CLASEN JR. v. ZEPATA
MEMORANDUM and ORDER granting (ECF Nos. 1 -1, 3 -1) Plaintiff's Application to Proceed in forma pauperis; directing the Clerk of the Court to file the Amended Complaint; dismissing the Amended Complaint without prejudice in its entirety for failure to state a claim. Plaintiff may submit a Second Amended Complaint and request to reopen this matter within forty-five (45) days to the extent he can cure the deficiencies in his claims for relief. The Clerk shall CLOSE this matter. Signed by Judge Madeline Cox Arleo on 5/16/2023. (dam)
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HECTOR L. CLASEN, JR.,
Civil Action No. 22-5612 (MCA)
MEMORANDUM & ORDER
This matter has been opened to the Court by Plaintiffs filing of an Amended Complaint
and an application to proceed in forma pauperis (“IFP application”). See ECF No.3,3-I. At
this time, the Court grants Plaintiffs IFP application to proceed. Federal law requires this Court
to screen Plaintiffs Complaint for sua sponte dismissal prior to service, and to dismiss any claim
if that claim fails to state a claim upon which relief may be granted under Fed. R. Civ. P.
12(b)(6) and/or to dismiss any defendant who is immune from suit. See 28 U.S.C.
In September 2022, Plaintiff was incarcerated at Hudson County Correctional Center, and
he learned from his brother that their father was on his death bed in the intensive care unit at the
hospital. Amended Complaint at 2. Plaintiff contacted Juan Zepata, a social worker at Hudson
County Correctional center, to arrange a visit with his father. Id. Zepata called the hospital to
find out how Plaintiffs father was doing, which was not what Plaintiff requested. Id, Plaintiff
filed a grievance/remedy form on the Kiosk to an advocate, Ms. Butler, but his inquiries were
ignored. Id. at 2-3. Sadly, Plaintiffs father passed away on or about September 30, 2022. Id.
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Plaintiff alleges that Zepata’s failure to grant Plaintiff’s request to visit his dying father violated
his Fourteenth Amendment due process rights. Id.
The legal standard for dismissing a complaint for failure to state a claim pursuant to 28
1915(e)(2)(B)(ii) is the same as the standard 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). That standard is set forth inAshcroft v Iqbal, 556 U.S. 662 (2009), and Bell Atlantic
Corp. v Twombly, 550 U.S. 544 (2007). To survive the Court’s screening for failure to state a
claim, the complaint must allege “sufficient factual matter to show that the claim is facially
plausible.” Fowler v. UPMCShadyside, 578 F.3d 203, 210 (3d Cir. 2009) (internal quotation
marks 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.” Iqbal, 556 U.S. at 678; see also Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308
n.3 (3d Cir. 2014). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550
U.S. at 555).
Plaintiff raises civil rights claims pursuant to 42 U.S.C.
1983 arising from prison
officials failure to grant his request to visit his dying father. “Section 1983 imposes civil liability
upon any person who, acting under the color of state law, deprives another individual of any
rights, privileges, or immunities secured by the Constitution or laws of the United States.”
Shuman v Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir. 2005). “It is well settled that
1983 does not confer any substantive rights, but merely ‘provides a method for vindicating
federal rights elsewhere conferred.” Williams v. Pennsylvania Human Relations Comm ‘n, 870
F.3d 294, 297 (3d Cir. 2017) (quoting Hildebrandv Allegheny C’., 757 F.3d 99, 104 (3d Cir.
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2014)). To establish a claim under
1983, Plaintiff must establish a deprivation of a federally
protected right and that this deprivation was committed by a person acting under color of state
law. Woloszyn v. County ofLawrence, 396 F.3d 314, 319 (3d Cir. 2005).
Plaintiff alleges that Zepata violated Plaintiffs Fourteenth Amended due process rights
by failing to allow him to visit his dying father. Plaintiff’s due process claim fails, however,
irrespective of whether the Court construes it as the denial of a family visit or the denial of a
furlough. The Due Process Clause applies when government action deprives a person of liberty
or property.” Greenholtz v. Inmates ofNeb. Penal and Corr. Complex, 442 U.s. 1, 7 (1979).
Liberty interests protected by the clause may arise from the Due Process Clause itself or arise
from state-created rights. See Sand/nv Conner, 515 U.S. 483-84 (1995). The liberty interests of
pretrial detainees differ from the liberty interests of inmates that have been sentenced. Fuentes v.
Wagner, 206 F.3d 335, 341—2 (3rd Cir.2000). While a sentenced prisoner has a liberty interest
only in remaining free from “restraint which
imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life,” Sand/n. 515 U.S. at 484, the liberty
‘For convicted prisoners, it is well established that the denial of a family visit is not an atypical
and significant hardship and does not give rise to a protected liberty interest. See Kentucky Dep ‘t
of Corr. v. Thompson, 490 U.s. 454, 461 (1989) (“The denial of prison access to a particular
visitor is ‘well within the terms of confinement ordinarily contemplated by a prison sentence,’
and therefore is not independently protected by the Due Process Clause.”) (internal quotation
marks and citation omitted); Gerber v. Hickman, 291 F.3d 617, 621 (9th Cir. 2001) (“lIlt is wellsettled that prisoners have no constitutional right while incarcerated to contact visits or conjugal
visits.”) (collecting cases). The Third Circuit has also held that a prisoner does not have a
constitutional right to receive a furlough to visit his ailing child. See Groppi v. Bosco, 208 F.
App’x. 113, 115 (3d Cir. (2006); see also Spuck v. Ridge, 347 F. App’x. 727, 730 (3d Cir.
2009)(quoting Bowser v. Vose, 968 F.2d 105, 106—07 (1st Cir.1992) (“It is clear that the denial
of a furlough implicates no inherent liberty interest”). Other courts have similarly found that the
Due Process Clause does not provide prisoners with a “liberty interest in attending a family
member’s funeral, and denial of such an opportunity does not impose an atypical or significant
hardship on the inmate in relation to the normal incidents of prison life.” Ramziddin v. Pious/s.
No. 07—5868, 2008 WL 906341, at * 4 (D.N.J. Apr.l, 2008); see also Mills v. Walker, No. 05—
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interests of pretrial detainees are subjected to a higher standard of protection. See Bell v.
Wolfish, 441 U.S. 520, 535 (1979).
Although a pretrial detainee has a liberty interest in remaining free from punishment,
restrictions on freedom that are reasonably related to a legitimate governmental objective are not
punishment. See Bell, 441 U.S. at 535-39. Under Bell, the government has a legitimate interest
in detaining inmates pending trial:
Once the Government has exercised its conceded authority to
detain a person pending trial, it obviously is entitled to employ
devices that are calculated to effectuate this detention.
Traditionally, this has meant confinement in a facility which, no
matter how modern or how antiquated, results in restricting the
movement of a detainee in a manner in which he would not be
restricted if he simply were free to walk the streets pending trial.
Whether it be called a jail, a prison, or a custodial center, the
purpose of the facility is to detain. Loss of freedom of choice and
privacy are inherent incidents of confinement in such a facility.
And the fact that such detention interferes with the detainee’s
understandable desire to live as comfortably as possible and with
as little restraint as possible during confinement does not convert
the conditions or restrictions of detention into “punishment.”
Id. at 537.
As relevant here, Courts in this circuit have held that there is no constitutional right to
furlough or relaxation of bail to visit family or attend a funeral. Sonnie v. Adantic Cnty. Court,
Civ. No. 20-970, 2020 WL 4199901, at *2 (D.N.J. Jul. 21, 2020) (denial of pretrial detainee’s
request to visit his mother on her death bed); see also Cromer v. Admin. of CCCF, No. CIV. 14235 JBS, 2014 WL 1669867, at *3 (D.N.J. Apr. 28, 2014) (citing Bowser v. Vose, 968 F.2d 105,
106 (1st Cir. 1992)); Burrell
Loungo, 750 F. App’x 149, 157 (3d Cir. 2018) (same) reh’g
denied (Dec. 19. 2018), cert. denied. 139 S. Ct. 2640 (2019).
1744, 2005 WL 2807171, at 5 (D.N.J. Oct. 25. 2005); Griggs v. New Jersey, No. 11—2673,
2011 WL 3739375, at * 4 (D.N.J. Aug. 24, 2011).
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Moreover, there is no state-created due process right to this type of visitation or furlough.
Under the relevant New Jersey statute, prisoners, in the discretion of the correctional institution,
may be permitted to be at the bedside ofa dying relative. See N.J.S.A. 30:4—8.1; N.J.AC.
1OA:18—7.2. Although New Jersey does permit furloughs to visit a dying relative in limited
circumstances, the decision to grant a furlough is entirely within the discretion of the chief
executive officer of the prison in which an inmate is housed; as such, neither New Jersey law nor
administrative regulations have created a liberty interest protected by the Due Process clause.
See Mills, 2005 WL 280717 at *5; see also N.J. Stat. Aim.
any penal or correctional facility
regulations of the State
30:4—8.1 (“the chief executive of
may in his discretion, and in conformity with the rules and
authorize and permit the attendance of a prisoner or inmate at the
bedside or funeral of a dying or deceased relative”); N.J. Admin Code
1OA:18—7.2 (pursuant to
the statute, “the correctional facility Administrator may, at his or her own discretion, authorize
and permit the attendance of an inmate at the bedside of a dying relative, or at a private viewing,
when no relatives or friends are present, of a deceased relative”).
Because Plaintiff lacks a protected liberty interest in his request to visit his dying father,
the procedural protections of the Due Process Clause do not apply, and the Court will dismiss
without prejudice Plaintiffs procedural Due Process claims against Zepata.
The Court also construes Plaintiff to assert that he was denied his constitutional right to
intimate association. Prisoners retain a limited constitutional right to intimate association,
established by the Supreme Court in Turner v, Scifley, 482 U.S. 78, 95—96 (1987), and confirmed
in Overton v. Bazzetta, 539 U.S. 126, 13 1—32 (2003). Nevertheless, “freedom of association is
among the rights least compatible with incarceration,” and some curtailment must be expected in
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the prison context. Overron, 539 U.S. at 131. In Overton, the Supreme Court found that the
challenged prison regulations that, among other things, severely restricted noncontact visitation
by prisoners’ minor relatives, withstood constitutional scrutiny under the four-part test of Turner
v. Sq/icy, 482 U.S. at 89. Overton suggests that limits on family visits with a prisoner n-lay
violate that rule if “permanent or for a [long] period” or if “applied in an arbitrary manner.” 539
U.S. at 137.
“To the extent that a right’ to visitation exists via the right to association, this entitlement
is limited by prison officials’ judgment in furthering penological goals.” Rivera v Fed. Bureau
ofPrisons, 197 F. App’x. 169,170 (3d Cir. 2006) (citing Overton v. Bazzetta, 539 U.S. at 13132). Affording substantial deference to the professional judgment of prison administrators,
Overton, 539 U.S. at 132, courts will uphold a prison official’s action alleged to have impinged
on an inmate’s constitutional rights if”it is reasonably related to legitimate penological
interests.” Turner. 482 U.S. at 89.
Here, Plaintiff does not provide facts suggesting that the prison regulations regarding
visits with dying relatives, as detailed above, are arbitrary, unrelated to legitimate penological
interests, or otheiise so restrictive that they violate Plaintiffs right to intimate association.
Indeed, Plaintiff provides no facts about the policy at all, and his allegations suggest that Zapata
misunderstood his request to visit his father or, at worst, acted negligently, which is not a basis
for liability under
1983. As such, Plaintiffs denial of the right to intimate association claim is
dismissed without prejudice.
Plaintiff also fails to state a claim for relief to the extent he seeks to hold prison officials
liable for failing to respond to his grievance. To maintain a
1983 claim, each individual
defendant “must have personal involvement in the alleged wrongdoing.” Evancho
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F.3d 347. 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete. 845 F.2d 1195, 1207 (3d Or.
1988)). “Personal involvement can be shown through allegations of personal direction or of
actual knowledge and acquiescence.” Rode, 845 F.2d at 1207. Thus, participation in the afterthe-fact review of a grievance is insufficient to establish liability. Id. As such, Plaintiff
allegations that a prison official ignored his grievance does not establish that the official
participated in or was involved in the underlying conduct. See Brooks v. Beard, 167 F. .App’x
923, 925 (3d Cir. 2006).
Although the Court doubts that Plaintiff can cure the deficiencies in his Amended
Complaint, it will provide him with leave to submit a second amended Complaint within 45 days
of the date of this Order. See Fletcher-Harlee Corp. v. Rote Concrete Contractors, Inc., 482
F.3d 247, 251 (3d Cir. 2007) (holding that in civil rights cases, the Court must allow amendment.
unless doing so would be inequitable or futile).
IT IS, THEREFORE, on this
&day of May 2023,
ORDERED that Plaintiff’s application to proceed informapauperis pursuant to 28 U.S.C.
1915 (ECF Nos. 1-1, 3-1) is hereby GRANTED; and it is further
ORDERED that the Amended Complaint shall be filed; and it is further
ORDERED that, pursuant to 28 U.S.C.
1915(b) and for purposes of account deduction
only, the Clerk shall serve a copy of this Order by regular mail upon the Attorney General of the
State of New Jersey and the Administrator of Hudson County Correctional Center; and it is further
ORDERED that Plaintiff is assessed a tiling fee of $350.00 and shall pay the entire filing
fee in the manner set forth in this Order pursuant to 28 U.S.C.
1915(b)(l) and (2), regardless of
the outcome of the litigation, meaning that if the Court dismisses the case as a result of its sua
sponte screening, or Plaintiff’s case is otherwise administratively terminated or closed,
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does not suspend installment payments of the filing fee or permit refund to the prisoner of the
filing fee, or any part of it, that has already been paid; and it is further
ORDERED that pursuant to Bruce v Sarnuels, 136 S. Ct. 627, 632 (2016), if Plaintiff owes
fees for more than one court case, whether to a district or appellate court, under the Prison
Litigation Reform Act (PLRA) provision governing the mandatory recoupment of filing fees,
Plaintiffs monthly income is subject to a simultaneous, cumulative 20% deduction for each case
a court has mandated a deduction under the PLRA; i.e., Plaintiff would be subject to a 40%
deduction if there are two such cases, a 60% deduction if there are three such cases, etc., until all
fees have been paid in hill; and it is further
ORDERED that pursuant to 28 U.S.C.
1915(b)(2), in each month that the amount in
Plaintiffs account exceeds $10.00, the agency having custody of Plaintiff shall assess, deduct from
Plaintiffs account, and forward to the Clerk of the Court payment equal to 20% of the preceding
month’s income credited to Plaintiffs account, in accordance with Bruce, until the $350.00 filing
fee is paid. Each payment shall reference the civil docket numbers of the actions to which the
payment should be credited; and it is further
ORDERED that the Amended Complaint is dismissed without prejudice in its entirety for
failure to state a claim for relief pursuant to the Court’s screening authority under
and it is further
ORDERED that Plaintiff may submit a Second Amended Complaint and a request to
reopen this mailer within 45 days to the extent he can cure the deficiencies in his claims for relief;
and it is further
ORDERED that the Clerk of the Court shall send a copy of this Order to Plaintiff by
regular U.S. mail and CLOSE this matter accordingly.
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Madefi7ne Cox Arleo
United States District Judge
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