SALAZAR v. STEM et al

Filing 5

OPINION. Signed by Judge Susan D. Wigenton on 12/20/16. (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*NOT FOR PUBLICATION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:
Plaintiff, Juan Zalazar, filed a complaint against Defendants, Erica Stem, Merril Main, Sgt
C. Davis, Lt. D. Day, and Sgt. Lomey, on October 12, 2016. (ECF No. 1). On November 15,
2016, this Court granted Plaintiff’s application to proceed in forma pauperis. (ECF No. 3).
Because Plaintiff has been granted in forma pauperis status, the Court must review 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 set out below,
this Court will allow Plaintiff’s interference with treatment for non-medical reasons claims to
proceed against the D.O.C. Defendants (Stem, Davis, Daye, and Loney) only, and will dismiss all
of Plaintiff’s remaining claims without prejudice.

I. BACKGROUND
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 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 in 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
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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 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.).
As Defendants in this matter, Plaintiff names four D.O.C. employees – 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
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Treatment Unit. (Id. at 3-9). Plaintiff also names a single member of the treatment staff, Dr.
Merrill Main, who is the Director of the facility’s treatment teams and who is employed by the
New Jersey Department of Human Services. (Id. at 4). As to Dr. Main, Plaintiff alleges only
that he “disregards” the abuses inflicted upon him by the D.O.C. Defendants and tells his staff to
also disregard the complaints Plaintiff raises about his treatment by the D.O.C. (Id.).

II. DISCUSSION
A. Legal Standard
District courts must review complaints in those civil actions in which a litigant is
proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B). The statute 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. As Plaintiff brings his claims in forma pauperis, his complaint must be screened pursuant
to 28 U.S.C. §§ 1915(e)(2)(B).
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 claim1, the complaint must allege
“sufficient factual matter” to show that the claim is facially plausible. Fowler v. UPMS
“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)).
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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 (3d Cir. 2014) (quoting Iqbal, 556 U.S. at 678). Moreover, while pro se
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. of Essex, 514 F. App’x 177, 180 (3d Cir.
2013) (section 1983 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 of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998)). In this matter, Plaintiff
appears to be raising the following claims: a claim against the D.O.C. Defendants for unreasonable
searches under the Fourth Amendment, a Fourteenth Amendment claim regarding the allegedly
improper confiscation or destruction of his property by S.O.G. and corrections officers, a claim
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that he is denied Due Process in being placed into M.A.P. custody without a hearing or
investigation, and a Fourteenth Amendment claim based on his being denied treatment for nonmedical means. Although it is not clear, Plaintiff may also be attempting to raise a conditions of
confinement claim, a First Amendment retaliation claim, and an excessive force claim against the
D.O.C. Defendants.2

1.

Plaintiff has pled insufficient facts connecting Dr. Main to the acts of the D.O.C.

Defendants
While seemingly all of the actions about which Plaintiff claims were undertaken by the
various D.O.C. Defendants, Plaintiff also attempts to hold Merril Main, M.D., the head of the
D.H.S. treatment staff at the Special Treatment Unit, liable for these same claims by asserting that
Main disregarded the behavior of the D.O.C. Defendants. Petitioner essentially asserts that Main
should be responsible for the actions of the D.O.C. Defendants, who are not his actual subordinates.
Plaintiff does not plead any actual action on Main’s behalf, only that he disregards the actions of
Plaintiff also in two places states that corrections officers placed a “false light” upon his name
by labelling him in an unknown way. This Court does not construe Plaintiff to be attempting to
raise a claim for the tort of false light based on these two fleeting and conclusory references. To
the extent that one could construe this as an attempt to make out a state law claim for false light,
a tort at the juncture between invasion of privacy and defamation, Plaintiff has at best pled a
conclusory allegation and has not pled a cognizable claim for relief as he has not pled facts
suggesting that he was subject to public shaming based on false, offensive labels placed upon
him, and thus his purported false light claim would need to be dismissed if he did intend to bring
such a claim. See Hickox v. Christie, --- F. Supp. 3d ---, 2016 WL 4744181, at *19 (D.N.J.
2016) (tort of false light in New Jersey involves “publicity that unreasonably places [the
plaintiff] before the public, and requires that a plaintiff plead that “(1) the false light in which the
other was placed would be highly offensive to a reasonable person, and (2) the actor had
knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false
light in which the other would be placed).
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the D.O.C. Defendants, despite the fact that Plaintiff does not suggest that Main has any control
over them.
A “defendant in a civil rights action must have personal involvement in the alleged
wrongs,” and a plaintiff must therefore plead that each defendant, supervisor or direct actor, had
direct involvement in the alleged violations of his constitutional rights. Rode v. Dellarciprete,
845 F.2d 1195, 1207-08 (3d Cir. 1988). A defendant may therefore not be held liable under §
1983 based solely on the operation of respondeat superior. Id.; see also Iqbal, 556 U.S. at 676.
Thus, in order to plead a violation by a high ranking or supervisory defendant, a plaintiff must
generally plead either that the supervisor’s “establishment of policies, practices or customs . . .
directly caused the constitutional violation[,] personal liability based on the supervisor
participating in the violation of [the p]laintiff’s right, [that the supervisor] direct[ed] others to
violate [the p]laintiff’s rights, or [that the supervisor had actual] knowledge of and acquiesc[ed] to
a subordinate’s conduct.” Doe v. New Jersey Dep’t of Corr., Civil Action No. 14-5284, 2015 WL
3448233, at *9 (D.N.J. May 29, 2015) (quoting Barkes v. First Corr. Med., Inc., 766 F.3d 307,
316-20 (3d Cir. 2014), rev’d on other grounds, 135 S. Ct. 2042 (2015)); see also Tenon v.
Dreibelbis, 606 F. App’x 681, 688 (3d Cir. 2015) (§ 1983 Plaintiff pleading supervisory liability
must establish defendant’s “participation [in the alleged wrong], or actual knowledge and
acquiescence, to be liable”). Plaintiff has pled no such claim as to Dr. Main. Plaintiff pleads
only that Main does not stop or otherwise get involved with the operations of D.O.C. staff. As
Plaintiff does not plead that Main himself established any of the policies under which the D.O.C.
are operating, nor that Main participated in the alleged wrongs, Main’s alleged failure to intervene
in the actions of the D.O.C. in securing the Special Treatment Unit is insufficient to state a claim.
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Without some allegation showing Main’s direct involvement in the alleged wrongs, Plaintiff’s
claims against Main fail to state a claim, and all of Plaintiff’s claims against Dr. Main are dismissed
without prejudice.

2. Plaintiff’s unreasonable search claims
Plaintiff contends that he was subjected to frequent and random cell searches by members
of the facility’s S.O.G. unit, and was ultimately strip searched on one occasion, which he contends
are unreasonable searches. As this Court has explained,
The Fourth Amendment protects “[t]he right of the people to be
secure in their persons ... against unreasonable searches and
seizures.” U.S. CONST. amend. IV. Reasonableness under the
Fourth Amendment “depends on all of the circumstances
surrounding the search or seizure and the nature of the search or
seizure itself.” Skinner v. Ry. Labor Executives' Ass'n, 489 U.S.
602, 618 (1988) (quoting United States v. Montoya de Hernandez,
473 U.S. 531, 537 (1985)). “Thus, the permissibility of a particular
practice is judged by balancing its intrusion on the individual's
Fourth Amendment interest.” Id. at 619 (quotations marks and
internal citation omitted).
In Hudson v. Palmer, 468 U.S. 517, 530 (1984), a prisoner
argued that a cell search conducted to harass him was unreasonable
because a prisoner has a reasonable expectation of privacy not to
have his cell, locker, personal effects, person invaded for such a
purpose. Id. at 529. The Supreme Court rejected the claim
because “prisoners have no legitimate expectation of privacy.” Id.
at 530. The Court observed that:
A right of privacy in traditional Fourth Amendment
terms is fundamentally incompatible with the close
and continual surveillance of inmates and their cells
required to ensure institutional security and internal
order. . . . [S]ociety would insist that the prisoner's
expectation of privacy always yield to what must be
considered the paramount interest in institutional
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security. . . . [I]t is accepted by our society that loss
of freedom of choice and privacy are inherent
incidents of confinement.
Id. at 527–28 (footnotes, citations and internal quotation marks
omitted). The same conclusion was reached with respect to pretrial
detainees other than convicted prisoners. See Bell v. Wolfish, 441
U.S. 520, 558–560 (1979) (finding that a body cavity searches of
pretrial detainees do not violate the Fourth Amendment)[.]
Consequently, involuntarily committed patients and SVPs,
like pretrial detainees, are entitled to some protection under the
Fourth Amendment, but they do not have an expectation of privacy
equal to an individual in society generally. See Serna v. Goodno,
567 F.3d 944, 948 (8th Cir. 2009) (noting that pretrial detainees are
kept in custody because there is cause to believe they are dangerous;
similarly, commitment under Minnesota law as a sexually
dangerous person requires a finding of dangerousness), cert. denied,
130 S. Ct. 465 (2009); Allison v. Snyder, 332 F.3d 1076–79 (7th Cir.
2003) (SVPs may be subjected to conditions that advance goals such
as preventing escape and assuring the safety of others, even though
they may not technically be “punished”), cert. denied, 540 U.S. 985
(2003); Aiken v. Nixon, 236 F.Supp.2d 211, 233 (N.D.N.Y. 2002),
aff'd, 80 Fed. Appx. 146 (2d Cir. 2003); see also, Jennings v. New
York State Office of Mental Health, 786 F.Supp. 376, 382, 384
(S.D.N.Y. 1992), aff'd, 977 F.2d 731 (2d Cir. 1992).

Similarly, the United States Court of Appeals for the Ninth
Circuit has held that, because SVPs have been civilly committed
subsequent to criminal convictions and have been adjudged to pose
a danger to the health and safety of others, they are subject to
“[l]egitimate, non-punitive government interests” such as
“maintaining jail security, and effective management of [the]
detention facility.” Jones v. Blanas, 393 F.3d 918, 932 (9th Cir.
2004). Thus, the reasonableness of a particular search or seizure is
determined by reference to the detention context and is a factintensive inquiry. Id.
Belton v. Singer, No. 10-6462, 2011 WL 2690595, at *8-9 (D.N.J. July 8, 2011). Based on this
legal background, this Court concluded in Belton that, absent allegations of unprofessional,

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embarrassing, or violent circumstances, a single strip search for security reasons was not
unreasonable given the limited expectation of privacy available to a civilly committed S.V.P. Id.
Here, Plaintiff has alleged two kinds of searches – random searches of the facility and his
cell, and a strip search. The former, random security searches, are not unreasonable because, like
pre-trial detainees, civilly committed S.V.P.s lack an expectation of privacy in their cells, and such
a search is constitutionally permissible. Id.; see also Bell, 441 U.S. at 558–560. As to Plaintiff’s
claim that he was strip searched, Plaintiff pleads no facts other than the strip search itself. He
does not allege that the searches were conducted under violent, extreme, or humiliating
circumstances, and thus this Court cannot infer that the search in question was unreasonable.
Belton, 2011 WL 2690595. Indeed, Plaintiff provides no context for his assertion that he was
strip searched, and does not explain why it was unwarranted, or how it humiliated him other than
the mere fact that he was strip searched. Thus, absent facts showing that the strip search in
question was in some way unreasonable, Plaintiff has failed to state a cognizable claim for relief
as to either of his search related claims, and those claims are dismissed without prejudice as to all
Defendants.

3. Plaintiff’s procedural Due Process claim
Plaintiff next claims that he has been denied Due Process as he has been placed into
disciplinary M.A.P. status without a hearing or investigation. Plaintiff’s claim, however, is based
on a false premise: that he is entitled to Due Process before being placed onto M.A.P. status in the
first instance. An individual’s Due Process rights attach in such a disciplinary setting only where
the plaintiff has a cognizable liberty interest which is being impugned by the disciplinary action
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being taken against him. See, e.g., Deavers v. Santiago, 243 F. App’x 719, 721-22 (3d Cir. 2007).
As the Third Circuit explained in Deavers,
In Sandin [v. Conner, 515 U.S. 472 (1995)], the Supreme Court
determined that there was no cognizable liberty interest in freedom
from additional restraint in a prison setting. See [Id. at 486] (“We
hold that [the prisoner's] discipline in segregated confinement did
not present the type of atypical, significant deprivation in which a
State might conceivably create a liberty interest.”). Put another
way, unless the deprivation of liberty is in some way extreme, then
the Constitution does not require that a prisoner be afforded any
process at all prior to deprivations beyond that incident to normal
prison life. Our Court later extended Sandin's foreclosure of
procedural due process protections to a situation like that presented
here-a plaintiff civilly committed in New Jersey claiming a
procedural due process violation by his wrongful placement [on
MAP status]. See Leamer [v. Fauver], 288 F.3d [532,] 546 [(3d Cir.
2002)]; see also Thielman v. Leean, 282 F.3d 478 (7th Cir. 2002)
(likewise extending Sandin to civil commitment settings).
Deavers, 243 F. App’x at 721-22. Nothing Plaintiff has pled suggests that his being placed on
M.A.P. status, with or without explanation, has resulted in an extreme divergence from the
everyday nature of his civil commitment, instead it seems to have resulted in a temporary
placement in close custody, which while uncomfortable, is not so extreme a sanction as to deprive
him of a cognizable liberty interest. Id. Without some allegations to suggest that the length of
that placement was excessive, or was subject to continuous harsh penalties for a sufficient period
of time to amount to an extreme divergence form the normal incidents of committed life, Plaintiff
fails to present a cognizable claim for a denial of Due Process as he has not presented a valid
liberty interest which has been impugned, and his procedural Due Process claim is dismissed
without prejudice at this time. Id.

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4. Plaintiff’s Substantive Due Process Claims
Plaintiff also presents a substantive Due Process Claim in which he asserts that the D.O.C.
Defendants, by cancelling therapy during construction work, or searches by the S.O.G., and by
placing Plaintiff in M.A.P. status for non-treatment reasons, have reduced his required medical
treatment for non-medical purposes. At this time, this Court perceives no basis for the dismissal
of this claim against the named D.O.C. Defendants, and that claim shall be permitted to proceed
against all Defendants other than Merril Main.

5. Plaintiff’s Deprivation of Property Claims
Plaintiff also contends that he has been deprived of his property which was either
improperly confiscated or destroyed during various searches. To assert a Due Process claim for
the deprivation of one’s property by a public official, a plaintiff must assert that he possessed a
property interest, that he was deprived of that interest by a state actor, and that he was not provided
notice and an opportunity to be heard in relation to the taking of his property interest. See Rusnak
v. Williams, 44 F. App’x 555, 558 (3d Cir. 2002). “Where a state actor deprives an individual of
property without authorization, [however,] either intentionally or negligently, that deprivation
does not result in a violation of the Fourteenth Amendment so long as a meaningful post
deprivation remedy for the loss is available. See Hudson v. Palmer, [468 U.S. 517, 530-36]
(1984); Parratt v. Taylor, [451 U.S. 527, 543-44] (1981); overruled in part on other grounds,
Daniels v. Williams, [474 U.S. 327] (1986).” Love v. New Jersey Dep’t of Corr., Civil Action
No. 14-5629, 2015 WL 2226015, at *5 (D.N.J. May 12, 2015); see also Miller v. Fraley, No. 124470, 2015 WL 511296, at *11 (D.N.J. Feb. 6, 2015). The State of New Jersey has provided a
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proper post-deprivation remedy to plaintiffs for the unauthorized deprivation of their property
through the New Jersey Tort Claims Act. See N.J. Stat. Ann. § 59:1-1, et seq.; Love, 2015 WL
2226015 at *5; Miller, 2015 WL 511296 at *11. Because Plaintiff contends that his property was
taken or destroyed without cause, he has alleged that his property was seized without legal
authorization, and as such his claim must be dismissed because a proper post-deprivation remedy
is available to him. Plaintiff’s deprivation of property claim must therefore be dismissed without
prejudice.

6. Plaintiff’s Remaining Claims
While it is not entirely clear from his complaint, Plaintiff may also be seeking to raise
claims for excessive force, poor conditions of confinement, and retaliation. As to excessive force,
Plaintiff pleads only that he was handcuffed tightly while being taken into custody. Plaintiff does
not plead that he was cuffed overlong or in a way that was actually damaging rather than simply
uncomfortable, or that any other force was used against him. He has thus pled no more than de
minimis use of force against him in his current complaint, which is insufficient to state a claim for
excessive force where the force used is not of a type “repugnant to the conscience of mankind.”
See Hudson v. McMillian, 503 U.S. 1, 10 (1992). Thus, without further facts Plaintiff has failed
to plead a plausible claim for excessive force, and that claim is dismissed.
Plaintiff’s apparent retaliation claim fairs no better. “In order to plead a retaliation claim
under the First Amendment, a plaintiff must allege: (1) constitutionally protected conduct, (2)
retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional
rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory
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action.” Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006); see also Mitchell v.
Horn, 318 F.3d 523, 530 (3d Cir. 2003). “The key question in determining whether a cognizable
First Amendment claim has been stated is whether ‘the alleged retaliatory conduct was sufficient
to deter a person of ordinary firmness from exercising his First Amendment rights.” Thomas, 463
F.3d at 296 (quoting McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006)). Here, Plaintiff pleads
only that he complained about cell searches, and then had his cell searched again. Because the
nature of Plaintiff’s unreasonable search claim is that repeated and unnecessary searches are being
conducted without cause, Plaintiff has not pled sufficient facts to show a connection between the
additional searches and his complaints, nor that the searches themselves were sufficient to deter
an ordinary person from further complaint. He has thus at best pled a conclusory allegation of
retaliation, and this claim, to the extent Plaintiff is raising it, is dismissed without prejudice as well.
The final nascent claim which Plaintiff may have wished to bring is a conditions of
confinement claim based on his being placed into close custody, at which time he was placed into
a cold cell without a mattress or the like, and had to lay on a hard metal or concrete bed. Plaintiff,
however, pleads no facts as to how long he was left in the cell without a mattress or bedding, nor
how cold it was, nor what other conditions were inflicted upon him. Without more facts, this
Court cannot infer that the conditions Plaintiff faced caused him to “endure such genuine
[de]privations and hardship over an extended period of time” that the conditions of confinement
became excessive in relation to the security and treatment purposes for which M.A.P. status is
used. See Hubbard v. Taylor, 538 F.3d 229, 233 (3d Cir. 2008). As such, Plaintiff has pled
insufficient facts to make out a conditions of confinement claim, and any such claim Plaintiff
wished to raise is dismissed without prejudice.
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III. CONCLUSION
For the reasons stated above, this Court will allow Plaintiff’s interference with treatment
for non-medical reasons claims to proceed against the D.O.C. Defendants (Stem, Davis, Daye, and
Loney) only, and will dismiss all of Plaintiff’s remaining claims without prejudice.
appropriate order follows.

Dated: December 20, 2016

_s/ Susan D. Wigenton______
Hon. Susan D. Wigenton,
United States District Judge

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An