DRISCO v. WILLIAMS et al

Filing 24

OPINION. Signed by Judge Kevin McNulty on 8/27/15. (DD, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Stanton DRISCO, Jr.,

Civ. No. 2:13-1144
(KM)(MAH)

Plaintiff,
V.

OPINION

Oliver WILLIAMS, Darrell Stewart,
Richard Fogarity, Paul Lagana, Norma
Morales, Lisa Schofield, Cindy Sweeney,
Jefferey Feebee, Amadu Jalloh, Charles
Jay Hughes, Gary M. Lanigan, Beverly
Hasting, Jane Doe, John Does 1—2,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
Stanton Drisco, Jr., brings this action against Defendants Oliver
Williams, Darrell Stewart, Richard Fogarity, Paul Lagana, Norma
Morales, Lisa Schofield,’ Cindy Sweeney, Jefferey Feebee, Amadu Jalloh,
Charles Jay Hughes, Gary M. Lanigan, Beverly Hasting, Jane Doe, and
John Does 1_2.2 The complaint (ECF No. 1) alleges violations of Drisco’s
constitutional rights in connection with disciplinary charges lodged
against him while he was incarcerated by the State of New Jersey. Now
3
before the Court is an unopposed motion to dismiss the complaint (ECF
The plaintiff has pled Lisa Schofield as Lisa “Scofield.” (See ECF No. 19)
It appears that Defendants Oliver Williams, Darrell Stewart, Richard
Fogarity, Jefferey Feebee, Amadu Jalloh, Charles Jay Hughes, Jane Doe, and
John Does 1—2 have not been served. (See ECF Nos. 7, 12) Therefore, I will
order Drisco to show cause why this Court should not dismiss the complaint
as against those defendants.
2

3

Drisco was released from prison on February 4, 2013. (Compi. ¶75)

1

No. 11), filed by defendants Lagana, Lanigan, and Sweeney. Defendants
Schofield, Morales, and Hasting join that motion (ECF No. 19).
For the reasons set forth below, the motion to dismiss the
complaint is GRANTED.
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BACKGROUND

I.

On or about February 22, 2011, Plaintiff Stanton Drisco, Jr. was
state prisoner, confined in a halfway house managed by the Kintock
Group in Newark, New Jersey (“Kintock House”). (Compl. ¶j2, 3, 19)
Drisco’s status was “full-minimum” and “residential community release.”
(Id. ¶52)
The following defendants are employees of Kintock group: Oliver
Williams, Senior Manager; Darrell Stewart, Counselor; Richard Fogarity,
Director; and John Doe, Assistant Director (identified as “H. Iwuala”). (Id.

¶f 3—6)

The following defendants are employees of the New Jersey

Department of Corrections: Paul Lagana, Administrator; Jane Doe,
Assistant Administrator (identified as “Arthur”); John Doe, Lieutenant
(identified as “Rodriguez”); Norma Morales, Disciplinary Hearing Officer;
Lisa Schofield, Administrator; Cindy Sweeney, Assistant Administrator;
Beverly Hasting, Administrator; Jefferey Feebee, Assistant
Superintendent; Amadu Jalloh, Assistant Administrator; Charles Jay
Hughes, Administrator; and Gary M. Lanigan, Commissioner. (Id. ¶[7—
17)
Drisco alleges that conditions at the Kintock House were
deplorable. He cites mice and rat infestations, mold, asbestos, exposed
electrical wires, mildew in the bathrooms, and clogged toilets. (Id. ¶21)
When it snowed or rained heavily, a leak in the roof caused ceiling tiles
and other fixtures to fall on the residents. (Id.) Drisco also complains of
The facts that follow are taken from the complaint. They are assumed to
be true solely for the purposes of the motion to dismiss.

2

resident-on--resident violence; the lack of phone service; the insufficient
security; and unresponsiveness to residents’ transfer requests or
complaints. (Id. ¶24)
Drisco alleges that Kintock House staff stole the residents’ personal
property. (Id.) In January 2011, for example, Williams searched Drisco’s
locker. Following the search, Drisco discovered that $25 was missing, so
he filed a written complaint against Williams. (Id. ¶23)
Drisco also complains of having to sign a waiver of liability before
being allowed to enter Kintock House. (Id. ¶25)
In February 2011, Drisco brought these complaints to Fogarity and
Iwuala. (Id.) Additionally, Drisco accused Kintock staff of sending
residents back to prison on unfounded charges a month or two after they
enter the facility. (Id. ¶26) Drisco alleges that this practice was designed
to increase the number of residents sent to Kintock House, which would
in turn increase the Kintock House’s revenue, since Kintock House
receives a tax credit for each resident sent there from prison. (Id.)
Fogarity said he would get back to Drisco about his complaints.
(Id. ¶27) Then, on or about February 22, 2011, Williams told Drisco
“since you enjoy filing complaints against staff, I’m going to send you
back to prison where you can write all the complaints you need.” (Id.
¶28) Williams then allegedly wrote two disciplinary reports, in which he
falsely accused Drisco of having a cell phone, in violation of House rules,
and refusing an order, in violation of N.J.A.C. 1OA:4—4. 1(a). (Id.) Drisco
accuses Fogarity and Iwuala of negligent supervision of Williams and
other subordinates who were involved with the allegedly false disciplinary
reports. (Id. ¶31) Drisco also accuses employees of the New Jersey
Department of Corrections—Lagana, Arthur, and Rodriguez—of violating
his constitutional rights by failing to train, supervise, or discipline the
Kintock Staff. (Id. ¶J32—34)

3

As a result of the disciplinary reports, Drisco was removed from
the community release program, sent back to prison, and denied parole.
(Id. ¶29) On February 23, 2011, Drisco was interviewed by a
“Disciplinary Sergeant” and informed that the disciplinary charges
against him would be adjudicated at Northern State Prison (“NSP”),
where Drisco would be assigned counsel. (Id. ¶35) That same day, Drisco
was transferred to the Central Receptions Assignment Facility (“CRAF”)
in West Trenton, New Jersey. (Id. ¶36)
The adjudication of the disciplinary charges actually took place at
CRAF before Morales, who is a Disciplinary Hearing Officer. (Id. ¶28)
Morales found Drisco guilty of both infractions. Throughout the hearing,
Drisco made requests for a polygraph test, to confront the witnesses
against him, and to postpone the proceedings so that he could confer
with his assigned counsel. (Id. ¶J39, 4 1—43) In response to each request,
Morales offered him a lower sentence: at first, sixty days of lost
commutation time; then forty-five days; and then merger of the two
infractions, followed by a referral “back to classification for status review
and return [Drisco] back to a half-way house.” (Id. ¶J4O, 42—43) At some
point, Morales handed the “guilty adjudication report” to Drisco’s
counsel. (Id. ¶44) Drisco’s counsel signed it and told Drisco to sign the
report as well. (Id.) Drisco’s counsel told Drisco he could file an
administrative appeal asserting due process issues. (Id.)
On or about February 25, 2011, Schofield, the Associate
Superintendent at CRAF, upheld the adjudication report. (Id. ¶46)
Drisco alleges that Morales violated his procedural due process
rights at the disciplinary hearing. (Compi. ¶49) Drisco seeks to hold
Schofield responsible in her “supervisory responsibilities.” (Id. ¶J50—5l)
On or about March 4, 2011, Drisco appeared before the CRAF
“classification committee.” (Id. ¶52) “(Als a result of the above guilty

4

findings,” that committee reclassified Drisco “from full-minimum and
residential community release status, to maximum and prison status.”
(Id. ¶52)

Drisco appealed the disciplinary adjudication to the Appellate
Division of the New Jersey Superior Court, which remanded the case. (Id.
¶M147, 54)
On March 11, 2011, Drisco was transferred to East Jersey State
Prison (“EJSP”) in Rahway, New Jersey. (Id. ¶j70, 13) On March 21,
2011, Drisco filed an administrative complaint with Lanigan,
Commissioner of the New Jersey Department of Corrections, for the
facility’s failure to “correct the flagrant procedural violations within the
adjudication reports.” (Id. ¶70) On October 31, 2011, Drisco was given a
hearing regarding the disciplinary charges on remand. (Id. ¶54) Drisco
was found not guilty of the disciplinary charges. (Id.) However, Drisco
alleges that Sweeney and Hasting, Administrators at EJSP, “refuse[d] to
remove the sanctions [previously] imposed.” (Id.) Thus, Drisco remained
in prison instead of being returned to the halfway house.
Drisco filed at least seven administrative grievances relating to his
incarceration. (Id. ¶J55—61, 63) In particular, Drisco asked that the
sanctions against him to be removed, that the facility rec1assiir him as
full-minimum and community release status, that he be returned to the
residential community release program, and that the facility reimburse
him for all wages and credits for the days of work he missed as a result
of disciplinary sanctions being imposed. (Id.)
Sweeney, Assistant Administrator at EJSP, answered the
grievances but did not grant the requested relief. (Id.) In response to at
least one such grievance, Sweeney said “you[’re] going to be for full
minimum on next classification meeting.” (Id. ¶57) On January 25, 2012,
Drisco was ordered to take an “exit photo,” and told that his status was

5

once again full-minimum and that he would be leaving the facility within
the following two days. (Id. ¶59) This transfer did not take place. Rather,
Sweeney informed Drisco that his case would be reviewed in June 2012.
(Id. ¶J59, 61)
Drisco also filed an administrative complaint with Hasting, another
administrator at EJSP. (Id. ¶63)
Drisco accuses Sweeney and Hasting of ignoring his grievances
and engaging “in strategies to circumvent the law and continue to impose
punitive sanctions” in retaliation for Drisco’s complaints. (Id. ¶62)
At some point, Drisco was transferred to the Southern State
Correctional Facility (“SSCF”) in Delmont, New Jersey. (Id. ¶{65—68, 14)
He accuses the administrators at SSCF—Feebee, Jalloh, and Hughes—of
violating the New Jersey Superior Court’s order by not restoring the
wages and credits he lost when the disciplinary charges against him were
first imposed. (Id. ¶67)
On or about April 25, 2012, Drisco filed a motion in New Jersey
Superior Court, seeking to have his wages and work credits restored. (Id.
¶71) On August 31, 2012, the Court ordered the Department of
Corrections to restore any wages and credits Drisco lost as the result of
the disciplinary sanctions’ being imposed. (Id. ¶72; see Order on Motion
August 31, 2012, Drisco v. Dep’t of Corr., Dkt No. A-004619-10T2, ECF
No. 1 at 13 (“N.J.S.C. Order Aug. 31, 2012”)) The New Jersey Superior
Court also ordered the Department of Corrections “to restore any wages
and credits lost as the result of the imposition of disciplinary sanctions
that have been vacated.” (N.J.S.C. Order Aug. 1, 2012)
Drisco alleges that his lost wages and credits were never restored.
(Compl. ¶J72—75)
Drisco was released from prison on February 4, 2013. (Id. ¶75)
Drisco alleges that he was supposed to be released on October 31, 2012,

6

but that he was held longer because of the disciplinary charges. (Id. ¶76)
This, he says, was a violation of Eighth and Fourteenth Amendments as
well as the New Jersey Constitution. (Id.)
Drisco accuses Lanigan, Hasting, and Hughes of failing to train the
Department of Corrections officials under their supervision and failing to
discipline the officials. (Id. ¶1178—82)
Drisco seeks monetary relief totaling $25 million. (Id. ¶85) Drisco
also asks for injunctive relief in the form of the Kintock Group and the
New Jersey Department of Corrections implementing new rules and
procedures and agreeing to implement a three-year “moratorium on
abuse of discretion,” and on requiring residents to sign a waiver of
liability upon entering the Kintock House. (Id. ¶1186—89 (titled
“Declaratory Relief”))
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a. Drisco’s claims
Against the Kintock Group employees, Drisco makes the following

claims:
1. Williams and Stewart* retaliated against Drisco for exercising his
First Amendment right to complain about the conditions at Kintock
Group. (Compl. ¶1118—31)
2. Fogarity* and John Doe 1* (“Assistant Director H. Iwuala”) acted
with deliberate indifference to Drisco’s rights by failing to improve
the conditions and policies at Kintock Group (Id. ¶1124—3 1)
Against the Northern State Prison (NSP) employees, Drisco makes
the following claims:
1. Lagana, Jane Doe* (“Assistant Administrator”), and John Doe*
(“Lieutenant”)
a. failed to remedy the constitutional violations of Kintock
Group employees (Id. ¶32) and
I mark with an asterisk those defendants who have not been identified,
or who have not been served. I do not separately address the claims against
them.

7

b. failed to enact “policies” to protect against constitutional
violations at Kintock Group. (Id. ¶33)
2. Lagana, Jane Doe* (“Assistant Administrator”), and John Doe*
(“Lieutenant”) failed to train, supervise, and discipline Kintock
Staff. (Id. ¶34)
Against the Central Receptions Assignment Facility (CRAF)
employees, Drisco makes the following claims:
1. Morales violated Drisco’s procedural due process rights during his
disciplinary charges hearing (Id. ¶j37—45, 47—49)
2. Schofield is responsible for the violations of Drisco’s procedural
due process rights because she upheld Morales’s decision “in the
course of her supervisory responsibilities.” (Id. ¶J46, 50—51)
Against the East Jersey State Prison (EJSP) employees, Drisco
makes the following claims:
Sweeney and Hasting acted with deliberate indifference to Drisco’s
rights by refusing to remove the disciplinary sanctions against
Drisco, reinstate Drisco’s full-minimum and community release
status, and restore his wages and credits (Id. ¶j53—64, Ex. 1)
Against the Southern State Correctional Facility (SSCF) employees,
Drisco makes the following claims:
Feebee*, Jalloh*, and Hughes* acted with deliberate indifference to
Drisco’s rights by refusing to remove the disciplinary sanctions
against Drisco, reinstate his full-minimum and community release
status, and restore his wages and credits (Id. ¶J65—68)
Against the New Jersey Department of Corrections (NJDOC)
employees, Drisco makes the following claims:
1. Lanigan
a. acted with deliberate indifference by failing to take action to
remedy the procedural violations of Drisco’s rights in his
disciplinary charge adjudication and failing to restore
Drisco’s wages and work credits (Id. ¶J69—75); and
b. violated the Eighth and Fourteenth Amendments by holding
Drisco beyond his original release date of October 31, 2012

8

(Id. ¶76)
2. Lanigan, Hasting, and Hughes*
a. failed to train, supervise, and discipline department officials
(Id. ¶f 78—83); and
b. had a policy or custom of violating constitutional rights (Id.
¶J82—83)
II.

STANDARD
Rule 12(b)(6) provides for the dismissal of a complaint, in whole or

in part, if it fails to state a claim upon which relief can be granted. The
defendant, as the moving party, bears the burden of showing that no
claim has been stated. Animal Science Products, Inc. v. China Minmetals
Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011). For the purposes of a
motion to dismiss, the facts alleged in the complaint are accepted as true
and all reasonable inferences are drawn in favor of the plaintiff. N.J.
Carpenters & the Trustees Thereof v. Tishman Const. Corp. of N.J., 760
F.3d 297, 302 (3d Cir. 2014).
Federal Rule of Procedure 8(a) does not require that a complaint
contain detailed factual allegations. Nevertheless, “a plaintiff’s obligation
to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Ati. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Thus, the complaint’s factual allegations must be sufficient to
raise a plaintiff’s right to relief above a speculative level, so that a claim
is “plausible on its face.” Id. at 570; see also Umland v. PLANCO Fin.
Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). That facial-plausibility
standard is met “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). While “[tihe plausibility standard is not akin
to a ‘probability requirement’.

.

.

it asks for more than a sheer
9

possibility.” Iqbal, 556 U.s. at 678.
Drisco is appearing pro Se. A pro se complaint is “to be liberally
construed,” and, “however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson
u. Pardus, 551 U.S. 89, 93-94 (2007).

JURISDICTION

III.

This Court exercises jurisdiction over this case pursuant to 28
U.S.C.

§ 1343(3) (deprivation of civil rights) and 28 U.S.C. § 1331 (federal

question jurisdiction).
IV.

DISCUSSION
Drisco has not filed any opposition to the motion to dismiss. It is

possible that he has abandoned this action in light of his release from
custody. I make no such assumption, however. Although it is unopposed,
the motion is not being granted without analysis of the merits as a
sanction for noncompliance (which would require analysis of the factors
under Poulis v. State Farm Fire Casualty Co., 747 F.2d 863 (3d Cir.
1984)). See HemancZez u. Palakovich, 293 F. App’x 890, 894 (3d Cir.
2008) (citing Stackhouse v. Mazurkiewicz, 951 F.2d 29 (3d Cir.1991)).
Rather, I have analyzed the allegations of the complaint, and have
determined that it fails to state a claim.
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 or the District of Columbia,
subjects, or causes to be subjected, any citizen
of the United States or other person within the
jurisdiction thereof to the deprivation of any

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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, except
that in any action brought against a judicial
officer for an act or omission taken in such
officer’s judicial capacity, injunctive relief shall
not be granted unless a declaratory decree was
violated or declaratory relief was unavailable.
Thus, to state a claim for relief under

§ 1983, a plaintiff must allege,

first, the violation of a right secured by the Constitution or laws of the
United States, and second, that the alleged deprivation was committed or
caused by a person acting under color of state law. See Harvey v. Plains
Twp. Police Dep’t, 635 F.3d 606, 609 (3d Cir. 2011) (citations omitted);
see also West v. Atkins, 487 U.S. 42, 48 (1988).
For clarity, I categorize Drisco’s claims thus: (a) claims against
Defendants in their official capacities; (b) claims for injunctive relief; (c)
due process claims; (d) respondeat superior claims; (e) claims based on
failure to take corrective action; (1) failure to train, supervise, and
discipline claims; (g) policy! custom claims; and (h) additional claims
against Lanigan. I analyze them in that order.
a. Claims against Defendants in their official capacities
First, I will dismiss Drisco’s claims for money damages against the
defendants in their official capacities. “The Eleventh Amendment bars a
suit for money damages against a state agency and state officials sued in
their official capacities.” Crosby v. Piazza, 465 F. App’x 168, 171 (3d Cir.
2012) (citing Melo v. Hafer, 912 F.2d 628, 635 (3d Cir. 1990)).
b. Requests for injunctive relief
Drisco’s claims for injunctive relief are moot, since he has been
released from prison. These claims will be dismissed.

11

:
6
Drisco seeks the following injunctive relief
(1) That the Kintock Group and New Jersey Department of
Corrections, implement and promulgate adequate training
programs for their Departmental Officials on constitutional
mandates of due process and equal protections of detainees in
such obvious needs. With rules, regulations and standards set
forth in a manual that all departmental officials within this
department must follow when dealing with inmates under their
custody and care.
(2) That the Kintock Group and New Jersey Department of Corrections
implement guidelines for disciplinary actions to be taken when
members of its department violate constitutional infirmities of
citizens. Along with a meaningful procedure for its inhabitants
complaints adhered to in a reasonable and fair manner. That is
taken serious by this department for the inmates to have a
meaningful and adequate forum for redress of their grievances with
the New Jersey Department of Corrections the same such
procedure when they are called to address same, providing proper
and professional attention to those that need it.
(3) [That there be] a three year moratorium on abuse of discretion,
inmate/residents signing waiver of liability form, created/condone
by the Kintock Group et al., and New Jersey Department of
Corrections et al.,.
(Compi.

¶ ¶86—88

(numbering added))

“It is axiomatic that the federal courts may not decide an issue
unless it presents a live case or controversy.” Abdul-Akbar v. Watson, 4
F.3d 195, 206 (3d Cir. 1993) (citing Ortho Pharmaceutical Corp. v. Amgen,
Inc., 882 F.2d 806, 810—11 (3d Cir. 1989) (quoting DeFunis v. Odegaard,
416 U.S. 312, 316 (1974)) (“Federal courts, having jurisdiction only to
decide actual cases and controversies, are ‘without the power to decide
questions that cannot affect the rights of litigants in the case before
them.’”)). For example, the Supreme Court in Weinstein v. Bradford, 423
U.S. 147 (1975), held that a prisoner’s full release from supervision
rendered moot his claim regarding the procedures followed by the parole
Although Drisco titles these as requests as “declaratory relief,” the relief
sought is better described as injunctive.

6

12

board in granting parole.
The exception to this doctrine is a case that is capable of
repetition, but evades review. This exception applies where “(1) the
challenged action was in its duration too short to be fully litigated prior
to its cessation or expiration, and (2) there [is] a reasonable likelihood
that the same complaining party would be subjected to the same action
again.” Abdul-Akbar, 4 F.3d at 206 (quoting Weinstein, 423 U.S. at 149).
In Abdul-Akbar, the Third Circuit held that a prisoner’s release from
confinement rendered moot his claim for injunctive relief relating to the
library and legal resources provided in prison. Specifically, the court held
that the exception to the mootness doctrine did not apply because (1) the
plaintiff did not assert that inmates were not confined “for a sufficient
length of time to fully litigate [such] a claim”; (2) the plaintiffs claim was
not part of a class action; (3) and, there is “no demonstrated probability
that [the plaintiff] will again be among the [prison inmate population].”
Id. at 206—07.

Drisco’s claims for injunctive relief are akin to the plaintiffs claims
in Abdul-Akbar. Drisco does not allege that prison sentences are too
short for prisoners to effectively litigate any of his claims, he does not
bring a putative class action, and there is no demonstrated probability
that he will again be incarcerated. Thus, his claims for injunctive relief
are moot and will be dismissed.
That leaves only Drisco’s claims for money damages against the
defendants in their individual capacities.
c. Due process claims
Drisco claims that Norma Morales, the disciplinary officer at

Drisco’s initial disciplinary charges hearing, violated his due process
rights. (Compi. ¶j37—45; 47—49) Specifically, Drisco claims that (1) he
was not allowed to confront witnesses despite his requests to do so; (2)

13

parts of the disciplinary proceeding were conducted in Spanish, a
language he does not understand; and (3) he was adjudicated guilty
based on insufficient evidence. (Id. ¶J41—44, 47) For the reasons stated
above, I analyze his claim solely as one for money damages.
Drisco alleges that as a result of these disciplinary charges’ first
being imposed, his status was increased from minimum custody (ruling
out a return to the halfway house), and that he could not earn work
credits. Because Drisco does not have a liberty interest in either
maintaining minimum custody status or the opportunity to earn future
work credits, his due process claims will be dismissed.
Drisco has no liberty interest in being granted a particular custody
status, such as minimum custody. Wilkinson v. Austin, 545 U.S. 209,
221(2005) (“We have held that the Constitution itself does not give rise
to a liberty interest in avoiding transfer to more adverse conditions of
confinement.”); Meachum v. Fano, 427 U.S. 215, 223—25 (1976). Although
“a liberty interest in avoiding particular conditions of confinement may
arise from state policies or regulations,” Wilkinson, 545 U.S. at 222, case
law confirms that Drisco has no liberty interest in being given minimum
custody per New Jersey law, either. Smith v. New Jersey Dep’t of Corr.,
786 A.2d 165, 168 (N.J. Super. Ct. App. Div. 2001) (finding that a
“residential restriction does not constitute ‘a significant hardship,’
triggering safeguards under the Due Process Clause.”); Moore v. Dep’t of
Corr., 761 A.2d 107, 109—10 (N.J. Super. Ct. App. Div. 2000) (holding

that “[t]here is no constitutionally protected interest in reduced custody
status,” such as minimum custody, because reverting to the regular
prison population does “not impose atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life.” (quotations
and citation omitted)). Thus, Drisco may not sustain a due process claim
based on the disciplinary proceedings’ effect on his custody status.

14

Drisco also has no federal or state—created interest in the
opportunity to earn work credits. See Rowe v. Fauver, 533 F. Supp.
7
1239, 1245 (D.N.J. 1982) (A prisoner has “no constitutionally protected
‘liberty’ interest in an opportunity to work or receive work credits while
incarcerated in the New Jersey prison system.”); Johnson v. Fauver, 559
F. Supp. 1287, 1290 (D.N.J. 1983) (“[I]nmates in general have no right to
an opportunity to work; that is, prisoners have no substantive federally
created right to work opportunities.” (internal citations omitted)); Bums
v. Taylor, No. CIV.A. 09-5370 JBS, 2010 WL 4669636, at *3 (D.N.J. Nov.
8, 2010) (citing Rowe).
Drisco’s due process claims will therefore be dismissed.
d. Vicarious liability claims
Drisco makes vicarious liability claims against (1) Lisa Schofield
(id. ¶1J46, 50—5 1) and (2) Gary M. Lanigan (id. ¶J78—80). These relate to
the alleged due process violations. To the extent that the primary claims
are not valid, the vicarious liability claims fall with them. But in addition,
any vicarious liability claims that rest on nothing but respondeat
superior, these claims must be dismissed.
Local government units and supervisors are not liable under

§

1983 on a theory of respondeat superior. See City of Oklahoma City v.
Tuttle, 471 U.S. 808, 824 n.8 (1985); Monell v. New York City Department
of Social Services, 436 U.S. 658, 690—91, 694 (1978) (municipal liability
attaches only “when execution of a government’s policy or custom,
whether made by its lawmakers or by those whose edicts or acts may

The initial disciplinary charge proceeding did not result in the loss of
work credits that Drisco had already accumulated up to that point. Rather,
Drisco’s complaint refers to the loss of the opportunity to earn future work
credits. (Compi. ¶J40—43 (exchange ending with Morales informing Drisco that
she “was not going to give Plaintiff any sanctions”); ¶58 (Drisco’s administrative
grievance requests “all Wages and Credits for days missed from work”
(emphasis added))).
15

fairly be said to represent official policy, inflicts the injury” complained
of); Natale v. Camden County Correctional Facility, 318 F.3d 575, 583—84
(3d Cir. 2003).
“A defendant in a civil rights action must have personal
involvement in the alleged wrongs, liability cannot be predicated solely on
the operation of respondeat superior.” Rode v. Dellarciprete, 845 F.2d
1195, 1207 (3d Cir. 1988) (citations omitted). “Personal involvement can
be shown through allegations of personal direction or of actual
knowledge and acquiescence.” Id. “Allegations of participation or actual
knowledge and acquiescence, however, must be made with appropriate
particularity.” Id. See also Baker v. Monroe Twp., 50 F.3d 1186, 1190—91
(3d Cir. 1995) (a plaintiff “must show that a policymaker for the
[municipality authorized policies that led to the violations or permitted
practices that were so permanent and well settled as to establish
acquiescence.” (citation omitted)).
Drisco does not make any allegation that defendants Schofield and
Lanigan were involved in, knew of, or acquiesced in, any alleged due
process violations in connection with the disciplinary hearing. Drisco’s
claims against Schofield and Lanigan will therefore be dismissed.
e. Failure to take corrective action

Drisco alleges that a number of officials were deliberately
indifferent to his constitutional rights and violated his due process rights
by failing to take corrective action. Specifically, Drisco accuses (1) Lagana
of failing to remedy, or to enact “policies” to remedy, the alleged
constitutional violations occurring at Kintock Group (Compi. ¶J32—33);
and (2) Lanigan, Sweeney, and Hasting of failing to take action to remedy
the alleged procedural violations that occurred during the disciplinary
charge adjudication (id. ¶j53—64, 69—75, 82—83). Drisco supports these

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claims with allegations that he filed numerous grievances informing
these defendants that his constitutional rights were being violated.
Claims that prison officials failed to take corrective action, like the
vicarious liability claims discussed above, still require personal
participation. “A defendant in a civil rights action must have personal
involvement in the alleged wrongs.” Rode v. Dellarciprete, 845 F.2d 1195,
1207 (3d Cir. 1988) (citations omitted). “The filing of grievances, alone, is
insufficient to show the actual knowledge necessary for personal
involvement.” Miller v. Trometter, No. 4:1 1-CV-81 1, 2012 WL 5933015, at
*13 (M.D. Pa. Nov. 27, 2012) (citing Rode, 845 F.2d at 1207). Thus,
“prison officials cannot be held liable based solely on their failure to take
corrective action when grievances or investigations were referred to
them.” Trometter, 2012 WL 5933015, at *13 (citing Pressley v. Beard, 266
F. App’x 216 (3d Cir. 2008) (per curiam); Hughes v. Smith, 237 F. App’x
756, 758 (3d Cir. 2007) (per curiam)) (other citations omitted); see also
Robinson v. Green, No. 12-12 12, 2012 WL 5401079, at *3 (E.D. Pa. Nov.
5, 2012); Mercado v. Ellis, No. 11-6756, 2012 WL 1636164, at *3 (D.N.J.
May 9, 2012) (“It appears that Plaintiff’s only claims against the named
defendants are based on their failure to investigate or respond to
Plaintiff’s letters and grievances. These claims fail to rise to the level of a
constitutional deprivation sufficient to state a claim under

§ 1983.

Indeed, an allegation of a failure to investigate, without another
recognizable constitutional right, is not sufficient to sustain a section
1983 claim.”) (internal quotation marks and citations omitted).
Thus, the complaint fails to state a viable claim against Lagana,
Lanigan, Sweeney, and Hasting based on the theory that they failed to
take corrective action against alleged constitutional violations of Drisco’s
rights. These claims will be dismissed.

f. Failure to train, supervise, discipline
Drisco claims that Lagana, Lanigan, and Hasting have failed to
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train, supervise, and discipline Kintock House officials and other
“department officials.” (Compl. ¶j33—34, 78—83) As to Drisco’s claims
relating to “other” Department of Corrections officials, he has not pled
his claim with the requisite specificity. Indeed, he does not allege who
these “other officials” are or what they have done.
The only individuals who appear to have allegedly committed
direct, affirmative acts against Drisco are the Kintock Group employees.
Lagana, Lanigan, and Hasting, however, are not employed by the Kintock
Group; they are not responsible for supervising Kintock employees.
Drisco therefore cannot maintain a cause of action against them for
failing to train, supervise, or discipline Kintock Group employees.
Drisco’s claims against Lagana, Lanigan, and Hasting for failure to train,
supervise, and discipline will be dismissed.
g. Policy and custom claims
The “policy and custom” claims will also be dismissed because
Drisco has not pled them with the requisite specificity. The complaint
alleges:
The actions stated herein to be unconstitutional implements
or executes a policy statement, ordinance, regulation or
decision officially adopted and promulgated by this body’s
departmental officials within the department of corrections.
The above Defendant’s have a history of widespread abuse of
discretion to supervisory and personnel prior misbehavior.
These Departmental Policy makers has implemented
practices, procedures, policies, rules, regulations, standards,
ordinances, customs and/or usages. That violate its
inhabitants constitutional rights which are so permanent
and well settled in the New Jersey Department of Corrections
as to constitute a “custom or usage” with force of law. Where
their deliberate indifference to constitutional mandates and
to properly or adequately train their departmental officials, is
the moving force behind the constitutional violations or torts.
(Compl. ¶1J81, 83; see also

¶f 78—80,

82 (vaguely referring to rights,

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retaliatory conduct, abuse of discretion, and “departmental officials”))
It is not sufficient, even at the motion to dismiss stage, to simply
allege that the defendant has violated the plaintiff’s rights. That is what
this complaint does. This claim does not specify whom Drisco accuses,
identify what policy or custom he refers to, or supply any other details.
Drisco’s policy and custom claims will be dismissed for failure to state a
claim.

h. Additional claims against Lanigan
The complaint alleges that Lanigan violated Drisco’s Eighth
Amendment right to be free from cruel and unusual punishment, his due
process rights, and his New Jersey constitutional rights, by holding
Drisco “beyond his release date of October 31, 2012.” (Compl. ¶76)
However, Drisco does not allege that Lanigan was personally responsible
for any of the alleged due process violations that allegedly resulted in an
extension of his release date. Drisco only alleges that Lanigan failed to
take corrective action and failed to train, supervise, and discipline other
officials. As explained above, those claims are not legally viable. Because
Drisco does not allege any other facts pertinent to his Eighth
Amendment, due process, and New Jersey constitutional rights claims
against Lanigan, these claims will be dismissed.

V.

CONCLUSION
For the foregoing reasons, the motion to dismiss is GRANTED.
Plaintiff’s claims against Defendants Paul Lagana, Gary M.

Lanigan, Cindy Sweeney, Lisa Schofield, Norma Morales, and Beverly
Hasting will be DISMISSED, WITHOUT PREJUDICE to the filing of an

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amended complaint that remedies the deficiencies identified above,
within 30 days.
Dated: August 27, 2015

A

-

F

(

Kevin McNulty
United States District Judge

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