GROHS v. LANIGAN et al

Filing 4

OPINION. Signed by Judge Kevin McNulty on 4/5/2019. (sm)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

STEVEN GROHS,
Civ. No. 16-7083 (KM) (JBC)

Plaintiff,
V.

OPINION

GARY M. LANIGAN et al.,
Defendants.

KEVIN MCNULTY, U.S.D.J.
I.

INTRODUCTION

The plaintifE Steven Grobs. is committed under the New Jersey Sexually Violent
Predator Act at the Special Treatment Unit (“STU”), in Avenel. New Jersey. He is proceeding
pro se with a civil rights complaint. This Court previously granted Mr. Grobs leave to proceed in
forma pauperis. (ECF No. 3.)

This Court must now screen the complaint, under 28 U.S.C.

§

191 5(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 suit. For the following reasons, portions of the complaint will be dismissed without
prejudice for failure to state a claim, and the remainder of the complaint will be permitted to
proceed.
II.

BACKGROUND

The complaint lists as defendants, in their individual capacities, Gary M. Lanigan,
commissioner of the New Jersey Department of Corrections (“NJDOC”), Sherry Yates,
administrator of the STU, Major Colm D. Foley, institutional search plan coordinator for the

STU,

Sgt. Rivera, SCO Lee, SCO Calton, and John Doe, each of whom are corrections oflicers

employed at the STU, SCO Lukaszewski, the STU mailroom officer, and Jane Doe, an NJDOC
ombudsman. (DE I, ¶1 5—34.) Mr. Grohs’s complaint concerns two distinct incidents, one in
October 2015 and one in June 2016.

A. October2015
Mr. Grohs alleges that, on October 16, 2015, Mailroom Officer Lukaszewski left a food
package addressed to Mr. Grohs outside of his cell during lockdown. Grohs was not expecting
the package and did not want to accept it.’ (Id.
package to the sender. (Id.

‘

¶ 36—39.) Accordingly, Lukaszewski returned the

40—41.)

Just after midnight on October 27, 2015. Officers Lee and Calton placed Mr. Grohs into
Temporary Close Custody (“TCC”)2 in a cell on the unit’s third tier. (it!

¶ 42—43.) Mr.

Grohs

contends that, due to a malfunctioning heating unit, the third tier was excessively hot, with
temperatures exceeding 107 degrees. (Id.

¶ 44—45.) He alleges that, upon his admission to TCC,

Lee and Calton subjected him to a strip search, forcing him to completely disrobe and remain
nude for five minutes in an area visible to other STU residents. (Id.

¶ 46—50.)

Mr. Grohs contends that the TCC cell was filthy. with fecal matter smeared on the toilet,
floor, and bunk, and was infested with bedbugs. (Id.

if 55—58.) He alleges that water from the

cell sink was discolored and hot and that his request for cool water was ignored. (Id.

9 56,

59.)

Mr. Grohs explains that, as the STU permits residents to receive only two food packages per
month, he worried that accepting this package would have prevented his receiving another food package
that he was expecting. (DE I ¶ 39.)
Temporary Close Custody entails “the removal ofa resident from the general population, or other
assigned status, with restriction to a room in a designated area for a period not to exceed 72 hours.” N.J.
Admin. Code § lOA:35-1.4.

2

He recounts that, when a leaking pipe began to flood the cell, he was moved to a different, but
equally unpleasant, cell on the third tier. (Id.

60—63.)

Meanwhile, Mr. Grohs explains, he learned that, on October 27, 2015, two other STU
residents had received food packages containing contraband tobacco and that he had been placed
in TCC because STU officers believed that the package he had rejected on October 16 also
contained contraband. (Id.

¶ 66—67.) Mr.

Grohs indicates that, after explaining that he had

rejected the package as undesired, he was released from TCC and returned to his normal cell at
about 3:30 p.m. on October 28, 2015. (Id. ¶31 67—69, 71.)
Mr. Grohs alleges in Count I that Administrator Yates placed him in TCC as retaliation
for prior lawsuits against her, and that the delivery of the unexpected food package and
allegations of receiving contraband were merely pretextual justifications. (Jd. ¶3193—112.)
Accordingly, he alleges that “Yates and Lukaszewski have violated Plaintiffs First Amendment
rights to be free from retaliation when Defendant Yates arbitrarily used insufficient information
from Defendant Lukaszewski to place Plaintiff in TCC.” (Id.

¶

Ill.)

Mr. Grohs also alleges, in Count II, that the October 27, 2015, strip search violated his
Fourth Amendment right to be free from unreasonable searches. (Id. ¶31113—127.) He argues that
STU policy permits strip searches only with probable cause to believe that a resident is hiding a
weapon or dangerous object and that non-invasive, electronic scans are also provided for. (Id.

¶

114—120.) Accordingly, he alleges that Sergeant Rivera, Officer Lee, and Officer Calton violated
his Fourth Amendment rights by conducting the search, and that Administrator Yates and Search
Plan Coordinator Foley should bear supervisory liability, as they should have known officers
were routinely performing strip searches without probable cause. (Id. ¶31119—127.)

j

In Count VI, asserted only against Administrator Yates, Mr. Grohs alleges that the
conditions of his TCC detention, specifically the excessive heat, filth, and lack of potable water,
amounted to cmel and unusual punishment, in violation of the Eighth and Fourteenth
Amendments. (Id.

¶f

165—173.) He alleges that Yates knew of these conditions, but “took no

reasonable actions to minimize or timely resolve these problems.” (Id.

¶

170.) He adds that

temperatures exceeded 109 degrees and that existing exhaust fans were not run. (id

¶

171.)

B. June2016
Mr. Grohs alleges that, during a “stand-up count” on June 9,2016, Officer John Doe
ordered him to remove all his clothes for a strip search. (Id.

¶J 72—79.) Mr.

Grohs explains that

he asked John Doe if probable cause existed for the search and John Doe responded by slapping
him in the face and ordering him to comply. (Id.

¶ 77—78.) Mr.

Grohs alleges that, during the

search, John Doe, in response to an incident involving an STU resident several cells away.
suddenly yelled at Mr. Grohs to get down on the floor and simultaneously shoved him to the
ground, causing his face to strike the concrete floor. (Id.

¶ 80—85.) Mr.

incident subsequently caused a cyst to develop on his left cheek. (Id.

Grohs alleges that this

¶ 85—86.) He recounts that

the strip search subsequently continued, involving inspection of his genitals and rectum,
ultimately lasting about 45 minutes. (Id.

JJ 87—90.) Mr.

Grohs alleges that Commissioner

Lanigan, Ombudsman Jane Doe, and Search Plan Coordinator Foley were present in the housing
unit during this incident and “were cognizant of the actions of Defendant John Doe, as all other
SOG officers were acting in a similar way with other residents.” (Id.

¶ 92,

137.)

Mr. Grohs, in Count III, alleges that the June 9.2016, strip search was improper and
violated his Fourth Amendment rights. (Id.

¶IJ

128—141.) He argues that no probable cause

existed to believe he was concealing contraband, that no contraband was found, and that John

4

Doe was unjustified in ordering him to “repeatedly touch his genital areas,” (Id. ¶17131—132.) He
argues that John Doe clearly did not distinguish between inmates serving criminal sentences and
persons like Mr. Grohs, who are subject to civil commitment, that the search violated provisions
of the New Jersey Administrative Code requiring that STU resident searches “be conducted in a
professional and dignified manner, with maximum courtesy and respect for the resident’s person,
and under sanitary conditions,” and that Lanigan, Foley, and Jane Doe did nothing to correct
him. (Id.

“

133—139.)

In Count IV, Mr. Grohs alleges that John Doe employed excessive force when he slapped
Mr. Grobs and subsequently shoved his face into the floor. (Id.

¶17

142—1 49.) Mr. Grohs urges

that he obeyed all commands by John Doe and other officers and that John Doe could simply
have ordered him to lie down on the floor without pushing him down. (Id. ¶11145—147.)
C. General Claims
More broadly, Mr. Grohs asserts, in Count V, that all defendants other than Lukaszewski
abused their power and violated Mr. Grohs’s due-process rights by treating him as if he were
serving a criminal sentence, when he is merely committed under the New Jersey Sexually
Violent Predator Act. (Id. ¶17150—164.) Mr. Grohs urges that, under that act, defendants had a
duty to treat him better than a prisoner serving a criminal sentence and that they “wantonly
ignored their duty and they were deliberately indifferent to the nonpunitive purpose for which
Plaintiff is committed.” (Id.

¶

157—1 60.)

In Count VII. Mr. Grohs alleges that Lanigan. Yates, Foley, Rivera, Jane Doe, and John
Doe violated the Eighth Amendment prohibition on cruel and unusual punishment by performing
and permitting both the October 2015 and June 2016 strip searches. (Id. ¶jJ 174—1 78.) Mr. Grohs

)

claims that the conduct by those defendants amounted to deliberate indifference to his health or
safety. (itt.

4

176.)

Mr. Grohs further alleges, in Count VIII, that Lanigan, Yates, Foley, and Jane Doe are
liable for his rights violations under a theory’ of supervisory liability. (id. a 179—189.)
Specifically, he asserts that “Lanigan, Yates, and Foley were aware that residents were being
subjected to unreasonable strip searches and these Defendants were indifferent to real or
perceived constitutional violations.” (Id.

¶

186.) He reiterates that Lanigan, Foley, and Jane Doe

were present for the June 2016 strip search, but “took no action to prevent Defendant John Doe
from conducting a strip search that was inconsistent with the STU’s search plan.” (Id.

¶

187.)

Finally, in Count IX, Mr. Grohs alleges that Rivera and John Doe violated his right to
privacy under the New Jersey Constitution. (id, r 190—197.) He contends that STU residents
still have an expectation of privacy and a right to be free from “wrongful intrusion” into their
lives. (id.

¶

191—1 92.) Accordingly, he argues that their strip searches of him, without probable

cause, were unreasonable and violated this right. (Id.

¶IJ

195—1 96.)

The complaint seeks declarations that defendants have violated Mr. Grohs’s rights and
compensatory’ damages. (id. at pp. 44—47.)
III.

LEGAL STANDARDS

Under the Prison Litigation Reform Act, Pub. L. 104-134,

§

801—810, 110 Stat. 1321-66

to 1321-77 (Apr. 26, 1996) C’PLRA”), district courts must review complaints when the plaintiff
is proceeding in fonna pauperis. See 28 U.S.C.

§

I915(e)(2)(B). The PLRA directs district courts

to sua sponte dismiss claims that are frivolous or malicious, that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a defendant who is immune from such
relief. Id.

6

“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).

Under Federal Rule of Civil Procedure 8, a complaint must include “a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Supreme
Court has explained that, “[tb survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.” As/zcrafi
v. Iqbcd, 556 U.S. 662, 678 (2009) (quoting Bell AlL Corp. v. Twonibly, 550 U.S. 544, 570
(2007)); see also Frnt’ler v UflMCShadyside, 578 F.3d 203, 210 (3d Cir. 2009). “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.” Jqbal, 556 U.S. at
678; see also Fair Wind Sailing, Jnc. v. Dempsler, 764 F.3d 303, 308 n.3 (3d Cir. 2014). “A
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action will not do.” Jqbal, 556 U.S. at 676 (quoting Twonthly, 550 U.S. at 555).
Pro se pleadings, as always, will be liberally construed. See Haines v. Kerner, 404 U.S.
519, 520 (1972); Glunkv. Noone, 689 F. App’x 137, 139 (3d Cir. 2017). Nevertheless, “prose
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).
A plaintiff may have a cause of action under 42 U.S.C.

§

1983 for certain violations of

his constitutional rights. That section provides,
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
7

injured in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought against a
judicial officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was
unavailable.
42 U.S.C.

§

1983. To state a claim under

§

1983, a plaintiff must allege, first, the violation of a

right secured by the constitution or laws of the United States, and second, that the alleged
deprivation was committed or caused by a person acting under color of state law. See Harvey v.
Plains Twp. Police Dep’!, 635 F.3d 606, 609 (3d

Cir.

2011); see also West v. Atkins, 487 U.S. 42,

48 (1988).

IV.

DISCUSSION

a. Retaliation Claim
A plaintiff pleads a claim for retaliation by alleging that “(1) he engaged in
constitutionally protected conduct[,j (2) he suffered an adverse action[.} and (3) the
constitutionally protected conduct was a substantial or motivating factor for the adverse action.”
Bran/v. Varano, 717 F. App’x 146, 149 (3d Cir. 2017); see also Rauser

i&

Horn, 241 F.3d 330,

333—34 (3d Cir. 2001). “‘[G]ovemment actions, which standing alone do not violate the
Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire
to punish an individual for exercise of a constitutional right.” Allah v. Seiverling, 229 F.3d 220.
224—25 (3d Cir. 2000) (alteration in original) (quoting Thaddeus-Xv. B/alter, 175 F.3d 378, 386
(6th Cir. 1999)); see also Mitchell

i’.

Horn, 318 F,3d 523, 530 (3d Cir. 2003). It is well

established that the filing of lawsuits or grievances constitutes conduct protected by the First
Amendment. See Smith v. Mensinger, 293 F.3d 641, 653 (3d Cir. 2002); see also Martin v.
Gearhart, 712 F. App’x 179, 167 (3d Cir. 2017); Nifas v. Coleman, 528 F. App’x 132, 134 (3d
Cir. 2013). An adverse action is one “sufficient to deter a person of ordinary firmness from
S

exercising his constitutional rights.” Mack v Warden Lore/to FC’J, 839 F.3d 286, 297 (3d Cir.
2016); see also Watson v. Rozum, 834 F.3d 417, 422 n.6 (3d Cir. 2016); Mitchell. 318 F.3d at
530. Whether the action in question meets this standard “is an objective inquiry and ultimately a
question of fact.” Bistrian v. Levi, 696 F.3d 352, 376 (3d Cir. 2012); see also Allah, 229 F.3d at
225.
If there is protected conduct and an adverse action, the question becomes whether there is
a causal link between the two. See Rauser, 241 F.3d at 333. At that stage, the plaintiff first bears
the burden to show that the protected conduct was a “substantial or motivating factor” underlying
the adverse action, and the burden then shifts to the defendant to show that it would have taken
the same action regardless of the plaintiff’s protected conduct. Id; see also Watson, 834 F.3d at
422. Where a causal link cannot be shown with direct evidence, a plaintiff may try to satisfy the
initial burden by demonstrating “(1) an unusually suggestive temporal proximity between the
protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with
timing that suggests a causal link.” Watson, 834 F.3d at 422.
Mr. Grohs alleges that his October 2015 placement in TCC was retaliation for lawsuits he
had previously tiled against Administrator Yates and because Mr. Grohs tended to “frequently
assert[} his fundamental rights for the purpose of re[}dressing governmental actions.” (Sec DE I

11J 93—112.) There is no question that Grohs’s filing of the prior lawsuits against Yates
constituted conduct protected under the First Amendment. Placement in TCC appears
sufficiently severe to constitute an adverse action, particularly in light of the allegedly deplorable
condition of the third-tier cell(s). The ostensible justification for placing Mr. Grohs was the
pending charge of receiving (or attempting to receive) contraband. Grohs alleges factually
however, that circumstances exist to suggest that that basis was pretextual. His package, he

9

states, arrived more than a week before the packages for other residents that contained
contraband; there was no evidence that he was expecting or even wanted his package; and the
contraband in the packages to other residents was readily discovered by scans in the mail room,
suggesting that if Mr. Grohs’s package was comparable, it should likewise have been
intercepted. (See DE 1

¶fflJ 96—1 04.) Of course, we do not yet have the authorities’

side of the

story. At this preliminary screening stage, however, Mr. Grohs has alleged sufficient facts to
state a claim for retaliation against Yates, and this claim vill be permitted to proceed.
It is unclear, however, what role Mailroom Officer Lukaszewski is alleged to have played
in the purported retaliation. The primary contention against Lukaszewski is that he “initiated the
paper-work which caused Plaintiffs name to be brought before Defendant Yates” and that he
“presented facts that either implicated Plaintiff in some wrong-doing or that somehow showed
that Plaintiff was involved with the introduction of contraband within the STU.” (Id. ‘94.) This
allegation, aside from being vague, does not suggest that Lukaszewski had any retaliatory
motive. Indeed, it implies that Lukaszewski, even if allegedly mistaken, believed that Mr. Grohs
had been involved in receiving contraband. Furthermore, Mr. Grohs alleges that “[tJhe decision
to place [him] in TCC was a decision made solely by Defendant Yates.” (DE I
added); see also Id.

¶

¶ 95

(emphasis

105 (“the decision of Defendants Yates to place Plaintiff in ICC.”);

(“Defendant Yates’s decision to place Plaintiff in ICC”),

¶

¶

107

108 (“Defendant Yates did so

because of her having an opportunity to reprise against Plaintiff.”).
In short, there is no factual allegation that Lukaszewski played any role in the decision to
place Mr. Grohs in TCC, that he had any retaliatory motive, or that he knew of or participated in
any scheme to retaliate against Mr. Grohs. Accordingly, the retaliation claim is dismissed as
against defendant Lukaszewski.

I0

b. Unreasonable-Search Claims

The Fourth Amendment of the Constitution of the United States guarantees a right to be
free from unreasonable searches and seizures. U.S. Const, amend. IV. Whether a search or
seizure is reasonable “depends on all of the circumstances surrounding the search or seizure and
the nature of the search or seizure itself” Skinner v. Ry. Labor Ktecs. ‘Ass ‘n, 489 U.S. 602, 618
(1989) (quoting United States v, Montoyade Hernandez, 473 U.S. 531, 537 (1985)). “[TJhe
permissibility of a particular practice is judge by balancing its intrusions on the individual’s
Fourth Amendment interests against its promotion of legitimate governmental interests,” Id. at
619 (internal quotation marks omitted); see also Bell v. Wolfish, 441 U.S. 520, 559 (1979).
Factors to consider in determining the reasonableness of a search include “the scope of the
particular intrusion, the manner in which it is conducted, the justification for initiating it, and the
place in which it is conducted.” Bell, 441 U.S. at 559. “[Tjhere is no mechanical way to
determine whether intrusions on an inmate’s privacy are reasonable,” Florence

i

Rd. of Chosen

Freeholders of Cry, ofBurlington, 566 U.S. 318, 327 (2012).
Although involuntarily committed patients and sexually violent predators retain some
right to privacy under the Fourth Amendment, it is not equivalent to the right enjoyed by
individuals in society generally. See Serna v. Goodno, 567 F.3d 944, 948 (8th Cir. 2009); Allison
v Snyder. 332 F.3d 1076, 1076—79 (7th Cir. 2003); Aiken v NLron, 236 F. Supp. 2d 211,233
(N.D.N.Y. 2002), aff’d. 80 F. App’x 146 (2d Cir. 2003). As to civilly committed persons, the
Supreme Court has applied the Bell v. Wolfish test, which balances a person’s Fourth
Amendment interests against legitimate governmental interests. See Youngberg v. Romeo, 457
U.S. 307, 320—22 (1982) (citing Bell. 441 U.S. at 539).

II

The Supreme Court has repeatedly recognized the difficulty of effectively operating a
detention facility. Accordingly, it has counseled deference to correctional officials, concluding
that “a regulation impinging on an inmate’s constitutional rights must be upheld ‘if it is
reasonably related to legitimate penological interests.” Florence, 566 U.S. at 326 (quoting
Turner v. Safley, 482 U.S. 78, 89 (1987)). That principLe, however, has its limits. Application of
the Turner factors “does not categorically uphold all bodily searches in prisons.” Parkell v.
Danberg, 833 F.3d 313, 326 (3d Cir. 2016). The justification for strip searches, for example, is
the detection of contraband; it follows that, as the plausible opportunities for a detainee to obtain
contraband are eliminated, the legitimate governmental interest in performing a bodily search is
correspondingly diminished. See Id. at 326—28.
I. Coum II
In Count II, Mr. Grohs alleges that Yates, Foley, Rivera, Lee, and Calton violated his
Fourth Amendment rights when he was strip searched upon entering TCC on October 27, 2015.
(DE 1 ¶jJ 113—1 27.) He contends that there was no probable cause to justify the search and that
he could, instead, have been searched by a “non-[in]vasive electronic device” or by a pat-down.
(Id.

¶1

114—115.) Yates, he explains, developed a written search plan which permitted strip

searches “if there is probable cause to believe [that a resident] is [concealing] a weapon or other
object thai could place staff or Residents at risk,” but which also explicitly permitted “[nJon
invasive electronic scanning.” (Id.

¶

117—118.) Mr. Grohs alleges that Sergeant Rivera, who

oversaw the October 2015 search, “failed to apply the directives and adhere to the objectives of
the existing Search Plan” and chose to perform a strip search rather than an electronic scan. (Id.
119.)

12

¶

Upon screening, these allegations are sufficient to plead a claim against Rivera and Lee.
Mr. Grohs alleges that Sergeant Rivera’s decision to perform a strip search violated institutional
policy. That claim requires factual development; if for example, there was a basis for

individualized suspicion that Mr. Grohs possessed contraband, that could justify the search. See Parke/i,
883 F.3d at 328—29. It Mr. Grobs is correct, however, that the search violated institutional policy, it might

not enjoy the deference given to searches pursuant to institutional policy. See Florence, 566 U.S.
at 326. Mr. Grohs suggests that Rivera opted for a strip search, not for legitimate reasons, but for
the purpose of humiliating him. (DE I ¶ 120.) Lee, he alleges, was the officer who actually
performed the search. Accordingly, this claim will be permitted to proceed as against Rivera and
Lee.
The only allegation regarding Officer Calton, however, was that he was present on the
scene. (See DE 1

¶ 43. 49.) That does not sufficiently allege Calton’s involvement in the search,

and the claim will therefore be dismissed without prejudice as against Calton.
Mr. Grohs further alleges that Administrator Yates and Search Plan Coordinator Foley
knew that officers were routinely performing strip searches of residents being placed in TCC,
because Foley prepared monthly search reports and submitted these to Yates. (DE I

fl

121—

123.) Mr. Grohs contends that Yates and Foley were deliberately indifferent to the development
of this practice, which led to a violation of his constitutional rights. (Id. ¶l’t 124—125,)
Supervisory liability generally requires some affirmative conduct by the supervisor, such
as a supervisor’s implementation or maintenance of a policy, practice, or custom that caused the
plaintiff constitutional harm. Par/cell, 833 F.3d at 330; Sam/ago v. Warminster Township, 629

F.3d 121, 129 n.5 (3d Cir. 2010). There are two potential theories of supervisory liability. Under
the first theory, defendants may be sued as policy makers “if it is shown that such defendants,
‘with deliberate indifference to the consequences, established and maintained a policy, custom,
13

or practice which directly caused [thej constitutional harm.” A.M cx reL JMK. v. Luzerne Cty.
Juvenile Del. Cm, 372 F.3d 572, 586 (3d Cir. 2004) (quoting Stoneking v Bradford Area Sc/i,
Din., 882 F.2d 720, 725 (3d Cir. 1989)). The second theory of liability provides that a supervisor
maybe personally liable under

§ 1983 if he or she participated in violating the plaintiff’s rights,

directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in
subordinates’ violations. See Baker v. Monroe Township, 50 F.3d 1186, 1190—91 (3d Cir. 1995).
Knowledge, for these purposes, means “contemporaneous knowledge of the offending incident
or knowledge of a prior pattern of similar incidents.” CM. ex. rd. Z.H. v Oliva, 226 F.3d 198,
202 (3d Cir. 2000).
In nonprecedential opinions, the Third Circuit has expressed doubt as to whether the
knowledge-and-acquiescence subcategory of supervisory liability survived the Supreme Court’s
decision in Ashcroft v. Jqbai 556 U.S. at 677 (“purpose rather than knowledge is required to
impose Bivens liability

.

.

*

for an official charged with violations arising from his or her

superintendent responsibilities.”). See Jones v. Pi Kappa Alpha Int’l Fraternity, Inc., No. 173272, 2019 WL 1452938, at *6 (3d Cir. Apr. 1,2019); Jankowski v Lellock, 649 F. App’x 184,
187 (3d Cir. 2016). Because the precise contours of the supervisory liability theory asserted here
will not be clear without further factual development, I decline to resolve this legal issue at this,
the preliminary screening stage.
The Complaint adequately pleads a claim against Yates and Foley. Mr. Grohs contends at
a minimum that they knew that officers had a routinized institutional practice of performing
unnecessary strip searches of residents being placed in TCC, which were regularly reported.
Accordingly, these claims will be permitted to proceed against Yates and Foley.

14

ii. Count 111

In Count 111, against Lanigan, Foley, John Doe, and Jane Doe, Mr. Grohs alleges that the
June 9,2016 strip search violated his Fourth Amendment rights. Specifically, he alleges that,
during a “stand-up count,” Officer John Doe performed an unjustified strip search on him, which
included compelling Mr. Grohs to touch his own genitals and subsequently put his fingers in his
mouth.3 This count contains fewer specific factual allegations than Count Il—for instance, it is
unclear whether this strip search is alleged to have been performed in conformance with, or in
violation ot institutional policy. Nonetheless, at this preliminary stage of the action, I will permit
this claim to proceed against John Doe, the yet-unidentified primary actor.
I will also permit this claim to proceed against Lanigan, Foley. and Jane Doe under a
theory of supervisory liability. Mr. Grohs asserts that they were “present on South housing unit
and they were cognizant of the actions of Defendant John Doe, as all other SOG officers were
acting in a similar way with other residents,” yet they did not take “any action to ensure that
Plaintiff was searched in accordance with the provisions of N.JA.C.

§

IOA:35-4.2(c).” (DE I

¶J

92, 137.) This is sufficient, upon screening, to state that Commissioner Lanigan, Search Plan
Coordinator Foley, and Ombudsman Jane Doe4 were in charge, had contemporaneous knowledge
of the allegedly unconstitutional search, and acquiesced to it, or alternatively that there was a de
facto policy. I will permit the claim to proceed against them at this time.5
Mr. Grohs also alleges that John Doe lilt him in the face and subsequently slammed his face into
the ground. I address these allegations in connection with the excessive-force claim, infra.
Mr. Grohs specifically alleges that Ombudsman Jane Doe “is required to ensure that strip
searches of residents are to be conducted in a professional and dignified manner, with maximum courtesy
and respect for the resident’s person, and under sanitary conditions.” (DR I ¶ 20.) The proceeding of this
claim upon screening should not be construed as a legal conclusion that NJDOC ombudsmen will be
considered supervisors for misconduct that occurs in their presence.
I note that Mr. Grohs asserts a separate claim, Count VIII. for supervisory liability relaled to the
strip searches against Lanigan, Yates, Jane Doe, and Foley. (DR I ¶f 179—189.) This claim will be
permitted to proceed insofar as I have found adequately pleaded claims for supervisory liability in the
‘5

iii. Count VII
In Count VII, Mr. Grohs attempts to assert a distinct claim under the Cruel and Unusual
Punishment Clause of the Eighth Amendment in relation to the two strip searches. As Mr. Grohs
urges elsewhere in his complaint, he is not imprisoned for a criminal conviction; he is civilly
committed. The Cruel and Unusual Punishment Clause of the Eighth Amendment applies only to
those convicted of a criminal offense. See Ingraharn v. Wright, 430 U.S. 651, 668—71 & n.40
(1977); see also DeShaney v Winnebago Cty. Dep ‘1 ofSoc. Servs., 489 U.S. 189, 199 n.6 (1989);
City ofRevere v. Mass. Ge,t Hosp., 463 U.S. 239, 243—44 (1983); Bell. 441 U.S. at 535 n.16.
Where the Eighth Amendment does not apply to a detainee, such as a pretrial detainee or a
person who is civilly committed, the Due Process Clause of the Fourteenth Amendment often
grants a similar right to be free of infliction of excessive or inappropriate sanctions. See City of
Revere. 463 U.S. at 244; Bell, 441 U.S. at 535. Thus, where a convicted person would have a
claim of cruel and unusual punishment, a detainee may have a parallel due process claim. See
DeSliatiey, 489 U.S. at 199; Youngberg, 457 U.S. at 3 15—16; Bell, 441 U.S. at 535—36.
This particular claim, however, is superfluous at best. Where, as here, however, the
plaintiffs claims already implicate a more definite constitutional right, the “more-specific
provision rule” requires analysis of the claim under that right, rather than the substantive Due
Process Clause. See United States v. Lanier. 520 U.S. 259, 272 n.7 (1997) (finding that, where “a

analysis of (lie Fourth Amendment claims. I note, however, that, in Count VIII, Grohs also seems to seek
to hold Lanigan liable under a supervisory theory for the October2015 search. The only allegation that
Lanigan had a role in that search is an assertion that “{tjhe STU Search Plan is submitted to the Office of
Defendant Lanigan for review and approval before February 15 of each year.” (Id. ¶ 185.) Mr. Grohs
contends, however, that the October2015 strip search was iii violation of institutional search policy. (Id. ¶
119.) Lanigan’s knowledge and approval of the Search Plan does not tend to establish any involvement in
a search that allegedly did not conform to the Search Plan. The allegation that Lanigan was “aware that
residents were being subjected to unreasonable strip searches” is conclusory and without any factual
support. Accordingly, to the extent Mr. Grohs seeks to hold Lanigan liable as a supervisor for the October
2015 strip search, that part of the claim is dismissed.
16

constitutional claim is covered by a specific constitutional provision, such as the Fourth or
Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific
provision, not under the rubric of substantive due process”); see also Belts v. New Castle Youth
Dcv. Ctr,, 621 F.3d 249, 260 (3d Cir. 2010). Because Count VII. as pled here, at best is a
reframing of the Fourth Amendment claims, it will be dismissed upon screening.

iv. Count IX
In Count IX, Mr. Grohs alleges that the strip searches ordered by Sergeant Rivera and
Officer John Doe also violated his “Common Law Rights under the New Jersey Constitution,”
particularly ArticLe 1, paragraphs I and?. (See DE I

¶J

190—197.) He contends that, as the

Supreme Court of New Jersey has found that an involuntarily committed psychiatric patient has
an expectation of privacy in his assigned room, that the New Jersey Constitution should similarly
protect Mr. Grohs from unjustified strip searches. (See Id.)
Article 1, paragraph 7, of the New Jersey Constitution provides protections very similar to
those of the Fourth Amendment.6 Compare U.S. Const. amend. IV with N.J. Const. art. I, para. 7.

See also Mollo v. Passaic Valley Sewerage Comm ‘rs, 406 F. App’x 664, 666 (3d Cir. 2011). The
rights created by the two provisions are frequently applied as coextensive, though the protections
under the New Jersey Constitution have occasionally been found to be broader in specific

circumstances. See Mob, 406 F. App’x at 668;

N.J.

Transit PBA Local 304 v. N.J Transit

Corp., 701 A.2d 1243, 1249—51 (N.J. 1997) (applying state and federal provisions together);

State v, Pierce, 642 A.2d 947, 960 (N.J. 1994) (collecting cases where paragraph 7 protections
found broader than Fourth Amendment); Desilets cx reL Desilets v. Clearview Reg ‘1 Bd. of
While Mr. Grohs primarily focuses on paragraph 7, I note that article I, paragraph I, of the New
Jersey Constitution generally provides the same protections as the federal Due Process Clause. See
Farneski v. County ofHunterdon, 916 F. Supp. 2d 573, 585 n. 15 (D.N.J. 2013) (citing State Farm Ah,t.
Auto. In.s Co. v. State, 590 A.2d 191, 199 (N.J. 1991)).
77

Ethic., 627 A.2d 667, 673 (N.J. Super. Ct. App. Div. 1993) (finding, in considering search of
school student’s bags, “We are not persuaded that the New Jersey Constitution provides greater
protection under the circumstances of this case than its federal counterpart”).
I therefore conclude that Mr. Grohs. having pled a Fourth Amendment claim, has also
adequately pled a parallel claim against Rivera and John Doe under article 1, paragraph 7, of the
New Jersey Constitution. Because the New Jersey Constitution is at least as broad as the Fourth
Amendment, it supports a claim based on the strip searches. Accordingly, Count IX will be
permitted to proceed.
c. Excessive-Force Claims
A civilly committed person’s claim of excessive force claim against institutional officers
arises under the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and
Unusual Punishment Clause of the Eighth Amendment. The standards, however, are generally
the same. See Rivera

i&

Marcoantonio, 153 F. App’x 857, 859 n.1 (3d Cir. 2005) (citing

Youngberg, 457 U.S. at 3 15—16); Inmates ofAllegheny C. Jail v. Pierce, 612 F.2d 754, 762 (3d
Cir. 1979). To state a claim for excessive force, a plaintiff must allege plausibly that an official’s
acts resulted in “unnecessary and wanton infliction of pain.” See Whidey v. Albers, 475 U.S. 312,
320 (1986). The central question will be “whether force was applied in a good faith effort to
maintain order or restore discipline or maliciously and sadistically for the very purpose of
causing harm.” Id. at 320—21.
In Count IV, Mr. Grohs alleges that Officer John Doe applied excessive force during the
June 2016 search. Specifically, Mr. Grohs alleges that, when he asked John Doe whether there
was probable cause to search him, John Doe responded by slapping him in the face.

Subsequently, Mr. Grohs contends, when a disturbance erupted with another resident, John Doe

18

suddenly slammed Mr. Grohs to the cement floor while his hands were restrained behind him,
preventing him from catching himself or shielding his face. Upon preliminary screening, I
concLude that these factual allegations are sufficient to set forth a claim that John Doe used force
maliciously to inflict unnecessary pain on Mr. Grohs.
Count IV will therefore be permitted to proceed past screening.
d. Abuse-of-Power Claims
In Count V, Mr. Grohs alleges that Commissioner Lanigan, Administrator Yates, Search
Plan Coordinator Foley, Sergeant Rivera, Officer Lee, Officer Calton, Ombudsman Jane Doe,
and Officer John Doe, violated his Fourteenth Amendment rights via “abuse of power.” (See DE
I

150—1 64.) The gist of this claim is that these defendants, by treating Mr. Grohs as if he were

a convicted prisoner, rather than a civilly committed detainee, violated his due-process rights.
(See Id.) No particular factual allegations are related in connection with this claim.
These allegations are too broad and general to state a plausible claim. To the extent that
its factual basis can be inferred. Count V is a catchall description of the other claims alleged
elsewhere in the Complaint, and is superfluous. Mr. Grohs does not identify any specific
deprivation of procedural due process. To the extent that he attempts to plead a substantive dueprocess claim, such an attempt is barred by the “more-specific provision” rule, already discussed
herein. See Lanier, 520 U.S. at 272 n.7.
Accordingly, Count V is dismissed upon screening.
e. Conditions-of-Confinement Claims
A conditions-of-confinement claim by a civilly committed person arises under the
Fourteenth Amendment. See Youngberg, 457 U.S. at 324—25; Davis v. Yates. No. 15-6943, 2016
WL 5508809, at *5 (D.N.J. Sept. 27, 2016); Artis

19

i

McCann. No. 11-3613, 2013 WL 2481251,

at 3 (D.N.J. June 10, 2013). The Fourteenth Amendment protects committed persons from
being subjected to conditions that are punitive or outside the bounds of professional discretion.
See Yozingberg. 457 U.S. at 321—22; Bell, 441 U.S. at 536. The central question is, thus, whether
the conditions imposed on a committed person cross the line separating proper institutional
administration from punishment.
A court must decide whether the disability is imposed for the
purpose of punishment or whether it is but an incident of some
other legitimate governmental purpose. Absent a showing of an
expressed intent to punish on the part of the detention facility
officials, that determination generally will turn on whether an
alternative purpose to which the restriction may rationally be
connected is assignable for it. and whether it appears excessive in
relation to the alternative purpose assigned to it. Thus, if a
particular condition or restriction of pretrial detention is reasonably
related to a legitimate governmental objective, it does not, without
more, amount to “punishment.” Conversely, if a restriction or
condition is not reasonably related to a legitimate goal—if it is
arbitrary or purposeless—a court may permissibly infer that the
purpose of the governmental action is punishment that may not be
constitutionally inflicted
.

Bell, 441 U.S. at 538—39 (internal quotation marks, brackets, citations, and footnotes omitted);
see also Hubbard i Taylor, 399 F.3d 150, 158 (3d Cir. 2005) [hereinafter Hubbard 11; Hubbard
i’.

Taylor, 538 F.3d 229, 232 (3d Cir. 2008) [hereinafter Hubbard HI.
Only a deprivation that is both serious and intentional will be treated as punishment:
Unconstitutional punishment typically includes both objective and
subjective components. As the Supreme Court explained in Wilson
v. Seiter, the objective component requires an inquiry into whether
“the deprivation [was] sufficiently serious” and the subjective
component asks whether “the officials act[ed] with a sufficiently
culpable state of mind.” The Supreme Court did not abandon this
bipartite analysis in Bell, but rather allowed for an inference of
mens rea where the restriction is arbitrary or purposeless, or where
the restriction is excessive, even if it would accomplish a
legitimate governmental objective.

20

Stevenson v. Carroll, 495 F.3d 62, 68 (3d Cir. 2007) (cilations omitted; alterations in original);
see also Wilson v. Seller, 501 U.s. 294, 298 (1991). As to the objective component, courts must
consider “whether these conditions cause inmates to endure such genuine privations and hardship

over an extended period of time, that the adverse conditions become excessive in relation to the
purposes assigned to them.” Hubbard II, 538 F.3d at 233 (internal quotation marks and citations
omitted). The analysis must encompass the totality of the circumstances within an institution. See
id.
Detainees “have a right to adequate ventilation and a right to be free from extreme hot
and cold temperatures, but the Constitution does not give inmates the right to be free from all

discomfort.” Kates v. Bledsoe, No. 11-391,2013 WL 4417656, at *8 (M.D. Pa. Aug. 14, 2013)
(internal quotation marks and alterations omitted), aff’d, 547 F. App’x 93 (3d Cir. 2013); see
also Walkerv Schult, 717 F.3d 119, 126 (2d Cir. 2013); Graves

i’.

Arpalo, 623 F.3d 1043, 1049

(9th Cir. 2010); Jones-El v. Berge. 374 F.3d 541. 543—45 (7th Cir. 2004); Chandler

Crosby,

379 F.3d 1278, 1294(11th Cir. 2004). Unsanitary conditions can also be so severe as to result in
a constitutional violation. See Young v, Quinlan, 960 F.2d 351, 364 (3d Cir. 1992), superseded
by statute on other grounds, Prison Litigation Reform Act of 1996, Pub. L. No. 104—134, 110
Stat. 1321. To show deliberate indifference, an institutional official must both know of and

disregard an excessive risk to an inmates health or safety. See Fanner v. Brennan, 511 U.S. 825.
837 (1994).
In Count VI, Mr. Grohs alleges that Administrator Yates failed to ensure that he was not
subjected to cruel and unusual conditions of confinement. Particularly, he contends that his TCC
cell was excessively heated and reached temperatures over 109 degrees. (DE I

¶

167.) He also

alleges that the cell was filthy, with various surfaces covered in human waste, that it lacked

21

potable water, and that it was infested by bedbugs. (Id.

¶ 55—57, 63, 65, 70, 171.) He asserts that

the excessive temperatures in this area of the facility were a longstanding problem and that an
officer told him that “the administration was aware of the problem.” (Id.

¶ 62.)

These allegations are sufficient to state a conditions-of-confinement claim against Yates.
Mr. Grohs was only subjected to such circumstances for around 39 hours, and refers to no
medical consequences, so any damages would presumably not be great even if the claim were
proven. Still, the extreme heat combined with lack of potable water, as well as the generally
unsanitary conditions, are sufficient to plead hazards to Mr. Grohs’s health and safety resulting
from a deliberate indifference as to whether conditions were punitive or served any institutional

purpose.
Accordingly, Count VI claim will be permitted to proceed past screening.
V.

CONCLUSION

For the foregoing reasons, upon screening under 28 U.S.C.

§ 1915(e)(2)(B), the

following claims are dismissed without prejudice for failure to state a claim: (1) the First
Amendment retaliation claim in Count I as against Lukaszewski only; (2) the Fourth Amendment
unlawful search claim in Count II as against Calton only; (3) the abuse-of-power or due-process
claim in Count V; (4) the Eighth Amendment claim in Count VII; and (5) the supervisory
liability claim in Count VIII insofar as it concerns the events of October 27, 2015, against
Lanigan only. The remainder of the complaint will be permitted to proceed at this time. An
appropriate order follows.

/

DATED: April 5,2019

,4cc%_

K VIN MCNULtY
United States District Judge

‘7