WOMACK v. MOLEINS et al

Filing 92

OPINION filed. Signed by Judge Anne E. Thompson on 12/5/2014. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DAVID LEE WOMACK,
Civ. No. 10-2932
Plaintiff,
OPINION
v.
WILLIAM J. MOLEINS, et al.,
Defendants.
THOMPSON, U.S.D.J.
This matter comes before the Court upon the Motion of Defendants Christopher Holmes,
William J. Anderson, and R. Makarski1 (collectively, “Defendants”) to Dismiss Plaintiff David
Lee Womack’s First Amended Complaint in lieu of an Answer. (Doc. No. 83). Plaintiff
opposes. (Doc. No. 89). The Court has issued the Opinion below based on the parties’ written
submissions and without oral argument pursuant to Federal Rule of Civil Procedure 78(b). For
the reasons stated herein, Defendants’ Motion to Dismiss will be granted.
BACKGROUND
Plaintiff’s action alleges several 42 U.S.C. § 1983 claims based on assaults, improper
visual cavity inspections, and other retaliatory harassment conducted by Defendants against
Plaintiff while Plaintiff was incarcerated in the New Jersey State Prison (“NJSP”).

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Plaintiff’s Amended Complaint spells this officer’s name as “Markarski,” while the
Defendants’ Motion to Dismiss brief refers to the officer as “Makarski.” Since presumably
Defendants’ counsel knows how to spell his client’s name, the Court uses Defendants’ spelling.
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Plaintiff asserts that in December 2007, while he was housed in the Management Control
Unit (“MCU”) at NJSP and on suicide watch, four NJSP corrections officers assaulted him.
(Doc. 39 at ¶ 26). Afterwards, Plaintiff filed a grievance requesting an investigation, which went
unanswered. (Id. at ¶¶ 27-28). Plaintiff claims that corrections officers allowed another inmate
to assault him in retaliation for reporting the previous assault. Specifically, Plaintiff alleges that
in August 2009, as he was being moved into an outdoor exercise pen, one of the Defendants who
allegedly assaulted Plaintiff confronted him about “writing people up” and warned that
“somebody” was going to beat Plaintiff. (Id. at ¶¶ 29-33). Afterwards, while Plaintiff was
locked in his individual exercise cage, another inmate broke into Plaintiff’s cage and attacked
him. (Id. at ¶¶ 34-39). Plaintiff states that he fought in self-defense against the inmate for 40
minutes before corrections officers stopped the fight. (Id. at ¶¶ 40-41). Both inmates were
seriously injured, and Plaintiff was subsequently disciplined by NJSP authorities. (Id. at ¶¶ 4244). Plaintiff appealed the decision but no action was taken by NJSP officials. (Id. at ¶¶ 45-46).
In addition, Plaintiff asserts that, as a precondition to meeting with his attorney and to
speaking with his case manager at the Federal Bureau of Prisons, Plaintiff was forced to submit
to improper visual cavity inspections in September and October of 2011 that were in violation of
N.J.A.C. 10A:3-5.7(C)(1), which requires such inspections to be conducted only “[a]t a location
where the search cannot be observed by unauthorized persons.” (Id. at ¶¶ 47-71). Plaintiff
alleges that in both instances, he was forced to submit to a visual cavity search in an open and
public area, in full view of other inmates’ cells. (Id. at ¶¶ 54-57, 71). Plaintiff refused to submit
to the searches and thus missed the scheduled meeting with his lawyer and call with his case
manager. (Id. at ¶¶ 57, 72). After refusing to submit to the improper search, Plaintiff was
disciplined for failure to obey a direct order. (Id. at ¶¶ 58-60). At the disciplinary hearing,

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Plaintiff argued that the order to submit to the strip search was in violation of NJDOC
regulations and an act of retaliation, to which the hearing officer, Defendant Makarski, allegedly
responded, “You are a convicted felon. I’m quite sure this was not your first, and will not be the
last time you will have inmates look at your ass.” (Id. at ¶¶ 60-61). Afterwards, Plaintiff was
sentenced to twice the allowable maximum disciplinary penalty for such an offense. (Id. at ¶¶
62-65). Plaintiff appealed the disciplinary decision, which was reviewed and affirmed by
Defendant Anderson. (Id. at ¶ 66).
At the time of the events, Defendants Anderson and Holmes were NJSP Assistant
Superintendents, and Defendant Makarski was a hearing officer. (Id. at ¶¶ 8-15). Plaintiff
alleges that Defendant Makarski approved of unconstitutional conduct when he imposed an
excessive disciplinary sanction against Plaintiff after Plaintiff refused to submit to an improper
strip search. (Id. at ¶¶ 47-65). Plaintiff also claims that Defendant Anderson consented to
unconstitutional practices and acted with deliberate indifference by upholding the disciplinary
sanctions imposed upon Plaintiff and by failing to remedy the alleged unconstitutional acts of the
corrections officers who initially sanctioned Plaintiff. (Id. at ¶¶ 88, 95). Lastly, Plaintiff asserts
that Defendant Holmes acted with deliberate indifference by failing to act upon Plaintiff’s initial
grievance against the four corrections officers who allegedly assaulted him. (Id. at ¶ 79).
On June 9, 2010 Plaintiff filed his initial Complaint. (Doc. No. 1). On August 21, 2012,
pro bono counsel was appointed to represent Plaintiff, and Plaintiff’s First Amended Complaint
was filed on June 3, 2013. (Doc. No. 23, 39). All of Plaintiff’s claims are asserted against
Defendants solely in their individual capacities. (Doc. No. 39 at 2-3). Defendants Anderson,
Holmes, and Makarski were served on July 22, 2014, September 10, 2014, and August 28, 2014,

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respectively (Doc. No. 70, 76, 82). On October 15, 2014, these three Defendants filed a Motion
to Dismiss Plaintiff’s First Amended Complaint, which Plaintiff opposes. (Doc. No. 83, 89).
DISCUSSION
A. Legal Standard
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency
of the complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The defendant bears
the burden of showing that no claim has been presented. See Hedges v. United States, 404 F.3d
744, 750 (3d Cir. 2005). When considering a Rule 12(b)(6) motion, a district court should
conduct a three-part analysis. See Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). “First,
the court must ‘take note of the elements a plaintiff must plead to state a claim.’” Id. (quoting
Ashcroft v. Iqbal, 56 U.S. 662, 675 (2009)). Second, the court must accept as true all of a
plaintiff’s well-pleaded factual allegations and construe the complaint in the light most favorable
to the plaintiff. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009). The
court may disregard conclusory legal allegations. Id. Finally, the court must determine whether
the “facts are sufficient to show that plaintiff has a ‘plausible claim for relief.’” Id. at 211
(quoting Iqbal, 556 U.S. at 679). Such a claim requires more than a mere allegation of an
entitlement to relief or demonstration of the “mere possibility of misconduct;” the facts must
allow a court reasonably to infer “that the defendant is liable for the misconduct alleged.” Id. at
210, 211 (quoting Iqbal, 556 U.S. at 678–79).
B. Analysis
i.

Respondeat Superior

Defendants Anderson and Holmes assert that Plaintiff’s claims against them must be
dismissed because the Amended Complaint does not allege that these Defendants were

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personally involved in the alleged unconstitutional conduct. Instead, they assert that Plaintiff’s
claims against them are based on an impermissible theory of respondeat superior.
Section 1983 allows an injured plaintiff to bring suit against every person who, under
color of state law, “subjects, or causes to be subjected” the plaintiff to a deprivation of a
federally protected right. 42 U.S.C. §1983. However, “[a] defendant in a civil rights action must
have personal involvement in the alleged wrongs; liability cannot be predicated solely on the
operation of respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207–08 (3d Cir.
1988) (emphasis added). Personal involvement can be shown through allegations that the
supervisor “participated in violating the plaintiff’s rights, directed others to violate them, or, as
the person in charge, had knowledge of and acquiesced in the subordinate’s unconstitutional
conduct.” Barkes v. First Correctional Medical, Inc., 766 F.3d 307, 316 (3d Cir. 2014). “To
establish knowledge and acquiescence of a subordinate’s misconduct, a plaintiff must allege the
defendant’s (1) contemporaneous knowledge of the offending incident or knowledge of similar
incidents in the past, and (2) actions or inactions which communicated approval of the
subordinate’s behavior.” Broadwater v. Fow, 945 F. Supp. 2d 574, 588 (M.D. Pa. 2013). “A
plaintiff may not allege that a supervisory defendant had constructive knowledge of a
subordinate’s unconstitutional conduct simply because of his role as a supervisor.” Id. Instead,
the supervisory defendant must have actual knowledge of the misconduct, but knowledge may be
inferred from the circumstances. Baker v. Monroe Twp., 50 F.3d 1186, 1193–94 (3d Cir. 1995).
Lastly, allegations of participation or actual knowledge and acquiescence must be made with
particularity. Boykins v. Ambridge Area School District, 621 F.2d 75, 80 (3d Cir. 1980).
Here, Plaintiff’s Amended Complaint asserts that supervisory Defendants Anderson and
Holmes are liable under 42 U.S.C. § 1983 because, by knowing of and failing to remedy

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Plaintiff’s alleged constitutional violations, they “thereby [gave] tacit approval” to such conduct.
(Doc. No. 39 ¶¶ 79, 87, 95). Specifically, Count I alleges that Holmes acted with “deliberate
indifference” by failing to respond to Plaintiff’s initial grievance against the four officers who
allegedly assaulted him. (Id. at ¶ 79). Counts II and III claim that Anderson acted with
“deliberate indifference” by upholding Makarski’s disciplinary decision and by failing to redress
the allegedly unconstitutional cavity searches that prevented Plaintiff from meeting with his
lawyer and speaking with his case manager at the Bureau of Prisons. (Id. at ¶¶ 87, 95).
However, in light of the above legal standards, Plaintiff’s Amended Complaint states no
facts to support personal involvement by these Defendants in the alleged violations. The
Defendants did not participate in or direct the improper conduct, and neither Defendant appears
to have even been present during the assault or the searches. Any knowledge these Defendants
had was the result of grievances or appeals filed after the violation had already occurred, which
is insufficient to support the requisite knowledge and acquiescence. See Jackson v. Fed. Bureau
of Prisons, No. 11-6278 (JBS), 2012 WL 1435632, at *7 (D.N.J. Apr. 25, 2012) (“Participation
in the after-the-fact review of a grievance or appeal is insufficient to establish personal
involvement on the part of those individuals reviewing grievances.”); Hopkins v. Bondiskey, No.
12-5134 (JBS), 2013 WL 1144930, at *14 (D.N.J. Mar. 18, 2013); Brooks v. Beard, 167 F.
App’x 923, 925 (3d Cir. 2006) (refusing to find personal involvement on the part of supervisors
who did not respond appropriately to after-the-fact grievances); Baker, 50 F.3d at 1193–94
(finding knowledge and acquiescence where a supervisor was present at the scene of the alleged
violation, but did not see it). Therefore, claims against Anderson and Holmes will be dismissed.

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ii.

Failure to State a Claim

Defendants also assert that Plaintiff’s claim against Makarski must be dismissed for
failure to plead all elements of a Sixth Amendment denial of access to counsel claim.
The Supreme Court held in Bounds v. Smith that all prisoners have a constitutional right
of “meaningful access to the courts,” which requires prisons to provide inmates with law
libraries or assistance from persons with legal training. 430 U.S. 817, 823, 828 (1977).
However, this right of access is not unlimited. Prisons are only required to provide inmates with
the necessary resources to “attack their sentences, directly or collaterally, and in order to
challenge the conditions of their confinement. Impairment of any other litigating capacity is
simply one of the incidental (and perfectly constitutional) consequences of conviction and
incarceration.” Lewis v. Casey, 518 U.S. 343, 355 (1996) (emphasis in original). In addition, a
prisoner asserting denial of access must show that prison officials caused a past or imminent
“actual injury” that hindered efforts to pursue a claim or defense. Lewis, 518 U.S. at 348–51,
354–55 (stating that a Plaintiff “might show, for example, that a complaint he prepared was
dismissed for failure to satisfy some technical requirement which, because of deficiencies in the
prison’s legal assistance facilities, he could not have known.”); see also Oliver v. Fauver, 118
F.3d 175, 177–78 (3d Cir. 1997).
Here, Plaintiff’s Amended Complaint does not identify the purpose for which Plaintiff
was meeting with counsel. Specifically, Plaintiff has not alleged that he was meeting with his
lawyer in order to “attack [his] sentence, directly or collaterally” or “to challenge the conditions
of [his] confinement.” Lewis, 518 U.S. 343 at 355. In addition, Plaintiff has not alleged any
“actual injury” caused by the denial of access to a single meeting with his attorney. See Oliver,
118 F.3d at 177–78. The Amended Complaint fails to assert any facts showing that missing one

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meeting with his lawyer impaired Plaintiff’s ability to pursue a claim or defense. See Sturdivant
v. Speziale, No. 08-6279WJM, 2010 WL 143672, at *5 (D.N.J. Jan. 11, 2010) (granting
Defendant’s motion to dismiss where Plaintiff failed to allege any litigation disadvantage
resulting from a one-time inability to meet with counsel). Therefore, Plaintiff’s claim against
Makarski will also be dismissed.
CONCLUSION
For the reasons stated above, Defendants’ Motion to Dismiss will be granted. Claims
against Defendants Anderson, Holmes, and Makarski will be dismissed.

/s/ Anne E. Thompson
ANNE E. THOMPSON, U.S.D.J.

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