LOVE v. NEW JERSEY DEPARTMENT OF CORRECTIONS et al

Filing 34

OPINION. Signed by Judge Susan D. Wigenton on 5/12/16. (DD, ) N/M

*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LEMONT LOVE,
Plaintiff,
v.
NEW JERSEY DEPARTMENT OF :
CORRECTIONS, et al.,
Defendants.

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Civil Action No. 15-4404 (SDW)

OPINION

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WIGENTON, District Judge:
Presently before the Court is Defendants’ motion to dismiss Plaintiff’s amended complaint.
(ECF No. 30). Plaintiff, Lemont Love, filed a brief in opposition (ECF No. 31). Defendants did
not file a reply brief. For the following reasons, this Court will grant the motion in part and deny
the motion in part.

I. BACKGROUND
In his original complaint and in the opening pages of his amended complaint, Plaintiff
asserts several claims against certain officers at Northern State Prison arising out Plaintiff’s
visiting the prison canteen. In his amended complaint, Plaintiff asserts that, on November 1,
2014, Plaintiff purchased several items from the prison canteen. (ECF No. 20 at 10-11). While
at the canteen, Plaintiff helped another prisoner carry several items until canteen employees gave
the other prisoner a bag, at which point Plaintiff gave him back his things and the other prisoner
left. (Id.). After the other inmate had departed, Plaintiff, however, apparently had inadvertently

failed to return to him a jar of hair grease which had become mixed up with Plaintiff’s purchases.
(Id.). Plaintiff alleges that, while leaving the canteen, C.O. Marsh stopped him to check his
purchases against his receipt from the canteen and discovered Plaintiff had not purchased the hair
grease. (Id.). Marsh instructed Plaintiff to throw it away, but Plaintiff refused and requested to
speak to a sergeant. (Id.). Plaintiff was then instructed to follow Marsh into another room, at
which point Marsh allegedly began to threaten and berate Plaintiff verbally. (Id.). A second
officer, C.O. Wasik, was also in the room at the time, and also apparently yelled at and insulted
Plaintiff. (Id.). Plaintiff again requested to speak with a sergeant, but the officers refused and
threatened to give him something about which to complain if he did not cease. (Id.).
Plaintiff was then led into another room and told to sit down. (Id.). Wasik, Marsh, and a
third corrections officer named Doyle then all again began to verbally berate Plaintiff until Wasik
departed to retrieve the other inmate who had purchased the grease. (Id.). When Wasik and the
other inmate returned, both Plaintiff and the other inmate were given disciplinary charges. 1 (Id.).
Officer Wasik then filled out a confiscation form and instructed Plaintiff to sign it, which Plaintiff
refused to do without first reading the form. (Id.). Wasik apparently then became impatient,
threatened to call for assistance, and “snatched the paper out of Plaintiff’s hand.” (Id. at 10). The
paper allegedly cut Plaintiff’s hand in the process. (Id.). The officer then wrote upon the sheet
that Plaintiff had refused to sign the form. (Id.). Plaintiff alleges that he then told the officers he
would file a lawsuit against them. (Id.). Officer Doyle then threatened to “tear Plaintiff’s cell
up every day” if Plaintiff filed a complaint. (Id.). The officers then seized Plaintiff’s canteen
1

In his complaint Plaintiff states that he and the other inmate were given “blue sheets.” (Id. at
10). Plaintiff clarifies in his response to the motion to dismiss that these blue sheets were the
disciplinary charges, which were ultimately dismissed.
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receipt without providing a confiscation sheet. (Id.). Plaintiff alleges that he was thereafter
“forced to stand outside in the freezing rain without a coat for no reason for an extended period of
time (20-30 min[utes]).” (Id.).
Upon returning to his unit, Plaintiff filed a report and a request to go to the medical unit.
(Id.). Plaintiff was thereafter given an antibiotic ointment to treat the paper cut to his hand while
at the medical unit on November 4, 2014. (Id.). Plaintiff also alleges that, while returning to his
unit, another corrections officer named Islam stopped him and apologized for the behavior of the
other officers. (Id. at 12).
As to Defendants Lanigan and Nelson, Plaintiff states that they have instituted policies
which “allow miscreant [corrections officers] to violate the rights of prisoners without fear of
consequences.” (Id.). Plaintiff alleges that complaints raised by officers are heard the following
day, while prisoner complaints can go as long as a month before a hearing, which usually results
in no consequences for the officer. (Id.). Plaintiff also alleges that the new inquiry form does
not provide prisoners the opportunity to report an officer’s behavior. (Id.). Plaintiff thus asserts
that Lanigan and Nelson, alongside supervisory Lt. St. Paul, who apparently was well aware of the
allegedly violent ways of Wasik, Doyle, and Marsh, should be liable for the injuries inflicted upon
him by Wasik, Doyle, and Marsh.
In the supplement included in Plaintiff’s amended complaint, he asserts that after he filed
this action and served it upon the corrections officer Defendants, he suffered several retaliations.
Specifically, Plaintiff alleges that his original complaint was served upon Defendant Wasik on
May 27, 2015. (Id. at 17). Plaintiff further states that, two days later, he was handcuffed by
Defendants Everett, Morales, and an unknown sergeant and taken to the detention unit. (Id.).

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Plaintiff also claims that the handcuffs were painfully tight, and that he asked to have them
loosened, to no avail. (Id.). While Plaintiff was being taken to the detention unit, Defendant
Wasik apparently said to Plaintiff “You wanna sue me? Have a nice time at South Woods, bye
Felisha, bye Felisha, hope you like South Woods.” (Id.).
Plaintiff states that, when he arrived at the detention unit, he complained to a nurse that his
wrists hurt, but the nurse refused to deal with the problem. (Id.). Plaintiff was then taken into
the unit, and apparently “strip search[ed] . . . in front of the entire unit and in view of the camera”
by Defendant Morales. (Id.). Plaintiff was then placed into a cell without a functioning toilet or
running water and held there between May 29 and June 2, 2015. (Id. at 17-18). While he was in
the cell, Plaintiff states that he was served “spoiled food” which he didn’t eat, and was told that he
would “beat” a charge against him which he never received. (Id. at 18). Plaintiff also continued
to complain about wrist pain to a social worker, psychologist, and nurse. (Id.).
On June 2, 2015, Plaintiff was transferred to East Jersey State Prison, a maximum rather
than medium security prison. (Id.). Following being seen by another nurse who informed him
he should put in a medical request if he wished to have his wrists seen to by medical personnel,
Plaintiff was taken to his new cell. (Id. at 18-19). Plaintiff claims that his new cell has a leaking
issue wherein a crack in the ceiling leaks whenever the toilet is flushed in the cell above him as
well as at other times. (Id.). Plaintiff further states that, due to the leaking, there is mold and the
like growing in his cell, which he believes is causing various vague medical issues. (Id. at 19).
Plaintiff also complains of a lack of hot water as well as a “barely work[ing]” toilet, which he was
told would be fixed. (Id.).
Plaintiff also complains about two policies in place at East Jersey State Prison. First, the

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prison does not permit prisoners to wear their hair in a braided fashion during visits. (Id.).
Plaintiff specifically states that this policy was put into place after it was discovered that prisoners
were attempting to smuggle drugs into the prison by having their visitors braid the contraband into
their hair during visits. (Id.). Plaintiff also complains that he has been denied the use of an “afropick,” as the picks are not permitted under prison policy. (Id.). Finally, Plaintiff asserts that,
because he was not permitted to pack his own belongings before being transferred, some of his
personal belongings were lost and have not been sent to him. (Id. at 20).

II. DISCUSSION
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
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.”

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Dempster, 764 F.3d at 308 (quoting Iqbal, 556 U.S. at 678). Moreover, while pro se pleadings
are liberally construed, “pro se litigants still must allege sufficient facts in their complaints to
support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation
omitted) (emphasis added).

B. Analysis
The vast majority of Plaintiff’s claims are essentially civil rights claims brought pursuant
to 42 U.S.C. § 1983. That statute 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, Plaintiff must show that “he was a deprived
of a federal constitutional or statutory right by a state actor.” Id. When evaluating the merits of
a § 1983 claim, the Court must identify the contours of the underlying right Plaintiff claims was
violated and determine whether Plaintiff has properly alleged the violation of such a right at all.
Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000). In his amended and supplemental complaint,
Plaintiff raises numerous § 1983 claims including Eighth Amendment excessive force claims, an
Eighth Amendment failure to protect claim, Eighth Amendment conditions of confinement claims,
Fourteenth Amendment Due Process claims arising out of the deprivation of property, and First
Amendment retaliation claims. Plaintiff also seeks to raise state law claims including harassment,
assault, and intentional infliction of emotional distress claims. Defendants, in their motion, seek
the dismissal of nearly all of those claims. This Court will address each of Defendants’ arguments
in turn.

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1. Defendants are not entitled to Eleventh Amendment Immunity, but the Prison and
Department of Corrections must be dismissed from this matter
Defendants first argue that, despite the fact that they removed this action to Federal Court,
they should still be entitled to Eleventh Amendment Immunity. As the Supreme Court has made
abundantly clear, a state waives its Eleventh Amendment immunity when it removes a case from
state court to federal court. See Lapides v. Bd. Of Regents Sys. Of Georgia, 535 U.S. 613, 619
(2002) (a “State’s voluntary appearance in federal court amount[s] to a waiver of its Eleventh
Amendment immunity”). The case on which Defendants rely to make their argument, Lombardo
v. Pennsylvania, 540 F.3d 190, 198 (3d Cir. 2008), does not suggest otherwise. Lombardo instead
stands for the proposition that, although a state waives its Eleventh Amendment immunity from
suit in a federal court by removing, the state retains its own state sovereign immunity. Id. at 198,
198 n. 8. Thus, while a state gives up its claim to immunity from suit in federal court by removing
an action from state court, it retains any defenses it would have been able to assert in its own courts,
including sovereign immunity. Id. at 198-99.
The importance of this latter point goes not to Eleventh Amendment immunity from suit
in a federal court, but rather to the personhood of some of the Defendants for the purposes of §
1983. Under the statute, a state, a department of a state, or a subsection of such a department or
other organized arm of the state, is not a “person” subject to suit under § 1983. Grohs v. Yatauro,
984 F. Supp. 2d 273, 280-81. Thus, a plaintiff may not bring a suit under the statute against a
state, one of its departments, or a prison operated by such a department. Id.; see also Ewing v.
Cumberland Cnty., No. 09-5432, 2015 WL 1384374, at *25 (D.N.J. Mar. 25, 2015); Brown v. New
Jersey Dep’t of Corr., No. 12-5069, 2014 WL 4978579, at *2 (D.N.J. Oct. 3, 2014); Grabow v. S.
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State Corr. Facility, 726 F. Supp. 537, 538-39 (D.N.J. 1989) (State department of corrections and
state prison facilities are not “persons” under § 1983). Thus, this Court will dismiss the New
Jersey Department of Corrections and Northern State Prison from this matter with prejudice.
Grohs, 984 F. Supp. 2d at 280-81.
Defendants also argue that the individual Defendants must be dismissed from this matter
to the extent they are named in their official capacities. Where a Plaintiff is seeking money
damages, a claim against a state official acting in his official capacity is a suit against that official’s
office, and in turn a suit against the entity which employs him. Id. at 281. Thus, to the extent a
plaintiff seeks money damages, a state official acting in his official capacity is not a person under
§ 1983, and is not subject to suit. Id. Where a plaintiff seeks only injunctive or prospective
relief, a state official may be sued in his official capacity as “[o]fficial-capacity actions for
prospective relief are not treated as actions against the state.” Id. (quoting Will v. Michigan Dep’t
of State Pol., 491 U.S. 58, 71 n. 10 (1989)). In his amended complaint, Plaintiff specifically states
that “the defendants are not being sued for damages in their official capacities, the[y’re] only being
sued for injunctive relief in their official capacities and for damages in their individual capacities.”
(ECF No. 20 at 21). Thus, Plaintiff does not seek money damages against any Defendant in his
official capacity, and Plaintiff’s official capacity claims need not be dismissed on that basis.

2. Plaintiff’s Eighth Amendment Claims
Defendants argue that Plaintiff fails to state a claim for any of his Eighth Amendment
claims. In his amended complaint, Plaintiff pleads several Eighth Amendment claims: an Eighth

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Amendment excessive force claim related to the commissary paper cut incident, a failure to protect
claim related to that same incident, a conditions of confinement claim regarding his being made to
stand in “freezing rain” without a coat for approximately half an hour, a second excessive force
claim regarding the use of handcuffs on him while he was being transported within Northern State
Prison, a conditions of confinement claim related to the cell in which he was housed in the
detention unit therein, another conditions of confinement claim related to the cell he is housed in
in East Jersey State prison as well as certain policies regarding braids and hair picks, claims for
deliberate indifference to Plaintiff’s medical needs, and a strip-search related claim. This Court
will address each of these claims in turn, starting with Plaintiff’s excessive force claims.

a. Plaintiff’s Excessive Force Claims
Plaintiff raises two claims of excessive force arising under the Eighth Amendment – one
for the use of handcuffs during transportation within the prison, and one for the paper cut incident.
The test for whether a claim of excessive force is constitutionally
actionable is “whether force was applied in a good faith effort to
maintain or restore discipline or maliciously and sadistically for the
very purpose of causing harm.” Whitley v. Albers, 475 U.S. 312,
319 [] (1986). The relevant factors for a court to consider are: (1)
the need for the application of force; (2) the relationship between the
need and the amount of force that was used; (3) the extent of injury
inflicted; (4) the extent of the threat to the safety of staff and
inmates, as reasonably perceived by the responsible officials on the
basis of the facts known to them; and (5) any efforts made to temper
the severity of a forceful response. Id.; see also Brooks [v. Kyler],
204 F.3d [102, 106 (3d Cir. 2000)].
Giles v. Kearney, 571 F.3d 318, 326 (3d Cir. 2009). Where only a de minimis amount of force is
used, and the type of force is not of a sort “repugnant to the conscience of mankind,” no excessive
force claim has been pled. See Hudson v. McMillian, 503 U.S. 1, 10 (1992).
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In his first claim, Plaintiff asserts that a corrections officer used excessive force against
him by ripping a sheet of paper from his hand, resulting in the sheet of paper giving Plaintiff a
paper cut. As to this claim, Plaintiff has not actually pled that the officer used force against him,
only that the officer pulled the paper away from his hand. That Plaintiff was cut was a side effect
of the snatching of the paper from his hand, and not the direct and obvious result of the officer’s
actions. As the officer used no actual force against Plaintiff in that incident, but only pulled the
paper from his hand, Plaintiff has failed to plead an application of force against him, and thus has
not pled a cognizable claim for relief under the Eighth Amendment for excessive force as he has
pled at best a de minimis use of force directed at the paper in his hand, and not personally at
Plaintiff. Id. Plaintiff’s excessive force claim related to the paper incident must therefore be
dismissed without prejudice at this time.
Plaintiff’s second claim relates to his being handcuffed while being moved from his
original cell to the detention unit in Northern State Prison. As to this second incident, Plaintiff
essentially asserts that he was tightly handcuffed, that he complained about the handcuffs and the
officers did not loosen them, and that the cuffs were not removed until he was placed into his new
cell in the detention area of Northern State Prison.

From the fact that Plaintiff was only

handcuffed during transportation between areas of the prison, it appears that this application of
“force” was relatively minor and clearly served the purpose of maintaining safety and security
during Plaintiff’s transfer to the detention unit. As Plaintiff has pled no facts other than his
discomfort to suggest any improper motivation (such as malicious or sadistic purposes), Plaintiff’s
second claim also falls short of pleading a proper Eighth Amendment claim for excessive force
and must also be dismissed without prejudice. See Giles, 571 F.3d at 326; see also Lizama v.

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Hendricks, No. 13-3177, 2014 WL 673103, at *6 (D.N.J. Feb. 20, 2014) (use of overly tight
handcuffs does not establish Eighth Amendment excessive force claim absent facts showing an
improper motive or more than a minimal use of force). Thus, all of Plaintiff’s excessive force
claims shall be dismissed without prejudice. 2

b. Plaintiff’s Failure to Protect Claims
Plaintiff also attempts to plead a claim for failure to protect arising out of the paper cut
incident. In this claim, Plaintiff essentially asserts that two officers watched while the paper was
snatched from his hand, resulting in the paper cut, without intervening. To state a claim for a
failure to protect under the Eighth Amendment, a plaintiff must plead facts showing that “(1) he
was incarcerated under conditions posing a substantial risk of serious harm, (2) the official was
deliberately indifferent to that substantial risk to his health and safety, and (3) the official's
deliberate indifference caused him harm.” Parkell v. Markell, 622 F. App’x 136, 139 (3d Cir.
2015 (quoting Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012); see also Farmer v. Brennan, 511
U.S. 825, 833-34 (1994). “An official acts with deliberate indifference when he or she knows of
and disregards a substantial risk of serious harm to inmate health or safety. Farmer, 511 U.S. at
837[]. It does not matter ‘whether a prisoner faces an excessive risk of attack for reasons personal
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In attempting to plead excessive force claims, Plaintiff has also alleged that he was verbally
harassed, chastised, and insulted by the various guards. These allegations are also insufficient to
establish a constitutional violation, and to the extent that Plaintiff’s excessive force claims are
based on these verbal insults, Plaintiff’s claims must also be dismissed. See, e.g., Richardson v.
Sherrer, 344 F. App’x 755, 757 (3d Cir. 2009) (verbal harassment alone not actionable); Durant
v. Horn, Civil Action No. 07-93, 2007 WL 1575186, at *2 (D.N.J. May 30, 2007) (verbal
harassment and/or profanity “no matter how inappropriate, unprofessional, or reprehensible [do]
not constitute the violation of any federally protected right and therefore [are] not actionable
under” § 1983).
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to him or because all prisoners in his situation face such a risk.’ Id. at 843[].” Parkell, 622 F.
App’x at 139. As this court explained above in relation to Plaintiff’s excessive force claim, the
officer who snatched the paper away from Plaintiff did not attack him, nor actually use force
against Plaintiff. He merely pulled a paper away from Plaintiff in haste, resulting in a paper cut
to Plaintiff’s hand. Under those circumstances, it cannot be said that the other officers acted with
deliberate indifference because they would not have known of a substantial risk of harm to Plaintiff
from the pulling of a paper. As such, Plaintiff has failed to plead facts indicating deliberate
indifference, nor does the paper cut incident indicate that there was a serious risk of harm, and as
such Plaintiff has failed to plead a proper failure to protect claim. Id. Plaintiff’s failure to protect
claim must therefore be dismissed without prejudice.

c. Plaintiff’s Conditions of Confinement Claims
Plaintiff also raises several conditions of confinement claims inclduing one for being
housed in a poorly maintained cell for a few days where he was allegedly served spoiled food, and
another based on the mold and fungus growing in his current cell, which he alleges are exacerbated
by leaks in the ceiling of his cell. As the Supreme Court has explained, the Constitution “does
not mandate comfortable prisons,” and “only those deprivations denying ‘the minimal civilized
measure of life’s necessities’ are sufficiently grave to form the basis of an Eighth Amendment
violation.” Wilson v. Seiter, 501 U.S. 294, 298 (1991) (internal citations omitted, quoting Rhodes
v. Chapman, 452 U.S 337 (1981)); see also Watson v. Secretary Penn. Dep’t of Corr., 567 F.
App’x 75, 79 (3d Cir. 2014). Thus, to plead an Eighth Amendment conditions of confinement
claim, a Plaintiff must first plead an objective element: that the conditions under which he was

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housed were sufficiently serious as to deny him the minimal civilized measure of life’s necessities.
Wilson, 501 U.S. at 298; Watson, 567 F. App’x at 79. In determining whether the conditions
alleged are sufficiently serious, one must take into account a variety of factors including the level
of deprivation and the length of time it was imposed upon the plaintiff. Watson, 567 F. App’x at
79. In addition to this objective component, a Plaintiff must also plead a subjective element: that
the defendants acted with a sufficiently culpable state of mind. Id. This requires Plaintiff to
properly allege that Defendants acted with “deliberate indifference, a state of mind equivalent to a
reckless disregard of a known risk of harm.” Stokes v. Lanigan, No. 12-1478, 2012 WL 4662487,
at *3 (D.N.J. Oct. 2, 2012); see also Farmer v. Brennan, 511 U.S. 825, 835 (1994); Wilson, 501
U.S. at 303.
Plaintiff, in his first conditions of confinement claim, alleges that, as punishment for his
refusal to sign the confiscation forms in the paper-cut incident, he was made to stand out in the
freezing rain without proper attire, including a coat, for approximately half of an hour. In this
instance, Plaintiff has pled the subjective element: that the officers specifically ordered this as a
form of punishment while ignoring the health risks which could result from being made to stay out
in the freezing rain without a coat for a moderate length of time. Giving pro se Plaintiff the benefit
of all reasonable inferences regarding this situation, Plaintiff has also satisfied the objective
pleading requirement insomuch as he has pled that he was placed into a dangerous situation
wherein he was deprived of one of life’s necessities (shelter and proper clothing in the face of
freezing rain for half an hour). Although the duration of the deprivation was relatively short in
this instance, depending on the nature of the alleged freezing rain, including the outdoor
temperature and amount of freezing rain, such a deprivation of clothing and shelter could certainly

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present a severe enough risk of harm to meet the pleading requirements for a conditions of
confinement claim. Wilson, 501 U.S. at 298-303. As such, this claim will be allowed to proceed
at this time.
In his second conditions of confinement claim, Plaintiff asserts that, during a period of a
few days between his being placed in detention at Northern State Prison and his being transferred
to East Jersey, he was placed into a cell with poor plumbing, a toilet of limited functionality, and
was served food of poor quality which he claims was spoiled. Because Plaintiff was faced with
this situation for a relatively short period, only a matter of days, and Plaintiff has not pled that he
suffered any harm as a result of this short period of detention in an uncomfortable cell, Plaintiff
has not pled a sufficiently severe deprivation to make out the objective element of an Eighth
Amendment conditions of confinement claim.

This Court will therefore dismiss Plaintiff’s

conditions of confinement claim related to his time in Northern State Prison’s detention unit
without prejudice.
In his final conditions of confinement claim, Plaintiff asserts that he has been placed into
a cell at East Jersey State Prison which contains various kinds of mold, fungi, and other flora which
he believes present a danger to his health, is again subject to poorly functioning plumbing, and is
faced with a ceiling which leaks every time the toilet is flushed in the cell above his. Thus,
Plaintiff has essentially pled that his new cell is teeming with dangerous fungi and mold, that he
is exposed to waste water from an adjacent cell, and believes that he is suffering medical issues
such as headaches and the like as a result. Giving Plaintiff the benefit of all reasonable inferences,
and noting the danger that certain types of mold can pose to people constantly exposed to them,
this Court finds that this claim presents allegations of a sufficiently severe deprivation. As

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Plaintiff has pled that the prison is aware of the conditions, and has not remedied them, especially
in the case of the mold and fungi in the cell (and indeed, has pled that his own efforts to limit his
exposure have been undone by orders from prison staff), Plaintiff has also pled that prison staff
have been deliberately indifferent to these issues. Thus, Plaintiff’s conditions of confinement
claim related to his time at East Jersey State Prison states a cognizable claim for relief and will not
be dismissed.
Because this Court is permitting this final conditions of confinement claim to proceed, the
Court must note that certain allegations Plaintiff has made in relation to that claim do not state a
claim for relief, and do not form a part of the basis for proceeding that claim. Specifically, in
addition to the mold and leak issues, Plaintiff also pleads that prison policy prevents him from
wearing braids to visits and prevents him from purchasing afro picks. As to the braids, Plaintiff
specifically pleads that this policy was adopted after other inmates used their hair braids to attempt
to smuggle drugs into the prison. Given this fact, the prison clearly had a penological interest in
limiting the wearing of braids to the visitation room, and the restriction on braids is therefore
reasonable. In any event, it is clear that preventing Plaintiff from wearing braids and forcing him
to use hair care implements other than afro picks do not deprive Plaintiff of the “minimal civilized
measure of life’s necessities” and as such, his allegations regarding braids and afro picks fail to
state a claim for relief, and to the extent Plaintiff’s conditions of confinement claim is based on
those allegations, Plaintiff’s claim is dismissed without prejudice. Wilson, 501 U.S. at 298;
Watson, 567 F. App’x at 79. Plaintiff’s claim against East Jersey State Prison is thus proceeding
only on the basis of a combination of Plaintiff’s claims including the lack of hot water, leaking
ceiling, and mold and fungal growth.

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d. Plaintiff’s Deliberate Indifference to Medical Needs Claim
Plaintiff also attempts to plead a claim that jail staff were deliberately indifferent to his
medical needs insomuch as they did not treat his paper cut and allegedly injured wrists to his
satisfaction. 3 A Plaintiff’s Eighth Amendment rights are violated where a prison official is
deliberately indifferent to his serious medical needs. King v. Cnty. of Gloucester, 302 F. App’x
92, 96 (3d Cir. 2008) (citing City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 243-44 (1983));
see also Estelle v. Gamble, 429 U.S. 97, 104 (1976). To state a claim for deliberate indifference,
a plaintiff must plead both a sufficiently serious medical need, and that Defendants were
deliberately indifferent thereto. King, 302 F App’x at 97. A medical need is sufficiently serious
where it “has been diagnosed as requiring treatment or [is a need that] is so obvious that a lay
person would easily recognize the necessity of a doctor’s attention.” Monmouth Cnty. Corr. Inst.
Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987), cert denied, 486 U.S. 1006 (1988). In this
context, deliberate indifference is in turn established where the prison official involved acted with
a reckless disregard of a substantial risk of harm. See Farmer v. Brennan, 511 U.S. 825, 837-38
(1994); Everett v. Nort, 547 F. App’x 117, 121 (3d Cir. 2013).
In his complaint, Plaintiff states that he was taken to medical for his paper cut and was
given an antibiotic ointment. As such, officials clearly were not indifferent to his needs as to the
cut. As to his alleged wrist injuries, he claims he was seen twice, first in the detention unit by a

3

To the extent that Plaintiff also wished to raise a claim regarding exposure to the mold, this
Court has construed those allegations as presenting a conditions of confinement claim, and any
medical claim related thereto would be subsumed into that claim. Thus, in this section, the
Court discusses Plaintiff’s allegations regarding his wrists and the paper cut only.
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nurse who did nothing to treat his wrists, and second by a nurse at East Jersey State Prison who
told him to fill out a medical slip if he needed treatment for his wrist injuries. The only injury
Plaintiff claims in these instances was the alleged harm to his wrists resulting from the allegedly
too-tight handcuffs. Although Plaintiff has pled that he was in severe pain, Plaintiff has not pled
any facts which would suggest that the alleged wrist injuries were so severe that they should have
been patently obvious, nor has he pled any facts showing that he has since been diagnosed with
any resulting injuries. As such, Plaintiff has failed to plead a sufficiently serious injury, and his
medical claims must be dismissed without prejudice at this time as a result. Although that
conclusion resolves Plaintiff’s claims for the purposes of this inquiry, that Plaintiff was told he
could fill out a medical slip if he needed further treatment also suggests that the nurse at East
Jersey, at least, was not acting with reckless disregard when she did not treat Plaintiff’s wrists
during intake, but instead directed Plaintiff to the correct manor in which to seek treatment. Thus,
Plaintiff’s claim as to the East Jersey nurse suffers from that deficiency as well.

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e. Plaintiff’s Strip Search Claim
Plaintiff’s final Eighth Amendment claim arises out of his allegations that he was strip
searched in front of the entire detention unit and a camera at Northern State Prison. A prisoner
may challenge a strip search under either the Fourth or Eighth Amendment. See Jordan v. Cicchi,
428 F. App’x 195, 199-200 (3d Cir. 2011). A plaintiff may make out a Fourth Amendment claim
by alleging that the strip search was unreasonable under the circumstances. See, e.g., Payton v.
Vaughn, 798 F. Supp. 258, 261-62 (E.D. Pa. 1992); see also Robinson v. Ricci, No. 08-2023, 2012
WL 1067909, *16-17 (D.N.J. Mar. 29, 2012). Where, however, a plaintiff challenges a strip
search based on the manner in which it was conducted, rather than challenging the very fact that it
was conducted, such a challenge is cognizable under the Eighth Amendment. See Jordan, 428 F.
App’x at 199-200; see also Florence v. Bd. Of Chosen Freeholders of Cnty. of Burlington, --- U.S.
---, --- ,132 S. Ct. 1510, 1523 (2012) (Eighth Amendment may be implicated where a strip search
is carried out in such a way as to intentionally humiliate or abuse a prisoner, citing Hudson v.
Palmer, 468 U.S. 517, 528 (1984)); Robinson, 2012 WL 1067909 at *16-17.
Here, it does not appear that Plaintiff is specifically challenging the strip search as
unreasonable per se insomuch as it was undertaken while he was being transferred, but rather on
the basis of his allegations that the search was conducted in an abusive and humiliating manner.
Such a challenge would arise under the Eighth Amendment. Jordan, 428 F. App’x at 199-200;
Florence, 132 S. Ct. at 1523; Hudson, 468 U.S. at 528; Robinson, 2012 WL 1067909 at *16-17.
Plaintiff has specifically pled that he was strip searched in plain view of all of the other inmates as
well as in full sight of a camera. Giving Plaintiff the benefit of all reasonable inferences, these
facts are sufficient to plead a claim for relief under the Eighth Amendment.
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3. Plaintiff’s Fourteenth Amendment Due Process Claim
The Defendants also seek the dismissal of Plaintiff’s Fourteenth Amendment claims for
the deprivation of his property. In his amended complaint, Plaintiff raises two deprivation of
property claims: that he was deprived of his commissary receipt without being issued a
confiscation slip in the first incident; and that some of his personal property was lost, stolen, or
misplaced during his transfer to East Jersey State Prison. To assert a Due Process claim for the
deprivation of one’s property by a public official, a plaintiff must assert that he possessed a
property interest, that he was deprived of that interest by a state actor, and that he was not provided
notice and an opportunity to be heard in relation to the taking of his property interest. See Rusnak
v. Williams, 44 F. App’x 555, 558 (3d Cir. 2002). “Where a state actor deprives an individual of
property without authorization, [however,] either intentionally or negligently, that deprivation
does not result in a violation of the Fourteenth Amendment so long as a meaningful post
deprivation remedy for the loss is available. See Hudson v. Palmer, [468 U.S. 517, 530-36]
(1984); Parratt v. Taylor, [451 U.S. 527, 543-44] (1981); overruled in part on other grounds,
Daniels v. Williams, [474 U.S. 327] (1986).” Love v. New Jersey Dep’t of Corr., Civil Action
No. 14-5629, 2015 WL 2226015, at *5 (D.N.J. May 12, 2015); see also Miller v. Fraley, No. 124470, 2015 WL 511296, at *11 (D.N.J. Feb. 6, 2015). The State of New Jersey has provided a
proper post-deprivation remedy to plaintiffs for the unauthorized deprivation of their property
through the New Jersey Tort Claims Act. See N.J. Stat. Ann. § 59:1-1, et seq.; Love, 2015 WL
2226015 at *5; Miller, 2015 WL 511296 at *11. Thus, Plaintiff’s claims would only state a
cognizable § 1983 claim to the extent that he claims that he was deprived of his property pursuant

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to an authorized state procedure, and not as a result of the unlawful or unauthorized actions of
various prison personnel. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36 (1982).
As to the loss of Plaintiff’s property during his move from Northern to East Jersey State
Prison, it is clear that Plaintiff essentially alleges that his property was lost, stolen, or purposefully
discarded during the transition, and that Plaintiff has not alleged that this deprivation arose out of
established state procedure. Thus, Plaintiff’s claims arising out of the loss of his property during
transfer fail to state a claim for relief because Plaintiff has an available post-deprivation remedy
via the Tort Claims Act. Love, 2015 WL 2226015 at *5. That Plaintiff has allegedly filed such
a claim and received no relief is of no moment. The question is not whether Plaintiff can succeed
on his claim, but rather whether he has been provided with sufficient legal process.
Plaintiff’s other deprivation of property claim is somewhat more complex. In his other
claim, Plaintiff alleged that his commissary receipt was taken from him without being issued a
confiscation sheet. Thus, at least to some extent, Plaintiff does assert that the officers took his
receipt without following proper procedure. In responding to the motion to dismiss, however,
Plaintiff attempts to clarify by arguing that he was not alleging that his receipt was taken in the
absence of established state procedure, but rather that Defendants did not follow the procedure to
the letter, presumably as emblematic of their lack of concern with the proper procedures.
This Court need not decide whether the taking of Plaintiff’s receipt was sufficiently
intertwined with proper state procedure that a pre-deprivation remedy was necessary. Although
the gravity of a deprivation of property is generally of no moment to the question of whether a
constitutional violation occurred, the Constitution is not concerned with “de minimis level[s] of
imposition” and a deprivation of property which is de minimis will not state a claim for a denial of

20

Due Process. Falter v. Veterans Admin., 632 F. Supp. 196, 211-212 (D.N.J. 1986) (quoting
Ingraham v. Wright, 430 U.S. 651, 674 (1977); see also In re App. For Installation of a Pen
Register, 610 F.2d 1148, 1156 (3d Cir. 1979) (citing Goss v. Lopez, 419 U.S. 565, 576 (1975));
FiberMark N. Am., Inc. v. Jackson, No. 07-839, 2007 WL 4157235, at *6 (D.N.J. Mar. 28, 2007).
Absent any facts to suggest that there was any special significance or importance to the receipt,
this Court finds that the taking of Plaintiff’s commissary receipt is at worst de minimis and is
therefore insufficient to sustain a Due Process claim for the deprivation of property. This Court
will therefore dismiss all of Plaintiff’s deprivation of property claims without prejudice.

4. Plaintiff’s False Disciplinary Charge Claims
Defendants also move to dismiss Plaintiff’s claim that he was issued a false disciplinary
charge arising out of the commissary incident. “[T]he act of filing false disciplinary charges does
not itself violate a prisoner’s constitutional rights,” it is only when the plaintiff is denied due
process in relation to the false charges that a constitutional violation occurs. Poole v. Mercer
Cnty. Corr. Ctr., No. 11-3730, 2012 WL 694689, at *2 (D.N.J. Feb. 29, 2012); see also Mimms v.
U.N.I.C.O.R., 386 F. App’x 32, 36 (3d Cir. 2010) (the “filing of false disciplinary charges does
not constitute a claim under § 1983 so long as the inmate was granted a hearing and an opportunity
to rebut the charges”); Smith v. Mensinger, 293 F.3d 641, 653-54 (3d Cir. 2002). In this matter,
Plaintiff does not allege that he was denied a hearing and opportunity to be heard on his
disciplinary charges. Indeed, in his response to the motion to dismiss, Plaintiff specifically states
that not only was he given a hearing, but he also states that the charges against him were “thrown
out” or dismissed. (ECF No. 31 at 9-10). As Plaintiff was acquitted of the disciplinary charges,

21

he was not denied due process as to those charges, and no constitutional violation resulted from
the “false” disciplinary charges filed against him. 4

5. Plaintiff’s First Amendment Retaliation Claim
Defendants also seek the dismissal of Plaintiff’s First Amendment retaliation claim. “In
order to plead a retaliation claim under the First Amendment, a plaintiff must allege: (1)
constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary
firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally
protected conduct and the retaliatory action.” Thomas v. Independence Twp., 463 F.3d 285, 296
(3d Cir. 2006); see also Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). “The key question
in determining whether a cognizable First Amendment claim has been stated is whether ‘the
alleged retaliatory conduct was sufficient to deter a person of ordinary firmness from exercising
his First Amendment rights.” Thomas, 463 F.3d at 296 (quoting McKee v. Hart, 436 F.3d 165,
170 (3d Cir. 2006)).
In their motion, Defendants do not appear to dispute that the filing of the initial complaint
in this matter was constitutionally protected, nor that Plaintiff’s transfer and strip search are
sufficient to deter a person of ordinary firmness from engaging in protected activity, nor, under
the facts presented, could they dispute that the complaint sufficiently pleads both of those elements
4

To the extent that Defendants have argued that this Court lacks jurisdiction over Plaintiff’s
claims, they are incorrect. Although it is true that the Appellate Division in New Jersey, rather
than this Court, has jurisdiction over a direct appeal of Plaintiff’s disciplinary matter, Plaintiff is
clearly not challenging the result of his hearing (which apparently was in his favor), but rather
the filing of the charges themselves, which, were Plaintiff to have a claim, would be to assert a
due process claim over which this Court would certainly have jurisdiction under § 1983. See,
e.g., Mimms, 386 F. App’x at 36.
22

of a retaliation claim.

Instead, Defendants argue that officers Everett and Morales lacked

knowledge of the pleading and a motive to retaliate, and thus Defendants assert that there is no
causal nexus between Plaintiff’s filing of his complaint and his transfer and search. In making
that argument, Defendants completely ignore that Plaintiff pled that, while he was being led out of
his cell, Plaintiff was specifically told by one of the officers involved in the commissary paper cut
incident that he was being sent to South Woods because of his filing of the complaint. As one
would assume that Morales could hear this taunt just as well as Plaintiff, it would be entirely fair
to infer that Morales knew about the suit. As the taunting officer apparently knew of the transfer
(albeit, not the prison in which Defendant would ultimately be placed), it would likewise be fair
to infer that Everett and Morales also knew about the potential transfer. As Plaintiff has also pled
that Morales and company tightly handcuffed him, led him away, and strip searched him in
retaliation for filing a complaint against their coworker, Plaintiff has pled a claim for First
Amendment retaliation, and Defendants’ motion is denied as to that claim.

6. Supervisory Liability for Plaintiff’s § 1983 Claims 5
Defendants also argue that various prison supervisors should be dismissed from this action
as Plaintiff has only pled claims against them based upon vicarious liability. A civil rights claim
under § 1983 or its federal counterpart may not be predicated solely on vicarious liability. See
Iqbal, 556 U.S. at 675-76; see also Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988).
A “defendant in a civil rights action must have personal involvement in the alleged wrongs” and a
5

In addition to the Defendants discussed in full here, Plaintiff adds as Defendants several John
Doe Supervisors. As Plaintiff has pled no facts as to these alleged supervisors, Plaintiff’s claims
against them shall be dismissed without prejudice at this time.
23

plaintiff must therefore plead a supervisory defendant’s involvement through means other than
respondeat superior. Rode, 845 F.2d at 1207-08. Thus, a civil rights plaintiff must plead facts
showing that each defendant, including supervisory defendants, had personal involvement in the
violation of his rights either through “participation [in the alleged wrong], or actual knowledge
and acquiescence, to be liable.” Tenon v. Dreibelbis, 606 F. App’x 681, 688 (3d Cir. 2015).
Generally, a plaintiff can show the participation of a supervisor 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)). Thus, each supervisor’s conduct must be examined
individually to determine whether Plaintiff has pled sufficient facts to establish personal
involvement.
The first, and most direct, supervisor named by Plaintiff is Lt. St. Paul. Plaintiff names
St. Paul claiming that St. Paul failed to chastise his subordinates, knew of their violent tendencies,
and did nothing to curtail them, resulting in the excessive force and failure to protect claims
Plaintiff attempted to plead regarding the paper-cut incident. As Plaintiff’s direct excessive force
and failure to protect claims fail to state a claim for relief for the reasons expressed above,
Plaintiff’s supervisory claim against St. Paul arising out of those same claims must in turn be
dismissed. Thus, Lt. St. Paul will be dismissed from this action without prejudice.

24

Plaintiff also names as Defendants in his original complaint Gary Lanigan and
Administrator Nelson of Northern State Prison. As with St. Paul, to the extent Plaintiff names
these Defendants as to Plaintiff’s excessive force and failure to protect claims, those claims must
be dismissed as to Nelson for the same reasons they were dismissed as to Officers Marsh, Doyle,
and Wasik. As it does not appear that Plaintiff names these Defendants in reference to any of his
other claims at this time, Defendants’ motion shall be granted as to them, and Defendants Nelson
and Lanigan will be dismissed from this action without prejudice.
In his amended complaint, Plaintiff also adds claims against Steven Johnson of Northern
State Prison and Patrick Nogan of East Jersey State Prison. As to Johnson, Plaintiff pleads that
Johnson was directly responsible for ordering the other Defendants to retaliate against Plaintiff
following his filing of a civil suit. As such, Plaintiff has directly pled the involvement of Johnson
in the alleged retaliation, and that claim against him must be permitted to proceed at this time.
Doe, 2015 WL 3448233 at *9. To the extent that Plaintiff seeks to raise that retaliation claim
against Patrick Nogan, however, Plaintiff has not pled facts sufficient to establish that Nogan was
aware of the suit and accepted Plaintiff’s transfer in order to retaliate against Plaintiff. As such,
that claim must be dismissed as to Nogan. To the extent that Plaintiff has pled that Nogan knows
of the conditions of Plaintiff’s current cell, including the mold and leak issues, and has taken no
actions to fix the problem, however, he has stated a claim against Nogan, and that claim shall
proceed as explained above.

7. Qualified Immunity
Defendants argue that this Court should also dismiss Plaintiff’s various civil rights claims

25

under the doctrine of qualified immunity. In so doing, however, Plaintiff’s only argue that
Plaintiff has failed to establish the first prong of qualified immunity – that Defendants violated
Plaintiff’s constitutional rights. As this Court has explained above, Plaintiff has stated a claim for
relief based on constitutional violations in relation to several of his claims including First
Amendment retaliation, Eighth Amendment conditions of confinement, and an Eighth Amendment
strip search claim.

As such, Plaintiff has established, for the purposes of pleading, that

Defendants violated his constitutional rights.

As Defendants have not argued that these

constitutional claims are not clearly established, Defendants have not shown that they are entitled
to qualified immunity as to the claims this Court permits to proceed, and Defendants motion as to
qualified immunity is denied without prejudice.

8. Plaintiff’s State Law Claims
In addition to all of his federal claims, Defendants also seek the dismissal of Plaintiff’s
state law tort claims. Specifically, Plaintiff attempts to raise the following state law tort claims:
harassment claims against Defendant Wasik for taunting him during the transfer; a harassment
claim against Wasik, Marsh, and Doyle for threatening to tear up Plaintiff’s cell if he files a lawsuit
against them; a state law assault claim against Wasik, Marsh, and Doyle for the paper-cut incident,
and a state law claim for intentional infliction of emotional distress against Wasik, Marsh, and
Doyle for the paper-cut incident.
As to Plaintiff’s harassment claims, the New Jersey Appellate Division has explained that
a plaintiff
is not able to make out a [stand-alone harassment] cause of action as
a matter of law. Harassment is a violation of [New Jersey’s]
26

criminal code, N.J. [Stat. Ann. § 2C:33-4], and has not been
recognized in New Jersey as a tort action for damages. In Aly v.
Garcia, [the New Jersey Appellate Division] stated that “[w]e leave
for another day the decision as to whether [the criminal harassment
statute] creates a civil cause of action.” [754 A.2d 1232, 1236 (N.J.
App. Div. 2000).] There, we explained that a comparable tort
action for emotional damages has been available since 1988, when
the [New Jersey] Supreme Court recognized a cause of action for
intentional infliction of emotional distress in Buckley v. Trenton
Saving Fund Society, [544 A.3d 857] ([N.J.] 1988).
In Aly, we summarized the proofs needed to establish a cause
of action for emotional distress as follows:
In order to establish a claim for intentional infliction
of emotional distress, the plaintiff must establish
intentional and outrageous conduct by the defendant,
proximate cause, and distress that is severe. The
distress must be so severe that no reasonable person
could be expected to endure it. Severe emotional
distress refers to any type of severe and disabling
emotional or mental condition which may be
generally recognized and diagnosed by professionals
trained to do so. It is not enough to establish that a
party is acutely upset by reason of the incident. In
order to be actionable, the claimed emotional distress
must be sufficiently substantial to result in physical
illness or serious psychological sequelae.
[754 A.2d at 1236-37].
We continued in Aly that, “even if there is a civil cause of
action for damages for harassment when the sole damages claimed
are emotional distress, it would be inappropriate not to hold
plaintiffs to the same elevated standard of showing severe emotional
distress.” Id. at [1236-37].
Chrzanowski v. Harriz, 2015 WL 4207159, at *3-4 (N.J. App. Div. July 14, 2015).
As Chrzanowski makes clear, because Plaintiff here presents no damages other than
emotional for his alleged harassment claims, those claims are subject to the same pleading
requirements as to severe emotional distress as would apply in an intentional infliction of
27

emotional distress claim.

As Plaintiff’s complaint does not contain any allegations of any

sufficiently severe emotional distress resulting in physical illness or serious sequelae arising out
of his treatment by the officers in either of the two incidents he raises, his claims for both
harassment and intentional infliction of emotional distress must be dismissed without prejudice at
this time. 6
Thus, the final claim this Court must discuss is Plaintiff’s New Jersey tort claim for assault
against Wasik, Marsh, and Doyle, arising out of the paper-cut incident. A claim for assault under
New Jersey law requires a plaintiff to plead that the defendant “act[ed] intending to cause a harmful
or offensive contact with the person of the other or a third person, or an imminent apprehension of
such a contact, and . . . the other is thereby put in such imminent apprehension.” Leang v. Jersey
City Bd. Of Educ., 969 A.2d 1097, 1117 (N.J. 2009). In his complaint, Plaintiff states that his
assault claim arises out of the use of force against him during the paper cut incident. Plaintiff,
however, does not plead any facts showing that force was used against him, only that an officer
snatched a sheet of paper from his hand, indirectly causing Plaintiff to suffer a paper cut. Thus,
Plaintiff has not pled sufficient facts to establish anything more than a bald assertion that the officer
either acted intending to cause a harmful contact with Plaintiff, nor to place Plaintiff in fear of such
a contact. Plaintiff’s assault claim will therefore be dismissed without prejudice at this time. Id.

III. CONCLUSION
For the reasons stated above, this Court grants in part and denies in part Defendant’s motion
6

It is also doubtful that the conduct here, which essentially amounts to threats of cell searches
and name calling, is outrageous enough to support an intentional infliction of emotional distress
claim in any event.
28

to dismiss. An appropriate order follows.

May 12, 2016

_s/ Susan D. Wigenton____
Hon. Susan D. Wigenton,
United States District Judge

29