INZAR v. NEW JERSEY DEPARTMENT OF CORRECTIONS et al

Filing 3

LETTER OPINION. Signed by Judge John Michael Vazquez on 11/28/2016. (seb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHAMBERS OF
JOHN MICHAEL VAZQUEZ
UNITED STATES DISTRICT
JUDGE

2

FRANK R. LAUTENBERG
POST OFFICE AND
COURTHOUSE
FEDERAL SQUARE, RooM
417
NEVARK, NJ 07102

973-2974851
November 28, 2016

LETTER OPINION
Re:

Lnzar v. New Jersey Dep’t of Corrections, et a!.
Civil Action No. 16-05547

Dear Litigant:
The Court is in receipt of your complaint, motion for pro bono counsel, and application to
proceed without prepayment of fees or costs in this matter under 28 U.S.C. § 1915. See D.E. I &
7

Under § 1915, this Court may excuse a litigant from prepayment of fees when the litigant
“establish[es] that he is unable to pay the costs of his suit.” Walker i’. People Express Airlines,
Inc., 886 F.2d 598, 601 (3d Cir. 1989). At the outset, Plaintiff sufficiently establishes her inability
to pay, and the Court grants her application to proceed in/bnna pauperis without prepayment of
fees and costs.
However, when allowing a plaintiff to proceed infonna pauperis, the Court must review
the complaint and dismiss the action if it detennines that the action is frivolous, malicious, fails to
state a claim upon which relief maybe granted. or seeks monetary relief against a defendant who
is immune. 28 U.S.C. § 1915(e)(2). “A complaint is frivolous if it ‘lacks an arguable basis either
in law or in fact.” Okpor i’. Sedgwick (‘MS. No. 12-652 1. 2013 WL 1145041, at * I (D.N.J. Mar.
iVillianis, 490 U.S. 319, 325 (1989)). And when considering
18, 2013) (quoting Neitzke
dismissal under § 1915(e)(2)(B)(ii) for failure to state a claim on which relief can be granted, the
Court must apply the same standard of review as that for dismissing a complaint under Federal
Rule of Civil Procedure 12(b)(6). Schreane i’. Seana, 506 Fed. App’x 120, 122 (3d Cir. 2012).
In addition, “[a] federal court is bound to consider its own jurisdiction preliminary to
consideration ofthe merits.” Kaplan v. Garrison, No. 15-1915, 2015 WL 2159827, at *2 (D.N.J.
May 6,2015) (quoting Trent RealivAssocs. i First Fed. Sai’. & Loan Ass’,, of Phila., 657 F.2d
29,36 (3d Cir.1981)). If subject matter jurisdiction is lacking, the Court must dismiss the action.

Fed. R. Civ. P. 12(h)(3). A federal court has jurisdiction in a civil case if either a federal question
is presented or if the parties are completely diverse and the attendant monetary threshold is
satisfied. SeeArbntigh “. Y&H Corp., 546 U.S. 500, 513 (2006).
Because Plaintiff is proceedingpro se, the Court construes the pleadings liberally and holds
them to a less stringent standard than those filed by attorneys. Names v. Kerner, 404 U.S. 519,
520 (1972). “The Court need not, however, credit apro se plaintiffs ‘bald assertions’ or ‘legal
conclusions.” DAgostino v. CECOMRDEC, No. 10-4558, 2010 WL 3719623, at *1 (D.N.J.
Sept. 10, 2010) (citing Morse v. Loner Mcrion Sc!,. DisL, 132 F.3d 902, 906 (3d Cir.1997)).
The facts of this matter are derived from Plaintiffs complaint. On November 22, 2014,
Plaintiff was visiting her fiancé, Hakeem Allen, who was incarcerated at East Jersey Slate Prison
(“EJSP”). D.E. 2. Plaintiff was “removed from [Ihe visiting hail] and told not to return.” Id.
Plaintiff does not specify why she was asked to leave the prison or why she could not come back.
Apparently as a result of this incident, Plaintiffs was suspended from visiting her fiancé for twelve
months. IS. On February 23, 2015, Plaintiff was permanently barred “from all New Jersey State
[Penal] Institutions.” Id. It is not clear from the complaint what occurred prompting this greater
sanction. On December 18. 2015, “Plaintiff submitted [a] request for contact visitation
reinstatement,” which apparently resulted in Plaintiff obtaining reinstatement of “window visits
only.” Id. On August 2, and August 23, 2016, Plaintiff again sought to obtain “contact visits,”
but both requests were apparently denied. Id. Plaintiff filed this complaint seeking an order
penmtting her to engage in “contact visits” with her fiancé. D.E. 1. Plaintiffs complaint names
the following five defendants: (1) the New Jersey Department of Corrections (“NJDOC”), (2) Gary
Lanigan, Commissioner of the NJDOC, (3) Patrick Nogan. Administrator of EJSP (4) Eddie
Weldon. Assistant Administrator ofEJSP, and (5) Helen Adams, Assistant Administrator of EJSP.
Plaintiffs complaint is deficient in three respects.
First, Plaintiff has not set forth a basis for the Court’s subject matter jurisdiction. “Federal
courts have subject matter jurisdiction over a case if it satisfies federal question jurisdiction under
28 U.S.C. § l331.ordiversityjurisdictionunder28 U.S.C. § 1332.” Nincsv. Jn’ington Counseling
Or., 933 F. Supp. 382, 387 (D.N.J. 1996). The basis for a district court’s federal question
jurisdiction is found in 28 U.S.C. § 1331, which provides that “[t]he district courts shall have
original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the Uniled
States.” “[A] claim arises under federal law if federal law creates the cause of action.” Empire
Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 706 (2006) (quoting Merrell Don Phann.
Inc. i’. Thompson, 478 U.S. 804, 808 (1986)). To establish diversity jurisdiction pursuant to 28
U.S.C. § 1332(a), “the party asserting jurisdiction must show that there is complete diversity of
citizenship among the parties” as well as an amount in controversy exceeding the statutory
threshold. Schneller e.v ret Schncller v. Cmzer Chester Med. Ctr., 387 Fed. App’x 289, 292 (3d
Cir. 2010).
Here, the complaint fails to set forth facts to support federal question jurisdiction. Plaintiff
does not identify how her complaint raises an issue arising under federal law. Even when viewing
the complaint liberally, the Court is unable to ascertain a violation of a federal right that would
create federal question jurisdiction. Notably, the Federal Constitution does not recognize a right
to contact visits, which is the entire basis of Plaintiffs complaint. Block i’. Rzitheijörd, 468 U.S.
7

576, 589 (1984) (holding that “the Constitution does not require that detainees be allowed contact
visits when responsible, experienced administrators have determined, in their sound discretion,
that such visits will jeopardize the security of the facility”). In short, the nature of the cause of
action pursued by Plaintiff is unclear, and thus, the Court is unable to ascertain whether the
complaint alleges a violation of the Constitution or a federal statute.
Additionally, the complaint fails to establish diversity jurisdiction. According to the
complaint, Plaintiff lives in New Jersey, and the addresses Listed for all of the Defendants are in
New Jersey as well. Although the individual Defendants’ addresses appear to be their places of
employment (as opposed to their home addresses), Plaintiff has provided no facts indicating that
they are citizens of a state other than New Jersey. Moreover, the NJDOC is not a citizen of any
state for purposes of diversity jurisdiction. See Moor i’. Alameda (‘tv, 411 U.S. 693, 717 (1973)
(holding that a State and “the arm or alter ego of the State” is not a citizen for purposes of diversity
jurisdiction);Johnson i’. ?‘deit Jersey Dep’t of Corr.. No. 06-926, 2006 WL 1644807, at *2 (D.N.J.
June 2, 2006) (noting that “the New Jersey Department of Corrections is an arm of the State”).
Accordingly, the parties here are not diverse. Moreover, Plaintiff does not allege that she sustained
damages in an amount greater than the statutory threshold. For those reasons, the Court concludes
that it lacks subject matter jurisdiction.
Second, Plaintiff does not demonstrate why the New Jersey Department of Corrections and
the other named defendants are not shielded from liability under the doctrine of sovereign
immunity. “Under the Eleventh Amendment, states and state agencies are immune from suit in
federal court.” Walker v. Beard, 244 F. App’x 439, 440 (3d Cii. 2007). Without question, “the
NJDOC is a state agency entitled to sovereign immunity under the Eleventh Amendment.” Scott
v. Corr. Med. Sen’s., Inc.. No. 06-5552, 2007 WL 3231785, at *1 (D.N.J. Oct. 30, 2007). Plaintiff
pleads no facts indicating why the NJDOC and the individual defendants acting in their official
capacities are not entitled to sovereign immunity. Therefore, Plaintiffs complaint is barred by the
doctrine of sovereign immunity.
Third, Plaintiff fails to state a claim upon which relief can be granted. Plaintiff does not
identify what legal theory she is proceeding under. The complaint alleges that she has been denied
contact visits with her fiancé, but does not specify what cause of action is implicated as a result.
The Court is unaware ofany viable cause of action arising under the facts as alleged. Accordingly.
Plaintiff has failed to state a claim for which relief can be granted,
In conclusion, the Court grants Plaintiffs application to proceed in fonna pauperis. The
Court dismisses Plaintiffs complaint without prejudice. Plaintiff shall have forty-five (45) days
to file an amended complaint if she intends to do so. The Court reserves its decision on Plaintiffs
motion for appointment of pro bono counsel. Plaintiff may renew her motion if she files an
amended complaint establishing the Court’s jurisdiction and a viable cause of action or actions.

John Michael Vazqu, U’.)DJ.

3