ZALAZAR v. KAMINSKI et al
OPINION. Signed by Judge Susan D. Wigenton on 9/26/16. (cm )
*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
STACEY KAMINSKI, et al.,
Civil Action No. 14-8132 (SDW)
WIGENTON, District Judge:
This matter comes before the Court on the motions to dismiss Plaintiff Jaun Zalazar’s
complaint filed by the Department of Corrections (“DOC”) Defendants 1, Susan Davis and Sherry
Yates, (ECF No. 20) and the Department of Human Services (“DHS”) Defendants, Shantay
Adams, Merril Main, and Jacylen Ottino. (ECF No. 21). Plaintiff filed responses to both
motions. (ECF Nos. 22, 24). On July 19, 2016, this Court entered an order requiring both sets
of Defendants to file supplemental briefing addressing the applicability of the Third Circuit’s
recent ruling in Thomas v. Christie, --- F. App’x ---, 2016 WL 3771825 (3d Cir. 2016), to the
motions before this Court. (ECF No. 26). Both sets of Defendants have filed responses to that
Order (ECF Nos. 28, 29), to which Plaintiff has replied (ECF Nos. 30, 31). For the following
reasons, this Court will grant the motions of both sets of Defendants and will dismiss Plaintiff’s
complaint without prejudice as to all Defendants other than Stacey Kaminski.
The only DOC Defendant who has not moved to dismiss is Defendant Stacey Kaminski, who
has, as of yet, not been served by Plaintiff. (See ECF No. 11).
This Court previously summarized the basis for Plaintiff’s claims as follows:
Plaintiff, Juan Zalazar, is currently civilly committed to the East
Jersey State Prison Special Treatment Unit (STU) in Avenel, New
Jersey, pursuant to the New Jersey Sexually Violent Predator
(“SVP”) Act , N.J. Stat. Ann. § 30:4-27.24 et seq. Plaintiff alleges
in his complaint that the rules and regulations through which the
STU is managed are interfering with his receipt of the prescribed
medical treatment with which he must comply in order to be released
from the facility. (Id. at 4-8).2 Plaintiff alleges that, on multiple
occasions, Corrections officers lock down or otherwise temporarily
imprison the civilly committed individuals for security reasons
(such as while transporting individual detainees to medical or other
housing units). (Id. at 9-19). Plaintiff alleges that while his
housing unit is in lockdown, “treatment staff is told to leave the . . .
unit” and treatment is either postponed or cancelled altogether for
that day. (Id. at 9). Plaintiff alleges that this temporary cessation
of treatment during lock up situations prevents him from receiving
treatment and thus extends his term of commitment at the STU.
(Id. at 12). Plaintiff provides several specific instances in which his
unit was locked down for a variety of reasons, and treatment was
postponed or cancelled as a result, including December 18 and 19,
2014. (Id. at 9-12).
Plaintiff also alleges that the use of Modified Activities
Program (“MAP”) status by corrections officers in response to
violations of policies and regulations further inhibits his treatment.
(Id. at 12-13). Plaintiff alleges that MAP status, a five stage
process during which an individual is placed on decreasingly severe
levels of isolation over the course of numerous months, results in a
complete cessation of treatment until the MAP status individual
completes MAP and requests that he be placed back into a therapy
group. (Id. at 13-15). In his “addendum” to his complaint,
Plaintiff identifies a specific instance (January 8, 2015) in which he
was placed on MAP status after a corrections lieutenant reported
All page numbers as to ECF No. 1 refer to the Clerk’s PageID numbers, as Plaintiff has two
sets of page numbers in his filing.
him for “personal reasons.” (Addendum, Attached as Document 1
to ECF No. 2, at 1). Plaintiff alleges that these MAP placements
are the result of charges brought by corrections officers, as enforced
under DOC policies, on false pretenses, and that he is unable to call
witnesses in his defense in response to the officers’ allegations. (Id.
(ECF No. 4 at 1-2).
In his complaint, Plaintiff names numerous Defendants, each a supervisory figure at the
STU employed by either the DOC or the DHS. (ECF No. 1 at 3-8). The first Defendant named
by Plaintiff is Stacey Kaminski, the Administrative Major for the DOC, who he claims authored
the policy which requires that treatment be cancelled during security lock downs. (Id. at 3-4).
Plaintiff then names Merril Main, the Clinical Director of the STU and chief DHS authority at the
facility. (Id. at 4). Plaintiff asserts that, while he was not the source of the challenged policy,
Main “allowed” corrections officers to interfere with treatment through lockups and that Main
“overlooked” the misuse of M.A.P. by corrections officers. (Id.). Plaintiff also names as a
Defendant Sarah3 Davis, the DOC’s assistant superintendent for the STU. Plaintiff asserts that
Davis “authorized” corrections officers to interfere with the running of treatment, presumably by
engaging in security lockdowns, and told Plaintiff to draft an administrative complaint if he wished
to complain about the situation. (Id. at 5). Plaintiff next names Sherry Yates, the Superintendent
of the STU employed by the DOC. (Id.). According to Plaintiff, Ms. Yates “failed to properly
train” corrections officers to “over-see civilly committed residents” in a fashion different from that
Plaintiff named Ms. Davis as “Susan” Davis in his complaint. (See ECF No. 1 at 5, Document
1 attached to ECF No. 20 at 1).
used for dealing with criminal prisoners.4 (Id.). Plaintiff also names as a Defendant Shantay
Adams, a unit director at the STU employed by the DHS. (Id. at 6). According to the complaint,
Adams “acknowledg[es]” the “massive interference” the DOC lock down policies present to
clinical treatment but has not corrected the problem, instead stating to Plaintiff that the DHS does
not interfere with the DOC’s operation of the facility. (Id.). The final named Defendant is
Jacylen Ottino, the Program Coordinator of the M.A.P. Unit, who is apparently a DHS employee.
According to Plaintiff, Ms. Ottino “knows” that corrections officers “fabricate” reasons to place
him and others on M.A.P. status and has not corrected the issue. Plaintiff also asserts that Ottino
does not allow him to call witneses or have a hearing before being placed on M.A.P. status, instead
asserting that M.A.P. is not a punishment but is instead a therapeutic issue. (Id. at 6-7).
A. Legal Standard
In deciding a motion to dismiss under Rule 12(b)(6), the Court must “accept all factual
allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine
whether under any reasonable reading of the complaint, the plaintiff may be entitled to relief.”
Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n. 3 (3d Cir. 2014) (quoting Phillips v.
Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). According to the Supreme Court’s
decision in Ashcroft v. Iqbal, “a pleading that offers ‘labels or conclusions’ or ‘a formulaic
In his complaint, Plaintiff specifically takes issue with the application of the DOC’s use of
force policy against SVPs, but does not detail this policy nor explain how the use of force policy
affects the claims he presents. The use of force policy does not appear to be the same policy as
that which requires the cancellation of treatment during lock downs.
recitation of the elements of a cause of action will not do.’” 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss for
failure to state a claim, a complaint must allege “sufficient factual matter” to show that its claims
are facially plausible. Fowler v. UPMS Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation
omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Dempster, 764 F.3d at 308 (quoting Iqbal, 556 U.S. at 678).
Defendants have moved to dismiss both of Plaintiff’s claims for violations of his federal
Due Process rights pursuant to the federal civil rights statute, 42 U.S.C. § 1983. Section 1983
provides “private citizens with a means to redress violations of federal law committed by state
individuals.” Woodyard v. Cnty. Of Essex, 514 F. App’x 177, 180 (3d Cir. 2013). To assert a
claim under the statute, a plaintiff must allege that he was deprived of a federal constitutional or
statutory right by a person who was acting under the color of state law at the time that the alleged
deprivation occurred. Id. When called upon to evaluate a claim under § 1983, a court must first
“identify the exact contours of the underlying right said to have been violated” and determine
“whether the plaintiff has alleged a deprivation of a constitutional right at all.” Nicini v. Morra,
212 F.3d 798, 806 (3d Cir. 2000) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5
(1998)). Here, Plaintiff essentially asserts two kinds of Due Process claims – first, that his
Substantive Due Process Rights have been violated by a DOC policy which prevents him from
receiving treatment during security lock downs, and second that his Procedural Due Process rights
have been violated because he has not been given an opportunity to be heard to challenge his
placement on M.A.P. status based on complaints made by unnamed corrections officers.
Before addressing any of Petitioner’s specific claims, this Court must note that all of the
Defendants Plaintiff seeks to name are supervisory officials at the STU, and were not, according
to the complaint, directly involved in locking down Plaintiff’s unit at the facility. Plaintiff
likewise does not allege that any of the Defendants actually placed him on M.A.P. status
themselves, but rather asserts that he was not provided with proper procedures with which to
challenge his placement on M.A.P. status. Because Plaintiff seeks to raise his claims against
supervisory officials, his claims face the extra hurdle that he must connect each Defendant to the
violations of his rights he asserts. This is so because a “defendant in a civil rights action must
have personal involvement in the alleged wrongs” and a plaintiff must therefore plead a
supervisory defendant’s involvement in the alleged violation through means other than vicarious
liability. Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988).
Generally, this requires a plaintiff to show each supervisor’s participation in the alleged
wrong by pleading either that the supervisor’s “establishment of policies, practices or customs . .
. directly caused the constitutional violation[,] personal liability based on the supervisor
participating in the violation of [the p]laintiff’s right, [that the supervisor] direct[ed] others to
violate [the p]laintiff’s rights, or [that the supervisor had actual] knowledge of and acquiesc[ed] to
a subordinate’s conduct.” Doe v. New Jersey Dep’t of Corr., Civil Action No. 14-5284, 2015 WL
3448233, at *9 (D.N.J. May 29, 2015) (quoting Barkes v. First Corr. Med., Inc., 766 F.3d 307,
316-20 (3d Cir. 2014), rev’d on other grounds, 135 S. Ct. 2042 (2015)); see also Tenon v.
Dreibelbis, 606 F. App’x 681, 688 (3d Cir. 2015) (§ 1983 Plaintiff pleading supervisory liability
must establish defendant’s “participation [in the alleged wrong], or actual knowledge and
acquiescence, to be liable”). Claims based on a failure to train subordinates generally arise as a
species of policy based claims. Barkes, 766 F.3d at 316-19. In order to state a supervisory claim
based on a policy put into place by that supervisor, the plaintiff must generally identify a policy
that the supervisor either implemented or failed to implement, and plead facts which would show
that the policy created an unreasonable risk of a constitutional violation, the defendant was aware
of this risk and was indifferent to it, and the policy or failure to create a policy in question caused
the injury about which the Plaintiff complains. Id. at 330; see also Sample v. Diecks, 885 F.2d
1099 (3d Cir. 1989).
1. Plaintiff’s Substantive Due Process Claim
Plaintiff’s chief claim in this matter is his assertion that the DOC lockdown policy, which
prevents SVPs from receiving treatment while a security lockdown is in place, denies him his
Substantive Due Process right to receive treatment while civilly committed as an SVP. In so
doing, Petitioner has essentially attempted to track the claim raised in Thomas. As the Third
Circuit explained in Thomas, an SVP can state a claim for a denial of substantive Due Process
through a reduction of treatment for non-medical reasons against a supervisory official by pleading
facts which would permit the Court to infer that “(a) [the] supervising officials make systemwide
determinations, (b) these determinations become the moving force behind the circumstances under
which the subordinate officers effectively have no choice but to deny/reduce/change an inmate’s
denial/reduction/change in prescribed treatment was foreseeable under the systemwide
determinations the supervisors made.” Thomas, 2016 WL 3771825 at *3. Essentially, such a
claim is a supervisory liability claim based on the creation of a policy which results in a reduction
in prescribed medical treatment.
Here, Petitioner claims that there is a policy put into place which reduces his prescribed
medical treatment whenever there is a security lock down or prisoner movement because DOC
officers prevent treatment groups from occurring during a lock down.
Petitioner has thus
identified, albeit roughly, a policy or systemwide determination applicable to the SVPs in his
facility, and has pled that, under the policy, both DOC officers and DHS treatment staff are unable
to provide the normal course of treatment during a security lockdown. Even granting that one
could infer that such a policy would inevitably result in a denial of at least some treatment or that
a violation of Plaintiff’s rights were foreseeable, Plaintiff’s claims against most of the Defendants
he names suffer from a single unifying weakness – Plaintiff places responsibility for this
systemwide determination, and the creation of this alleged DOC policy, at the feet of Stacey
Kaminski, a named Defendant who Plaintiff has failed to serve. While Plaintiff has pled that the
other Defendants are aware of the policy, and are aware of its negative effects, and has asserted
that they have essentially told him that he must raise the issue with the DOC as it is a DOC policy
which they cannot control, Plaintiff has not pled that the other Defendants were involved in the
creation, enforcement, or application of this policy. Thus, Plaintiff has failed to set forth a claim
for relief against all Defendants other than Kaminski because he has failed to allege facts showing
the personal involvement of the other Defendants in the creation and application of the policy in
question or facts which would permit the Court to infer that they could somehow override the DOC
policy and failed to implement such an override.5 Id.at *3; see also Barkes, 766 F.3d at 316-19;
Rode, 845 F.2d at 1207-08. This Court therefore dismisses Plaintiff’s Substantive Due Process
claim without prejudice as to all Defendants other than Kaminski at this time. Because this Court
concludes that Plaintiff has pled enough facts to permit the Court to infer a plausible claim for
relief against Kaminski, and because Plaintiff could conceivably plead additional facts connecting
some of the other Defendants to the creation of the policy in question, this Court will dismiss
Plaintiff’s claims as to the non-Kaminski Defendants without prejudice.
2. Plaintiff’s Procedural Due Process Claim
The other claim Defendants seek to have dismissed is Plaintiff’s claim that his placement
on MAP status without a hearing or opportunity to challenge the basis for his placement in that
status violates his Procedural Due Process rights. The inherent problem with this claim, however,
is that a right to the procedural protections of the Due Process Clause only attaches if a plaintiff
has a cognizable liberty interest which is being impugned by the action being taken against him.
See, e.g., Deavers v. Santiago, 243 F. App’x 719, 721-22 (3d Cir. 2007). As the Third Circuit
explained in Deavers,
In Sandin [v. Conner, 515 U.S. 472 (1995)], the Supreme Court
determined that there was no cognizable liberty interest in freedom
from additional restraint in a prison setting. See [Id. at 486] (“We
hold that [the prisoner's] discipline in segregated confinement did
not present the type of atypical, significant deprivation in which a
The only alternative basis for supervisory relief Plaintiff attempts to plead is his assertion that
certain DOC Defendants “failed to train” their subordinates on how to deal with SVPs rather
than incarcerated prisoners. Plaintiff, however, provides no more than a conclusory allegation
as to this alleged failure to train, and does not identify what, other than the lock down policy, has
caused him alleged injury, and thus has not plausibly pled a failure to train.
State might conceivably create a liberty interest.”). Put another
way, unless the deprivation of liberty is in some way extreme, then
the Constitution does not require that a prisoner be afforded any
process at all prior to deprivations beyond that incident to normal
prison life. Our Court later extended Sandin's foreclosure of
procedural due process protections to a situation like that presented
here-a plaintiff civilly committed in New Jersey claiming a
procedural due process violation by his wrongful placement [on
MAP status]. See Leamer [v. Fauver], 288 F.3d [532,] 546 [(3d Cir.
2002)]; see also Thielman v. Leean, 282 F.3d 478 (7th Cir. 2002)
(likewise extending Sandin to civil commitment settings).
Deavers, 243 F. App’x at 721-22. Here, Plaintiff has pled no facts which suggest that his
placement on MAP status was in some way an extreme deviation from the everyday nature of his
civil commitment. Although Plaintiff’s MAP placement did result in his briefly being placed in
temporary close custody before being returned to room and tier level MAP status, Plaintiff pleads
no facts which suggest that this time on close custody in any way extended for a time so lengthy
that it would amount to an extreme divergence from the normal nature of civil commitment. As
such, Plaintiff has failed to plead any facts which would suggest that he had a cognizable liberty
interest in avoiding MAP placement, and he was therefore not entitled to Procedural Due Process
before being placed on MAP status. Id. As such, Plaintiff’s Procedural Due Process claim must
be dismissed without prejudice at this time as to all Defendants.6
Because this Court is dismissing Plaintiff’s Procedural Due Process claim against all
Defendants and Plaintiff’s Substantive Due Process claim against all moving Defendants, the only
Defendant who remains in this action, and the only Defendant against whom Plaintiff has pled a
claim, is Stacey Kaminski. As this Court has noted, however, Plaintiff has failed to serve
Because this Court is dismissing all of Plaintiff’s claims without prejudice as to all moving
Defendants, this Court need not reach Defendants’ qualified immunity arguments.
Kaminski despite the fact that this matter has been ongoing for nearly two years. Pursuant to
Federal Rule of Civil Procedure 4(m), a plaintiff normally must serve all Defendants within 120
days7 after his complaint is deemed filed. Where a Plaintiff fails to serve a Defendant within that
period of time, “the court – on motion or on its own after notice to the plaintiff – must dismiss the
action without prejudice against [any unserved defendant] or order that service be made within a
specified time.” Fed. R. Civ. P. 4(m). Only if a Plaintiff shows good cause for his failure to
serve all Defendants will that time period be extended. Id. In this matter, Plaintiff made one
attempt to have the U.S. Marshals serve Kaminski after this Court proceeded his complaint, which
resulted in the summons being returned unexecuted. (ECF No. 11). Plaintiff has made no further
attempts at service. Based on this history, this Court will, pursuant to Rule 4(m), require Plaintiff
to serve Kaminski within forty-five days or have his claims against Kaminski dismissed without
For the reasons stated above, Defendants’ motions to dismiss shall be GRANTED,
Plaintiff’s Substantive Due Process Claim shall be DISMISSED WITHOUT PREJUDICE as to
all Defendants except Stacey Kaminski, and Plaintiff’s Procedural Due Process Claim shall be
DISMISSED WITHOUT PREJUDICE as to all Defendants. Plaintiff is granted leave, however,
to file an amended complaint addressing the deficiencies raised in this Opinion within forty-five
days. Finally, Plaintiff shall serve Defendant Kaminski within forty-five days, and any failure to
Rule 4(m) was amended after this action was permitted to proceed and the 120 day time limit
was reduced to 90 days.
so serve Kaminski shall result in Plaintiff’s claims against Kaminski being dismissed without
prejudice pursuant to Rule 4(m). An appropriate order follows.
Dated: September 26, 2016
_s/ Susan D. Wigenton____
Hon. Susan D. Wigenton,
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?