JOHNSON v. KUHN et al

Filing 3

OPINION. Signed by Judge Brian R. Martinotti on 9/15/2022. (dam)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
WENDELL JOHNSON,
Plaintiff,
v.
VICTORIA L. KUHN, ESQ., et al.,
Defendants.

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Civil No. 22-4453 (BRM) (MAH)
OPINION

MARTINOTTI, DISTRICT JUDGE

Before the Court is pro se plaintiff Wendell Johnson’s (“Plaintiff”) civil rights complaint
(“Complaint”), filed pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Based on his affidavit of indigence
(ECF No. 1-1), the Court previously granted him leave to proceed in forma pauperis and ordered
the Clerk of the Court to file the Complaint. (ECF No. 2.)
At this time, the Court must review the Complaint, pursuant to 28 U.S.C. §§ 1915(e)(2)
and 1915A, 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 forth below, the Complaint is
DISMISSED in its entirety.
I. BACKGROUND
Plaintiff is currently confined at Northern State Prison, in Newark, New Jersey. At the time
of the incident alleged in the Complaint, Plaintiff was housed at Garden State Youth Correctional
Facility. (See ECF No. 1.) Plaintiff brings this civil rights action, pursuant to 24 U.S.C. § 1983,
against the following Defendants: (1) Commissioner Victoria L. Kuhn, Esq., (2) Administrator

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David Richards, (3) Court Line Officer T. Cortes, and (4) Assistant Superintendent Kenva Collins.
(See id.)
Plaintiff submits that on April 28, 2022, he was transported from Mercer County Correction
Center to Garden State Youth Correctional Facility, where he was ordered to submit to COVID19 testing. (Id. at 7.) The Complaint alleges Defendant Kuhn gave orders forcing inmates to take
COVD-19 tests, in violation of Governor Philip Murphy’s executive order, which Plaintiff submits
only mandated Department of Corrections employees test for COVID-19. (Id. at 4, 8.) Plaintiff
refused the COVID-19 testing and was transferred to the medical tier, where he was held in
“solitary confinement” for thirteen-days in a small hot room. (Id. at 7, 12.) Plaintiff submits that
since he was the only inmate on this tier and was in a small hot room with no window, this is
considered “solitary confinement.” (Id. at 12.) A disciplinary report was issued, indicating Plaintiff
refused a COVID-19 test. 1 (See ECF No. 1-2 at 1.)
According to the Complaint, following Plaintiff’s thirteen-day hold, he was transported to
the “detention” wing for an additional eight days before Defendant Cortes ordered Plaintiff
sanctioned. (ECF No. 1 at 7, 13.) It is unclear, but Plaintiff appears to claim he continued to be
detained as discipline. (Id. at 8.) Plaintiff submits that his disciplinary charge was downgraded to
an “on the spot charge,” which does not mandate detention. (Id.)
On May 17, 2022, Plaintiff filed an appeal to Defendant Richards. (Id.) Defendant Richards
instructed Defendant Collins to handle Plaintiff’s appeal. (Id. at 4.) Plaintiff’s appeal was denied.
(Id. at 8.) Plaintiff alleges he was held in “solitary confinement” from April 28, 2022, through May
22, 2022. (Id.)

1

The Court accepts as true the factual allegations in the complaint and may consider documents
attached to the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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Plaintiff seeks monetary damages in the sum $500,000,000.00.
II. LEGAL STANDARD
A. Standard for a Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321-66
to 1321-77 (April 26, 1996) (“PLRA”), district courts must review complaints in those civil actions
in which a prisoner is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B), seeks redress
against a governmental employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim with
respect to prison conditions, see 42 U.S.C. § 1997e. The PLRA 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. This action is
subject to sua sponte screening for dismissal under 28 U.S.C. § 1915(e)(2)(B) and 1915A because
Plaintiff is a prisoner who is proceeding as indigent.
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. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive
sua sponte screening for failure to state a claim, the complaint must allege “sufficient factual
matter” to show that the claim is facially plausible. Fowler v. UPMS 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.” Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 483 n.17 (3d Cir. 2012)
(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).

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B. Section 1983 Actions
A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of his
constitutional rights. Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory ... 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 injured in an action at law, suit
in equity, or other proper proceeding for redress . . . .
Therefore, to state a claim for relief under § 1983, a plaintiff must allege, first, the violation
of a right secured by the Constitution or laws of the United States and, second, the alleged
deprivation was committed or caused by a person acting under color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
III. DECISION
A. Fourteenth Amendment Due Process – COVID-19 Testing
Plaintiff alleges that upon his arrival at Garden State Youth Correctional Facility he was
informed that he was required to take a COVID-19 test. Plaintiff claims that requirement violated
his constitutional rights. The Court construes Plaintiff’s Complaint as raising a Fourteenth
Amendment Due Process right to refuse medical treatment claim.
Prisoners retain a limited substantive due process right to refuse medical treatment and to
be informed of the proposed treatment and viable alternatives. See White v. Napoleon, 897 F.2d
103, 113 (3d Cir.1990). The scope of the right to refuse treatment is circumscribed, however, by
“legitimate countervailing State interests.” Youngberg v. Romeo, 457 U.S. 307, 319–23 (1982);

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White, 897 F.2d at 112–13 (noting that “prison authorities have a legitimate interest in maintaining
safety and security”).
In Hope v. Warden York County Prison, 972 F.3d 310 (3d Cir. 2020), the Third Circuit
held that in evaluating a jail or prison’s COVID-19 protocols, courts “must acknowledge that
practical considerations of detention justify limitations on many privileges and rights,” and
“ordinarily defer” to the expertise of prison officials in responding to COVID-19 unless there is
“substantial evidence in the record that the officials have exaggerated their response” to the
situation. Id.
The prison had a legitimate interest in testing incoming prisoners in an effort to prevent the
spread of the COVID-19 virus. Courts in this District and others have found testing and
quarantining inmates was a legitimate response to the COVID-19 pandemic, and the government
had a legitimate interest in preventing the spread of the virus. See Azcona v. Ellis, No. 20-8526,
2021 WL 1139843, at *2 (D.N.J. Mar. 25, 2021) (finding quarantining a COVID-19 positive
detainee “a legitimate response to an unprecedented situation, undertaken to prevent further spread
of the virus”); Wilcox v. Lancour, No. 2:20-183, 2021 WL 230113 (W.D. Mich. Jan. 22, 2021)
(“Defendants had a legitimate-indeed compelling-governmental interest in testing all prisoners for
the presence of the SARS-COV-2 virus [via nasal swab], in order to meet its obligations to control
contagion and to protect its other prisoners and staff.”); Webb v. Johnson, No. 21-3042, 2021 WL
2002721, at *5-8 (D. Neb. May 19, 2021) (finding a prisoner’s argument that he has a right to
refuse to have his temperature be taken for purposes of COVID-19 testing unsupportable).
Here, the facts alleged in the Complaint show that Plaintiff was an incoming inmate and
was required to submit to COVID-19 testing. However, Plaintiff was not forced to take the test.
Plaintiff admits in the complaint that he refused the testing. Considering the prison’s legitimate

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interest in protecting the inmates and staff by preventing the spread of the COVID-19 virus, even
if Plaintiff was forced to submit to a COVID-19 test, his argument that he has a constitutional right
to refuse COVID-19 testing is unsupportable. Plaintiff fails to state a plausible claim for relief for
Fourteenth Amendment right to refuse medical treatment. Accordingly, this claim is dismissed
without prejudice.
B. Eighth Amendment Cruel and Unusual Punishment
Plaintiff alleges he was held in isolation in the medical tier for thirteen days following his
refusal of the COVID-19 test. Plaintiff argues this isolation violated his Eighth Amendment right
to be free from cruel and unusual punishment. (ECF No. 1 at 15.)
The Eighth Amendment prohibits the infliction of cruel and unusual punishment on
prisoners. See Wharton v. Danberg, 854 F.3d 234, 247 (3d Cir. 2017). There are several types of
Eighth Amendment claims, including claims alleging: denial of, or inadequate access to, medical
care; exposure to adverse conditions of confinement; the use of excessive force; and failure to
protect from assaults by other inmates. An Eighth Amendment claim includes both objective and
subjective components. See Wilson v. Seiter, 501 U.S. 294, 298 (1991). Under the objective prong,
the Court must consider “if the alleged wrongdoing was objectively ‘harmful enough’ to establish
a constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 8 (1992) (quoting Wilson, 501 U.S.
at 298). However, “[w]hat is necessary to show sufficient harm for purposes of the Cruel and
Unusual Punishments Clause depends upon the claim at issue.” Id. The subjective component is
met if the person or persons causing the deprivation acted with “a sufficiently culpable state of
mind.” Wilson, 501 U.S. at 298.
Regarding conditions of confinement claims, “[t]he Constitution ‘does not mandate
comfortable prisons,’ but neither does it permit inhumane ones and it is now settled that ‘the

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treatment a prisoner receives in prison and the conditions under which he is confined are subject
to scrutiny under the Eighth Amendment.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting
Rhodes v. Chapman, 452 U.S. 337, 349 (1981); Helling v. McKinney, 509 U.S. 25, 31 (1993)).
“The Eighth Amendment imposes duties on prison officials to ‘provide humane conditions of
confinement’ and ‘ensure that inmates receive adequate food, clothing, shelter, and medical care.’”
Barndt v. Wenerowicz, 698 F. App’x 673, 676–77 (3d Cir. 2017) (quoting Farmer, 511 U.S. at
832). Specifically:
To establish an Eighth Amendment conditions of confinement claim,
[Plaintiff] must show that (1) the deprivation alleged was objectively,
‘sufficiently serious’ such that the prison officials’ acts or omissions
resulted in the denial of ‘the minimal civilized measure of life’s necessities’;
and (2) that the prison officials exhibited a ‘deliberate indifference’ to his
health and safety.
Id. at 677 (quoting Farmer, 511 U.S. at 834).
Here, even assuming the truth of Plaintiff’s allegations, he has not stated a claim that his
detention in isolation for thirteen days after refusing to be tested for COVID-19 amounted to an
unconstitutional punishment. The prison decision to hold Plaintiff in isolation for a period of time
following his arrival at the prison and his refusal to be tested does not amount to punishment
considering the prison’s interest in preventing the spread of the virus. See Azcona v. Ellis, No. 208526, 2021 WL 1139843, at *2 (D.N.J. Mar. 25, 2021) (“[T]he decision to place Plaintiff in a
quarantine tier after he contracted COVID-19 does not amount to punishment in light of the
obvious need to separate inmates with COVID-19 from other inmates to prevent further spread of
the virus.”); see also Francisco v. White, No. 1:20-1076, 2020 WL 4260766, at *3 (M.D. Pa. July
24, 2020) (“[T]he prison setting raises unique concerns regarding the spread of the COVID-19
virus since, by their very nature, prisons are confined spaces unsuited for social distancing.”)

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The Third Circuit reiterated that the “touchstone for the constitutionality of detention is
whether conditions of confinement are meant to punish or are ‘but an incident of some other
legitimate governmental purpose.’” Hope, 972 F.3d at 326 (quoting Hubbard v. Taylor, 538 F.3d
229, 232 (3d Cir. 2008)). Here, the facts do not indicate that Plaintiff was required to isolate
following his refusal to test for COVID-19 as punishment; rather, it appears to be a legitimate
response to a deadly pandemic, made in an effort to prevent the spread of the virus. Plaintiff has
failed to state a claim that his detention in isolation for thirteen days amounts to punishment and
this claim is dismissed without prejudice.
C. Fourteenth Amendment Due Process – Disciplinary Hearing
The Court construes Plaintiff’s complaint as raising a Fourteenth Amendment due process
claim regarding his disciplinary hearing. The sequence of events and dates alleged by Plaintiff are
somewhat inconsistent, but it appears Plaintiff is claiming that he was denied due process when he
was held in “solitary confinement” during his disciplinary proceedings. The Complaint appears to
argue that Plaintiff should not have been held in solitary confinement, because his disciplinary
charge was downgraded to an “on the spot charge,” which does not mandate detention.
The Fourteenth Amendment of the United States Constitution provides, in pertinent part,
that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of
law. . . .” To the extent that plaintiff seeks relief based upon disciplinary confinement, the Due
Process Clause does not provide protection against the imposition of discipline, including
disciplinary confinement and the loss of various privileges becuase these other forms of discipline
do not “impose [] atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Torres v. Fauver, 292 F.3d 141, 150–51 (3d Cir. 2002) (citing Sandin v.
Conner, 515 U.S. 472, 486 (1995)). Confinement in administrative or punitive segregation is

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insufficient, without more, to establish the kind of “atypical” deprivation of prison life necessary
to implicate a liberty interest. Sandin, 515 U.S. at 486; see Griffin v. Vaughn, 112 F.3d 703, 706–
07 (3d Cir. 1997). Under Sandin, prison disciplinary segregation will implicate a protectable
liberty interest only if it dramatically departs, in length of time or otherwise, from basic prison
conditions. See Smith v. Mensinger, 293 F.3d 641, 653 (3d Cir. 2002) (seven months in disciplinary
segregation is insufficient to trigger a due process violation); Griffin, 112 F.3d at 706–08 (fifteen
months in administrative custody is insufficient to trigger a due process violation).
Here, Plaintiff alleges he was held in “solitary confinement” from April 28, 2022, through
May 22, 2022, as a sanction for the disciplinary charges. Based on the allegations in Plaintiff’s
Complaint and the attached disciplinary proceeding documents, it appears that from April 28,
2022, through May 11, 2022, Plaintiff was held in medical isolation following his admission to a
new facility and his failure to test for COVID-19. As such, Plaintiff would have been held in
“solitary confinement” based on his disciplinary charge from May 12, 2022, through May 22,
2022. However, even if the Court considers Plaintiff’s alleged isolation time of April 28, 2022,
through May 22, 2022, as pertaining to his disciplinary proceedings, less than one month is an
insufficient period of time to trigger a liberty interest. See Smith, 293 F.3d at 653; Griffin 112 F.3d
at 706-08.
In sum, Plaintiff’s alleged twenty-five days in administrative confinement does not amount
to a liberty interest sufficient to trigger due process protections. Therefore, Plaintiff’s procedural
due process claims are dismissed without prejudice for failure to state a claim for relief.
IV. CONCLUSION
For the reasons stated above, the Complaint is dismissed without prejudice in its entirety
pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A for failure to state a claim upon which relief

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may be granted. 2 Because it is conceivable Plaintiff may be able to supplement his pleading with
facts sufficient to overcome the deficiencies noted herein, the Court will grant Plaintiff leave to
move to re-open this case and to file an amended complaint. An appropriate order follows.
Dated: September 15, 2022
/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

2

Because the Court dismissed all federal claims, the Court declines to exercise supplemental
jurisdiction over any potential state law claims Plaintiff’s intended to raise. See 28 U.S.C. §
1367(c)(3) (a district court may decline to exercise supplemental jurisdiction over a claim if the
court “has dismissed all claims over which it has original jurisdiction.”)
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