NORMAN et al v. N.J. STATE PAROLE BOARD et al

Filing 60

OPINION AND ORDER that Plaintiff's 50 Motion for Leave to File a Fourth Amended Complaint is DENIED. Signed by Magistrate Judge Edward S. Kiel on 5/18/2020. (ams, )

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

HELEN E. NORMAN, et al.,

Case No. 17-cv-04413-CCC-ESK

Plaintiffs,
v.

OPINION AND ORDER

N.J. STATE PAROLE BOARD, et al.,
Defendants.

KIEL, UNITED STATES MAGISTRATE JUDGE
THIS MATTER comes before the Court on pro se plaintiffs’ motion for leave
to file a fourth amended complaint (Motion).
the Motion.

(ECF No. 52.)

(ECF No. 50.) Defendants opposed

I conducted a hearing on May 12, 2020.

(Minute entry

after ECF No. 58.) For the following reasons and for the reasons stated on the
record, the Motion is DENIED.
BACKGROUND
The underlying facts of this matter have been set forth in prior written
decisions and will not be set forth in detail herein.

(See ECF Nos. 23, 24, 29.) Facts

relevant to the resolution of the Motion follow.
Plaintiffs filed the initial complaint on June 15, 2017.

(ECF No.1)

On

October 2, 2018, this matter was stayed and administratively terminated pending the
outcome of a proceeding involving Joseph Norman (Joseph) before the New Jersey
Parole Board (Parole Board).

(ECF No. 34.)

This matter was reopened on May 30,

2019 after plaintiffs confirmed they sought to proceed on claims that were distinct
from those asserted in the operative complaint at the time.

(ECF No. 40.)

With the

reopening of the case, plaintiffs were granted leave to file a third amended complaint.
(Id.) Plaintiffs’ third amended complaint (TAC) was filed on June 27, 2019 against

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the Parole Board, Thawra Naser, Julienne Sirico, and John and Jane Does.

(ECF

No. 41.)
The TAC is 42 pages long, with 261 numbered-paragraphs.
exhibits, the TAC is 295 pages.

(Id.) With

(ECF Nos. 41 to 41–5.) Paragraph 150 of the TAC

alleges that a two-member panel (Panel) of the Parole Board revoked Joseph’s parole
and referred him to the Adult Diagnostic and Treatment Center (ADTC) for a
psychological evaluation “as a prerequisite to determining whether he would be
eligible to be re-paroled.”

(ECF No. 41 ¶ 150.)

The Parole Board affirmed the

Panel’s decision to require a psychological evaluation.

(Id. ¶ 154.)

Joseph Norman filed an appeal with the New Jersey Superior Court, Appellate
Division (Appellate Division), “challenging the decision of the [] Parole Board …
requiring [Joseph] to complete the ADTC evaluation and be subject to th[ose]
provisions.”

(Id. ¶ 161.) On January 14, 2019, the Appellate Division issued its

decision in Norman v. N.J. State Parole Board, 457 N.J.Super. 513 (App. Div. 2019).
The Appellate Division held that the Parole Board did not have the authority to
require Joseph to undergo a psychological evaluation as part of the process to
determine parole eligibility.
decision.

Id. at 524.

(ECF No. 41 ¶¶ 175–76.)

The TAC refers to the Appellate Division’s

Plaintiffs claim the Parole Board’s mistaken

decision to require the psychological evaluation resulted in Joseph’s wrongful
incarceration for 148 days.

(Id. ¶180.)

On February 25, 2020, I conducted a telephone status conference and
addressed a discovery dispute raised by plaintiffs.

(Minute entry after ECF No. 48.)

In their letter dated January 24, 2020, plaintiffs sought leave to file a motion to
compel discovery from the individual members of the Parole Board.

(ECF No. 46.)

In response to the letter, defendants’ counsel advised plaintiffs that the individual
members of the Parole Board are not named defendants and, therefore, discovery
could not be compelled from them.

(ECF No. 47.)

During the hearing on February 25, 2020, I advised plaintiffs that discovery
could not be compelled from people who are not parties to the litigation.

In response,

Joseph stated he believed the individual members of the Parole Board were

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defendants because the Parole Board is a named-defendant.

Joseph asked for leave

to file a further amended complaint to add claims against the members of the Parole
Board.

I granted plaintiffs leave to file a motion to compel discovery, a motion for

leave to file a fourth amended complaint, and a renewed motion for the appointment
of pro bono counsel.1 (ECF No. 49.)
Plaintiffs filed the Motion on March 13, 2020.

(ECF No. 50). The proposed

fourth amended complaint seeks to add the members of the Parole Board as new
defendants.

It also seeks to include new allegations asserting that the members of

the Parole Board were engaged in performing administrative acts when the Parole
Board required Joseph to undergo a psychological evaluation.

(ECF No. 50–2 ¶ 180.)

ANALYSIS
I.

STANDARD

Where a responsive pleading in an action has been filed, and 21 days have
elapsed, a plaintiff may amend the complaint only by leave of court or consent of the
parties.

Fed.R.Civ.P. 15(a)(2).

so requires.

Leave to amend shall be freely given when justice

Id.; see also Foman v. Davis, 371 U.S. 178, 182 (1962).

A motion to

amend should be denied when an “amendment would cause undue delay or prejudice,
or that amendment would be futile.”
31 (3d Cir. 2007).

Winer Family Tr. v. Queen, 503 F.3d 319, 330–

An amendment is futile when it advances a claim that “would fail

to state a claim upon which relief could be granted.”
115 (3d Cir. 2000).

Shane v. Fauver, 213 F.3d 113,

Whether a proposed amendment will be futile is determined

under the same analysis as a Rule 12(b)(6) motion.
F.3d 1314, 1332 (3d Cir. 2002).

In re NAHC, Inc. Sec. Litig., 306

For a complaint to survive dismissal, it “must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662 (2009).

Plaintiffs’ fourth motion for the appointment of pro bono counsel was denied on
May 5, 2020. (ECF No. 57.) Plaintiffs did not file a motion to compel discovery from the
members of the Parole Board.
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II.

PLAINTIFFS’ PROPOSED FOURTH AMENDED
COMPLAINT FAILS TO STATE A CLAIM FOR
RELIEF AGAINST THE MEMBERS OF THE
PAROLE BOARD.

Parole board members are entitled to absolute immunity when they are
engaged in adjudicatory acts.
1989).

Wilson v. Rackmill, 878 F.2d 772, 775–76 (3d Cir.

Absolute immunity, however, does not extend to a parole board member’s

actions in performing executive or administrative functions.

Williams v. Consovoy,

333 F.Supp.2d 297, 299–300 (D.N.J. 2004), aff’d, 453 F.3d 173 (3d Cir. 2006).
Plaintiffs claim the Parole Board’s decision to require a psychological evaluation was
executive and a “purely ‘mandatory function,’” which would render the benefits of
absolute immunity inapplicable.

(ECF No. 50-1 p. 6.)

The Appellate Division held that the Parole Board made a mistake in applying
a regulation requiring certain parolees to undergo a psychological evaluation before
being considered for future parole eligibility.

This fact is not in dispute.

What is

disputed is whether the members of the Parole Board are entitled to absolute
immunity irrespective of the Appellate Division’s decision.

Plaintiffs argue that the

Appellate Division “ma[d]e it clear the Parole Board has no discretion in applying
these regulations; they either apply or do not apply based on the plain language of
the regulation.”

Thus, to plaintiffs’ point, if the Parole Board believed it was

required to get a psychological evaluation under the applicable regulation, then
requiring Joseph to undergo the evaluation must be “administrative and ministerial,”
and not subject to absolute immunity.
The regulation in question is N.J.A.C. 10A:71-7.19A(a).

This regulation

requires psychological evaluations of parolees, who have violated conditions of parole,
to be eligible for future parole.

This regulation, however, does not apply to parolees,

like Joseph, who completed their sentences before committing a parole violation.2

The regulation only applies to inmates who were paroled, before completing their
sentences, and committed a parole violation. See Norman, 457 N.J.Super. at 521.
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While it is true that the Parole Board made a mistake in requiring Joseph to
undergo an evaluation, the decision to require the evaluation itself was an
adjudicatory act.

The flaw in plaintiffs’ argument is that it skips over the

adjudicatory role of the Parole Board in making a determination of whether the
regulation applied in considering Joseph’s parole eligibility.

Only after that

adjudicatory decision was made can the administrative act of requiring a
psychological evaluation be performed.

Since absolute immunity shields the

members of the Parole Board from their mistaken interpretation of the regulation,
the administrative acts that flow from the decision, albeit wrong, must also be
shielded from liability.
In Williams, this Court determined that a licensed psychologist retained by a
Parole Board to conduct an evaluation of an inmate seeking parole was protected by
absolute immunity.

The plaintiff claimed that the psychologist’s “deliberate

indifference to his rights caused his parole to be wrongfully denied.”
F.Supp.2d at 299–300.

Williams, 333

This Court noted that probation officers and parole officers

are entitled to absolute “quasi-judicial” immunity for actions taken in their
adjudicatory capacities.

Id. at 299.

”[I]n the parole board context [] hearing

evidence; making recommendations as to whether to parole a prisoner; and making
decisions to grant, revoke or deny parole are adjudicatory acts for which the actor is
entitled to absolute immunity.”

Id. at 300 (citing Simon v. Ward, No. 99-15544, 2001

WL 41127, at *2 (E.D.Pa. Jan. 16, 2001)); see also Burns v. Reed, 500 U.S. 478, 484
(1991) (absolute immunity attaches to those who perform functions integral to the
judicial process).

Professionals who conduct court-ordered evaluations of parties to

litigation, moreover, are absolutely immune from § 1983 liability.
McArdle v. Tronetti, 961 F.2d 1083 (3d Cir. 1992)).

Id. (citing

“Examining a prisoner for this

purpose is akin to making recommendations as to whether to parole a prisoner, which
is an adjudicative act.”

Id. at 301.

Additionally, this Court in Williams, noted that in an earlier stage of the
litigation, “the Third Circuit held that ‘[o]rdering a psychological profile’ is ‘judicial
in character,’ and therefore the [C]ourt held the members of the Adult Panel immune

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to Section 1983 liability.”

Id. at 302, n.5.

In the earlier slip opinion, the Third

Circuit wrote:
With respect to the direct appeal, we note that the matters
which Mr. Williams alleges were administrative acts in
fact are adjudicative, that do clearly merit immunity:
Ordering a psychological profile, failing to check into
Williams’s prior criminal record before relying on it, and
failing for eight months to correct Williams’s lack of
criminal record before revoking parole. We are satisfied
that each of these act are judicial in character and fall
within Cleavinger v. Saxner, 474 U.S. 193, 106 S.Ct. 496,
88 L.Ed.2d 507 (1984). (Emphasis added.)

Williams v. Consovoy, 53 Fed.App’x 664 (2002).
The mistake in interpretation and application of a regulation by the Parole
Board falls squarely into the kinds of acts deemed to be adjudicatory.

Indeed, as

demonstrated in Williams, a mistake does not turn an adjudicatory act into an
administrative one; even when a Parole Board fails to act within its own regulations.
The Parole Board was gathering evidence as part of its adjudicatory role to determine
whether to grant, revoke or deny parole.
Because the members of the Parole Board have absolute immunity, plaintiffs’
proposed amendments to the TAC would be futile.
Accordingly, 3

Defendants also argued that the Motion should be denied because the claims
against the new defendants would be barred by the applicable statute of limitations. (ECF
No. 52 pp. 4–8.) Because I find the proposed amendment to be futile, the statue-oflimitations issue will not be addressed herein.
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CONCLUSION AND ORDER
IT IS on this 18th day of May 2020 ORDERED that:
1.

Plaintiffs’ Motion is DENIED.

2.

The Clerk of the Court is directed to terminate the Motion at ECF No.

50.

/s/ Edward S. Kiel
Edward S. Kiel
United States Magistrate Judge

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