GRAVES v. LANNIGAN et al

Filing 2

OPINION. Signed by Judge Madeline C. Arleo on 7/26/2016. (seb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 16-1822 (MCA)

DEION GRAVES,
Plaintiff,

OPINION

v.
THE STATE OF NEW JERSEY, et at.,
Defendants.

ARLEO, United States District Judge:
I.

INTRODUCTION
Plaintiff Deion Graves, currently confined at the Special Treatment Unit (“STU”) in

Avenel, New Jersey, has filed the instant Complaint, alleging violations of his constitutional
rights pursuant to 42 U.S.C.

§ 1983 and the New Jersey Civil Rights Act (“NJCRA”), and

seeking leave to proceed informapauperis (“IFP”). The Court will grant his IFP application.
At this time, the Court must also screen the Complaint pursuant to 28 U.S.C.

§ 1915(e)(2)(B) to

determine whether it should be dismissed as frivolous or malicious, for failure to state a claim
upon which relief may be granted, or because it seeks monetary relief from a defendant who is
immune from such relief. For the reasons explained below, the Court will dismiss the
Complaint in its entirety for failure to state a claim for which relief may be granted under
1915(e)(2)(B), and will grant Plaintiff leave to file an Amended Complaint within 30 days with
respect to those claims that are dismissed without prejudice.

II.

FACTUAL BACKGROUND
In this action, Plaintiff has sued the State of New Jersey and two high-level supervisory

state officials

--

Gary M. Lanigan, the Commissioner of the New Jersey Department of

Corrections (“NJDOC”) and Jennifer Velez, the Commissioner of the Department of Human
Services (“DHS”). The gravamen of Plaintiff’s Complaint appears to be that he was assaulted by
unidentified subordinates of Lanigan and/or Velez on August 21, 2012 while he was confined in
the STU, and was subsequently placed in Temporary Close Custody (“TCC”) for a two-year
period. He alleges Defendants and their subordinates conspired to assault him and have him
placed TCC in retaliation for a conflict that Plaintiff had with a correctional officer while he was
incarcerated at East Jersey State Prison.’ With respect to this allegation, Plaintiff states as
follows:
Plaintiff’s alleges that on August 21, 2012 while he was confined
at the STU Defendants and subordinates. were all complicit in a
scheme to target the PLAINTIFF for assault and retaliation
because of a conflict that the PLAINTIFF previously had with a
Department of Corrections Senior Correction[s] Officer while he
was a prisoner at East Jersey State [Pjrison in Rahway, New
Jersey, and Defendants did with deliberate indifference and
purposeful malice authorize the use of force which led to the
retaliation an violation of PLAINTIFF’s federal and State
Constitutional and Statutory rights. Plaintiff alleges that his
prosecution by the Department of Corrections and Corrections
Supervisors as well as Supervisors of the Department was out of
retaliation and malice, the PLAINITIFF was placed in TCC
(Temporary Close Custody) for two-years following the assault by
the subordinates of Defendant Lanigan, the Commissioner of the
Department of Corrections: this placement in TCC (Temporary
Close Custody) was authorized by the Department of Human
Services personell [sic] working under the authority of Defendant
Velez, Commissioner of the Department of Human Services and
.

.

Although his Complaint suggests that he was assaulted on August 21, 2012 (ECF No. 1,
Complaint at § 2.), it is not clear when Plaintiff was confined in TCC or whether he is still
confined there.
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violated the Plaintiffs [sic] Eighth Amendment right to Equal
Protection of the law.
Petitioner also alleges that his living conditions while in TCC were “hazardous and unsanitary”
and that he was “locked behind an 8’ x 12’ cage that was to remained [sic] locked at all times per
DOC Supervisor.” (Id.)
Plaintiff also alleges that his confinement in TCC was the result of policies and/or
procedures and/or regulations established and/or maintained by Defendants Lanigan and Velez.
With Respect to Defendant Lanigan, Plaintiff states as follows:
Mr. Lanigan knew or should have known about an approved or
indeed promulgated and directed the various restrictive custodial
policies, practices, and procedures including training of DOC
personnel and security practices and uses of restraint concerning
the manner and scope of the abusive treatment of the PLAINTIFF,
that created the punitive environment and excessively restrictive
conditions under which the PLAINTIFF is presently confined. Mr.
Lannigan [sic] knew or should have known about and approved or
failed to supervise subordinates operating under his authority and
take steps to prevent or correct each of these violations of the
PLAINTIFF’s Constitutional rights, as alleged more specifically
below.
(Id. at

§

10.) Similarly, with respect to Defendant Velez, Plaintiff alleges as follows:
Ms. Velez was complicit in and along with the actions of
[Defendant Lanigan], Ms. Velez knew or should have known about
and approved or indeed herself promulgate and direct the various
policies, practices and procedures concerning the matter and scope
of the unconstitutional treatment of the PLAINTIFF that created
the punitive environment and excessive restrictive conditions
under which the PLAINTIFF is presently confined. Ms. Velez
knew or should have known about and approved or failed to take
steps to prevent or correct each of these violations of the
PLAINTIFF”s Constitutional rights as alleged more specifically
below.

(Id. at

§

11.) With respect to both Defendants, Plaintiffs Complaint states that
Defendants, together have written, adopted, imposed, enforced,
maintained and are responsible for a number of written and
unwritten rules, regulations, policies, practices, and procedures that
makes the conditions of PLAINTIFF’s segregation behind a
special 8 x 12 cage at the Special Treatment Unit punitive and
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excessively restrictive prison comparable environment, created,
implemented, and enforced by the Defendants.
(Id. at ¶f 21.)
Plaintiffs Complaint also describes the history of New Jersey’s Sexually Violent
Predator Act (“SVPA”), N.J.S.A. 30:4-27, et seq. and alleges that Sexually Violent Predators
(“SVPs”) are entitled to treatment during their involuntary confinement and, under the “Patient
Bill of Rights,” are also entitled to be free of excessive physical restraint and isolation during
their confinement. (Id. at
III.

¶

12-16.)

STANDARD OF REVIEW
Under the PLRA, district courts must review complaints in those civil actions in which a

person is proceeding informapauperis. See 28 U.S.C.

§

1915(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. Id. “The legal standard for dismissing a complaint for failure to state a claim
pursuant to 28 U.S.C.

§

191 5(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)); Courteau v. United States,
287 F. App’x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C.

§

1915A(b)).

Here, Plaintiffs Complaint is subject to screening under 28 U.S.C.

§

1915(e)(2)(B).

When reviewing a motion to dismiss under Fed. R. Civ. P. 1 2(b)(6), courts first separate the
factual and legal elements of the claims, and accept all of the well-pleaded facts as true. See
Fowler v. UPMC Shadyside, 578 F.3d 203, 210—11 (3d Cir. 2009). All reasonable inferences
must be made in the plaintiffs favor. See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314
(3d Cir. 2010). The Complaint must also allege “sufficient factual matter” to show that the claim

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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) (citation omitted).
Courts are required to liberally construe pleadings drafted by pro se parties. Tucker v.
Hewlett Packard Inc., No. 14-4699 (RBK!KMW), 2015 WL 6560645, at *2 (D.N.J. Oct. 29,
2015) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). Such pleadings are “held to less
strict standards than formal pleadings drafted by lawyers.” Id. Nevertheless, pro se litigants
must still allege facts, which if taken as true, will suggest the required elements of any claim that
is asserted. Id. (citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013)). To
do so, [a plaintiff] must plead enough facts, accepted as true, to plausibly suggest entitlement to
relief.” Gibney v. Fitzgibbon, 547 F. Appx 111, 113 (3d Cir. 2013) (citing Bistrian v. Levi, 696
F.3d 352, 365 (3d Cir. 2012)). “Liberal construction does not, however, require the Court to
credit a pro se plaintiffs ‘bald assertions’ or ‘legal conclusions.” Id. (citing Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). That is, “[e]ven apro se complaint may be
dismissed for failure to state a claim if the allegations set forth by the plaintiff cannot be
construed as supplying facts to support a claim entitling the plaintiff to relief. Id. (citing
Mi/house v. Carison, 652 F.2d 371, 373 (3d Cir. 1981)).

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IV.

ANALYSIS
As noted above, Plaintiff has sued the State of New Jersey and two high-level

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supervisory state officials for violations of his federal and state constitutional rights. The Court
next considers whether he has stated a claim for relief against these Defendants.
a. The State of New Jersey
Plaintiff may not maintain a civil rights action against the State of New Jersey. “As a
general proposition, a suit by private parties seeking to impose a liability which must be paid
from public funds in a state treasury is barred from federal court by the Eleventh Amendment,
unless Eleventh Amendment immunity is waived by the state itself or by federal statute.”
Randolph v. New Jersey State Parole Office, No. CIV.A. 07-376 (RMB), 2007 WL 1521189, at
*2..3 (D.N.J. May 21, 2007) (citing Edelman v. Jordan, 415 U.S. 651, 663 (1974)). The Eleventh
Amendment protects states and their agencies and departments from suit in federal court
regardless of the type of relief sought. Id. (citing Pennhurst State School and Hospital v.
Halderman, 465 U.S. 89, 100 (1984). Section 1983 does not override a state’s Eleventh
Amendment immunity. Id. (citing Quern v. Jordan, 440 U.S. 332 (1979)). In addition, the State
is not a “person” subject to suit under 42 U.S.C.

§

1983. See Will v. Michigan Dept. ofState

Police, 491 U.S. 58, 68-70 (1989) (holding that States and governmental entities considered

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To the extent Plaintiff’s NJCRA claims mirror his § 1983 claims, those NJCRA claims
are addressed in tandem with his federal causes of action. See Trafton v. City of Woodbury, 799
F.Supp.2d 417, 443—44 (D.N.J. 2011); see also Chapman v. New Jersey, Civ. No. 08—4130, 2009
U.S. Dist. LEXIS 75720, at *7, 2009 WL 2634888 (D.N.J. Aug. 25, 2009) (“Courts have
repeatedly construed the NJCRA in terms nearly identical to its federal counterpart....”);
Armstrongv. Sherman, Civ. No. 09—716, 2010 U.S. Dist. LEXIS 55616, at *15, 2010 WL
2483911 (D.N.J. Jun. 4, 2010) (“[Tjhe New Jersey Civil Rights Act is a kind of analog to section
1983 ....“); see generally Hedges v. Musco, 204 F.3d 109, 122 n. 12 (3d Cir. 2000) (concluding
that New Jersey’s constitutional provisions concerning search and seizures are interpreted
analogously to the Fourth Amendment).
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“arms of the State” for Eleventh Amendment purposes are not “persons” within the meaning of §
1983). Therefore, the Complaint will be dismissed with prejudice as to the State of New Jersey.
To the extent Plaintiff seeks damages from Defendants Lanigan and Velez in their official
capacities, these claims are likewise barred by Will and are dismissed with prejudice.
b. Supervisory Defendants Lanigan and Velez
In the Complaint, Plaintiff also seeks to hold Defendants Lanigan and Velez liable in
their personal supervisory capacities for the alleged assault and placement in TCC. Because
Defendants are high-level supervisory officials, the Court begins by noting that, respondeat
superior is not a basis for section 1983 liability. Indeed, “[tb establish liability under

§

1983,

each individual defendant ‘must have personal involvement in the alleged wrongdoing.”
Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d
1195, 1207 (3d Cir. 1988)). As such, “a plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.” Ashcroft
v. Iqbal, 556 U.S. 662, 676 (2009); see also Innis v. Wilson, 334 F. App’x 454, 457 (3d Cir.
2009) (indicating that section 1983 plaintiff could not maintain claim against individual
defendant unless said defendant was personally involved in actions causing the claim); Rode, 845
F.2d at 1207 (explaining that “[a] defendant in a civil rights action must have personal
involvement in the alleged wrongs; liability cannot be predicated solely on the operation of
respondeat superior”).
The requirements for supervisory liability were recently clarified by the Third Circuit in
Barkes v. First Correctional Medical, Inc., 766 F.3d 307, 3 16-19 (3d Cir. 2014), reversed on
other grounds by Taylor v. Barkes, 135 S. Ct. 2042, 2043 (2015). There, the Third Circuit
outlined “two general ways” in which a supervisor-defendant may be liable under the Eighth

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Amendment: (1) where the supervisor established a policy, custom, or practice that caused the
harm; or (2) where the supervisor personally participated in the constitutional violation. The
Third Circuit explained these two general types of supervisory liability as follows:
[fjirst, liability may attach if they, “with deliberate indifference to
the consequences, established and maintained a policy, practice or
custom which directly caused [the] constitutional harm.” A.M ex
rel. JMK v. Luzerne Cnry. Juvenile Det. Ctr., 372 F.3d 572, 586
(3d Cir. 2004) (alteration in original) (quoting Stoneking v.
BradfordArea Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)).
Second, “a supervisor may be personally liable under § 1983 if he
or she participated in violating the plaintiffs rights, directed others
to violate them, or, as the person in charge, had knowledge of and
acquiesced” in the subordinate’s unconstitutional conduct. Id.
(citing Baker v. Monroe Twp., 50 F.3d 1186, 1190—91 (3d Cir.
1995)). “Failure to” claims failure to train, failure to discipline,
or, as in the case here, failure to supervise are generally
considered a subcategory of policy or practice liability.
—

—

Id
Plaintiff s Complaint appears to allege that (1) the Supervisory Defendants were part of a
conspiracy with unidentified subordinates to assault him and subsequently have him placed in
TCC and that (2) the Supervisory Defendants established deficient policies which resulted in his
placement in TCC.
The Court will dismiss without prejudice Plaintiffs conspiracy claim under
failure to state a claim for relief under 28 U.S.C.

§

§

1983 for

1915(e)(2). Civil rights conspiracies brought

under Section 1983 require a “meeting of the minds,” and to survive screening or a motion to
dismiss, plaintiffs must provide some factual basis to support the existence of the elements of a
conspiracy, namely, agreement and concerted action. See Startzell v. City ofPhiladelphia, 533
F.3d 183, 205 (3d Cir. 2008) (citingAdickes v. S.1i Kress & Co., 398 U.S. 144, 158 (1970).
Here, Plaintiff has not provided sufficient facts regarding the Supervisory Defendants’ alleged
participation in the alleged conspiracy to assault him and have him placed in TCC. Nor does his

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Complaint provide sufficient facts to suggest that the Defendants directly violated his
constitutional rights or had knowledge of and acquiesced in any violations. Instead, the
Complaint states in a conclusory manner that both Defendants “authoriz[ed]”the use of force
against him and that the subordinates of Defendant Velez authorized his placement in TCC.
(ECF No. 1, Compl. at ¶ 2.) With respect to the vague allegation that the Supervisory
Defendants “authorized” the use of force against him, the Complaint lacks “sufficient factual
matter” to show that this claim is facially plausible. See Fowler, 578 F.3d at 210. The latter
claim that Defendant Velez’ subordinates placed Plaintiff in TCC is premised on respondeat
superior and is not a basis for holding Defendant Velez liable under

§

1983. As such, these

claims are dismissed without prejudice for failure to state a claim pursuant to

§

191 5(e)(2)(B).

The Court will also dismiss without prejudice Plaintiffs claim that the Supervisory
Defendants established deficient policies that resulted in his placement in TCC. The Third
Circuit in Barkes reaffirmed its four-part standard, established in Sample v. Diecks, for
determining whether an official may be held liable under

§

1983 for implementing deficient

policies. See Barkes at 317 (citing Sample v. Diecks, 885 F.2d 1099 (3d Cir. 1989)). Under
Sample, to find that a supervisor acted with deliberate indifference as a policymaker,
the plaintiff must identify a supervisory policy or procedure that
the supervisor defendant failed to implement, and prove that: (1)
the policy or procedures in effect at the time of the alleged injury
created an unreasonable risk of a constitutional violation; (2) the
defendant-official was aware that the policy created an
unreasonable risk; (3) the defendant was indifferent to that risk;
and (4) the constitutional injury was caused by the failure to
implement the supervisory procedure.
Barkes, 766 F.3d at 330.
Here, Plaintiff has alleged in a conclusory fashion that
Defendants, together have written, adopted, imposed, enforced,
maintained and are responsible for a number of written and
9

unwritten rules, regulations, policies, practices, and procedures that
makes the conditions of PLAINTIFF’s segregation behind a
special 8 x 12 cage at the Special Treatment Unit punitive and
excessively restrictive prison comparable environment, created,
implemented, and enforced by the Defendants.
(ECF No. 1, Compl. at ¶ 21.) Plaintiff Complaint is rife with conclusory allegations and
boilerplate, and he has not provided facts describing the policy or procedure that was in effect at
the time of the alleged injury or how that policy or procedure caused his constitutional injury.
Nor has he provided facts to suggest that Defendants Lanigan and/or Velez were deliberately
indifferent to the risk presented by the policy that was in effect at the time of his alleged injury.
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Because Plaintiff has not stated a civil rights claim based on deficient policies, the Court will
dismiss these claims without prejudice as to Defendants Lanigan and Velez.
V.

CONCLUSION
The Complaint is dismissed with prejudice as to the State of New Jersey. The official

capacity claims for damages against Defendants Lanigan and Velez are likewise dismissed with
prejudice. The Complaint is dismissed without prejudice as to the claims against Defendants
Lanigan and Velez in their personal supervisory capacities; to the extent he can cure the
deficiencies explained in this Opinion, Plaintiff may submit an Amended Complaint within 30
days. An appropriate Order follows.

As explained in Barkes, “[tjhe essence of the type of claim [the court] approved in
Sample is that a state official, by virtue of his or her own deliberate indifference to known
deficiencies in a government policy or procedure, has allowed to develop an environment where
there is an unreasonable risk that a constitutional injury will occur, and that such an injury does
occur.” 766 F.3d at 319-20. Deliberate indifference in the supervisory context may be
demonstrated by “(i) showing that a supervisor failed to adequately respond to a pattern of past
occurrences of injuries like the plaintiffi’s] (ii) by showing that the risk of constitutionally
cognizable harm was ‘so great and so obvious that the risk and the failure of supervisory officials
to respond will alone’ support the finding that the two-part test is met.” Beers—Capitol v.
Whetzel, 256 F.3d 120, 136—37 (3d Cir. 2001) (emphasis added) (citing Sample, 885 F.2d at
1099).
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Madeline Cox Arleo, U.S.D.J.
2
Dat(

,2016

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