SARBOUKH v. GLADING et al

Filing 2

OPINION. Signed by Judge Jose L. Linares on 9/8/2015. (nr, )

*NOT FOR PUBLICATION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

J. SARBOUKH,
Civil Action No. 15-6499 (JLL)
Plaintiff,
v.

:

OPINION

JO ASTRID GLADING, et a!.,
Defendants.

LINARES, District Judge:
Currently before the Court is the complaint of Plaintiff, J. Sarboukh, (ECF No. 1), and
Plaintiffs application to proceed in forma pauperis (Document 1 attached to ECF No. 1).
Plaintiffs complaint raises several claims brought pursuant to 42 U.S.C.

§ 1983. Based on the

information contained in Plaintiffs application to proceed informa pauperis, the Court finds that
leave to proceed in this Court without prepayment of fees is authorized, 28 U.S.C. §1915, and will
therefore order the Clerk of the Court to file Plaintiffs Complaint. As the Court grants Plaintiffs
application to proceed informa pauperis, this Court must screen Plaintiffs complaint pursuant to
28 U.S.C.

§ 191 5(e)(2)(B) and determine whether it is frivolous, malicious, fails to state a claim

for relief or seeks damages from a defendant who is immune. As the Court finds that Plaintiffs
complaint fails to state a claim for which relief can be granted, this Court will dismiss Plaintiffs
complaint without prejudice to the filing of an amended complaint within thirty (30) days.

I. BACKGROUND

Plaintiff is currently civilly committed as a sexually violent predator at the Special
Treatment Unit in Avenel, New Jersey. On August 31, 2015, Plaintiff filed a complaint with this
Court purportedly for violations of his civil rights pursuant to 42 U.S.C.

§ 1983. Plaintiffs

complaint is hand written and extremely difficult to read, often varying in size, clarity, punctuation,
capitalization, etc. (ECF No. 1 at 5). Plaintiffs writing also frequently includes handwritten
notes in the margin which are often written in extremely small text. (Id.). To the extent that this
Court can read the complaint, Petitioner makes the following allegations:
Since approx[imately] 2011 [,] Anti-Semetic Hate Crimes (for
[Defendant] Glading its been on going) [and] official
misconduct/abuse of official position[.] But it peak[s] wen she
conspired to get [Defendant Collins] to join in malpractice for about
6 month[s] they conspired and [illegible] on Oct. 1[,] 2014[,] + Nov.
14[,] 2014[.] This pains me to write + relive all this abuse that
caused me severe pain [illegible] daily including but not limited to
emotional distress + mental anguish! [A second margin note
written below this statement is present but cannot be discerned.]
Please understand I am hospitalized + handicapped meaning
hospitalized under the [Department of Human Services] inpatient
treatment center civil commitment and handicap[ped] meaning
confined to a wheel chair due to a stabbing anti-Semitic hate crime
attempted on my life again by a black racist convicted killer Curtis
Austin whom they were all well [illegible] + did nothing to keep me
or my property separate and safe from (as a Jew) (including
[Defendant Glading’s] office) then and still now babying the
black[,] crucifying the Jew[.] They continue to violate my state +
federal civil rights/liberties anti-Semitic hate crimes including but
not limited to abuse of [illegible] position (in a fiduciary position of
trust!) official malicious misconduct malicious malpractice by both
co-conspirator codefendants that are homosexual which you will see
(enclosed article)[ ‘1 regarding American Psychiatric Associate
Plaintiff attaches to his complaints several articles written in opposition to same sex marriage
which include a brief statement that, until the 1 970s, homosexual behavior was considered a
mental illness. (See Document 2 attached to ECF No. 1 at 5).
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considers it a mental disorder in itself with both co-defendant
labeled mentally ill with mental disorder by [the] APA[.) Why +
how are they legally + morally put in a fiduciary position of trust to
help me with my disabilities + disorder[?] Thus this lawsuit! Not
to mention derelict[ion] of duties[,] I asked them both to read about
Dr. Ash + Dr. Pressman! Willful gross negligence by both hell bent
on force medicat[ing] me like a wild animal[,] did not return to hear
or help with any other ideas [or] issues[.] Aiding + abetting in
criminal activity by a classified daily mail stolen by staff as in
[illegible] punishment [illegible] form support system loved ones
[the statement continues but is illegible.] Denied federal right to
access courts [through] non-collect legal calls nothing done!
Denied federal right to ADA roll in shower unit all year nothing
done all year![ Denied federal right to hot cooked [illegible]
]
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religious meals [several illegible words follow]. Denied my right
to life liberty freedom due to their actions[.]
(ECF No. 1 at 5, spelling and capitalization errors omitted).
Plaintiff also attaches to his complaint the following addendum explaining the reference to
Drs. Ash and Pressman:
This needs to be added to this federal civil rights/malicious
malpractice lawsuit regarding anti-Semitic hate crimes [which]
almost cost me my life! Note
I explain to
both co
defendants/co-conspirators instead of their malicious malpractice
violating me + my state + federal civil rights anti-Semitic
discriminating hate crime including but not limited to official
misconduct, dereliction of duties, gross willful negligence, aiding
and abetting in abuse of power + position (in a fiduciary position of
trust) to name a few[.]
—

.

.

.

I asked them both[,] begging them at their mercy please do
your due diligence have an ethical + moral compass for once go to
“invithealthblog.com” speak to a Dr. Allan Pressman about his April
th
30
2015 Program! Regarding shots to the head + damaging the
blood brain barrier[.] I have suffered over 20 head shots gave them
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Plaintiff states elsewhere that he has been “unable to bath[e]” as he was “removed from ADA
roll in shower unit,” thus his claim appears not to be that there are no accommodating shower
units, but rather that he’s been denied access to them. (ECF No. 1 at 6).
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both a list of dates times places + [illegible] to build my case from
for them to verify with medical personnel involved + base my case
defense to discharge on that ground since DHS wonders why I can’t
produce meaningful work! A simple case[,] let’s look at numerous
anti-Semitic hate crimes of brutal violence/attempts on my life as
cause[.] Needless to say[,] they ignored me as their client. Then I
begged them both to go to “ashcenter.com” speak to a Dr. Richard
Ash [and] ask him about [the same] head trauma [and] to then ask
him the moral and ethic[al] question “drug the symptoms or address
the cause[?]”
He will tell you as an integrated alternative doctor never just
drug the symptoms to make them go away[,] treat the problem
PTSD/TBL’Head TraumalSafety + Security issue[s.] Never any
justice/change/compensation/[illegible] closure/peace[.] He[,] as a
doctor[,] was once a patient/victim of this kind of abuse of drugs by
“pill-pushing” doctors [illegible note] it almost killed him! Those
Dr. Ash + Dr. Pressman testimony would have secured my
discharge[.] Kill me[,] silence me
that is what these 2 co
defendant co-conspirators wanted to do. Even [the] judge laughed
that my side said I’m worse than opponents clid[.] And not the
opponent but my side wanted to force inject me like a wild animal.
It’s laughable to everyone but me. That is what they were hell bent
on [illegible sentence]. These 2 are a sick brew of farce + tragedy!
+ need to lose license + freedomlliberty before they lose someone’s
life!
—

(ECF No. I at 3-4). Based on these perceived violations, Plaintiff asks this Court to award him
damages for pain and suffering and injunctive relief in the form of taking away the licenses of the
two defendants. (ECF No. 1 at 6). Plaintiff provides no further information as to the actual jobs
or positions of the two Defendants, nor specifically states what they did beyond the unclear
allegations recounted above.

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II. DISCUSSION
A. Legal Standard

Per the Prison Litigation Reform Act, Pub. L. No. 104-134,

§ 801-810, 110 Stat. 1321-

66 to 1321-77 (April 26, 1996) (“PLRA”), district courts must review complaints in those civil
actions in which a plaintiff is proceeding informa pauperis, see 28 U.S.C.

§ 191 5(e)(2)(B). The

PLRA directs district courts to sua sponte dismiss any claim that is frivolous, is malicious, fails
to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who
is immune from such relief. This action is subject to sua sponte screening for dismissal under
28 U.S.C.

§ 191 5(e)(2)(B) because Plaintiff has been granted informa pauperis status.

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 sua sponte screening for failure to state a claim the complaint must allege
,
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“sufficient factual matter” to show that the claim is facially plausible. Fowler v. UPMS
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted). “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.” Fair Wind Sailing, Inc. v. Dempster,
764 F.3d 303, 308 n.3 (3d Cir. 2014) (quoting Iqbal, 556 U.S. at 678). Moreover, whilepro se
“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012)
(citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App’x
230, 232 (3d Cir. 2012) (discussing 28 U.S.C. § 1997e(c)(1)); Courteau v. United States, 287 F.
App’x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)).
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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
Plaintiff seeks to make claims against defendants for alleged violations of his
constitutional rights pursuant to 42 U.S.C.

§ 1983. “To establish a claim under 42 U.S.C. §

1983, a plaintiff must demonstrate a violation of a right protected by the Constitution or laws of
the United States that was committed by a person acting under the color of state law.” Nicini v.
Morra, 212 F.3d 798, 806 (3d cir. 2000); see also Woodyard v. Cnty. ofEssex, 514 F. App’x
177, 180 (3d Cir. 2013) (the statute provides “private citizens with a means to redress violations

of federal law committed by state [actors]”). “The first step in evaluating a section 1983 claim
is to ‘identify the exact contours of the underlying right said to have been violated’ and to
determine ‘whether the plaintiff has alleged a deprivation of a constitutional right at all.”
Nicini, 212 F.3d at 806 (quoting County ofSacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998)).

Here, Plaintiff appears to be asserting claims that he has been denied access to the courts in
violation of his First Amendment rights, been denied his right to religious expression in so much
as he has not received “hot cooked” religious meals in violation of his First Amendment rights,
been denied his First Amendment rights in so much as Defendants have “aided and abetted” the
theft by staff of his mail, and that he has been denied his right to liberty under the Fourteenth

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4
Amendment. Petitioner also seeks to raise a claim pursuant to the Americans with Disabilities
Act because he has been denied access to the roll in shower unit for a year.

1.

Denial of Access to the Courts

Plaintiff claims that he has been denied access to the courts because he is not permitted to
make non-collect legal calls.

In order to bring a First Amendment denial of access claim,

however, a Plaintiff must show that he has suffered an imminent or past “actual injury.” Cooper
v. Sharp, No. 10-5245, 2011 WL 1045234, at *11.12 (D.N.J. Mar. 23, 2011); see also Lewis v.
Casey, 518 U.S. 343, 348-5 1, 354-55 (1996). A Plaintiff in this context suffers an injury when

he “has lost the opportunity to pursue a ‘nonfrivolous’ or ‘arguable’ underlying claim.” Aultman
v. Comm. Educ. Cntrs. Inc., 606 F. App’x 665, 668 (3d Cir. 2015); see also Monroe v. Beard, 536
F.3d 198, 205 (3d Cir. 2008). Plaintiff has presented no more than an allegation that the lack of
non-collect legal calls violates his rights and has failed to make any allegation that he has suffered
the required actual injury. He has therefore failed to state a claim for denial of access.
‘

Plaintiff also vaguely asserts that Defendants negligently impugned his rights by forcefully
medicating him. Putting aside that Plaintiff is committed against his will for treatment,
negligence is insufficient to support a violation of § 1983, see, e.g., Schwartz v. Cnty. of
Montgomery, 843 F. Supp. 962, 971 (E.D. Pa. ), aff’d, 37 F.3d 1488 (3d Cir. 1994), and thus
Petitioner has failed to state a claim to the extent that he intended to raise a Fourteenth
Amendment claim for deliberate indifference to his medical needs. Petitioner likewise states
that he is wheelchair bound because he was stabbed by another individual from whom he was not
kept safe without expressly claiming Defendants failed to protect him. Were Plaintiffs
complaint intended to raise a failure to protect claim, however, he has failed to provide any basis
for a conclusion that these Defendants were deliberately indifferent to any danger this individual
posed to Plaintiff before the stabbing. See, e.g., Paulino v. Burlington Cnty. Jail, 438 F. App’x
106, 109 (3d Cir. 2011). Thus to the extent that Plaintiff wished to raise such claims separate
and apart from the remaining claims described below, Plaintiff would fail to state a claim for
which relief could be granted.
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2. Plaintiff’s mail claim

Plaintiff next asserts that Defendants “aided and abetted” the theft of his mail by staff of
the STU.

Confined individuals, “by virtue of their [confinement], do not forfeit their First

Amendment right to use of the mails.” Holbrook v. Kingston, 552 F. App’x 125, 129 (3d Cir.
2014) (quoting Jones v. Brown, 461 F.3d 353, 358 (3d Cir. 2006)). Such an individuals’ mail
rights, however, “must be exercised with due regard for the inordinately difficult undertaking that
is modern [institutional] administration.” Id. (quoting Thorn burgh v. Abbott, 490 U.S. 401, 407
(1989).

The right to mail may therefore be restricted on the basis of legitimate institutional

interests, such as institutional security.

Id.

Generally, a pattern or practice of opening an

individual’s mail is necessary to make out a cognizable claim for a violation of a plaintiffs right
to the mails, and a single instance of destroyed personal mail is therefore insufficient to support a
claim for a violation of the First Amendment. See Jones, 461 F.3d at 358-59; see also Nixon v.
Sec ‘y Pennsylvania Dep ‘t of Corr., 501 F. App’x 176, 178 (3d Cir. 2012). Petitioner here makes
only the bald assertion that Defendants aided and abetted in the theft of his mail. He makes no
allegations as to when, how frequently, or by whom his mail was actually stolen. Thus, even if
Plaintiff can be said to have alleged personal involvement by Defendants in the theft of his mail,
he has failed to allege any pattern or practice of mail theft, and has thus failed to state a claim for
a violation of his First Amendment communication rights.

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3.

Plaintiff’s Free Exercise claim

Plaintiff also alleges that Defendants denied him his right to “hot cooked.

.

.

religious

meals” in violation of his rights under the First Amendment. “The Free Exercise Clause of the
First Amendment prohibits prison officials from denying [a confined individual] “a reasonable
opportunity of pursuing his faith.” McCray v. Passaic County Jail, No. 13-6975, 2013 WL
6199202, at *2 (D.N.J. Nov. 27, 2013) (quoting Cruzv. Beto, 405 U.S. 319, 322, 322 n. 2(1972)).
To make out a claim for denial of an individual’s free exercise rights, an individual must show that
he has a sincerely held religious belief, and the institution’s imposition on that belief is not
reasonably related to a legitimate institutional interest. Id. Plaintiff claims here not that he
has

been entirely prevented from eating a religiously appropriate diet (presumably kosher meals based
on his assertion that he is Jewish), but rather that he has not been served “hot cooked” religious
meals. The Third Circuit, however, has held that the provision of vegetarian meals, as opposed
to hot religious meals including properly prepared meats, does not violate an individual’s free
exercise rights. Id.; see also Williams v. Morton, 343 F.3d 212, 217 (3d Cir. 2003). Plaintiff’s
assertion, that he has not been provided hot cooked religious meals, without more, such as
an
assertion that no religiously appropriate meals have been made available, fails to state a claim
for
which relief may be granted, and must therefore be dismissed at this time.

4.

Plaintiffs Fourteenth Amendment Claim

Plaintiff’s last

§ 1983 claim is that he has been denied his right to liberty, presumably

pursuant to the Fourteenth Amendment. Plaintiff does not allege how, other than via his
civil

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commitment as a sexually violent predator, he has been denied his right to liberty. Plaintiff
5
provides no more than a bald assertion that his rights to liberty have been denied, which is patently
insufficient to plead a claim for relief. Jqbal, 556 U.S. at 678. As Plaintiff has not supported this
allegation with factual support which would present any plausible basis for relief, this claim, too,
must be denied for failure to state a claim for which relief may be granted.

5.

Plaintiff’s ADA claim

Plaintiff’s final claim is that Defendants have violated his rights under the Americans with
Disabilities Act by denying him access to a roll in shower unit for a year. A claim for a violation
of the Act arises out of Title II of the ADA or section 504 of the Rehabilitation Act of 1973. See,
e.g., Callowav v. Boro of Glassboro Dep’t of Pot., 89 F. Supp. 2d 543, 551 (D.N.J. 2000). To
state a claim under either statute, a Plaintiff must demonstrate that he is a qualified individual with
a disability, that he was denied the benefits of a program or activity of a public entity, and that the
exclusion from those benefits occurred by reason ofhis disability. Id. To the extent that Plaintiff
has pled a claim for such a violation, however, Plaintiff only pleads that claim against two
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individuals, and not against any public entity. “[llndividual liability is not contemplated under
To the extent such commitment alone was intended to be raised as a violation of Plaintiff’s
rights, such a claim would fail as a matter of law. See, e.g., Harris v. Christie, No. 10-2402,
2010 WL 2723140, at *6 (D.N.J. July 7, 2010) (New Jersey Sexually Violent Predator Act
essentially the same as SVP statutes that have been held not to violate the Fourteenth
Amendment and therefore commitment under the act does not, in and of itself, violate Due
Process).
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This issue is further complicated by the fact that Plaintiff has provided no information as
to
who Defendants are, what position, if any, they hold at the STU, how specifically they were
involved in the alleged violation, or what authority they possess by virtue of their position, if
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Title II of the Disability Act and

§ 504 of the Rehabilitation Act” and a claim against an individual,

as opposed to a claim against the public entity denying its benefits, is not cognizable under the
Acts. Id. at 557 (collecting cases concluding individual liability is not proper). Thus, to the
extent that Plaintiff has pled a claim for a violation of his rights under the ADA, he has failed to
name a proper defendant, and that claim must be dismissed against these Defendants for failure to
state a claim for which relief may be granted. As this Court is dismissing without prejudice all of
Plaintiffs claims, Plaintiffs complaint will be dismissed in its entirety for failure to state a claim
for which relief can be granted.

any, at the STU.
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III. CONCLUSION

For the reasons stated above, Plaintiffs application to proceed in forma pauperis is
GRANTED, and the complaint shall be filed. As Plaintiff has failed to state a claim for which
relief shall be granted, however, Plaintiffs complaint shall be dismissed DISMISSED WITHOUT
PREJUDICE, and Plaintiff shall be given leave to file an amended complaint within thirty (30)
days. Plaintiffs complaint, as demonstrated by the quotations above, was quite difficult to read
and contained numerous notes scrawled in the margins and frequent bouts of complete illegibility.
As such, should Plaintiff choose to file an amended complaint, he should write or type the
complaint legibly, in a consistent size equivalent to 12 point typed font, and should refrain from
adding notes in the margins.

If Plaintiff requires more space than is available in the form

complaint, he should add additional pages rather than overfill the space provided. An appropriate
order follows.
DATED: September, 2015.
—

—____<

Hon>R5se L. tinars,
Ued States District Judge

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