SANCHEZ v. SHU OFFICIALS

Filing 1

OPINION. Signed by Judge Stanley R. Chesler on 6/4/2014. (seb)

NOT FOR PUBLECATION

CLOSED

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

THADDEUS THOMAS.

t.

al,

Plaintiffs.

STEVE JOHNSON, et a!..

Civil Action No. 12-6379 (SRC)

OPINION
APPLIES TO ALL ACTIONS

Defendants.

THADDEUS THOMAS,
Plaintiff.

Civil Action No, 13-2429 (SRC)

V.

SC/O A. WARE-COOPER. et al..
Defendants.

THADDEUS THOMAS.
Plaintiff,
V.

MARK SINGER, et al.,
Defendants,

Civil Action No, 13-3799 (SRC)

• contrnued

THADDEUS THOMAS.
Plaintiff.

Civil Action No. 13-5501 (SRC)

SGT. U HASKINS. et aL.
Defendants.

THADDEUS THOMAS, et al,.

Plaintiff.

j’Civii Action No. 14-2328 (SRC

V

TRACEY S. KAMINSKI, et al..
Defendants.

RONALD BARBER,
Plaintiff.

Civil Action No. 13-2817 (SRC)

V.

BRUCE DAVIS. et a!..
Defendants.

RAFIEEK GRAHi\I.
Piaintiff

JEFFREY S. CHI.E SA, et a!,,
Defendants.
continued

continued

WILLIAM PALMER,
Civil Action No, 13-3863 (SRC)

MARK SINGER, et aL,
Defendants.
RAYMOND ALVES. et aL,
Plaintiff,

Civil Action No. 13-3894 (SRC)

v,
BRUCE DAVIS, et aL,
Defendants.

JIHAD WILLIAMSON,
Plaintif

Civil Action No. 14-2740 (SRC)

V.

SHANTAY ADAMS, et al.,
Defendants.

Cli ESLER, .District Judge:
These ten actions a e before the Court upon Plaintiffh’ submissions of civil rights
complaints. Many of the complaints list the same. individuals as plaintiffs and raise a multitude
of identical challenges. The bulk of these complaints were followed by supplements, letters
and

addenda.’ For the reasons detailed infra. Plaintiffs’ applications tbr joinder vill he denied as to

those actions where binder is sought. and all pleadings will be dismissed without prejudice to
Plaintiffs filing their amended complaints in compliance with the requirements of Article Ill of

the United States Constitution and Rules 8, 15, 18 and 20 of the Federal Rules of Civil
Procedure: Additionally, one submission suggests that mailings from the Clerk’s office are

being returned as undeliverable because prison officials are falsely stating that Plaintiffs are no
longer confined, or that the addresses used by the Clerk contains errors preventing delivery of
Plaintiffs’ mail. Thus, the Court will Order the Clerk to notify the Office of the Attorney
General and verify the Plaintiffs’ mailing addresses to ensure Plaintiffs’ ability to duly litigate
their legal actions.
I.

BACKGROUND
Plaintiffs are civilly committed sexually violent predators (“SVPs”) confined and treated

at a Special Treatment Unit (“STU”) of the East Jersey State Prison (‘EJSP”) under the New
Jersey Sexually Violent Predator Act (“NJSVPA”), N.J. Stat. Ann.

§

30:4-27.24, See Alves v.

Main. No. 0i-789(’Alvcs-I”), 2012 U.S. Dist. LEXIS 171773. at *lol 1 (D.N.J. Dec. 4.2012).
Prior to being confined at the EJSP, the SVPs were confined at a Kearny facility. See çy
f
0
Hudson v. State Dep’t of Corr,. 2009 N.J. Super. Unpub. LEXIS 1188. at *24 (N.J. Super. Ct.

App Div

L\pr

22, 2009) When, on September 22 2000, then-Goernor Christine Todd

Whitman invoked her emergency p.ov.ers to desiL’nate thai Kearnv facility as the SVPs place of
tem.porarv hou.sirig, see j. one SVP com.menced a civil action challenging the mode an.d

sufficiency of the mental treatment at Kearnv. See Aives-I, 2012 U.S. Dist. LEXIS l71 773, at 8.
Many complaints arrived unaccompanied by the applicable filing fees or proper in forma
pappis applications.
2

The Clerk will be directed to commence new matters for improperly joined Plaintiffs to
facilitate litigation of their individual claims, if desired.

15-16. By 2005, “approximately 30 additional cases [of the same naturej were
consolidated”
with Alves-l, See id. at *17, 26-27. HaIfa decade later, a state court ordered the SVPs’
transfer
out of Kearny, resulting in their relocation to the EJSP on March 17. 2010. See Hudson.
2009
N.J. Super. Unpub. LEXIS 1188. at 5. At that point. many SVPs commenced other civil
actions
seeking transfer out of the EJSP on due process grounds. See. e.g.. Thomas v._Christie
(Thomas-1”). No. 10-1887. 2010 LS. Dist. LEXIS 109983 (D.N.J. Oct. 15. 2010). All such
due process claims were dismissed as meritless. See Id. at *12_is (relying on United Statesv.
Comsiock. 560 U.S. 126 (2010); Selin v. Young, 531 U.S. 250, 261-62 (2001); Kansas v.
Hendricks. 521 U.S. 346 (l997: In re Commitment of W.Z.. 17 N.J. 109 (2002)). By 2012. the
SVPs amended the claims consolidated with ‘\lves-1

adding challenges to the mode and

sufficiency of their mental treatment at the EJSP. See Alves v. Main. 2014 U.S. App. LEXIS
5234, at *34 (3d Cir. Mar. 20, 2014). Because of the volume of cases filed that raised these new
challenges, a class was certified and all claims were settled, See id. at *43 By then, however,
the SVPs had commenced additional civil suits raising a broad range of allegations that included,
inter aba, the already-dismissed due process claims and already settled attacks on the mode
and
sufficiency of mental treatment at the EJSP. Ten of these actions are now before this Court.
4
The first one was commenced by Thaddeus Thomas (“Thomas”) and named Ronald
Barber (‘ Barber

), Ra’mond \l\e ( \hes ), Rafleek Graham ( Graham ) and Jhon SanchLz

(“Sanchez”) as Thor. as’ co-plainti fC. See

I

.s.Joh.nson (“Thomas4l”). Civil Ac.tion No.

126279. The con plaint in hmasIl arrived ac.companied only Ey Thomas’

IC

forma pjIupgris

The SVPs challenged the settlement claiming that the mental treatment envisioned under the
settlement was constitutionally deticient, See Aives, 2014 U.S. App. LEXIS 5234. at *5 The
Court of Appeals disagreed and affirmed the settlement, Sceid. at *8.13
The settlement included a clause allown the SVPs to resume iidation as to those provisions
which the State ldiicd to implement. See Ives. 2014 U.S. App. LEXIS 523.3. at *10l 1.

(“IFP”) application and, upon naming various Department of Corrections (“DOC”) supervising
officials as defendants, asserted that (1) the general prison population at the ESJP suffered from a
bed bug infestation, (2.) and the E.JSP offici.ais’ failed to separate the SVPs from the general
prison population causing the spread of infestation to the STU.

id. ECF No, 1. After this

Court denied the Thomas-il Plaintiffs IFP status without prejudice, Thomas filed a letter
asserting that SVPs were suffering from a bed-bug rush due to having their clothes washed in the
laundry machines used for the general prison population. g j ECF os. 5 and 6.
Thomas’ next civil action was commenced individually.

$ Ihrnsv.Ware-Cooer

(“Thomas-Ill”), Civil Action No. 13-2429. There, Thomas alleged that his cell was repeatedly
searched in retaliation for filing administrative grievances; Thomas also named various prison
officials as defendants on the basis of their failure to respond to his grievances or because of
their audible laughter at his grievances. ç

ECF No. 1. After submitting that complaint,

Thomas filed fifteen addenda and letters, totaling 260 pages. $çç ECF Nos. 2 to 16. These
submissions contained numerous allegations, including (1) that Thomas declined to attend group
treatments out of fear of potential harassment; (2) that his personal possessions were being taken;
(3) that he was denied individualized mental treatment; (4) that broken toilets in some cells
caused feces to flow out into the STU public area; (5) that he was frustrated with the medical
staffs inability to improve the SVPs’ living conditions; (6) that some SVPs were physically hurt
by officers; and (7) that the prison officers were rude. See. id.
in his next action, a.iso comme.nced individualiy, Thomas requested transfer out of the
EJSP, See Thom sv

ncr (“lhomas4Y”), Civil Action No. 1 33799, ECF

1. Thomas’

letter and addendum filed in Thom.as.-J asserted that the SVPs’ mental therapy sessions were

Barber, Alves, Graham and Sanchez did not make any later subm.issions in Thomas-Il.

6

not as successful as they could have been due to frequent interruptions by prison officials. Sç
id., ECF No, 2. Thomas’ complaint in Thomas v. Hask

(“Thomas-V”), Civil Action No. 13-

5501, reiterated his claim that his rights were violated by failure to investigate and respond to his
grievances. 5cc id. ECF No. 1. That complaint was followed by letters and addenda (over 100
pages worth) reiteratingl. among other things, that his personal belongings were taken and
asserting. among other things. that Thomas was being briefly locked in a cell on numerous
occasions and that the prison officers formed unfavorable personal opinions about him and
recommended other SVPs not to befriend him. See ECF Nos. 2 to 5.
Thomas’ latest complaint, Thomas v. Kaminski C’Thomas-Vl”). Civil Action No. 142328. named Robert Bond (“Bond”) and Graham as his co-plaintiffs, but arrived accompanied
only by a single IFP form. See id ECF No. 1. The complaint asserted that the SVPs’ mental
6
health treatments were often cancelled as a result of lock-downs and hypothesized that prison
officials were using the STU funds for their personal needs. See jç,j The complaint was
followed by letters and addenda asserting, inter g,j_a, that mail from the Court to the SVPs was
being returned as undeliverable because prison officials were falsely stating that the mailing
addresses used by the Court were incorrect and thus prevented delivery. See id. ECF No. 4, 5
and 6.’
Since the complaint in Thomas-li named Alves as one of Thomas’ co-plaintiffs. Alves

reciprocated by submitting a complaint na.ming Thoma.s. Grah.am an.d Jamar Burney as Alves’
co-pl.a.intiffs. $,ge

Ivesv,Iavis (“Alves-H”), Civil Action No. 13-3894.. ECF No, I

As in

As this Court explained in Thomas-il, each plaintiff must submit his individual complete IFP
application, regardless of whether or not the submitted complaint seeks joinder of plaintiffs.
The docket in Thornas-VI lends support to this allegation. See Thomas-VI, ECF Nos. 2 and 3
(indicating that the Clerk’s mailings were returned as undeliverable even though these mailings
same iddress tint resultLd in propLr delner for the purposes of Ihomas_Iii
utilized the

Thomas-VI, that complaint arrived accompanied
only by a single IFP form. $ge

ECF No. 1-

The Alves-II complaint named supervising oftic
ials as defendants and asserted that the SVPs’
grievances were being ignored, that the prison ortic
ers were harassing the SVPs and taking their
personal belongings, and that the SVPs were
displeased with: (a) the S FlU environment: and
(b)
the fact that their legal and personal mail was route
d through two prison facilities thus “hiding
the fact
of [them] being civilly committed.” i.e., not servi
ng prison terms. Id. at 3-10. That
35-page complaint was followed by over 100 page
s of letters and addenda replicating the latest
SFIU “Resident Guide” and indicating, among othe
r things, the SVPs’ displeasure with their
inability to receive food brought in by family mem
bers during the visitation hours or enjoy
cigarettes or tobacco at the SHU (since the STU
is a smoke-free facility). $gg ECF No. 2; e
also id.. ECF No. 3 (also hypothesizing that certain
recent penal law changes as to sentencing of
repeated sex offenders might, hypothetically, be utiliz
ed to negatively affect the SVPs’ chances
for release).
...

Meanwhile, Barber and Graham, he, Thomas and
Alves’ co-plaintiffs in Thornas-I[.
Thomas-VI and Alves-li, also submitted their civil
complaints. See Barber v. Davis (“Barber”),
Civil Action No, 13-2817, and Graham v. Chiesa
(“Graham”), Civil Action No. 13-3801.
Barber’s complaint was Ibliowed by over 100
pages of letters and addenda, see Barber, ECF
\ os 2toandUrahamsLorn plaint as foflo
wLd
No. 2. Barber’s complaint named supervising
officers as defendants on the basis of g, thos
e
ortiecrs smiles In response to J3arher’s critique
of the SE-IC stafh and asserted that the officers
were “harassing.” “retaliating” against and
“threatenintz” him, and repeatedly searching his
cell.
See Barber, ECF No. 1, at 7-8 (stating that offic
ers said that “[Barber is] lucky now soon [his]
time will be up, and [he isj next” and expressed
unfas orable opinions about Barber to other

SVPs. causing Barber “complications with [his] job
status”), Barber’s post-pleading
submissions alleged that Jamar Burnev (“Burnev.” anot
her SVP) witnessed an argument between
two officers and two SVPs that led to an altercation
heteen them. See Id. ECF No. 2: see also
id. R’F Nos, 3- 6 (suggesting that Barber was placed
in administrative segregation as
retaliation” after Barber learned that Burney witnessed
the alleged incident).
Meanwhile, Graham’s complaint requested transfer out
of the EJSP and asserted that the
mental health treatment provided at the SHU was insufficie
nt. See Graham. FCF No. 1. Ills
post-pleading submission alleged that his right to mental treatm
ent was being violated because
he had not been provided with institutional employment
during the past three years.

5

id. ECF

No.2.
The two most recent actions were commenced by William
Palmer (“Palmer”). see Palmer
v. Singer (“Palmer”), Civil Action No. 13-3863. and Jihad Will
iamson (“Williamson”). See
Williamson v. Adams (“Williamson”). Civil Action No. 14-274
0. Palmer’s complaint and
accompanying submissions sought transfer out of the EJSP
on the grounds of inadequate mental
health treatment and asserted that the SHU environment was
insufficiently therapeutic for the
purposes of the so-called the New Jersey Patient’s Bill of Rights
.. N.J. Stat. Ann.

§ 30:4-24.2.

See Palmer. FCF Nos. 1-2 and 1-3. Williamson’s complain
t and supplement named supervising
of ticials as dc tend wts nd is’u ted that the rights of ar1ous
S\ Ps wLrc iolatd b\ the SI 1I

5

quasi-orison c.o.nditions. .fre.quent 1ockdowns a.i.vl the supervisors’
iiiures to investigate the
SVPs’ grievances

cc Williamson, ECF Nos I and UI

All Plaintiffs’ submissions are procedurally and substanti
vely deficient.
11.

PROCEIJURAL 1)EFICIENCES
.Each Plaintiff is without standing to litigate jqs ttii claims
on behalves of other SVPs.

9

Standing is granted to third persons only to pursue claims on behalf
of those unable to litigate on
their own. See Whitmore v, Arkansas, 495 U.S. 149. 154-55 (1990>
: see also Steel Co. v,

Citizens for Better Environment, 523 U.S. 83. 102-03 and n. 5 (l998
). As evidenced by
Plaintiffs’ copious submissions. that is not the case here. In additio
n, Plaintiffs’ complaints.
supplements. addenda and letters, violate the Rules of Civil Proced
ure.
A plaintiff can amend his complaint as of right only once, and only
within a certain
period ot time. To re-amend, he must seek leave of the court, see Fed.
9
R. Civ. P. 15(a)(2), by
tiling a motion to amend with a proposed amended complaint that would
fully supersede his
original pleading. He cannot tile letters or addenda, or documents
designated as
“supplements.”
Moreover, every complaint, original or amended, must comply with
Rules 8, 1 8 and 20.
Under Rule 8. the complaint “must be simple. concise, and direct.” Fed.
R. Civ. P. 8(d)(l): see
also Ashcroft v. lgbal, 556 U.S. 662. 678 (2009)12 Also, since Rules
18 and 20 limit the joinder

Plaintiffs’ amended pleadings, if filed. should raise only the claims
personally held by each
Plaintiff.
Sce Fed R Ci P
242 (3d Cir 2013)
see also Jones v. Bock. 549 U.S. 199, 200 (2007) (the Rule equally
applies before and after sua
ppe screening); jvany, Wal-Mart Stores Inc. 722 F.3d 1014,
1022 (7th Cir. 2013) (the
Rule ipplis to upresentLd and p ç plaintilts Including those
procLeding in tormaauper1s)
See 6. Civ. R 71(f):
ao
U
Postal Svc.. 455 F. AppU 279, 283 3d Cir.
201 1: Pea.rson v. Varano, 2013 U.S. Dist .LEXIS 161027. at *2
(MD. Pa. Nov. 12. 20136
See Fed, R. Civ. P. 15(d% see also Crosby v. PUzza, 465 F. App’x
168. 174 (3d Cir. 2.012%
Jones\lloilenhack 700X I S Di LE’vIS 222’ at 4u E D
C \1 ir 15 2’ (iS) t [SuLhj
practice
creates a moving target [andj neccssar[ilv} burdens
an overtaxed court”). All
addenda, “supplements,” letters and other improperly tiled docum
ents are stricken from the
docket. See,
Campefl v. Soc. Sec. Admin.. 446 1”. App’x 477. 48 1-82 (3d Cir.
2011).
...

Even a pauper pp plaintiff cannot file a diary in lieu ofa compla
int: any exceedingly
voluminous or otherwise incomprehensible pleading will be dismissed.
See, e.,g, Rogers y
10

_____

otclaims and defendants, ee Charles Alan Wright
& Arthur R. Miller, Federal Practice &
Procedure Civil *1655 (3d ed. 1998L transactionallv
-”[ujnrelated claims against different
de%ndants belon in dif6.rent suits.” Georee’v._Sm
h. 507 F. 3d 605, 607 (7th Cir. 2007).
Hence, each Plaintiff will be allowed an opportunity to
tile one amended complaint
operating as a superseding pleading and stating, clearly
and concisely, his allegations as to a
particular transaction or re/cued series of transactions)
3 Such allegations cannot consist of
conclusory statements, since “a complaint must do more
than allege the plaintifis entitlement to
relief.” Fowler v. UPMC Shadvside. 578 F.3d 203. 210 (3d
Cir. 2009). Instead, it must “show”
his entitlement by alleging actual facts. .e Ahcr
ofi.I bal, 556 U.S. 662 (2009); see
Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 20l2).’
In addition. Plaintiffs cannot re-litigate the claims already dism
issed or settled in prior
actions. The doctrine of res

ta precludes claims that were disposed of on the merits or

could have been litigated during a prior proceeding between
the parties.
Morrice. 2013 U.S. Dist. LEXIS 11595, at *34 (D.N.J. Jan.
28, 2013); Melleady v. Blake, 2011
U.S. Dist. LEXIS 144834 (D.N.J. Dee. 15, 2011).
See Fed. R. Civ. P. 8(a) and (e); Leatherman
Coordination Unit, 507 U.S. 163, 168 (1993) (the complain
t must be simple. concise, direct and
set forth “a short and plain statement of the claim showing
that the pleader is entitled to relief’):
cf McNeil v. United States. 508 U.S. 106, 113(1993) (rules
in civil litigation do not excuse
mistakes by those who proceed pgse); Lindell Houser,
442 F.3d 1033, 1035 n.1 (7th Cir.
2006) ( District courts ‘hou1d not have to rcad and decip
her tomes disguised as pleadings
Thus, Piai.ntiff’ amended complaints, if faled, should not
allege specuiaticn or hypothetical
laLts See j4i 56 L S a 678
t
also I S (otis at III 2 cI ‘,a’d Vaiker
Roman No 13-1182 2014US Dst IFX1S28 at
(DX Feb 2 2014’( t
an]
application
is speculative [ii] it relies on a hypothetical future retaliatio
n”); sonyfrias,
No. 09-6050, 2010 US. Dist. LFXIS 30513 at *8 (D.N.J.
Mar. 30. 2010) (“speculation as to
what might or might not happen in the future” cannot serve
as a basis for a valid claim) (citing
Rouse v. Pauliilo. No. ()5-5l57, 2006 U.S. Dist. LEXIS
17225 (D.N.J. Apr. 5,2006) (dismissing
speculative claim as to hypothetical future retaliation and
citing irbyy,Sigelran. 1 95 F3d
1285 (11th Cir. 1999)); Pilkev v. Lppj, No, 05-5314, 2006
U.S. Dist. LEXIS 44418, at *45
(D.N.J. June 26. 2006 (“Plaintiffs [anxietiesl fail to state a claim
upon which relief may be
granted”),

gdevelonentAutofCntv.ofMongomer, 670 R3d 420. 427 (3d Cir. 201 1). By the
same token, federal courts bar attempts to commence “duplicative litigations” in order to “foster
judicial economy” and “protect parties from the vexation of concurrent litigation over
the same
subject matter.’” orter v. NationsCredit Consumer Disc, Co., 295 B.R. 529. 2003 Bankr.
LEXIS 933, at *33 (Bankr. ED. Pa. 2003) (citing Curtis v. Citiha

.A.. 226 R3d 133, 138

(2d Cit. 2000). and quoting Kcrotest Manufctirinc Co. v.C-O-IwoFjre Ecui ment

o., 342

U.S. 180, 183 (1952)). Adam v, Jacobs. 950 R2d 89, 93 (2d Cit. l99I))’ Thus, no plaintiff can
litigate different actions challenging the same subject matter. Furthermore, Plaintiffs cannot
name individuals as defendants on the basis of supervisory positions.n “A defendant in a civil
rights action must have personal involvement in the alleged wrongs; liability cannot be
predicated solely on the operation of res ondeat pgrior.” Solan v. Ranck, 326 F. App’x 97,
100-01 (3d Cir. 2009). cert. denied. 558 U.S. 884 (2009) (quoting Rode v. Deharciprete. 845
F.2d 1195, 1207 (3d Cir. 1988), and citing Evancho v. Fisher, 423 F.3d 347, 353 (3d Cit. 2005));
see

o lqbal. 556 U.S. at 676 (“Government officials may not be held liable for the

unconstitutional conduct of their subordinates under a theory of respondeat superior”).
Finally, the complaints naming different SVPs as plaintiffs fail to qualify forjoinder. See
Boretsky v. Governor of N.J., 433 F. App’x 73 (3d Cir. 2011). “Rule 20 permits several
plamtitts to join

an action iti j I) the claims b\ the plaintilts

iris trom the same

transaction, occurrence, or series of transactions or occurrences[;j and (2) a question of law or

Plaintiffs’ amended complaints, if filed, should not re-raise already-dismissed due process
requests fbr transfer or the already-settled claims attacking their mental treatment. Plaintiffs claims challenging insufficiency of the treatment provided for under the Alves-l settlement
aureement are barred, while their claims that the settlement agreement in that case is breached
should he raised in Alves-!. $ge 2014 U.S App. LEXIS 5234. at *1011
6

Plaintiffs’ amended complaints, if flIed, must assert actual facts showing personal wrongful
acts or inaction by each defendant named in the pleadings.

tact common to all plaintiffs

.

will arise in the action.” i at 77 (citing Fed. R. Civ. P. 20(a)).

Here. joinder will he denied since the complaints submitted in Thomas-If. Thomas-VT
and

Alves-lI (and the numerous letters. “supplements” and addenda tiled in those matter
s) raise a
multitude of claims implicating unrelated transactions affecting different SVPs.
III.

SUBSTANTIVE DEFICIENCES
The complaint in Thomas-Il asserts that Thomas suflrs ota bed-bug rash because the

SVPs are not isolated from the general EJSP population. and the SVPs’ clothes are washed
in the
laundry machines used for the general prison population. In this Circuit, the test in Bell
v.
Wolfish, 441 U.S. 520, 537 (1979). governs detainees’ non-medical conditions of confin
ement
claim, see Hubbard v. Taylor. 538 F.3d 229. 23 1-32 (3d Cir. 2008). while detanees’ denial
of
medical care claims are governed by Bell’s due process standard, which is at least as protect
ive
as the deliberate indifference standard of the Eighth Amendment.’ See A.M. v. Luzerne County
8
Juvenile Detention Center, 372 F.3d 572, 584 (3d Cir. 2004); County of Sacramento v. Lewis,
523 U.S. 833, 850 (1998). A due process violation of the Fourteenth Amendment occurs when
the conditions of confinement amount to punishment imposed without an adjudication
of guilt.
See Bell. 441 U.S. at 537,19

Since this Court innot rule out that Plaintiffs named in Thomas—IT. Thomas-VI
and Alves—Il
might ha e v ih.d to h1llLnge a numner ot di tierent trans&tions in light ol Ru’es
1 and 20,
The court will reserve 1omas-lf.1hothasVfind Res1I the first Plafntiffname
a there and
will direct the Clerk to commence new matters for the other Plaintiffs named in those
matters.
This Court realizes that Plaintiffs arc displeased with many aspects of their confinement
and
would prefer to equate themselves to hospital-treated civilians. However, Plaintiffs’
legal rights
are largely identical to those of confined pretrial or alie.n detainees.
The test contains both objective and subjective components: the former requires an inquiry
into whether the deprivation was sufficiently serious, while the latter asks whether the
officials
acted with a suttiLlentis ulpahle
ofrnind SLe
nsonC-irll 4)5 I 3d 62 b8 (3d
Cir. 2007), A “measure amounts to punishment when there is a showing of express intent
to
punish on the part of the detention facility officials. [and. in addition] when the restrict
ion or
13

Thomas’ allecations are void of thcts showing that the officers either ignored the bed-bug
infestation at the SHU or denied him medical treatment for bed-bug bites. As such, Thomas’
displeasure with the interactions between the SVPs and FJSP general population (or with
ofticers’ use of the same laundry machines) is not actionable —there are no facts indicating the
officers acted with a culpable state of mind, and it appears the joint operations of the SHU and
EJSP (including the use of common laundry machines) serve legitimate penological goals of
prison administration and prison econom

,20

The allegations in Thomas’ remaining actions

analogously fail to state a claim of constitutional magnitude. The United States Constitution
does not confer upon an inmate the right to prison officers being polite and avoiding expletives,

taunts. irritating laughter, cynical smiles. purely verbal threats, unflattering personal opinions,
’
2
etc. See Dawson v. NJ State Trooper Barracks, No. 1 1-2779, 201 1 U.S. Dist. LEXIS 92922
(D.N.J. Aug. 1 9. 2011) (“Plaintiff asserts not a constitutional deprivation but acts that might
qualify only as ethically unpalatable.

..

.

[Tjhe Officers’ conduct,

...

while not commendable,

cannot reach the level of a violation of constitutional magnitude: ‘the Constitution is not a
manual of etiquette

(quoting King v, Lienernann, No. 11-0130,2011 U.S. Dist. LEXIS 21968,

at *16 (S.D. Ill. Mar, 4. 2011))); accord Shabazz v. Cole, 69 F. Supp. 2d 177, 200-01 (D. Mass.

condition is not rationally related to a legitimate non-punitive government purpose, or when the
restriction is excessi e in light of that purpose 14.. The excesslvc.ness factor is determird in
light of the taut fthircuthstanc. Se}’Jubird. 8 FJd at 233.
‘

Cf. Iein .l_ No, O7 112. 2007 L2S. Dist. L.EX1S 20092 (D..N.J, Ma.r. 20.
ía’ man.
(“Plaintiffs contention that [they] constitutionally deserve accommodations better than those.
provided to other state mm ates has a disturbing Orwellian implic.ation that Plaintiffs are ‘more
equal than others’
[Ajn inmate cannot become entitled to private ouarters,.. by [having, a
criminal record containing] a violent sexual assault”.
.

.

.

2

Analogously, Thomas’ witnessing of feces floating into the common area cannot qualify as
punishment (unless he details the injury he suffered as a result of the broken toilets in other cellsy
and his brief placements in a solitary cell cannot qualify as punishment (unless he details the
circumstances under which such placements occurred meeting the .ieveon-1jpbbard tests).

u4

1999) (collecting cases) (verbal harassment or
verbal threats cannot violate inmate’s rights
under
the Fourteenth Amendment).

Also. there is no right to compel an investigation
of— or response to

—

an inmate’s

grievance, since “the state creation of such a proc
edure does not create any federal constitutional
rights.”
Isonlrn, 971 F. Supp. 943. 947 (E.D. Pa. 1997)22
Moreover, constitutional
claims based on the officers’ illegal taking of the
SVPs’ personal belongings are barred by the
New Jersey Tort Claims Act (“NJTCA”). N.J.
Stat. Ann, 59:1. et çq, since the NJTCA provides
all the process that is due. See Holman v. Hilton, 712
F.2d 853, 857 (3d Cir.1983); tutljj.
Volunteers of America. 1 F. Supp. 2d 405, 419
(D.N.J. 1998),2

22

A failure to respond to a grievances “does not violate
his rights to due process and is not
actionable.” Stringer v. Bureau of Prisons, 145 F. App
’x 751, 753 (3d Cir. 2005) (citing
Antonelliv. Sheahan. 81 F.3d 1422, 1430 (7th Cir.
1996)). In the same vein. “the First
Amendment does not impose any affirmative oblig
ation on the government to listen, to respond
or. to recognize [a grievance],” Smith v. Arkansas
State Highway Emp.. Local 1315, 441 U.S.
463, 465 (1979); Minnesota State Bd. Community
Colleges v. Knight, 465 U.S. 271, 285 (1984)
(“Nothing in the First Amendment. suggests that
the rights to speak, associate, and petition
require government policymakers to listen or respo
nd to individuals’ communications”). While
Thomas appears to believe that his First Amendment
rights are violated by the officers’ false
statements that the Clerk’s mailings cannot be deliv
ered, Thomas errs. “Under the First and
Fourteenth Amendments, [inmates] retain a right
of access to the courts.” Monroe v. Beard, 536
P 3d 198 205 (3d Cir 2008) (cIting I e’ais ‘ Casey
518 U S 343 46 (1996)) Hoeer to
recoer the must sho (1) that they suffered an
actual injury FLi that they lost a chance to
pursue a ‘nonfrivolous’ or ‘arguable’ underlying
claim; and (2) that they have no other ‘remedy
that m’r be aarded as recompense for the bc!
claim other than in the present denial of acct
36 U
403 4t (2002) emphasis supplied) to
satisfy this pleading requirement, “[t]he complain
t must describe the underlying [.[ostl claim well
enough to shos that it is ‘more than mere hope,’
and it must describe the iOst mmcdv,” Id. at
2054)6 (ibotnote and citation omitted), Here, Thom
as has n.ot lost any claim as a result of the
offlcers’ alleged filse statements that the Clerk’s
mailings cannot be delivered to him. Thus, he
cannot mount a viable access claim. However,
since his ability to meaninefully litigate his
actions might be obstructed by such practice. if
it is actually in place. this Court will direct the
Attorney General to ensure each Plaintiffs ability
to litigate by furnishing the Clerk with each
Plaintiff’s exact mailing address in order to assu
re proper delivery of their legal mail.
.

.

.

.

‘s’.

—

23

In addition. the N,TTCA directs that a notice of claim
be filed with the public entity not later
than the ninetieth day after accrual of the underling
cause of action. See N.J. Stat. Ann. 59:8
§
15

Finally, the SVPs lack standing to litigate claims based on the ot’tcers alleged
use of the
State’s funds for the officers’ personal benefit.
Plaintiff has no standing to sue for such violation: this is so even if Plaintiff deems
or
designates himself as a third-party beneficiary of this contract. See Brown Sadowski,
2009 U.S. Dist. [EMS 62718. at * 13 (D.N.J. July 20. 2009) (“Plaintiff has no standing
to
seek enforcement of any duties his prison oflicials might owe to the state, since Plainti
ff
is not an expressly designated third party beneficiary of the contracts. if any. that the state
maht h n e ith the pnon otfiuals ) (rel\ ing on
47
L S 451 (2006)), accord Glenn Haman, 2007 U S Dist LEXIS 20092, at *34
(analogously relying on Anza for the observation that. “[s]inee the State of New Jersey
was the allegedly defrauded party (and in no way designated Plaintiffs to litigate the
alleged [fraud] claim on behalf of the State), Plaintiffs cannot bring this claim”).
v.

Maghool v. Univeristv l-losp, of Medicine & Dentistry of New Jersey, No. 11-4592, 2012 U.S.
Dist. LEXIS 81895, at

*

4 (D.N.J. June 13. 2012) (quoting Parker v. Gateway Nu-Wav Found..

No. 10-2070. 2010 U.S. Dist. LEXIS 115116. at *1415 (D.N.J. Oct. 26, 2010): see also Green
v.
Corzine, No. 09-1600, 2011 U.S. Dist. LEXIS 17173, at

*

4 (D.N.J. Feb. 22, 201 1).

As such. Thomas’ complaints will be dismissed. He vill he allowed an opportunity to
file

one

amended complaint in each of his actions. His amended challenges to conditions of his
24

confinement should detail only non-hypothetical facts and, in addition, meet both objective
and
subjective components of the Bell test, as explained in StevenQ and Hubbard. His First
’
2

8(a). Failure to tile the required notice necessarily results in dismissal of a p.iaintiffs tort
claims.
Sce NJ. Stat. Ann, 59:8-3,
24

Each such amended pleading will supersede all his prior filings, and it shal.l stric..tly
comply
with the requirements of Article 111 and the Federal Rules of Civil Procedure.
Thomas’ r:.mended medical deprivation claims, i.f raised, shall neither duplicate his claims
tieited
1
currently I n Ihomis-!
n1e i i’lee cttled n
L5 I or bal
issmc
breach of the ARes-I settlement by the prison ollicials),
“

16

Amendment retaliation claims shall detail only the relevant events and state their timeline to
allow this Court to conduct intelligent and informed causation and firmness analyses:
ARes’ complaint will too he dismissed with leave to amend, provided that he submits a
proper IFP and his amended complaint raises procedurally proper and legally cognizable
27
claims. Analogously. Barber’s, Graham’s, Palmer’s and Williamson’s complaints will be
28
dismissed with leave to amend, provided that proper 1FP applications are submitted there.

‘“Retaliation for the exercise of constitutionally protected rights is itself a violation of rights
lie vaoleon 897 F 2d 103 111-12 (3d Cir 1990), çg gi
su.ured by the Constitution
Rauser Horn, 241 F 3d 330, 333-34 (3d Cir 2001), Allah v Seiverlmg 229 F 3d 220, 224-26
(3d Cir. 2000). To state a retaliation claim, a plaintiff must state facts demonstrating that: (a) he
engaged in a constitutionally-protected activity: (b) he suffered an adverse action “sufficient to
deter a person of ordinary firmness from exercising his [constitutional] rights”; and (c) the
protected activity was a substantial or motivating factor in the state actor’s decision to take
adverse action. Rauser. 241 F.3d at 333 (3d Cir. 2001) (quoting Allah, 229 F.3d at 225).
Thomas asserts that he was retaliated for filing grievances but omits to detail the time line
establishing a correlation between the filings of grievances and particular retaliatory acts.
‘

Alves’ allegations raised are, thus far, facially meritless. The fact that the SVPs’ mailing
addresses do not convey to the reader the SVPs’ civilly committed status is not a severe
deprivation that could qualify as punishment. The SVPs’ displeasure with their environment is
not a claim of constitutional magnitude. and claims based on hypothetical future uses of penal
law violate the Article lH requirements. The inability of some SVPs to smoke at the SHU does
not amount to punishment, since the prohibition serves the SHU’s legitimate goal of protecting
other SVPs and officers from second-hand smoking. Analogously, the prohibition on receipt of
food or packages from family members cannot qualify as punishment since it serves the SHU’s
legitimate goal of protecting the SVPs and officers from illegal contraband items.

27

28

Barbers’ harassment and verbal threats claims based on cynical smiles or comments of prison
ryn nnil
llni*il ktail th
hitalia
uffij fH h;
their time line, In addition, Barber’s claims based on the ever.ts witnessed by Burney or the
injuries suffered by other SVPs are deficient fOr lack of standi.ng, while his allegations as to his
disciplinary sanctions fail to detail the events of h.is disciplina.ry hearing, the process aliowcd
d
1
during and prior to that hearing, the allegedly false evidence proffered aoainst him. ar the
imposed. Grahanfs complaint raises a facially meritless challenge based on denial of
sanctions
2010 U.S. Dist. LEXIS 20389 (D.N.J. Mar. 8.2010)
employment. $geinrns v. U.N.lC.O
unmates ha\e no right to emplo\ment) atfd 386 F \pp \ 32 3d Cir 0l0) see also Buler
Lmted States Bureau of Prisons 65 F 3d 48 (5th Cir 1995), jgçs ‘i uinlan, 866 F 2d 627 (30
ayjeartmentotCorrections 285 N I Super 501, 512 (N J Super Ct App
Cir 1989)
Di’ 1995)(rehing on fiff\_\lcDonfigjj 418 U S 39 557 (1974) for the due process oik
credit” analysis). Palmer has no due process right to transfer out of the SHU/EJSP, see
,

IV.

CONCLUSION
For the foregoing reasons, Plaintiffs’ applications to proceed IFP will be granted solely in

the matters where proper applications were submitted. The remainine IFP applications will be
denied without prejudice, Plaintiffs’ pleadings will be dismissed, and the applications for joinder

will be denied, The Clerk will be directed to commence individual matters for improperly joined
Plaintiffs. Each Plaintiff will be allowed an opportunitY to file an amended complaint complying
with the jurisdictional, procedural and substantive requirements detailed supra.

An appropriate Order follows.

!s Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge
Dated: May

th
30

2014

Comstock. 560 [S. 126: Selin. 531 US. 250: Hendricks. 521 US. 346. and his challenees
based on state law fall outside this Courfs jurisdiction unless he articulates a federal claim
allowing supplemental jurisdiction. \Villianison’s challenges raised on behalves of other SVPs
are subject to dismissal for lack of standing, and his claims asserting failure to investigate or
reply to grievances are not cognizable. Wiil.ia.ms•on’s elai.ms asse.rting denial of the mental
treatment due to him under the settlement reached in AIves4 should be raised in Alves-I.

Is