CLAUSO v. SOLOMON et al

Filing 87

OPINION. Signed by Judge John Michael Vazquez on 4/27/17. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

THOMAS JAMES CLAUSO,
Plaintiff,
v.
JUDGE SOLOMON, et al.,
Defendants.

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Civil Action No. 14-5280 (JMV)

OPINION

APPEARANCES:
Thomas James Clauso
Northern State Prison
168 Frontage Road
Newark, NJ 07114
Petitioner, pro se
David Andrew Tuason
State of New Jersey
Office of the Attorney General
25 Market Street
Trenton, NJ 08625
On behalf of the Honorable Lee A. Solomon, Associate Justice; the Estate of the Honorable
E. Stevenson Fluharty, J.S.C.; the Honorable Edward J. McBride, Jr., J.S.C.; George Stillwell,
New Jersey State Parole Board, Joan Spadea, and Robin G. Stacy, Esq., Director of the New Jersey
State Parole Board (“the State Defendants”)
JOHN MICHAEL VAZQUEZ, United States District Judge
On August 22, 2014, Plaintiff, a prisoner presently confined in Northern State Prison,
initiated this civil rights action related to his 1988 state court conviction in Camden, New Jersey.
(ECF No. 1.) On June 22, 2015, the case was dismissed without prejudice because Plaintiff’s
claims were barred by Heck v. Humphrey, 512 U.S. 477 (1994). (ECF Nos. 42, 43.) On May 27,
2016, Plaintiff filed an amended complaint. (Am. Compl., ECF No. 61.) This matter comes before

the Court upon the motion to dismiss the amended complaint pursuant to Federal Rule of Civil
Procedure 12(b)(1) (lack of jurisdiction) and 12(b)(6) (failure to state a claim) by the State
Defendants. (ECF No. 70.) Plaintiff filed a brief opposing the motion to dismiss, and a
certification of facts. (ECF Nos. 72, 76.) The Court will also screen the conditions of confinement
claim against Mr. Lanigan, 1 pursuant to 28 U.S.C. § 1915A. 2
I.

THE AMENDED COMPLAINT
Plaintiff purports to incorporate his original complaint into his amended complaint. (ECF

No. 61 at 1.) Plaintiff’s original complaint, brought under 42 U.S.C. § 1983, was dismissed as

1

Petitioner misspelled Mr. Lanigan’s name as “Lonigan” in the caption of the Amended
Complaint. Gary M. Lanigan is the Commissioner of the New Jersey Department of Corrections.
See http://www.state.nj.us/corrections/pages/about_us/Commissioner_bio.html (last visited April
27, 2017). It does not appear that the Amended Complaint was served on Mr. Lanigan. Screening
the claims against Lanigan in the Amended Complaint under § 1915A is appropriate because
screening required as early as feasible. 28 U.S.C. § 1915A(a).
2

28 U.S.C. § 1915A provides:
(a) Screening.--The court shall review, before docketing, if feasible
or, in any event, as soon as practicable after docketing, a complaint
in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity.
(b) Grounds for dismissal.--On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint-(1) is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune
from such relief.
(c) Definition.--As used in this section, the term “prisoner” means
any person incarcerated or detained in any facility who is accused
of, convicted of, sentenced for, or adjudicated delinquent for,
violations of criminal law or the terms and conditions of parole,
probation, pretrial release, or diversionary program.
2

barred by Heck v. Humphrey. (ECF Nos. 42, 43). Plaintiff admits in the amended complaint that
his post-conviction proceedings remain pending in state court. (ECF No. 61 at 4.)
However, in his amended complaint, Plaintiff did not cure the defect in his original
complaint by establishing “that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's issuance of a writ of habeas corpus.”
512 U.S. at 487. Therefore, by Order dated February 1, 2017 (ECF No. 79), the Court struck the
following sentence from the amended complaint: “Plaintiff incorporates the original complaint
with this complaint as amended.” The Court will review the remainder of the amended complaint
to determine if Plaintiff has stated any claims that are not barred by Heck and, if so, whether there
is any other basis for dismissal of his claims.
The gravamen of Plaintiff’s amended complaint is that Judge Fluharty, who presided over
Plaintiff’s state court criminal trial, violated Plaintiff’s right to due process by not disclosing the
judge’s conflict of interest. The alleged conflict is that in 1972, Judge Fluharty (when the judge
was a practicing attorney) handled the adoption of Plaintiff’s daughter by Judge Fluharty’s sister.
(ECF No. 61 at 2.) Plaintiff alleged Judge Fluharty’s rulings in Plaintiff’s criminal case were
biased by the fact that his sister adopted Plaintiff’s daughter, and this bias resulted in Plaintiff’s
conviction. (Id.) Plaintiff did not learn until 2012 that he had a daughter or that Judge Fluharty
had represented his sister in adopting Plaintiff’s daughter. (Id.) This discovery formed the basis
of Plaintiff’s request for post-conviction relief, which remains pending. (Id. at 3-4.)
Plaintiff further alleged that his post-conviction proceedings have been tainted by the
connections between Judge Fluharty and his wife with Judge McBride and Justice Solomon, both
of whom were involved in Plaintiff’s post-conviction proceedings. (Id. at 3.) Then Judge

3

Solomon3 presided over Plaintiff’s 2013 motion for a new trial without disclosing that he had
supervised Joan Spadea, Judge Fluharty’s wife, when Solomon was a prosecutor in 1996-2002.
(Id.) Plaintiff alleged Judge McBride, who presided over Plaintiff’s post-conviction motion,
“stripped plaintiff’s attorneys from his defense in an attempt to shut down this motion.” (Id. at 4.)
Plaintiff alleged that Spadea “saw to it that my 3rd degree and fourth-degree assault charges went
to a 12 count indictment which included a charge for attempted murder . . .” (Id. at 3.)
Plaintiff summarizes his claims as follows:
[a]ll the named persons above have violated plaintiff’s 14th
Amendment rights and due process by the perversion of lawfully
initiated process to illegitimate ends. These officials, judges,
prosecutors, used the process to manipulate the judicial process to
serve themselves and their families.
(ECF No. 61 at 1.)
Plaintiff also raised Section 1983 claims against the New Jersey State Parole Board and
one of its members, Robin G. Stacy, Esq. In his amended complaint, Plaintiff alleged:
While Fluharty’s wife was in the prosecutor’s office, a letter was
sent to the Parole Board that convinced the Parole Board not to
release me. Plaintiff has well passed the 25 to life sentence. The
Parole Board never finalized the last hearing on Plaintiff when
Plaintiff appealed. The Parole Board said a confidential report from
the prosecutor’s office was a major reason in denying parole.
Plaintiff could not get the report. Plaintiff sent motions to the
Appellate Court and has heard nothing. In 2 years nothing
concerning parole no[t] one motion was answered. I’m up against a
Supreme Court Judge (sic) Solomon. . . .
I wrote the Chairman of the Parole Board. I wrote Robin Stacy,
Esq., repeatedly, (of the New Jersey State Parole Board) with a letter
to the head of the Parole Board and I gave every Parole Board
member a copy of my letters. I received no response. I never
received a copy of the letter that the Parole Board used.

3

Justice Solomon was elevated to the New Jersey Supreme Court in 2014.
4

(ECF No. 61 at 5-6.)
Finally, Plaintiff alleged the following against Gary Lanigan, Commissioner of the New
Jersey Department of Corrections (“N.J. DOC”):
Even Mr. Lanigan, the administrator cannot follow the law. Inmates
cannot get out of their cells if they are in ad-seg[, administrative
segregation]. 4 This is in violation of s 1350 USC, 5 for example, in
Northern State Prison ad-seg, one wing is attached to 2 wing has
been condemned, closed down even though they paint it all up so
cosmetically we are allowed out one day out of six days for
recreation. For example, on April 27, 2016 there was no yard
recreation because Major Kerner needed the guard in charge to do
something else. When all the inmates complained they were told to
shut up or they would get a charge for inciting a riot. Check the log
book for that day. Plaintiff is confined to a cell with another male
24/7, 6 days a week. There is no curtain by the toilet. Some of the
inmates are predators. There was just a problem, with a kid who
refused sex with another inmate (who had seen the kid at the toilet)
and was stabbed so bad he needed 185 stitches in his face.
Plaintiff was confined in an isolation cell for 146 days in East Jersey
State Prison by the [] 6 visits, no recreation of any kind. I had to
crawl under my bed to get out of the light even so I could not sleep.
I did not have my cane, brace or walker for 90 days. I wrote
Commissioner Lanigan 10 letters. On the rare occasion that a
psychiatrist would come, they stopped by for a minute and
pretended nothing was wrong. I complained I couldn’t sleep, that
there was no recreation and there was no one to talk to but God. To
no avail. This is in violation of s 1350 United States Code against
torture. I suffered great mental anguish.

4

“Administrative segregation” in New Jersey is defined as “removal of an inmate from the general
population of a correctional facility to a close custody unit because of one or more disciplinary
infractions or other administrative considerations.” N.J.A.C. 10A:1-2.2.

5

28 U.S.C. § 1350, which provides, “[t]he district courts shall have original jurisdiction of any
civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of
the United States,” is inapplicable to Plaintiff, who does not allege that he is not a United States
citizen. See Rasul v. Bush, 542 U.S. 466, 485 (2004) (“28 U.S.C. § 1350 explicitly confers the
privilege of suing for an actionable ‘tort . . . committed in violation of the law of nations or a
treaty
of
the
United
States”
on
aliens
alone....”)
6

There is a page break here in the amended complaint, and it appears that the end of this sentence
and the beginning of the next sentence are missing, but the page numbers are consecutive.
5

(ECF No. 61 at 8-9.)

6

II.

DISCUSSION
A.

Standard of Review

Courts must liberally construe pleadings that are filed pro se. Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Thus, “a pro se complaint,
however inartfully pleaded, must be held to ‘less stringent standards than formal pleadings drafted
by lawyers.’” Id. (internal quotation marks omitted). “Court personnel reviewing pro se pleadings
are charged with the responsibility of deciphering why the submission was filed, what the litigant
is seeking, and what claims she may be making.” See Higgs v. Atty. Gen. of the U.S., 655 F.3d
333, 339-40 (3d Cir. 2011) (quoting Jonathan D. Rosenbloom, Exploring Methods to Improve
Management and Fairness in Pro Se Cases: A Study of the Pro Se Docket in the Southern District
of New York, 30 Fordham Urb. L.J. 305, 308 (2002)).
Under Federal Rule of Civil Procedure 12(b)(1), courts may dismiss defendants who are
immune from suit if it appears “that the plaintiff will not be able to assert a colorable claim of
subject matter jurisdiction.” Grohs v. Yatauro, 984 F.Supp.2d 273, 280 (D.N.J. 2013) (quoting
Cardio–Medical Assoc., Ltd. v. Crozer–Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983)).
Under Federal Rule of Civil Procedure 12(b)(6), courts may dismiss a complaint for failure
to state a claim upon which relief may be granted. For a complaint to survive dismissal under Rule
12(b)(6), it must contain sufficient factual matter to state a claim that is plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id.

7

Although the plausibility standard “does not impose a probability requirement, it does
require a pleading to show more than a sheer possibility that a defendant has acted unlawfully.”
Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal quotations and citations
omitted). As a result, a plaintiff must “allege sufficient facts to raise a reasonable expectation that
discovery will uncover proof of her claims.” Id. at 789. A complaint that only pleads facts that
are consistent with a defendant's liability, however, “stops short of the line between possibility and
plausibility of entitlement to relief.” Id. at 786.
In evaluating the sufficiency of a complaint, district courts must separate the factual and
legal elements. Fowler v. UPMC Shadyside, 578 F.3d 203, 210–211 (3d Cir. 2009). Restatements
of the elements of a claim are legal conclusions, therefore, they are not entitled to an assumption
of truth. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). The Court, however,
“must accept all of the complaint's well-pleaded facts as true.” Fowler, 578 F.3d at 210. As noted,
because Plaintiff is proceeding pro se, the Court is to liberally construe the amended complaint in
his favor. “The Court need not, however, credit a pro se plaintiff's ‘bald assertions’ or ‘legal
conclusions.’” D’Agostino v. CECOM RDEC, No. 10-4558, 2010 WL 3719623, at *1 (D.N.J.
Sept. 10, 2010). Moreover, if a complaint can be remedied by an amendment, a district court may
not dismiss the complaint with prejudice, but must permit the amendment. Grayson v. Mayview
State Hospital, 293 F.3d 103, 108 (3d Cir. 2002).
The Court has not considered any materials outside the amended complaint, submitted by
the parties, in addressing the State Defendants’ motion to dismiss. Thus, the Court need not
construe the motion to dismiss as a motion for summary judgment, and the Court will accept all
well-pleaded facts in the amended complaint as true. See Federal Rule of Civil Procedure 12(d)

8

(“If, on a motion under Rule 12(b)(6) . . . matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for summary judgment under Rule 56).
B.

Substantive Claims

Plaintiff raises claims under 42 U.S.C. §§ 1983 and 1985, and civil RICO.
42 U.S.C. § 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State ... 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.
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the
Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)
(citation omitted).
42 U.S.C. § 1985(3) provides, in pertinent part:
If two or more persons in any State or Territory conspire . . . for the
purpose of depriving, either directly or indirectly, any person . . . of
the equal protection of the laws, or of equal privileges and
immunities under the laws; . . . in any case of conspiracy set forth in
this section, if one or more persons engaged therein do, or cause to
be done, any act in furtherance of the object of such conspiracy,
whereby another is injured in his person or property, or deprived of
having and exercising any right or privilege of a citizen of the United
States, the party so injured or deprived may have an action for the
recovery of damages occasioned by such injury or deprivation,
against any one or more of the conspirators.
The elements of a prima facie claim under § 1985(3) include: (1) a conspiracy; (2) motivated by
a racial or class based discriminatory animus designed to deprive, directly or indirectly, any person
or class of persons to the equal protection of the laws; (3) an act in furtherance of the conspiracy;

9

and (4) an injury to person or property or the deprivation of any right or privilege of a citizen of
the United States.” Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997) (citing Griffin v.
Breckenridge, 403 U.S. 88, 102–03 (1971)).
The Court construes Plaintiff’s civil RICO conspiracy claims as arising under 18 U.S.C. §
1962(d). 18 U.S.C. § 1962 provides, in relevant part:
(a) It shall be unlawful for any person who has received any income
derived, directly or indirectly, from a pattern of racketeering activity
. . . to use or invest, directly or indirectly, any part of such income,
or the proceeds of such income, in acquisition of any interest in, or
the establishment or operation of, any enterprise which is engaged
in, or the activities of which affect, interstate or foreign commerce.
...
(b) It shall be unlawful for any person through a pattern of
racketeering activity or through collection of an unlawful debt to
acquire or maintain, directly or indirectly, any interest in or control
of any enterprise which is engaged in, or the activities of which
affect, interstate or foreign commerce.
(c) It shall be unlawful for any person employed by or associated
with any enterprise engaged in, or the activities of which affect,
interstate or foreign commerce, to conduct or participate, directly or
indirectly, in the conduct of such enterprise's affairs through a
pattern of racketeering activity or collection of unlawful debt.
(d) It shall be unlawful for any person to conspire to violate any of
the provisions of subsection (a), (b), or (c) of this section.
“[I]n order to state a claim under RICO subsection [1692](d), a plaintiff must allege (1) agreement
to commit the predicate acts . . ., and (2) knowledge that those acts were part of a pattern of
racketeering activity conducted in such a way as to violate section 1962(a), (b), or (c).” Rose v.
Bartle, 871 F.2d 331, 366 (3d Cir. 1989) (quoting Odesser v. Continental Bank, 676 F.Supp. 1305,
1312 (E.D.Pa. 1987)).

10

1.

New Jersey State Parole Board

The New Jersey State Parole Board is not a “person” within the language of 42 U.S.C. §
1983. Madden v. New Jersey State Parole Bd., 438 F.2d 1189, 1190 (3d Cir. 1971); Thrower v.
The New Jersey State Parole Bd., 438 F. App’x 71, 72 (3d Cir. 2011). Therefore, Plaintiff’s
Section 1983 claim against the New Jersey State Parole Board is dismissed with prejudice.
2.

Eleventh Amendment Immunity

In his amended complaint, Plaintiff did not specify whether he is suing the State Defendants
in their official or individual capacities. The State Defendants contend Plaintiff’s Section 1983
claims for damages against them in their official capacities are barred by the Eleventh Amendment.
(ECF No. 70-1 at 25-30.)
The Eleventh Amendment to the United States Constitution provides:
The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.
Thus, the Eleventh Amendment bars suits against a State unless the State has waived its immunity
or Congress has exercised its power to waive that immunity. Will v. Michigan Dept. of State
Police, 491 U.S. 58, 66 (1989). Congress, in enacting Section 1983, did not override Eleventh
Amendment immunity. Id. New Jersey has not waived sovereign immunity for suits brought
under Section 1983. Mierzwa v. U.S., 282 F. App’x 973, 976 (3d Cir. 2008)).
[A] suit against a state official in his or her official capacity is not a
suit against the official but rather is a suit against the official's office.
Brandon v. Holt, 469 U.S. 464, 471, 105 S.Ct. 873, 877, 83 L.Ed.2d
878 (1985). As such, it is no different from a suit against the State
itself. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165–166, 105
S.Ct. 3099, 3104–3105, 87 L.Ed.2d 114 (1985); Monell [v.
Department of Social Services of City of New York, 436 U.S. 658,]
690, n. 55, 98 S.Ct. [2018], 2035, n. 55 [1978]. . . . [N]either a State

11

nor its officials acting in their official capacities are “persons” under
§ 1983.
Will, 491 U.S. at 71. Id.
New Jersey county prosecutors are arms of the State, for purposes of Eleventh Amendment
immunity, when sued for damages under 42 U.S.C. § 1983 for claims arising out of their classic
law enforcement and investigative functions. Beightler v. Office of Essex County Prosecutor, 342
F. App’x 829, 832 (3d Cir. 2009) (citing Coleman v. Kaye, 87 F.3d 1491, 1499-1505 (3d Cir.
2009)). State parole board members are also state officials entitled to Eleventh Amendment
immunity when sued in their official capacities. Keller v. PA Bd. of Probation and Parole, 240 F.
App’x 477, 479 (3d Cir. 2007) (affirming district court’s dismissal of § 1983 official capacity
claims against members of Pennsylvania Board of Probation and Parole).
The Court construes Plaintiff’s Section 1983 claims against Judge Fluharty, Judge
McBride, Justice Solomon, and former county prosecutors Joan Spadea, and George Stillwell as
brought against them in their official capacities. As a result, the Court dismisses such claims as
barred by the Eleventh Amendment because in their official capacities, they are not “persons”
subject to liability under Section 1983. Although Plaintiff might amend the complaint to sue these
individuals in their individual capacities, for the reasons discussed below, they are otherwise
immune from suit thereby rendering amendment futile.
3.

Judicial Immunity

The State Defendants argue Justice Solomon, Judge McBride, and Judge Fluharty are
entitled to absolute judicial immunity because there was subject matter jurisdiction in Plaintiff’s
state court cases over which they presided and Plaintiff’s allegations arise from rulings they made.
(ECF No. 70-1 at 30-31.) Plaintiff responds that judges are not immune when they violate due
process rights and violate judicial ethics. (ECF No. 72 at 2.)
12

“A judicial officer in the performance of his duties has absolute immunity from suit and
will not be liable for his judicial acts.” Capogrosso v. The Supreme Court of New Jersey, 588
F.3d 180, 184 (3d Cir. 2009) (quoting Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir. 2006)). “A
judge will not be deprived of immunity because the action he took was in error, was done
maliciously, or was in excess of his authority; rather, he will be subject to liability only when he
has acted ‘in the clear absence of all jurisdiction.’” Id. (citations omitted).
The amended complaint indicates that Justice Solomon, Judge McBride, and Judge
Fluharty had jurisdiction to preside over Plaintiff’s state court cases, and Plaintiff’s allegations
against them relate to their rulings in those actions. Therefore, they are entitled to absolute judicial
immunity, and the Section 1983 claims and civil RICO conspiracy claims against them are
dismissed with prejudice.
4.

Prosecutorial Immunity

The State Defendants contend George Stillwell and Joan Spadea have prosecutorial
immunity from Plaintiff’s claims because Stillwell prosecuted the case that resulted in Plaintiff’s
incarceration, and Spadea “appears to have worked in the Prosecutor’s Office at this time as well.”
(ECF No. 70-1 at 35.)
Prosecutors have absolute immunity for prosecutorial actions that are “intimately
associated with the judicial phase of the criminal process.” Van de Kamp v. Goldstein, 555 U.S.
335, 341 (2009) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Absolute immunity
applies when a prosecutor is acting “as an officer of the court” but not when a prosecutor engages
in investigative or administrative tasks. Id. at 342. A functional approach should be applied to
determine if a prosecutor’s activity is taken as an officer of the court or if it is investigative or
administrative. Id.

13

Plaintiff alleged that Spadea “saw to it that my 3rd degree and fourth-degree assault charges
went to a 12 count indictment which included a charge for attempted murder. . .” (ECF No. 61 at
3.) “Prosecutorial immunity applies when a prosecutor prepares to initiate a judicial proceeding.”
Van de Kamp, 555 U.S. at 343 (quoting Burns v. Reed, 500 U.S. 478, 492 (3d Cir. 1991)); Hyatt
v. County of Passaic, 340 F. App’x 833, 837 (3d Cir. 2009) (prosecutors have absolute immunity
for the acts of charging and indicting). Therefore, Spadea is immune for her conduct of deciding
to bring a twelve-count indictment. The Section 1983 due process claim, Section 1983 and Section
1985 conspiracy claims, and civil RICO conspiracy claims against Spadea are dismissed with
prejudice.
Apart from conclusory allegations that Stillwell was aligned with Judge Fluharty in
Plaintiff’s 1988 prosecution, which in itself does not plausibly state a Section 1983 or Section 1985
claim, Plaintiff alleged “the prosecutor’s office operated outside the scope of their duties, going so
far as notifying the paper that plaintiff would also be charged with escape.” (ECF No. 61 at 3.) 7
“Communication with the press is not core prosecutorial activity,” and, at best, is only an
administrative function subject to qualified immunity. Kulwicki v. Dawson, 969 F.2d 1454, 146667 (3d Cir. 1992)).

Therefore, to the extent Plaintiff contends that it was Stillwell who

communicated with the press, Stillwell is not entitled to absolute prosecutorial immunity for this
due process claim.

7

In his original complaint, Plaintiff alleged it was Stillwell who told the press Plaintiff would be
charged with escape. (ECF No. 1 at 6.)
14

5.

Statute of Limitations

The State Defendants assert an additional basis to dismiss the claims against Stillwell,
expiration of the statute of limitations. (ECF No. 70-1 at 20.) “[A] district court may sua sponte
dismiss a claim as time-barred under 28 U.S.C. § 1915(A)(b)(1) where it is apparent from the
complaint that the applicable limitations period has run.” Hunterson v. DiSabato, 244 F. App’x
455, 457 (3d Cir. 2007).
There is a two-year statute of limitations for claims brought under Section 1983. See
O’Connor v. City of Newark, 440 F.3d 125, 126-27 (3d Cir. 2006) (“[f]or section 1983 actions in
New Jersey, ‘[the governing personal injury] statute is N.J.S.A. 2A:14–2, which provides that an
action for injury to the person caused by wrongful act, neglect, or default, must be convened within
two years of accrual of the cause of action”) (quoting Brown v. Foley, 810 F.2d 55, 56 (3d Cir.
1987)). Federal law governs when a cause of action accrues. Dique v. New Jersey State Police,
603 F.3d 181, 185 (3d Cir. 2010). The “cause of action accrues, and the statute of limitations
commences to run, when the wrongful act or omission results in damages.” Id. at 185-86 (quoting
Wallace v. Kato, 549 U.S. 384, 391 (2007) (quotation omitted). Plaintiff alleged damages arising
from his imprisonment, which he contends was the result of violation of his right to a fair trial.
His trial occurred in 1988.
To the extent it is not inconsistent with federal law, state law governs whether a limitations
period should be tolled. Id. at 185 (citing Wilson v. Garcia, 471 U.S. 261, 269 (1985) superseded
by statute on other grounds, 28 U.S.C. § 1658(a); Ammlung v. City of Chester, 494 F.2d 811, 815
(3d Cir. 1974). Under the New Jersey discovery rule, “the accrual of the claim will be postponed
until the ‘injured party discovers, or by exercise of reasonable diligence and intelligence should

15

have discovered[,] that he may have a basis for an actionable claim.”” Id. (quoting Lopez v. Swyer,
62 N.J. 267 (1973); see Lapka v. Porter Hayden Co., 745 A.2d 525, 530 (2000)).
Pursuant to the statute of limitations, Plaintiff’s claim against Stillwell should have been
brought by 1990 at the latest. Moreover, Plaintiff has presented no basis for why the claims
concerning Stillwell should be tolled. The due process claim against George Stillwell is dismissed
with prejudice because it is clearly barred by the statute of limitations.
6.

Qualified Immunity

Having found that Joan Spadea is entitled to absolute prosecutorial immunity, and the
Section 1983 claim against George Stillwell is barred by the statute of limitations, the Court need
not address the State Defendants’ argument that Spadea and Stillwell are entitled to qualified
immunity. The State Defendants also contend that Robin Stacy, a New Jersey Parole Board
member, is entitled to qualified immunity because there is no clearly established constitutional
right to have parole papers withheld from the prosecutor’s office. (ECF No. 70-1 at 38.)
It appears that the State Defendants misconstrue the claim against Robin Stacy. Plaintiff
alleged the prosecutor’s office sent a letter to the Parole Board, which was the basis for denying
parole. (ECF No. 61 at 5-6.) Plaintiff requested that Robin Stacy provide a copy of the letter from
the prosecutor’s office so he could challenge the parole decision, but his request went unanswered.
(Id. at 8.) The State Defendants did not address whether Stacy is entitled to qualified immunity
for failing to send Plaintiff a copy of the prosecutor’s letter to the Parole Board, so Plaintiff could
respond to the contents of the letter in appealing the parole decision.
In any event, Plaintiff’s claim against Stacy is barred by Heck. The Heck favorable
termination rule applies to allegations of improper denial of release on parole because such a claim
“plainly implicates the validity of continued confinement.” Connolly v. Arroyo, 293 F. App’x 175,

16

177 (3d Cir. 2008) (citing Williams v. Consovoy, 453 F.3d 173 (3d Cir. 2006)). It is clear from the
amended complaint that Plaintiff did not obtain a favorable termination of the Parole Board’s
denial of parole. Therefore, Plaintiff’s Section 1983 claim against Robin Stacy is dismissed
without prejudice because it is barred by Heck.
7.

Gary Lanigan

The Court will construe the allegations in the amended complaint against Commissioner
Gary Lanigan as conditions of confinement claims under the Eighth Amendment.
A claim of inhumane prison conditions may rise to the level of an
Eighth Amendment violation where the prison official “deprived the
prisoner of the minimal civilized measure of life's necessities” and
“acted with deliberate indifference in doing so, thereby exposing the
inmate to a substantial risk of serious damage to [his] future health.”
Parkell v. Danberg, 833 F.3d 313, 335 (3d Cir. 2016) (quoting
Chavarriaga v. N.J. Dep't of Corr., 806 F.3d 210, 226 (3d Cir.
2015)).
Palakovic v. Wetzel, ---F.3d ----, 2017 WL 1360772 (3d Cir. Apr. 14, 2017). “A prison official
may be held liable under the Eighth Amendment for denying humane conditions of confinement
only if he knows that inmates face a substantial risk of serious harm and disregards that risk by
failing to take reasonable measures to abate it.” Farmer v. Brennan, 511 U.S. 825, 847 (1994).
Plaintiffs “can show this by establishing that the risk was obvious.” Beers-Capitol v. Whetzel,
256 F.3d 120, 125 (3d Cir. 2001).
Plaintiff has not alleged any facts indicating that N.J. DOC Commissioner Gary Lanigan
knew of the particular conditions Plaintiff was subjected to in “ad-seg.” in Northern State Prison
or in an “isolation cell” in East Jersey State Prison, nor has he adequately alleged how those
conditions posed a substantial risk of serious damage to his future health. For instance, with
respect to the “isolation cell,” Plaintiff does not allege that Lanigan knew the lights were kept on
in the cell all night, nor does he allege that the period of time where the lights prevented him from
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sleeping was long enough to present a serious risk to his health. See Huertas v. Secretary
Pennsylvania Dep’t of Corr., 533 F. App’x 64, 68 n.7 (“[i]n some instances where continuous
lighting causes inmates to suffer physical and psychological harm, courts have held that living in
constant illumination is without penological justification.”) With respect to conditions in “adseg.” in Northern State Prison, Plaintiff does not allege Lanigan was aware that two inmates shared
a cell “24/7” for six days a week or that inmates were subjected to an obvious risk of attack by
other inmates.
A plaintiff may also allege an Eighth Amendment claim against a supervisory official
“based on policies or practices where the plaintiff alleges that the supervisors ‘knew or were aware
of and disregarded an excessive risk to the [plaintiff’s] health or safety[.]’” Palakovic, 2017 WL
1360772, at *16 (quoting Beers-Capitol v. Whetzel, 256 F.3d 120, 135 (3d Cir. 2001).
[T]he plaintiff must identify a specific policy or practice that the
supervisor failed to employ and show that: (1) the existing policy or
practice created an unreasonable risk of the Eighth Amendment
injury; (2) the supervisor was aware that the unreasonable risk was
created; (3) the supervisor was indifferent to that risk; and (4) the
injury resulted from the policy or practice.
Beers-Capitol, 256 F.3d at 134 (citing Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989)). A
plaintiff can make out a supervisor liability claim “by showing that ‘the supervisory official failed
to respond appropriately in the face of an awareness of a pattern of such injuries.’” Id. A plaintiff
may also make out a supervisory liability claim in situations where “the risk of constitutionally
cognizable harm is so great and so obvious that the risk and the failure of supervisory officials to
respond will alone support findings of the existence of an unreasonable risk, of knowledge of that
unreasonable risk, and of indifference to it.”
The amended complaint alleges a practice in administrative segregation at Northern State
Prison of confining two inmates to a cell “24/7” for six days a week, without recreation and without
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a curtain around the toilet. Plaintiff fails to allege that the risk of constitutional harm was so great
and so obvious to support a finding of deliberate indifference by a remote supervisory official to
that risk.

Plaintiff’s additional allegation of one instance of inmate-on-inmate violence is

insufficient to hold the Commissioner of the New Jersey Department of Corrections liable on a
theory that the official failed to respond “in the face of an awareness of a pattern of such injuries.”
The amended complaint does not allege sufficient facts to state a supervisory liability claim against
Gary Lanigan under the Eighth Amendment. The Section 1983 claims for conditions in Northern
State Prison and East Jersey State Prison are dismissed without prejudice.
III.

CONCLUSION

For the reasons discussed above, the Court grants the State Defendants’ motion to dismiss
as follows. The Section 1983 claim against the New Jersey State Parole Board is dismissed with
prejudice because it is not a “person” subject to suit under Section 1983. Plaintiff’s Section 1983
claims, Section 1985 conspiracy claims, and civil RICO conspiracy claims against Judge Fluharty,
Judge McBride, and Justice Solomon are dismissed with prejudice based on absolute judicial
immunity. The Section 1983 claims against Judge Fluharty, Judge McBride, and Justice Solomon,
in their official capacities, are also barred by the Eleventh Amendment. Plaintiff’s Section 1983
and Section 1985 conspiracy claims against Defendant Spadea are dismissed with prejudice based
on absolute prosecutorial immunity. Plaintiff’s Section 1985 conspiracy claim against Stillwell is
dismissed without prejudice for failure to state a claim; Plaintiff’s Section 1983 due process claim
against Defendant Stillwell is dismissed with prejudice because it is barred by the statute of
limitations. Plaintiff’s Section 1983 claim against Robin Stacy is dismissed without prejudice
because it is barred by Heck. Plaintiff’s § 1983 claims against Gary Lanigan are dismissed without
prejudice.

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An appropriate order follows.

DATED: April 27, 2017

s/ John Michael Vazquez
JOHN MICHAEL VAZQUEZ
United States District Judge

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