WILLIAMS v. LANIGAN et al

Filing 58

OPINION. Signed by Judge Brian R. Martinotti on 12/30/2020. (ams, )

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NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

BARRY WILLIAMS,
Case No. 2:18-cv-9593 (BRM) (JAD)
Plaintiff,
v.

OPINION

DIANE PATRICK,
Defendant.

MARTINOTTI, DISTRICT JUDGE
Plaintiff, Barry Williams (“Plaintiff” or “Williams”) is proceeding with an amended civil
rights complaint filed pursuant to 42 U.S.C. § 1983. (See ECF No. 10.) Presently pending before
this Court is the sole remaining Defendant in this action, Diane Patrick’s motion to dismiss the
amended complaint pursuant to Federal of Civil Procedure 12(b)(6). For the following reasons,
the amended complaint is dismissed without prejudice. Plaintiff shall have one final opportunity
to file a second amended complaint correcting the deficiencies outlined in this opinion (should
such be possible) should he elect to do so.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed his initial pro se complaint in May 2018. (See ECF 1.) On October 1, 2018,

Plaintiff filed an amended complaint. (See ECF 10.) On October 29, 2018, Plaintiff’s amended
complaint was screened. (See ECF 12 & 13.) The allegations of the amended complaint were
described as follows:

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In his amended complaint, Plaintiff takes issue with the actions of
several employees of East Jersey State Prison in relation to their
enforcement of prison policies which required certain classes of
inmates to engage in school programs. The New Jersey Department
of Corrections succinctly summarized its education policies in an
official memorandum as follows:
Effective[] July 1, 2014, inmates will be awarded
institutional job opportunities, and single cell
housing based on participation/enrollment in the
facility’s education program. Specifically if [a
prisoner is] on the Education Waiver List, and [the
prisoner does] not enroll in school, [the prisoner] will
only be eligible for, and assigned to, the lowest paid,
wing based job opportunities, and double cell
housing assignments. However, if you are on the
waiver list, and immediately request to attend school
you will be allowed to keep your current job.
Scho[o]l and work schedules will be coordinated to
allow an inmate to pursue the facility’s educational
opportunities, and to remain in a desired institutional
job.
Additionally, any inmate on the waiver list who does
not voluntarily enroll in school shall not be eligible
for any incentive programs. This directive will not
affect any inmate who has a high school diploma,
GED, or is currently enrolled in school.
(ECF No. 1-1 at 12). Plaintiff also alleges that that there is a second
policy which makes the education requirement mandatory for those
inmates who have a sentence of less than ten years’ imprisonment.
(ECF No. 1 at 12).
In his amended complaint, Plaintiff takes issue with the actions of
three specific employees of East Jersey State Prison taken in
response to Plaintiff’s attempts to fight the application of these
policies to him. First, Plaintiff claims that the head of East Jersey’s
education department, Dianne Patrick, threatened him with
disciplinary sanctions in retaliation for his withdrawal from and
refusal to participate in classes. Specifically, Plaintiff alleges that
Patrick threatened him with disciplinary actions in May 2015, and
that she thereafter again threatened Plaintiff with allegedly improper
disciplinary charges. (ECF No. 10 at 7). Plaintiff thereafter alleges
that in October 24, 2016, Patrick threatened to have Plaintiff’s law
library privileges revoked “if [he] did not resign up for the school
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program.” (Id. at 13). Plaintiff also asserts that Karyn Parker
Foreman, the Inmate Remedy Coordinator at the prison wronged
him by “perjuring” herself in March 2016 during one of Plaintiff’s
administrative appeals by submitting a certification in which she
alleged that there was no record of Plaintiff having filed an
administrative remedy related to his challenge to the mandatory
education policies. (Id. at 9–10). Finally, Plaintiff claims that the
head of the prison’s food service department, Mr. Reavis,
“threatened” him with retaliation in October 2016 by informing him
that he could not receive a job in the prison kitchen unless he reenrolled in the school program pursuant to the policy quoted above.
(Id. at 11–12).
Williams v. Lanigan, No. 18-9593, 2018 WL 5630762, at *1 (D.N.J. Oct. 29, 2018). The only
Defendant and claim to make it past screening was Plaintiff’s claim for retaliation against Patrick.
The Court stated as follows with respect to Defendant Patrick:
In regard to Defendant Patrick, Petitioner has alleged that she has
threatened him with disciplinary sanctions in response to his
decision to withdraw from the education program, and has on at least
one occasion threatened Petitioner’s access to the law library, and,
in turn, the courts. Petitioner has thus alleged that Patrick has
engaged in activity which would, at least arguably, deter the
ordinary prisoner from continuing in his course. As Petitioner has
also alleged a retaliatory motive on Patrick’s part and that these
threats came in response to his filing of the withdrawal paperwork
and later grievance forms, Petitioner’s claim against Patrick is
sufficiently pled to survive this Court’s sua sponte screening.
Thomas, 463 F.3d at 296.
Williams, 2018 WL 5630762, at *3.
After screening, pro bono counsel was appointed to represent Plaintiff. (See ECF No. 30.)
In May 2020, Defendant Patrick filed a motion to dismiss. (See ECF No. 53.) Patrick first
argues Plaintiff’s retaliation claim against her should be dismissed to the extent he seeks to sue her
in her official capacity. Second, Patrick asserts the retaliation claim should be dismissed because
Plaintiff fails to allege facts of her personal involvement and does not allege a constitutionally
protected right. Plaintiff filed a response in opposition to the motion to dismiss. (See ECF No. 56.)

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Plaintiff expressly admits he is not suing Patrick in her official capacity. (See ECF No. 56 at 5.)
Additionally, he asserts the law of the case dictates the motion to dismiss should be denied given
this Court previously permitted Plaintiff’s retaliation claim to proceed past screening. Finally, he
asserts the allegations of the amended complaint sufficiently state a retaliation claim against
Patrick. Thereafter, Patrick filed a reply brief in support of her motion to dismiss. (See ECF No.
57.)
II.

LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss an action for failure to

state a claim upon which relief can be granted. When evaluating a motion to dismiss, “courts 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.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. Cty.
of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). In other words, a complaint survives a motion to
dismiss if it contains 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, 678 (2009); Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007).
“A claim has facial plausibility when the pleaded factual content allows the court to draw
the reasonable inference that the defendant is liable for misconduct alleged.” Iqbal, 556 U.S. at
678. This “plausibility standard” requires that the complaint allege “more than a sheer possibility
that a defendant has acted unlawfully,” but it “is ‘not akin to a probability requirement.’” Id.
(quoting Twombly, 550 U.S. at 556). “Detailed factual allegations” are not required, but “more
than an unadorned, the defendant-harmed-me accusation” must be pleaded; it must include “factual

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enhancements” and not just conclusory statements or a recitation of the elements of a cause of
action. Id. (citing Twombly, 550 U.S. at 555, 557).
“Determining whether a complaint states a plausible claim for relief [is] ... a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
However, courts are “not compelled to accept ‘unsupported conclusions and unwarranted
inferences,’” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (quoting Schuylkill Energy
Res. Inc. v. Pa. Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997)), nor “a legal conclusion
couched as a factual allegation.” Papasan v. Allian, 478 U.S. 265, 286 (1986).
A court conducts a three-part analysis in analyzing a motion to dismiss pursuant to Rule
12(b)(6). See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the court must
“tak[e] note of the elements a plaintiff must plead to state a claim.” Id. (quoting Iqbal, 556 U.S. at
675). Second, the court should identify allegations that, “because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. at 131 (quoting Iqbal, 556 U.S. at
680). Finally, “where there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement for relief.” Id.
Additionally, it is worth noting that “courts generally consider only the allegations contained in
the complaint, exhibits attached to the complaint and matters of public record.” See Pension Ben.
Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (citations omitted).

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III.

DISCUSSION
A. Official Capacity
Patrick first argues official capacity claims against her must be dismissed. However,

Plaintiff, admittedly, is not pursuing official capacity claims against Patrick. Therefore, Patrick’s
arguments on this point need not be analyzed as there are no official capacity claims against her in
the amended complaint.
B. Law of the Case
Before reaching the merits of Patrick’s arguments related to whether Plaintiff has
sufficiently stated a retaliation claim, Plaintiff argues this Court is precluded from doing so
pursuant to the law of the case. More specifically, Plaintiff asserts this Court cannot revisit the
issue of whether Plaintiff has sufficiently stated a claim because it already did so in its screening
opinion. However, as one court in this District has aptly noted, “The right of a defendant to bring
a motion to dismiss for failure to state a claim, however, is not foreclosed by a district court's prior
finding, during sua sponte screening of a civil action filed by an in forma pauperis prisoner, that
the prisoner stated a claim.” 1 Paladino v. Newsome, No. 12-2021, 2013 WL 3270987, at *4 (D.N.J.

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As another court in this District has more expressly explained:
“[L]aw of the case is an amorphous concept.” Arizona v. California,
460 U.S. 605, 618, 103 S. Ct. 1382, 75 L. Ed. 2d 318 (1983). “As
most commonly defined, the doctrine posits that when a court
decides upon a rule of law, that decision should continue to govern
the same issues in subsequent stages in the same case.” Id. The lawof-the-case doctrine expresses the practice of courts generally to
refuse to reopen what has been decided. Messenger v. Anderson, 225
U.S. 436, 444, 32 S. Ct. 739, 56 L. Ed. 1152 (1912). “The doctrine
is designed to protect traditional ideals such as finality, judicial
economy and jurisprudential integrity.” In re City of Philadelphia
Litig., 158 F.3d 711, 717–18 (3d Cir. 1998). Although generally
reluctant to do so, courts in their discretion retain the power to
reconsider questions of law that have already been decided in the
same proceeding. Christianson v. Colt Industries Operating Corp.,
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June 27, 2013) (citing Teahan v. Wilhelm, 481 F. Supp. 2d 1115, 1119 (S.D. Cal. 2007)) on
reconsideration in part, 2013 WL 5161144 (D.N.J. Sept. 12, 2013), aff'd, 885 F.3d 203 (3d Cir.
2018). Accordingly, this Court will analyze whether Plaintiff has sufficiently alleged a retaliation
claim in his amended complaint.

486 U.S. 800, 817, 108 S. Ct. 2166, 100 L.Ed.2d 811 (1988) (“A
court has the power to revisit prior decisions of its own or of a
coordinate court in any circumstance, although as a rule courts
should be loathe to do so in the absence of extraordinary
circumstances such as where the initial decision was clearly
erroneous and would work a manifest injustice.”). See also Fed. R.
Civ. P. 54(b) (providing that until the court expressly directs entry
of a final judgment an order that resolves fewer than all of the claims
among all of the parties “is subject to revision at any time before the
entry of judgment adjudicating all the claims and the rights and
liabilities of all the parties.). “Law of the case directs a court's
discretion, it does not limit the tribunal's power.” Arizona, 460 U.S.
at 618. Under the doctrine, “it is not improper for a court to depart
from a prior holding if convinced that it is clearly erroneous and
would work a manifest injustice.” Id. at 619. n. 8. Although the court
may reconsider its prior rulings, when doing so it must explain on
the record the reasoning behind its decision to reconsider the prior
ruling and it must take appropriate steps so that the parties are not
prejudiced by reliance on the prior ruling. Williams v. Runyon, 130
F.3d 568, 573 (3d Cir. 1997).
We reject Davila’s assertion that the law-of-the-case doctrine bars
the currently pending motions to dismiss. First, that some claims
were not dismissed on the initial screening, does not necessarily
mean that the complaint states claims upon which relief can be
granted. Often, it will not become apparent until briefing of an issue
whether the complaint states a claim upon which relief can be
granted, and it is open to the defendants to file a motion to dismiss
and provide briefing.
Davila v. Pennsylvania, No. 11-01092, 2014 WL 1321331, at *6–7 (M.D. Pa. Feb. 28, 2014),
report and recommendation adopted in part, rejected in part on other grounds, No. 11-1092, 2014
WL 1321010 (M.D. Pa. Mar. 28, 2014).
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C. Retaliation
Patrick argues Plaintiff’s allegations in his amended complaint fail to sufficiently state a
claim of retaliation against her. The Court agrees. This Court aptly set forth the standard to bring
a retaliation claim in the screening opinion; specifically:
“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
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)).
Williams, 2018 WL 5630762, at *3.
Plaintiff’s amended complaint fails to state a retaliation claim as Plaintiff has not
sufficiently alleged an adverse action. The personal involvement of Patrick purportedly giving rise
to Plaintiff’s retaliation claim is she threatened him with disciplinary sanctions because he
withdrew from the prison programs. These mere threats, without more, do not sufficiently state an
adverse action necessary to sustain a claim for retaliation. See Burgos v. Canino, 358 F. App’x
302, 306 (3d Cir. 2009) (citing Maclean v. Secor, 876 F. Supp. 695, 699 (E.D. Pa. 1995)); Burns
v. Erie Cty. Prison, No. 19-196, 2019 WL 5942739, at *3 (W.D. Pa. Sept. 3, 2019) (citing Mears
v. Kauffman, 2018 WL 3585081, at *5 (M.D. Pa. July 26, 2018); Cash v. Dohman, 2018 WL
1531681, at *2 (E.D. Pa. Mar. 29, 2018)) (noting verbal threats alone do not constitute adverse
action and this is equally true of retaliatory disciplinary threats), report and recommendation
adopted by, 2019 WL 5538137 (W.D. Pa. Oct. 25, 2019). Accordingly, Patrick’s motion to dismiss
is granted.
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IV.

CONCLUSION
For the foregoing reasons, Patrick’s motion to dismiss is granted. The complaint is

dismissed without prejudice. Plaintiff shall have thirty (30) days from the date of this opinion and
order in which to file a proposed second amended complaint correcting the deficiencies noted
herein (if such is possible) should he elect to do so.

DATED: December 30, 2020

/s/Brian R. Martinotti
BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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