BOSS v. LANIGAN et al

Filing 5

OPINION. Signed by Judge Jose L. Linares on 10/10/2013. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LAWRENCE BOSS,
Plaintiff,
v.
GARY LANIGAN, et al.,
Defendants.

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OPINION
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APPEARANCES:
LAWRENCE BOSS, Plaintiff pro se
#220
East Jersey State Prison – Special Treatment Unit
8 Production Way, CN-905
Avenel, New Jersey 07001
LINARES, District Judge
Plaintiff, Lawrence Boss, 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) and order the Clerk of
the Court to file the Complaint.
At this time, the Court must review the Complaint, pursuant
to 28 U.S.C. § 1915(e)(2)(B), 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.
For the reasons set forth below, the Court concludes that the
Complaint should be dismissed for failure to state a claim upon
which relief may be granted.
I.

BACKGROUND

Plaintiff, Lawrence Boss (“Plaintiff”), brings this civil
action, pursuant to 42 U.S.C. § 1983, against the following
defendants:

Gary Lanigan, Commissioner of the New Jersey

Department of Corrections (“NJDOC”); Merril Main, Clinical
Director of the East Jersey State Prison–Special Treatment Unit
(“EJSP-STU”); Steve Johnson, Assistant Superintendent of EJSPSTU; and Angel Santiago, Superintendent at the EJSP-STU.
(Docket # 1, Complaint, Caption, and ¶¶ 4b, 4c.)

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.
Plaintiff alleges that, on March 8, 2013, a memorandum
dated March 7, 20131 was posted informing residents at the EJSPSTU that electronic cigarettes were not permitted.

Prior to

that date, Defendant Johnson had informed the residents that,
Plaintiff attached unnumbered exhibits to his Complaint, which
included the March 7, 2013 memorandum/interoffice communication.
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effective January 1, 2013, electronic cigarettes could not be
ordered or received.

The March 7, 2013 memo stated that all

tobacco products and related paraphernalia were considered
contraband, and that residents were permitted only nicotine
lozenges to be obtained from the inmate canteen or commissary.
(Dkt. # 1-3.)
Plaintiff also alleges that a memorandum issued on May 16,
2012, prohibited food packages to be received by residents from
family members via drop off or by mail.

The Memorandum,

attached as an unnumbered exhibit to Plaintiff’s Complaint,
stated that residents were allowed to receive food packages from
“Source of Sale Vendors Only.”

(Dkt. # 1-3.)

Plaintiff claims that these restrictions on property
violate their rights as civilly committed persons, who are not
to be treated as prisoners.

(Id.)

Plaintiff seeks unspecified

monetary compensation for “mental anguish and stress” caused by
Defendants’ policies.

Plaintiff also asks for injunctive

relief, namely, to permit residents to receive electronic
cigarettes, and to have an investigation as to why residents are
treated like “problem prisoners.”

(Id.)

On April 1, 2013, Plaintiff submitted an “addendum” to his
Complaint.

(Dkt. # 2.)

Plaintiff alleges that residents have

filed grievances regarding the no tobacco product and
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paraphernalia policy.

He attaches grievances submitted by

another resident, which were returned to that resident informing
that the tobacco-free policy remains in effect and suggesting
that electronic cigarettes be returned for a refund.

Plaintiff

further alleges that some residents have started smoking tea
bags, leaves, dry grass, etc., because of the no-tobacco policy.
(Id.)
On April 30, 2013, Plaintiff filed an amended Complaint
seeking to add Jihad Williamson, Thaddeus Thomas and Donnell
Wolfe, as new Plaintiffs.

These individuals did not submit any

filing fee or application to proceed in forma pauperis.
Accordingly, they are not party Plaintiffs in this action.

The

amended Complaint also seeks to add Bruce Davis and Lieutenant
J. Jones as Defendants in the case.

Davis is an Assistant

Superintendent at the EJSP-STU, and Lt. Jones is a second shift
Command officer at the EJSP-STU.

The amended Complaint alleges

that these Defendants told residents at a community meeting on
April 25, 2013, that they had to abide by prison policy
regarding tobacco-free issues and the food package limitations.
(Dkt. # 3.)

Plaintiff complains they are being treated as

prisoners, not civilly-committed persons.

(Id.)

On June 5, 2013, Plaintiff filed another “addendum” to his
Complaint.

The “addendum” alleges that, on June 3, 2013,
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residents were given a new rule book for the EJSP-STU, which
Plaintiff attaches as an exhibit to the “addendum.”

Plaintiff

alleges that the rule book allows residents to smoke and receive
food packages.
II.

(Dkt. # 4.)
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 or
seeks redress against a governmental employee or entity.
Specifically, the 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.
See 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b).
Accordingly, because Plaintiff 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).
“The legal standard for dismissing a complaint for failure
to state a claim under [the PLRA] is the same as that for
dismissing a complaint pursuant to a motion filed under Rule
12(b)(6) of the Federal Rules of Civil Procedure.”

Aruanno v.

Green, --- F. App’x ---, 2013 WL 2350169, *2 (3d Cir. 2013)
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(discussing 28 U.S.C. § 1915(e)(2)(B)); Courteau v. United
States, 287 F. App’x 159, 162 (3d Cir. 2008) (28 U.S.C. §
1915A(b)).

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)).

Rather, to prevent summary dismissal, 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).

Moreover, while pro se

pleadings are liberally construed, Higgs v. Atty. Gen., 655 F.3d
333, 339 (3d Cir. 2011), “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).

Nonetheless, courts must be cognizant that

the Iqbal standard “is not akin to a probability requirement.”
Covington v. Int’l Ass’n of Approved Basketball Officials, 710
F.3d 114, 118 (3d Cir. 2013) (quoting Iqbal, 556 U.S. at 678)
(internal quotation marks omitted).

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III.

SECTION 1983 ACTIONS

Plaintiff 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); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
IV.
A.

DISCUSSION

Denial of Electronic Cigarettes
Plaintiff appears to claim that denial of electronic

cigarettes and tobacco products in the EJSP-STU is an
infringement on his rights as a civilly-committed person, in
violation of his Fourteenth Amendment right to due process.
Youngberg v. Romeo, 457 U.S. 307, 324–325 (1982) (concluding
that an involuntarily committed patient is confined for
treatment rather than for the purpose of punishment after
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See

conviction and thus, has substantive due process rights under
the Fourteenth Amendment and the Eighth Amendment does not
apply); Artis v. McCann, Civil No. 11-3613 (WJM), 2013 WL
2481251, *3 (D.N.J. Jun. 10, 2013).

This Court construes

Plaintiff’s allegation regarding the restriction on e-cigarettes
as a claim of unconstitutional punishment of Plaintiff in
violation of the Fourteenth Amendment.
The Due Process Clause of the Fourteenth Amendment
prohibits punishment of a non-convicted person such as
Plaintiff.

See Bell v. Wolfish, 441 U.S. 520, 535 (1979).

The

Supreme Court explained that the Fourteenth Amendment standard
of unconstitutional punishment applies an objective
reasonableness test,
[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, 441 U.S. at 539 (footnote and citation omitted).
This standard, like the Eighth Amendment’s cruel and
unusual punishment standard, contains both an objective
component and a subjective component:

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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 v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007); see also
Bistrain v. Levi, 696 F.3d 352, 372-73 (3d Cir. 2012).
The Supreme Court noted that 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 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
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purposes assigned to them.”

Hubbard v. Taylor, 399 F.3d 150,

159 (3d Cir. 2005) (quoting Union County Jail Inmates v.
DiBuono, 713 F.2d 984, 992 (3d Cir. 1983)).
The Court of Appeals for the Third Circuit summarized the
holding of Bell as follows:
[A] particular measure amounts to punishment when there is
a showing of express intent to punish on the part of
detention facility officials, when the restriction or
condition is not rationally related to a legitimate nonpunitive government purpose, or when the restriction is
excessive in light of that purpose.
Stevenson, 495 F.3d at 68 (citation and internal quotation marks
omitted).
Involuntarily-confined persons under the SVPA, deemed as
dangerous sex offenders, are not entitled to the full panoply of
constitutional rights enjoyed by citizens free from restraint.
Thus, like inmates, Plaintiff does not retain rights
inconsistent with his status as an SVP.

For instance, with

regard to the First Amendment, “[a]ny form of involuntary
confinement, whether incarceration or involuntary commitment,
may necessitate restrictions on the right to free speech.”
Beaulieu v. Ludeman, No. 11–1845, 2012 WL 3711342 (8th Cir.
August 29, 2012) at * 19 (quoting Martyr v. Bachik, 755 F. Supp.
325, 328 (D.Or. 1991)); see also Hydrick v. Hunter, 500 F.3d
978, 991 (9th Cir.2007) (noting that “[a]s is the case with
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prisoners, civilly committed persons retain those First
Amendment rights not inherently inconsistent with the
circumstances of their detention”), vacated on other grounds,
Hunter v. Hydrick, ––– U.S. ––––, 129 S.Ct. 2431, 174 L.Ed.2d
226 (2009).

Thus, although a specific standard has not been

articulated with regard to civilly committed individuals, courts
have held that restrictions on certain rights are permissible so
long as they advance the state’s interest in security, order,
and rehabilitation.

See Ahlers v. Rabinowitz, 684 F.3d 53, 64

(2d Cir. 2012) (holding that interference with non-legal mail,
i.e., seizure and retention of DVDs and CDs, did not violate
First Amendment); 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”);
Semler v. Ludeman, Civil No. 09-0732 ADM/SRN, 2010 WL 145275,
*15 (D. Minn. Jan. 8, 2010) (finding no constitutional violation
based on restrictions on a civilly committed sex offender’s
right to access pornographic materials where such restrictions
are reasonably related to legitimate interests to ensure
security and order in the facility).
This Court finds no legal support for Plaintiff’s claim
that denial of cigarettes, whether electronic or not, amounts to
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a constitutional deprivation or impermissible punishment in
violation of the Fourteenth Amendment.

See Fantone v. Herbik,

Civ. Action No. 11-0484, 2013 WL 504610, *13 fn. 6 (W.D.Pa. Jan.
17, 2013) (citing Murphy v. Walker, 51 F.3d 714, 718 (7th Cir.
1995); see also Addison v. Pash, 961 F.2d 731, 732 (8th Cir.
1992) (holding that denial of cigarettes was not deliberate
indifference to a basic human need); Austin v. Lehman, 893 F.
Supp. 448, 452 (E.D.Pa. 1995) (finding that deprivation of
cigarette allotment did not constitute denial of life’s basic
necessities); Cox v. Koch, Civil No. 11-CV-0771-CVE-TLW, 2011 WL
6780134, *3 (N.D.Okla. Dec. 27, 2011); Arthur v. Comminser,
Civil No. 4:09-2059-CMC-TER, 2009 WL 6067337, *2 (D.S.C. Sep.
22, 2009).
To the contrary, the March 7, 2013 memo to the EJSP-STU
residents plainly states that the policy restriction on tobacco
products relates to its classification as contraband in the EJSP
facility.

Thus, not only has there been no showing that the

restriction on electronic cigarettes is intended as punishment,
but evidence submitted by Plaintiff shows that it is a
legitimate security measure in a facility that houses both
convicted prisoners and committed dangerous sex offenders.
Thus, this claim is dismissed with prejudice as against all
named Defendants. See, e.g., Murphy, 51 F.3d at 718 (finding no
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support in the case law for claim that denial of cigarettes and
television amounts to a constitutional violation).

B.

Restrictions on Food Packages
Plaintiff also alleges that he may receive food packages

from authorized vendors only.

It would appear that this

restriction is a facility-wide security measure to control and
prevent the introduction of contraband into the EJSP facility.
There is no blanket denial of food packages that would suggest a
denial of a basic human need.
Plaintiff principally argues that he is being treated as a
convicted prisoner, and not as a civilly committed person
entitled to constitutional rights as patients.

As stated above,

as a civilly committed person under the SVPA, Plaintiff is
deemed a dangerous sex offender, and like inmates, does not
retain rights inconsistent with his status as an SVP.

See

Semler, 2010 WL 145275 at *16 (finding that restrictions on
telephone access reasonably related to an SVP facility’s
“security interests in detecting and preventing crimes and
maintaining a safe environment” do not violate a civilly
committed patient’s constitutional rights).

The Supreme Court

held that a prisoner “does not retain rights inconsistent with
proper incarceration.”

Overton v. Bazzetta, 539 U.S. 126, 131
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(2003).

Likewise, a dangerous sex offender civilly committed to

a treatment facility does not retain rights inconsistent with
that treatment.
Further, “[w]hile clearly prisoners and those involuntarily
committed, by virtue of their incarceration and custody status,
do not forfeit their First Amendment right to use of the mails,
that right may be limited by institutional regulations that are
reasonably related to legitimate penological interests.”

Rivera

v. Rogers, 224 F. App’ 148, 151 (3d Cir. 2007) (per curiam)
(unpublished).

In Rivera, the Third Circuit upheld a detention

facility’s policy of opening and inspecting all non-legal mail
addressed to civilly-committed sexually violent predators
because the policy advanced the state’s interest in
rehabilitation while still affording the plaintiff the ability
to correspond with outside contacts.

Id.

Indeed, the court

noted that the plaintiff was “free to send and receive mail,
including letters from his girlfriend, so long as the content of
the mail ... is not sexually explicit.”

Id.

See also Ahlers,

684 F.3d at 64 (holding that interference with non-legal mail,
i.e., seizure and retention of DVDs and CDs, did not violate
First Amendment); Allen v. Mayberg, Civil No. 1:06-cv-01801-BLWLM, 2013 WL 3992016, *4 (E.D.Ca. Aug. 1, 2013) (finding that
inspecting the incoming mail of SVPs for contraband material,
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such as pornography or weapons, is constitutionally permissible
where “the mail policy reasonably advances the goals of
treatment by not allowing patients to have access to selfdestructive material that could derail their progress in dealing
with their mental illness.”).
As discussed above, “[r]estraints that are reasonably
related to the institution’s interest in maintaining jail
security do not, without more, constitute unconstitutional
punishment, ....”

Bell, 411 U.S. at 540.

Therefore, this Court

finds no constitutional violation relating to a legitimate
security measure that would control the entry of potential
contraband into the general facility.
Accordingly, this claim challenging restrictions on the
receipt of food packages by residents from verified/approved
vendors only is dismissed with prejudice as against all named
Defendants.

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V.

CONCLUSION

For the reasons set forth above, Plaintiff’s Complaint is
dismissed with prejudice, in its entirety, as against all named
Defendants, for failure to state a cognizable claim of a
constitutional deprivation, pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii).

An appropriate order follows.

s/ Jose L. Linares
JOSE L. LINARES
United States District Judge
Dated: October 10, 2013

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