison to be an “atypical and significant” hardship).
It is well established, however, that a prisoner possesses no
liberty interest arising from the Due Process Clause in a
particular custody level or place of confinement.

See, e.g.,

Olim v. Wakinekona, 461 U.S. 238, 245-46 (1983); Hewitt, 459
U.S. at 466-67; Meachum v. Fano, 427 U.S. 215, 224-25 (1976);
Montanye, 427 U.S. at 242.

See also Green v. Williamson, 241

F.App’x 820, 821 (3d Cir. 2007) (citing Sandin, Olim, Meachum,
and Montanye).

Similarly, nothing in the New Jersey

Administrative Code confers on prisoners a liberty interest in a
particular custody level.

Rather, the provisions of the

Administrative Code are directory in nature, setting forth the
responsibilities of government officials.
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Cf. Wesson v.

Atlantic Co. Justice Facility, Civil No. 08-3204, 2008 WL
5062028, *6 D.N.J. Nov. 26, 2008) (holding that state statutes
regarding place of confinement for prisoners sentenced to term
of confinement of less than one year do not create a liberty
interest).

Finally, Plaintiff has alleged no facts suggesting

that the E-2 override has subjected him to “atypical and
significant” hardship.

Accordingly, Plaintiff has failed to

state a claim for a due process deprivation arising out of his
classification.
V.

CONCLUSION

For the reasons set forth above, the Complaint will be
dismissed without prejudice for lack of jurisdiction or, in the
alternative, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1) and 42 U.S.C. § 1997e(c), for failure to state a
claim.

Plaintiff cannot cure the jurisdictional defect by

amendment.

An appropriate order follows.

/s/ Dickinson R. Debevoise
Dickinson R. Debevoise
United States Senior District Judge
Dated:

January 21, 2014

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