SALAZAR v. STEM et al

Filing 24

OPINION. Signed by Judge Susan D. Wigenton on 5/16/17. (cm, )

*NOT FOR PUBLICATION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

JUAN ZALAZAR,
Plaintiff,
v.
ERICA STEM, et al.,
Defendants.

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Civil Action No. 16-7092 (SDW)

OPINION

WIGENTON, District Judge:
This matter comes before the Court on the motion to dismiss Plaintiff Juan Zalazar’s
complaint filed by Defendants Daye and Loney. (ECF No. 13). Plaintiff did not file a response
to the motion. For the reasons set forth below, this Court will deny in part and grant in part
Defendants’ motion to dismiss, and will dismiss Defendant Loney from this matter without
prejudice.

I. BACKGROUND
In the opinion screening Plaintiff’s complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), this
Court summarized the allegations contained in Plaintiff’s Complaint as follows:
Plaintiff, Juan Zalazar, is currently civilly committed to the East
Jersey State Prison Special Treatment Unit (STU) in Avenel, New
Jersey, pursuant to the New Jersey Sexually Violent Predator
(“SVP”) Act , N.J. Stat. Ann. § 30:4-27.24 et seq. In his current
complaint, Plaintiff chiefly complains of his having been the subject
of alleged mistreatment by corrections officers employed by the
New Jersey Department of Corrections [(D.O.C.)] during his
involuntary commitment. Specifically, Plaintiff alleges that he has
been subjected to numerous searches without cause by both standard

corrections officers and members of the facilities “S.O.G.” unit, who
are apparently tasked with conducting searches for contraband.
(ECF No. 1 at 10-24). Plaintiff first asserts that the S.O.G. officers
have on multiple occasions brought search dogs into the kitchen area
of the facility, which he asserts is unsanitary. (Id. at 10). While
this activity appears relatively innocuous, Plaintiff also asserts that
the S.O.G. and D.O.C. officers have conducted numerous searches
of his possessions and cell and have confiscated his personal
property. (Id.at 11). Plaintiff further contends that his property,
including appliances, have also been destroyed, and that when he
complains about the destruction of his property, he is then subjected
to further searches resulting in more damaged or missing property.
(Id. at 12). Plaintiff contends that these searches, which he believes
are conducted on a whim and without cause, further impugn his
rights because he has on occasion been strip-searched as part of the
search process and because therapy groups are cancelled in his unit
during the searches. (Id.). Plaintiff also states that being searched
causes him to be angry or aggressive in his group therapy sessions,
which is not conducive to his fully appreciating that therapy. (Id.).
Although many of Plaintiff’s allegations are non-specific
and not tied to individual incidents, he does provide more
information about a few of his run-ins with the D.O.C. staff. On
October 6, 2016, for example, group therapy in his unit was
temporarily cancelled so that security cameras could be installed in
Plaintiff’s housing unit. (Id. at 16-17). Upon asking about the
cancellation, Plaintiff alleges he was told by Sergeant Davis that the
“work of construction comes before treatment in this facility.” (Id.
at 17). Plaintiff also alleges that, on October 4 and 5, 2016,
treatment was also cancelled because the S.O.G. officers were
conducting their searches of his unit, at which point these officers,
alongside Defendants Loney and Davis, disparaged him by labeling
him in some unknown way, and he was eventually placed into
disciplinary M.A.P. status for “mystery reasons” resulting in his
being put into solitary confinement. (Id. at 17-18). Plaintiff
further contends that when he complained about the random
searches and the interruptions in treatment resulting from them, he
was told that treatment was not important by the D.O.C. assistant
superintendent, Defendant Stem. (Id.). Plaintiff also states that,
when he is placed onto M.A.P. status, he is not allowed to present
witnesses in his defense, and is simply placed into temporary close
custody without a hearing or full explanation. (Id. at 18-19).
Plaintiff’s final series of complaints relate to the treatment
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he receives from D.O.C. staff when being placed into temporary
close custody. (Id. at 7). Specifically, he alleges that Loney told
“his officers to tightly handcuff” him and place him in “a cold empty
cell with no mattress, sheets, or blankets.” (Id.). Plaintiff
contends this results in his having to “lay on a cold, steel [and]
concrete bed.” (Id.).
(ECF No. 5 at 2-3).
In his complaint, Plaintiff named the following Defendants: Lt. D. Daye, a supervisory
corrections officer; Sgt. Loney, another ranking corrections officer; Sgt. C. Davis, a supervisor of
corrections officers, and Erica Stem, Assistant Superintendent of the Special Treatment Unit, all
of whom are employed by the D.O.C. (ECF No. 1 at 3-9). Plaintiff also named a single member
of the treatment staff, Dr. Merrill Main, an employee of the New Jersey Department of Human
Services. (Id. at 4). Following the filing of the complaint, this Court screened Plaintiff’s
complaint and dismissed all of Plaintiff’s claims against Defendant Main. (ECF No. 2 at 3-15).
This Court also dismissed all of Plaintiffs claims against the D.O.C. Defendants with one exception
– Plaintiff’s claim that the D.O.C. Defendants denied him Due Process by denying him his
prescribed psychological treatment for non-medical reasons. (Id.). This Court permitted that
claim to proceed against Defendants Stem, Davis, Daye, and Loney. Defendants Loney and Daye
now move to have that claim dismissed as to them. (ECF No. 13). Defendants Stem and Davis
instead filed answers to the complaint. (ECF Nos. 14, 21).

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II. DISCUSSION
A. Legal Standard
In deciding a motion to dismiss under Rule 12(b)(6), the Court must “accept all factual
allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine
whether under any reasonable reading of the complaint, the plaintiff may be entitled to relief.”
Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n. 3 (3d Cir. 2014) (quoting Phillips v.
Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). According to the Supreme Court’s
decision in Ashcroft v. Iqbal, “a pleading that offers ‘labels or conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’” 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss for
failure to state a claim, a complaint must therefore allege “sufficient factual matter” to show that
its claims are facially plausible. Fowler v. UPMC 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.” Dempster, 764 F.3d at 308 (quoting Iqbal, 556 U.S. at 678). While the Court is
required to construe pro se pleadings liberally, “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).

B. Analysis
Following this Court’s screening opinion and order, only a single claim remains in this
matter – Plaintiff’s claim that the D.O.C. Defendants denied him his prescribed psychological
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treatment for non-medical reasons. Defendants Daye and Loney now argue that that claim should
be dismissed as to them because Plaintiff has not pled sufficient facts to make out a plausible claim
for relief as to them. In making that argument, Defendants do not dispute that a civilly committed
S.V.P. can make out a claim for relief under Substantive Due Process where his prescribed medical
treatment, which is the cornerstone of an S.V.P.’s prospects for ever being released from the
S.T.U., is denied him for non-medical reasons. See, e.g., Thomas v. Christie, 655 F. App’x 82,
85 (3d Cir. 2016). To make out such a claim, a plaintiff must plead acts which would allow the
Court to plausibly infer that the defendant’s actions denied, reduced, or changed an S.V.P.’s
prescribed medical or psychological treatment for non-medical reasons; that a denial, reduction,
or change in that treatment was a foreseeable result of the defendant’s actions, and the defendant
acted with at least deliberate indifference to the fact that his actions would result in a change in
treatment. 1 Id.; Leamer v. Fauver, 288 F.3d 532, 546, 547 (3d Cir. 2002); Thomas v. Adams, 55
F. Supp. 3d 552, 576 (D.N.J. 2014) (“when a prescribed medical treatment is denied, reduced or
changed for non-medical reasons, including financial, administrative or logistical, the [denied or
reduced] treatment suggests an act of deliberate indifference and amounts to a violation of . . .
substantive due process with regard to those mental patients whose sole hope for release hinges on
obtaining their prescribed” treatment); see also Youngberg v. Romeo, 457 U.S. 307, 316 (1983).

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Because Thomas dealt with the question of intertwining supervisory liability with such a claim,
Thomas also requires that, when such a claim is stated against an individual based on his role as a
policymaker, that he also show that the defendant made systemwide determinations which resulted
in the change in treatment in question. Because Plaintiff’s complaint, to the extent it states a claim
for relief against Daye and Loney, does so based on their personal involvement in the alleged
denials of treatment rather than their role as policymakers, those elements are not relevant to
Plaintiff’s claims against Daye and Loney. See Thomas, 655 F. App’x at 84-85; see also Thomas,
55 F. Supp. 3d at 575-80.
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Defendants Daye and Loney contend that Plaintiff has failed to plead facts from which the
Court could infer a plausible claim for relief for the denial of medical treatment for non-medical
reasons, and that Plaintiff’s claims should be dismissed as to them as a result. Mindful of the
requirement that a pro se Plaintiff’s complaint must be construed liberally and that the court should
give a plaintiff the benefit of relevant legal principles where they are implied by the complaint
even if not properly invoked by the plaintiff, see Mala, 704 F.3d at 244, this Court will address
each Defendant in turn.
In his Complaint, Plaintiff essentially pleads that the D.O.C. Defendants have engaged in
a pattern of activity which denies him treatment for non-medical reasons, including numerous
random searches, lock downs of the S.T.U. facility during which treatment is cancelled arising out
of those searches as well as during periods of maintenance on the facility’s security systems and
other construction, and his placement on restricted M.A.P. status for “mystery reasons.” As to
Defendant Daye, Plaintiff specifically states that Daye “stopp[ed] treatment knowing[] that
[Plaintiff’s] Due Process Rights [would be] violated.” (ECF No. 1 at 6). Plaintiff also states that
Daye “refuses to allow any [treatment] staff” into the S.T.U. while S.O.G. searches are conducted.
(Id. at 11). Plaintiff further asserts that at least one series of S.O.G. searches went on for over a
month. (Id. at 11-12). Plaintiff further states that, on the days these searches are conducted,
group treatment is “terminat[ed]” or “cancel[ed].” (Id. at 13). Assuming these statements to be
true, reading the complaint in the light most favorable to pro se Plaintiff and giving Plaintiff the
benefit of reasonable inferences, see Dempster, 764 F.3d at 308 n. 3, these facts are sufficient to
permit the Court to infer that Daye cancelled treatment during the search days, that these search
days went on for a period of up to a month, and that Daye was aware that the group treatment

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prescribed to S.V.P.s such as Plaintiff would be disrupted as a result of these actions. While
discovery may prove these assertions unfounded, they are sufficient to state a plausible claim for
relief, and Defendants’ motion to dismiss must be denied as to Defendant Daye.
Turning to the remaining moving Defendant, Plaintiff makes only a single allegation
relevant to his denial of treatment claim 2 against Defendant Loney – that Loney “always finds
some myster[ious] reason to have [Plaintiff] placed on M.A.P. status (lock up) causing [Plaintiff’s]
prescribed treatment to stop for an indefinite period of time.” (ECF No. 1 at 17-18). Defendants
argue that this statement is conclusory and insufficient to state a claim for relief. This allegation
essentially states only that Loney had Plaintiff placed on M.A.P. status for reasons not known to
Plaintiff, and that Plaintiff’s treatment level changed as a result while he resolved his M.A.P.
placement. Because Plaintiff does not plead any facts as to the actual basis for Plaintiff’s M.A.P.
status; be they disciplinary, treatment-oriented, or arising out of personal animus; Plaintiff has
failed to allege facts showing that Loney acted with at least deliberate indifference to the change
in treatment Plaintiff would face, and Plaintiff has therefore not sufficiently alleged a claim against
Loney. Thomas, 655 F. App’x at 85. Likewise, as to a change in treatment Plaintiff has pled
little more than a conclusory allegation, and has therefore not made out a plausible claim for relief
for that reason as well. Iqbal, 556 U.S. at 678; Thomas, 655 F. App’x at 85. Defendant Loney
must therefore be dismissed from this matter without prejudice.

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Plaintiff also made allegations as to Loney regarding his previously dismissed conditions of
confinement and handcuff based claims. As this Court has already dismissed those claims for
failure to state a plausible claim for relief (see ECF No. 5), those allegations are not relevant to
this motion.
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III. CONCLUSION
For the reasons stated above, this Court will deny in part and grant in part Defendants’
motion to dismiss, and will dismiss Defendant Loney from this matter without prejudice. An
appropriate order follows.

s/ Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge

Dated: May 16, 2017

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