MILLER v. RICCI et al
Filing
5
OPINION filed. Signed by Judge Freda L. Wolfson on 4/28/2011. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
_______________________________
:
:
:
Plaintiff,
:
:
v.
:
:
MICHELLE R. RICCI, et al.,
:
:
Defendants.
:
_______________________________:
LIONELL G. MILLER,
Civil Action
11-0859 (FLW)
O P I N I O N
Wolfson, District Judge:
Plaintiff, who appears to be a convicted prisoner currently
confined at the New Jersey State Prison, Trenton, New Jersey,
seeks to bring this action in forma pauperis, pursuant to 42
U.S.C. § 1983, alleging violations of his constitutional rights.
Based on his affidavit of indigence and the absence of three
qualifying dismissals within 28 U.S.C. § 1915(g), the Court will
grant Plaintiff's application to proceed in forma pauperis,
pursuant to 28 U.S.C. § 1915(a), and will order the Clerk to file
the Complaint.
At this time, the Court must review the Complaint 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.
Page -1-
I.
BACKGROUND
A.
Allegations Stated in the Complaint
The facts of Plaintiff’s Complaint are presented in a
narrative detailing the events that took place for a number of
years before they culminated in an altercation of February 24,
2009.
See Docket Entry No. 1.
According to the Complaint, Plaintiff was involved, at one
point in time, with a certain woman who eventually entered in a
relationship with a correctional officer.
See id. at 12.
Upon
learning of that relationship, Plaintiff ceased his contacts with
this woman.
See id.
The Complaint alleges that Plaintiff’s
election to cease his contacts with this woman caused animosity
between Plaintiff and the correctional officers employed at the
New Jersey State Prison.
See id.
According to the Complaint,
the correctional officers began harassing Plaintiff; such
harassment started, seemingly, years before the events of
February 2009.
See id.
The Complaint asserts that, as part of their harassment
campaign, correctional officers tried to recruit inmates to
assault Plaintiff.
See id.
However, since the Complaint is
silent as to any such attacks, the Court presumes that these
officers’ efforts were unsuccessful, and so Plaintiff was not
harmed by any inmate recruited by the officers.
Docket Entry No. 1.
Page -2-
See generally,
Plaintiff also asserts that, during this alleged multi-year
harassment campaign, Plaintiff’s personal property was stolen or
destroyed by correctional officers, and he was wrongly designated
as a member of the “Bloods Gang,” as a result of which his mail
was systemically detoured to a Newark office in charge of
monitoring gang activities.
See id. at 12.
Plaintiff alleges that he submitted an inmate remedy form to
the warden of the New Jersey State Prison, Defendant Ricci,
informing her about the aforesaid acts of harassment, and
Plaintiff’s sister sent numerous letters to Defendant Ricci and
other officials at the New Jersey Department of Corrections
expressing her concern.
See id. at 12-13.
According to the
Complaint, Plaintiff’s grievance and his sister’s letters did not
produce a response.
See id.
The Complaint is silent as to when
Plaintiff submitted his grievance and Plaintiff’s sister sent her
letters, but the context of Plaintiff’s narrative unambiguously
indicates that these events took place long before February 24,
2009.
Plaintiff alleges that, on February 24, 2009, Plaintiff was
first asked to go through the metal detector twice and, later
that day, stopped for a pat-search on his way to the mess hall.
See id. at 5.
According to the Complaint, during this pat-
search, Defendant Officer Nagy made a verbal statement, which
Plaintiff found disrespectful and to which Plaintiff replied that
Page -3-
he did not wish to be talked to by correctional officers.
id.
See
Plaintiff maintains that his response caused another
Officer, Defendant Fry, to twist Plaintiff’s wrist, and –- right
thereafter –- Plaintiff was pushed to the floor and assaulted by
Officers Fry, Nagy, Perez, Tyson and Wojciechowski, each of whom
was kicking and beating Plaintiff.
See id. at 5-8.
According to
the Complaint, as a result of such altercation, Plaintiff’s
forehead and left eye suffered substantial swelling, and his
mouth was “burst open.”1
See id. at 8.
On February 25, 2009, that is, the day following the
altercation, Plaintiff received five disciplinary charges;
Plaintiff asserts that he was charged with assaulting the
Officers, refusing to submit to a pat-search and acting in a
disruptive manner.
See id. at 9.
According to the Complaint,
Plaintiff’s disciplinary hearing was initially scheduled for
February 27, 2009, but then was postponed.
See id.
During this
postponement period, Plaintiff requested to view the surveillance
tape, which request was granted.
See id. at 9-10.
Plaintiff further asserts that, on March 5, 2009, he was
transferred from the New Jersey State Prison to the East Jersey
State prison, where he was housed in a segregated unit.
at 10.
See id.
On March 10, 2009, Plaintiff was, allegedly, informed
1
The Court is not entirely clear as to the meaning of the
“burst open” expression. The Court presumes that Plaintiff
intended to assert that his mouth suffered a physical injury.
Page -4-
that he was sanctioned without any disciplinary hearing; the
sanctions imposed included a brief loss of recreational time,
prolonged housing in an administrative segregation unit and loss
of good-conduct credits.
See id.
The Complaint further asserts that a paralegal at the New
Jersey State Prison submitted, without Plaintiff’s permission or
knowledge, an appeal as to Plaintiff’s sanctions.
See id. at 11.
That appeal was denied by Superintendent Drumm, who affirmed both
the charges and sanctions imposed.
See id.
According to the
Complaint, Plaintiff too submitted an appeal; that appeal was not
responded to.
See id. at 10-11.
Plaintiff seeks monetary damages from: (a) the Officers
involved in the February 24, 2009, altercation; (b) the officers
who imposed sanctions against Plaintiff; (c) the warden and
Superintendent Drumm.
See id. at 14.
Plaintiff also requests
transfer to the prison’s general population, restoration of lost
good-conduct credits and declaratory relief.
See id.
at 14-16.
As part of his challenges, Plaintiff asserts that administrative
due process was denied to him because he was sanctioned without a
hearing.
B.
State Court’s Determination
Plaintiff appealed the alleged denial of administrative due
process to the state courts.
His claims were denied at both the
Law Division and Appellate Division levels, and the Supreme Court
Page -5-
of New Jersey denied him certification.
See Miller v. NJ Dep’t
of Corrections, 203 N.J. 606 (2010).
Describing Plaintiff’s challenges, the Appellate Division
also listed the following facts revealed during Plaintiff’s state
proceedings:
[Plaintiff] appeals . . . a hearing officer's finding that
he committed . . . two acts of assault, . . . refusal to
submit to a search, . . . and conduct which disrupts or
interferes with security or orderly running of the
correctional facility . . . . [Plaintiff] argues he was
denied his rights of due process. . . . On February 24,
2009, [Plaintiff] was housed at Trenton State Prison. While
moving from the prison's rotunda area to the mess hall, . .
. Officer . . . Perez pulled [Plaintiff] from the line and
requested him to produce his identification card. According
to [Plaintiff], Perez had pulled him from line earlier that
same morning. [Plaintiff] was then told to keep his hands
raised while Perez performed a pat search. When Perez
started the pat down, [Plaintiff] dropped his hands and
began arguing with him. [Officer] Fry came to Perez's
assistance. When Fry observed [Plaintiff]’s hands going
into his pockets, he grabbed [Plaintiff’s] left hand and
ordered him to place his hands behind his back. [Plaintiff]
refused, said “fuck you,” and stood in a fighting position.
[Plaintiff] then punched Fry in the head and struck Perez.
[Plaintiff] resisted the efforts of several [Officers] to
subdue him. During this struggle, [Plaintiff] also punched
[Officer] Nagy in the face. Finally, [Plaintiff] was pushed
to the ground and placed in handcuffs and leg irons.
[Plaintiff’s] conduct caused the initiation of an emergency,
Code *33. All institutional personnel were required to stop
until [Plaintiff] was subdued. Once order was restored,
[Officers] Perez, Nagy and Fry reported to the medical
department to assess their injuries. All three were taken
to Robert Wood Johnson Hospital for evaluation and
treatment. The disciplinary review hearing began on
February 27, 2009. [Plaintiff] pled not guilty. His request
for counsel substitute was granted. He was then granted an
adjournment to review the surveillance video, provided to
him that day. [Plaintiff] objected, as the video did not
include “Perez harassing him” earlier that morning. A
different hearing officer resumed the hearing on March 2,
2009. After considering all the testimonial and documentary
Page -6-
evidence submitted, the hearing officer found [Plaintiff]
guilty of all infractions and recommended [such] sanctions
[as] fifteen days detention, . . . 365 days loss of
commutation time, 365 days of administrative segregation and
thirty-eight days loss of recreation privileges [etc.]
On
March 5, 2009, [Plaintiff] was transferred to the
administrative segregation unit of East Jersey State prison.
He maintains he was never informed of the March 2 hearing.
[Plaintiff] filed an institutional appeal from the hearing
officer's adverse decision. On March 13, 2009, Assistant
Superintendent J. Drumm upheld the hearing officer's
determination and sanctions.
. . .
[Plaintiff’s] multifaceted argument suggests he was not
provided a written statement of the charges against him, was
not permitted to attend the hearing, and did not request the
counsel substitute who appeared on his behalf at the final
hearing. Further, he suggests his review of the video was
inconclusive as to the charges as it does not show him
dropping his hands or placing them in his pockets, and that
there is no evidence of assault, yet he was found guilty of
assaulting two [Officers] although three submitted reports.
[Plaintiff] asserts he has been a target of harassment and
retaliation by the [Officers] since 2006. We reject
[Plaintiff’s] suggestion that documents obtained following
the hearing, if considered, would have proven he was a
victim of harassment. This issue may not be raised for the
first time on appeal, and otherwise, the claim lacks merit.
. . . Regarding [Plaintiff’s] procedural due process
challenges, we agree these proceedings must afford prisoners
certain procedural due process rights, including written
notice of the charges twenty-four hours before the hearing,
an impartial tribunal, a limited right to call witnesses,
present documentary evidence and to confront and
cross-examine witnesses where necessary for an adequate
presentation of the evidence, and a written statement of the
evidence relied upon and the reasons for the sanctions
imposed. However, contrary to [Plaintiff’s] suggestion,
prison disciplinary proceedings are not part of a criminal
prosecution and thus the full panoply of rights due a
defendant in such a proceeding does not apply. The record
reflects [Plaintiff] received notice of the charges, was
granted counsel substitute and provided a review of the
evidence, including the various reports and the videotape.
In fact, the final report concurs with counsel substitute's
position that the video alone is inconclusive of the assault
charges. Together, [Plaintiff] and his counsel substitute
reviewed the videotape. During the final hearing, counsel
Page -7-
substitute appeared and offered [Plaintiff’s] defense. No
witnesses were called and [Plaintiff] declined to confront
the DOC's witnesses. Contrary to [Plaintiff’s] contention,
his counsel substitute prepared and presented his defense
after consultation and review of all the records considered
by the hearing officer. Finally, the hearing officer
provided a detailed statement of reasons based upon the
evidence reviewed. Following our review of the record, we
conclude the adjudication of the infractions was supported
by substantial credible evidence. We also conclude that the
disciplinary proceedings were conducted in accordance with
all applicable due process requirements. [Plaintiff’s]
argument that he was deprived of his due process rights are
belied by the record, and the DOC's decision was not
arbitrary, capricious, or unreasonable.
Miller v. NJ Dep’t of Corrections, 2010 WL 1929827 (N.J. Super.
Ct. App. Div., May 07, 2010) (citations and quotation marks
omitted).
II.
STANDARD OF REVIEW
In determining the sufficiency of a complaint, the Court
must be mindful to construe the facts stated in the complaint
liberally in favor of the plaintiff.
See Erickson v. Pardus, 551
U.S. 89 (2007); Haines v. Kerner, 404 U.S. 519 (1972); United
States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
Indeed, it is
long established that a court should “accept as true all of the
[factual] allegations in the
complaint and reasonable inferences
that can be drawn therefrom, and view them in the light most
favorable to the plaintiff.”
Morse v. Lower Merion School Dist.,
132 F.3d 902, 906 (3d Cir. 1997).
However, while a court will
accept well-pled allegations as true, it will not accept bald
assertions, unsupported conclusions, unwarranted inferences, or
Page -8-
sweeping legal conclusions cast in the form of factual
allegations.
See id.
Addressing the clarifications as to the litigant's pleading
requirement stated in the United States Supreme Court in Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the Court of Appeals
for the Third Circuit provided the courts in this Circuit with
detailed and careful guidance as to what kind of allegations
qualify as pleadings sufficient to pass muster under the Rule 8
standard.
See Phillips v. County of Allegheny, 515 F.3d 224,
230-34 (3d Cir. 2008).
Specifically, the Court of Appeals
observed as follows:
“While a complaint . . . does not need detailed
factual allegations, a plaintiff's obligation [is] to
provide the 'grounds' of his 'entitle[ment] to relief'
[by stating] more than labels and conclusions, and a
formulaic recitation of the elements of a cause of
action . . . ." Twombly, 127 S. Ct. at 1964-65 . . .
Rule 8 “requires a 'showing,' rather than a blanket
assertion, of entitlement to relief." Id. at 1965
n.3. . . . “[T]he threshold requirement of Rule
8(a)(2) [is] that the 'plain statement [must] possess
enough heft to 'sho[w] that the pleader is entitled to
relief.'" Id. at 1966. [Hence] “factual allegations
must be enough to raise a right to relief above the
speculative level.” Id. at 1965 & n.3. . . . [Indeed,
it is not] sufficient to allege mere elements of a
cause of action; instead “a complaint must allege
facts suggestive of the proscribed conduct." Id.
Id. at 230-34 (original brackets removed).
This pleading standard was further refined by the United
States Supreme Court in Ashcroft v. Iqbal, 129 S. Ct. 1937
(2009), where the Court observed:
Page -9-
[In any civil action, t]he pleading standard . . .
demands more than an unadorned [“]the-defendantunlawfully-harmed-me[”] accusation. [Twombly, 550
U.S.] at 555 . . . . A pleading that offers “labels
and conclusions” or “a formulaic recitation of the
elements of a cause of action will not do.” [Id.] at
555. Nor does a complaint suffice if it tenders
“naked assertion[s]” devoid of “further factual
enhancement." Id. at 557. . . . A claim has facial
plausibility [only] when the plaintiff pleads factual
content . . . . Id. at 556. [Moreover,] the
plausibility standard . . . asks for more than a sheer
possibility that a defendant has acted unlawfully.
Id. [Indeed, even w]here a complaint pleads facts that
are “merely consistent with” a defendant's liability,
[the so-alleging complaint still] “stops short of
[showing] plausibility of 'entitlement to relief.'”
Id. at 557 (brackets omitted). [A fortiori,] the tenet
that a court must accept as true all of the
allegations contained in a complaint is inapplicable
to legal conclusions [or to t]hreadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements [,i.e., by] legal conclusion[s]
couched as a factual allegation [e.g.,] the
plaintiffs' assertion of an unlawful agreement [or]
that [defendants] adopted a policy “'because of,' not
merely 'in spite of,' its adverse effects upon an
identifiable group.” . . . . [W]e do not reject these
bald allegations on the ground that they are
unrealistic or nonsensical. . . . It is the
conclusory nature of [these] allegations, rather than
their extravagantly fanciful nature, that disentitles
them to the presumption of truth. . . . [Finally,] the
question [of sufficiency of] pleadings does not turn .
. . the discovery process. Twombly, 550 U.S.] at 559
. . . . [The plaintiff] is not entitled to discovery
[where the complaint alleges any of the elements]
“generally," [i.e., as] a conclusory allegation
[since] Rule 8 does not [allow] pleading the bare
elements of [the] cause of action [and] affix[ing] the
label “general allegation" [in hope to develop facts
through discovery].
Iqbal, 129 S. Ct. at 1949-54.
III. SECTION 1983 ACTIONS
A plaintiff may have a cause of action under 42 U.S.C. §
Page -10-
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 . . . .
Thus, 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, that 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); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.
1994).
IV.
DISCUSSION
A.
Rooker-Feldman Doctrine
“The Rooker-Feldman doctrine deprives a federal district
court of jurisdiction to review, directly or indirectly, a state
court adjudication.”
Judge v. Canada, 208 Fed. App’x 106, 107
(3d Cir. 2006) (citing D.C. Court of Appeals v. Feldman, 460 U.S.
462 (1983), and Rooker v. Fidelity Trust Co., 263 U.S. 413
(1923)).
This doctrine even precludes federal courts from
evaluating “constitutional claims that are inextricably
intertwined with the state court's decision in a judicial
Page -11-
proceeding.”
FOCUS v. Allegheny County Court of Common Pleas, 75
F.3d 834, 840 (3d Cir. 1996) (internal quotations omitted).
A federal claim is “inextricably intertwined” with a state
court's decision if the “claim succeeds only to the extent that
the state court wrongly decided the issues before it.
In other
words, Rooker-Feldman precludes a federal action if the relief
requested in the federal action would effectively reverse the
state decision or void its ruling.”
Id. (quoting Charchenko v.
City of Stillwater, 47 F.3d 981, 983 (8th Cir. 1995)).
The
Rooker-Feldman doctrine applies when a plaintiff seeks relief
that would require the federal court to determine that the state
court judgment was erroneously entered or must take action that
would render that judgment ineffectual.
See Gulla v. North
Strabane Twp., 146 F.3d 168, 172 (3d Cir. 1998); see also Exxon
Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 291-92
(2005) (explaining that 28 U.S.C. § 1257 has long been
interpreted as vesting authority to review a state court's
judgment solely in the Supreme Court).
B.
Plaintiff’s Claims Subject to Sua Sponte Dismissal
1.
Claims Associated with Disciplinary Proceedings
a.
Due Process Challenges
Here, Plaintiff raises due process challenges to his
disciplinary proceedings.
However, under the Rooker-Feldman
doctrine, this Court is without jurisdiction to address these
Page -12-
challenges in light of the state courts’ adjudication of that
claim on merits.
Correspondingly, the Court is constrained to
dismiss these challenges for lack of jurisdiction.
b.
Claims Based on Loss-of-Recreation Sanction
Moreover, under the Rooker-Feldman doctrine, this Court is
without jurisdiction to address Plaintiff’s challenges based on
temporary loss of recreation privileges, since these challenges,
too, were adjudicated on the merits by the state courts.
Alternatively, to the degree these challenges could be
construed as a broader claim that any
denial of recreation
sanction is per se unconstitutional, Plaintiff’s allegations are
also subject to dismissal, on the grounds of failure to state a
claim upon which relief can be granted.
Plaintiff has a protected right in being incarcerated at a
place of confinement conforming to the standards set forth by the
Eighth Amendment.
The Constitution “does not mandate comfortable
prisons,” Rhodes v. Chapman, 452 U.S. 337, 349 (1981), but
neither does it permit inhumane ones, and it is now settled that
“the treatment a prisoner receives in prison and the conditions
under which he is confined are subject to scrutiny under the
Eighth Amendment.”
Helling v. McKinney, 509 U.S. 25, 31 (1993).
In its prohibition of “cruel and unusual punishments, the Eighth
Amendment . . . imposes duties on prison officials, who must
provide humane conditions of confinement.”
Page -13-
Hudson v. Palmer, 468
U.S. 517, 526-527 (1984); see also Helling, 509 U.S. at 31-32;
Washington v. Harper, 494 U.S. 210, 225 (1990); Estelle v.
Gamble, 429 U.S. 97, 103 (1976).
The Eighth Amendment prohibits
conditions which involve the unnecessary and wanton infliction of
pain or are grossly disproportionate to the severity of the crime
warranting imprisonment.
See Rhodes, 452 U.S. at 346, 347.
The
cruel and unusual punishment standard is not static, but is
measured by “the evolving standards of decency that mark the
progress of a maturing society.”
Id. at 346 (quoting Trop v.
Dulles, 356 U.S. 86, 101 (1958)).
However, claims based on insufficient recreation may survive
sua sponte dismissal only if the inmate asserts facts showing
that denial of recreation was such that it actually caused injury
to the inmate's ability to control his/her muscular functions or
maintain his/her range of physical motions.
See Cary v. Rose,
902 F.2d 37 (7th Cir. 1990) (where detainees alleged that they
were denied adequate exercise and recreation but admitted that
they had room in their cells and in the hallway to run in place
or perform calisthenics, their allegations could not amount to a
constitutional claim because, unless extreme, lack of exercise
could not be equated to a medically-threatening situation); see
also Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996)
(affirming dismissal of detainee's claims because “[l]ack of
exercise may rise to a constitutional violation in extreme and
Page -14-
prolonged situations where movement is denied to the point that
the inmate's health is threatened”); Ellis v. Crowe, 2009 U.S.
Dist. LEXIS 125154, at *36 (E.D. La. Dec. 18, 2009) (detainee's
claim should be dismissed if the facts he alleges do not show
that he was so deprived of recreation for a significant time
period to suffer a physical injury, such as muscle atrophy or
loss of range of motion, as a result of the alleged limitations
on exercise).
Here, Plaintiff’s Complaint asserts no facts suggesting that
Plaintiff suffered a physical injury as a result of loss of
recreational time.
Rather, the Complaint reflects only
Plaintiff’s disappointment with the loss of pleasure he was/is
deriving from recreational activities.
Such pleasure, however,
is not a constitutionally protected right.
Therefore,
Plaintiff’s challenges based on temporary loss of recreational
time is subject to dismissal with prejudice.
c.
Claims Based on Loss-of-Credit Sanction
Federal law provides two avenues of relief to prisoners: a
petition for habeas corpus and a civil rights complaint. See
Muhammad v. Close, 540 U.S. 749, 750 (2004).
“Challenges to the
validity of any confinement or to particulars affecting its
duration are the province of habeas corpus . . . [while] requests
for relief turning on circumstances of confinement [fall within
Page -15-
the realm of] a § 1983 action.”2
Id.
The Court of Appeals for
the Third Circuit explained the distinction between the
availability of civil rights relief and the availability of
habeas relief as follows:
[W]henever the challenge ultimately attacks the "core of
habeas" - the validity of the continued conviction or the
fact or length of the sentence - a challenge, however
denominated and regardless of the relief sought, must be
brought by way of a habeas corpus petition. Conversely, when
the challenge is to a condition of confinement such that a
finding in plaintiff's favor would not alter his sentence or
undo his conviction, an action under § 1983 is appropriate.
Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002).
Therefore, a prisoner could be entitled to a writ of habeas
corpus if he “seek[s] to invalidate the duration of [his]
confinement - either directly through an injunction compelling
speedier release or indirectly through a judicial determination
that necessarily implies the unlawfulness of the [government's]
custody.”
See Wilkinson v. Dotson, 544 U.S. 74, 81 (2005).
In
contrast, if a judgment in the prisoner's favor would not affect
2
In a series of cases beginning with Preiser v. Rodriguez,
411 U.S. 475 (1973), the Supreme Court analyzed the intersection
of civil rights and habeas corpus. In Preiser, state prisoners,
who had lost good-conduct-time credits by the New York State
Department of Correctional Services as a result of disciplinary
proceedings, brought a § 1983 action seeking injunctive relief to
compel restoration of the credits, which would have resulted in
their immediate or speedier release. See id. at 476. The
prisoners did not seek compensatory damages for the loss of their
credits. See id. at 494. Assessing the prisoners' challenge,
the Supreme Court held that a prisoner must bring a suit for
equitable relief that, effectively, challenges “the fact or
duration of confinement” as a habeas corpus petition. See id. at
500.
Page -16-
the fact or duration of the prisoner's incarceration, habeas
relief is unavailable and a civil complaint is the appropriate
form of remedy.
See, e.g., Ganim v. Federal Bureau of Prisons,
235 Fed. App’x 882 (3rd Cir. 2007) (holding that district court
lacks habeas jurisdiction to entertain prisoner's challenge to
his transfer between federal prisons); Bronson v. Demming, 56
Fed. App’x 551, 553-54 (3rd Cir. 2002) (habeas relief is
unavailable to inmate seeking release from disciplinary
segregation to general population).
Here, the closing lines in the Complaint indicate that
Plaintiff might be interested in seeking restoration of his lost
good-conduct credit.
Construed as a habeas claim, these
challenges are not barred by the Rooker-Feldman doctrine: “[t]he
writ of habeas corpus is a major exception to the doctrine of res
judicata, as it allows relitigation of a final state-court
judgment disposing of precisely the same claim.”
Lehman v.
Lycoming County Children's Services Agency, 458 U.S. 502, 512
(1982).
However, so construed, these challenges are subject to
dismissal in this action for lack of jurisdiction; such dismissal
will be without prejudice to Plaintiff raising these claims in a
habeas matter.3
3
No statement made in this Opinion or in the Order filed
herewith shall be construed as expressing this Court’s position
as to substantive or procedural validity or invalidity of such
Plaintiff’s habeas action, if such action is commenced.
Page -17-
2.
Claims Based on Housing Arrangements
In addition to his claims associated with disciplinary
proceedings, Plaintiff also asserts challenges based on his
transfer from the New Jersey State Prison to the East Jersey
State Prison, and also based on him being housed in a segregated
unit rather than within the prison’s general population.
Plaintiff, however, has no due process right in choosing the
geographical locale or even the unit of his confinement.
See,
e.g., Olim v. Wakinekona, 461 U.S. 238, 245-46 (1983) (inmates
have no due process right to choose their specific place of
confinement); Meachum v. Fano, 427 U.S. 215, 224-25 (1976)
(same); Acevedo v. CFG Health Sys. Staff, 2010 U.S. Dist. LEXIS
120136, at *22 (D.N.J. Nov. 12, 2010) (“Plaintiff has no due
process right in being housed at the unit . . . of his choice”)’
see also Sandin v. Conner, 515 U.S. 472 (1995) (placing an inmate
in a solitary confinement does not, generally, constitute a
significant, gross departure from the normal prison environment).
Thus, this line of Plaintiff’s challenges is facially without
merit and will be dismissed with prejudice for failure to state a
claim upon which relief can be granted.
3.
Claims Based on Lack of Response to Grievance
Plaintiff also asserts challenges based on the warden’s lack
of response to Plaintiff’s grievance and on the lack of responses
to the letters Plaintiff’s sister sent to the Department of
Page -18-
Corrections officials.
However, the Fourteenth Amendment does not guarantee inmates
a right to an investigation or a response from prison officials
as to administrative grievances (or to any replies by prison
officials to inmates' other complaints or demands of a grievance
nature).
Pa. 1997),
See, e.g., Wilson v. Horn, 971 F. Supp. 943, 947 (E.D.
aff'd, 142 F.3d 430 (3d Cir. 1998); McGuire v. Forr,
1996 U.S. Dist. LEXIS 3418 at *2, n.1 (E.D. Pa. Mar. 21, 1996),
aff'd, 101 F.3d 691 (3d Cir. 1996); see also Adams v. Rice, 40
F.3d 72, 75 (4th Cir. 1994), cert. denied, 514 U.S. 1022 (1995);
Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991); Mann v. Adams,
855 F.2d 639, 640 (9th Cir. 1988); Brown v. G. P. Dodson, 863 F.
Supp. 284, 285 (W.D. Va. 1994).
Furthermore, if construed as a
First Amendment allegation -- rather than a Fourteenth Amendment
one -- an assertion that an official failed to respond to an
inmate's grievance fails to state a cognizable claim.
See
Minnesota State Bd. for Community Colleges v. Knight, 465 U.S.
271, 285 (1984). “Nothing in the First Amendment or in . . . case
law interpreting it suggests that the rights to speak, associate,
and petition require government policymakers to listen or respond
to individuals communications.”
Id.; see also Foraker v.
Chaffinch, 501 F.3d 231, 237 (3d Cir. 2007) (pointing out that
the courts “have never held . . . that a report of a . . .
misconduct . . . constitutes 'petitioning activity'” and citing
Page -19-
Hill v. Borough of Kutztown, 455 F.3d 225, 230-32 (3d Cir.
2006)); Bieregu v. Reno, 59 F.3d 1445, 1453 n.3 (3d Cir. 1995)
(noting that, “at the founding, the Petition Clause also implied
a congressional duty to respond . . . . In the Civil War era,
however, Congress enacted rules abolishing the duty to respond, a
change later sanctioned by the Supreme Court,” and citing, inter
alia, Smith v. Arkansas State Highway Employees, 441 U.S. 463,
465 (1979) (per curiam) (constitution does not require government
“to listen or to respond” to citizen petition), and Minnesota
State Bd.).
Plaintiff’s allegations that the Department of Corrections
officials failed to respond to Plaintiff’s sister are, too,
subject to dismissal: on the aforesaid First Amendment grounds
or, alternatively, in light of Plaintiff’s lack of standing to
raise these challenges on behalf of his sister.
See Whitmore v.
Arkansas, 495 U.S. 149, 154-64 (1990) (detailing the test for jus
tertii representation, one element of which is the injured
party’s lack of capacity to bring his/her own challenges).
Therefore, Plaintiff’s challenges based on lack of responses
from prison/Department of Corrections officials will be dismissed
with prejudice.
4.
Claims Associated with Plaintiff’s Grievance
Two of Plaintiff’s claims are indirectly associated with
Plaintiff’s filing his grievance.
One of this claims asserts
Page -20-
that the warden is liable to Plaintiff because she failed to
prevent the altercation between Plaintiff and the Officers on
February 24, 2009.
Another claim asserts that the February 24,
2009 incident was a result of the Officer’s retaliation for
Plaintiff’s filing of the grievance.
None of these claims,
however, can survives sua sponte review.
a.
Failure-to-Protect Claim
Prison officials have a duty to protect prisoners from
violence at the hands of others.
825, 833 (1994).
See Farmer v. Brennan, 511 U.S.
Prison officials and employees may be liable
for failure to protect an inmate from the use of excessive force
if they are deliberately indifferent to a substantial risk of
serious harm to the inmate. See id. at 834.
To plead an Eighth
Amendment failure to protect claim a plaintiff must plead facts
raising a plausible inference of: (1) a substantial risk of
serious harm; (2) the defendants' deliberate indifference to that
particular risk of harm; and (3) causation.
See Hamilton v.
Leavy, 117 F.3d 742, 747 (3d Cir. 1997); see also Beers-Capitol,
256 F.3d at 134 (citing Sample v. Diecks, 885 F.2d 1099, 1118 (3d
Cir. 1989), for the proposition that “to make out a claim of
deliberate indifference based on direct liability (i.e., insofar
as the defendants are alleged to have known of and ignored the
particular risk that [was] posed, the plaintiffs must meet the
test from Farmer v. Brennan: They must show that the defendants
Page -21-
knew or were aware of and disregarded an excessive risk to the
plaintiffs' health or safety, and they can show this by
establishing that the risk was obvious”).
Here, Plaintiff indicates that: (a) for many years prior to
the February 2009 events, prison officers were systemically
harassing him by non-violent actions, such as causing Plaintiff’s
mail to be detoured to Newark and/or by damaging Plaintiff’s
property; and (b) during these years, Plaintiff once wrote a
grievance about that form of harassment to the warden.
In light
of these allegations, the Court has no basis to conclude that the
content of Plaintiff’s alleged grievance could apprise the warden
about the danger of Plaintiff having a physical altercation with
the Officers on February 24, 2009.
Therefore, the warden could
not have been deliberately indifferent to the risk of such
altercation, and Plaintiff’s failure-to-protect challenges have
to be dismissed for failure to state a claim for which relief can
be granted.
b.
Retaliation Claim
Plaintiff’s retaliation claim is also subject to dismissal.
To prevail on a retaliation claim, a plaintiff must
demonstrate that: (1) he engaged in constitutionally-protected
activity; (2) he suffered, at the hands of a state actor, adverse
action “sufficient to deter a person of ordinary firmness from
exercising his [constitutional] rights;” and (3) the protected
Page -22-
activity was a substantial or motivating factor in the state
actor's decision to take adverse action.
See Rauser v. Horn, 241
F.3d 330 (3d Cir. 2001); Anderson v. Davila, 125 F.3d 148, 160
(3d Cir. 1997) (citing Mt. Healthy City Sch. Dist. Bd. of Educ.
v. Doyle, 429 U.S. 274 (1977)).
Here, Plaintiff conflates two qualitatively different
activities.
One such activity is Plaintiff’s personal
involvement with a certain woman; that activity seemingly ended
long before the February 24, 2009, events, i.e., when the prison
officers began harassing Plaintiff in retaliation for Plaintiff’s
decision to cease contacts with this woman.
However, befriending
or being romantically involved with someone, or breaking up such
a relationship is not a constitutionally protected activity upon
which a retaliation claim could be based.
Alternatively, Plaintiff asserts that the February 24, 2009,
altercation was a result of the Officers’ retaliation against
Plaintiff for filing, long ago, a grievance which the warden.
However, if Plaintiff is asserting that his personal romantic
affairs resulted in a steady animosity between him and the
Officers, and that animosity long preceded Plaintiff’s filing of
his grievance and sustained unchanged long after such filing,
Plaintiff cannot establish causation between the incident that
took place in the afternoon of February 24, 2009, and his
protected activity in the form of filing a grievance long before
Page -23-
the altercation.
Therefore, Plaintiff’s retaliation challenges
will be dismissed for failure to state a claim upon which relief
can be granted.
5.
Other Time-Barred Claims
In addition to the above-discussed challenges, Plaintiff’s
Complaint also lists numerous other claims based on such events
as the Officers’ unsuccessful efforts to recruit other inmates to
assault Plaintiff, the Officer’s expropriation or destruction of
Plaintiff’s personal property, etc.
However, these challenges
are without merit4 and, in addition, they are time-barred.
4
Claims based on a hypothetical injury from other inmates
that could but did not happened are not actionable, see, e.g.,
Dawson v. Frias, 2010 U.S. Dist. LEXIS 30513 at *8 (D.N.J. Mar.
30, 2010) (“speculation as to what might or might not happen in
the future” cannot serve as a basis for a valid claim) (citing
Rouse v. Pauliilo, 2006 U.S. Dist. LEXIS 17225 (D.N.J. Apr. 5,
2006) (dismissing speculative claim and citing Kirby v.
Siegelman, 195 F.3d 1285 (11th Cir. 1999)); Pilkey v. Lappin,
2006 U.S. Dist. LEXIS 44418, at *45 (D.N.J. June 26, 2006)
(“Plaintiff's [anxiety paraphrased as his claim of] fail[s] to
state a claim upon which relief may be granted”); Patterson v.
Lilley, 2003 U.S. Dist. LEXIS 11097 (S.D.N.Y. June 20, 2003)
(defendants could only be found indifferent to an existing
condition, not to a speculative future injury)), just as any
claim based on alleged injuries to the inmate’s personal property
is bared by the New Jersey Tort Claim Act. The New Jersey Tort
Claims Act (“NJTCA”), N.J. Stat. Ann. § 59:1-1 et seq., provides
all the process that is due, since it provides an adequate
post-deprivation judicial remedy to persons, including inmates
such as Plaintiff, who believe they were wrongfully deprived of
property at the hands of prison officials. See Holman v. Hilton,
712 F.2d 854, 857 (3d Cir. 1983); Asquith v. Volunteers of
America, 1 F. Supp.2d 405, 419 (D.N.J. 1998), aff'd 186 F.3d 407
(3d Cir. 1999). Because the NJTCA is an available remedy
providing all the process which is due, Plaintiff's due process
claim regarding confiscation of –- or injuries to –- his property
is subject to dismissal with prejudice. See id.
Page -24-
For purposes of the statute of limitations, Section 1983
claims are characterized as personal injury actions.
v. Garcia, 471 U.S. 261, 275 (1983).
See Wilson
Accordingly, New Jersey's
two-year limitations period on personal injury actions, N.J.
Stat. Ann. § 2A:14-2, governs Plaintiff's claims.
See Montgomery
v. DeSimone, 159 F.3d 120, 126 & n.4 (3d Cir. 1998); Cito v.
Bridgewater Township Police Dept., 892 F.2d 23, 25 (3d Cir.
1989). Under N.J. Stat. Ann. § 2A:14-2, an action for an injury
to the person caused by a wrongful act, neglect, or default must
be commenced within two years of accrual of the cause of action.
See Cito, 892 F.2d at 25; accord Brown v. Foley, 810 F.2d 55, 56
(3d Cir. 1987).
“[A] federal cause of action accrues when the plaintiff
discovers, or with due diligence should have discovered, the
injury that forms the basis for the claim.”
Disabled in Action
of Pennsylvania v. Southeastern Pennsylvania Transp. Authority,
539 F.3d 199, 209 (3d Cir. 2008).
Here, Plaintiff’s altercation with the Officers occurred on
February 24, 2009, while the alleged harassment activities took
place many months or even years prior.
Moreover, Plaintiff’s
Complaint was received on February 15, 2011, and –- being signed
on February 9, 2011 -- could not have been handed to Plaintiff’s
prison officials for mailing to the Court prior to that February
9, 2011, date.
In other words, Plaintiff’s Complaint was
Page -25-
submitted within two weeks of Plaintiff’s period of limitation
running out for the purposes of challenging the events of
February 24, 2009.
That, in turn, means that all Plaintiff’s
claims based on the events that took place prior to February 9,
2009, are time-barred.
Granted Plaintiff’s extensive
administrative challenges and challenges in the state courts
during the years 2009 and 2010, Plaintiff’s claims based on the
events that took place before February 9, 2009, cannot be subject
to equitable tolling.5
Therefore, all Plaintiff’s claims based
5
When the statute of limitations defense is obvious from
the face of the complaint and no development of the factual
record is required to determine whether dismissal is appropriate,
sua sponte dismissal under 28 U.S.C. § 1915 is permissible. See
Smith v. Delaware Cnty. Court, 260 Fed. App'x 454, 455 (3d Cir.
Jan. 10, 2008). “Equitable tolling functions to stop the statute
of limitations from running where the claim's accrual date has
already passed.” Oshiver v. Levin, 38 F.3d 1380, 1387 (3d Cir.
1994). “Generally, a litigant seeking equitable tolling bears
the burden of establishing two elements: (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S.
408, 125 S. Ct. 1807, 1814, 161 L. Ed. 2d 669 (2005). The Third
Circuit instructs that equitable tolling is appropriate when “a
[plaintiff] faces extraordinary circumstances that prevent him
from filing a timely [complaint] and the [plaintiff] has
exercised reasonable diligence in attempting to investigate and
bring his claims.” LaCava v. Kyler, 398 F.3d 271, 275-276 (3d
Cir. 2005). Mere excusable neglect is not sufficient. See id.;
Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir. 2003); Jones v.
Morton, 195 F.3d 153, 159 (3d Cir. 1999). Extraordinary
circumstances have been found where: (1) the defendant has
actively misled the plaintiff; (2) the plaintiff has in some
extraordinary way been prevented from asserting his rights; (3)
the plaintiff has timely asserted his rights mistakenly in the
wrong forum, or (4) the court has misled a party regarding the
steps that the party needs to take to preserve a claim. See id.;
see also Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005).
Here, Plaintiff's extensive administrative challenges and state
Page -26-
on the alleged harassment actions by correctional officers are
subject to dismissal, as untimely.
6.
Excessive Force Claim
There is, however, one claim in the Complaint that is
neither time-barred nor facially meritless, nor subject to the
bar posed by the Rooker-Feldman doctrine.
That claim is composed
of Plaintiff’s allegations that, during his February 24, 2009,
altercation with the Officers, Plaintiff was subjected to
excessive force.
The landmark Supreme Court case in the Eighth Amendment
excessive force area is Hudson v. McMillian, 503 U.S. 1 (1992).
The Hudson Court held that “whenever prison officials stand
accused of using excessive physical force in violation of the
Cruel and Unusual Punishments Clause, the core judicial inquiry
is that set out in Whitley [475 U.S. 312 (1986)]: whether force
was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.”
at 6-7.
Id.
In doing so, the Court jettisoned the traditional
objective prong inquiry for establishing an Eighth Amendment
claim.
See id. at 22-23 (“In the context of claims alleging the
excessive use of physical force, the Court then asserts, the
serious deprivation requirement is satisfied by no serious
actions indicate that Plaintiff experienced no extraordinary
circumstances warranting a consideration of equitable tolling.
Page -27-
deprivation at all.
When prison officials maliciously and
sadistically use force to cause harm, contemporary standards of
decency always are violated.
. . .
Ascertaining prison
officials' state of mind, in other words, is the only relevant
inquiry in deciding whether such cases involve cruel and unusual
punishment. . . .
The sum and substance of an Eighth Amendment
violation, the Court asserts, is the unnecessary and wanton
infliction of pain.
This formulation has the advantage, from the
Court's perspective, of eliminating the objective component”)
(citations and quotation marks omitted); Brooks v. Kyler, 204
F.3d 102, 108 (3d Cir. 2000) (“In Hudson, the Court distinguished
between prisoner conditions-of-confinement . . . claims, on the
one hand, and wanton use of unnecessary force claims on the
other.
Although the former kind of claim cannot survive without
evidence that a deprivation was 'harmful enough' . . ., the
latter kind of claim has no such requirement”).
Consequently, under the Eighth Amendment, the Court must
examine, subjectively, “whether force was applied in a good faith
effort to maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm.”6
Whitley v.
6
It shall be noted that the de minimis use of force, which is
itself not repugnant to human decency, cannot state an Eighth
Amendment claim of excessive force. See, e.g., Hudson, 503 U.S. at
9-10 (“The Eighth Amendment's prohibition of cruel and unusual'
punishments necessarily excludes from constitutional recognition de
minimis uses of physical force, provided that the use of force is
not of a sort ‘repugnant to the conscience of mankind’”) (internal
Page -28-
Albers, 475 U.S. 312, 320-21, 106 S. Ct. 1078 (1986) (citation
omitted).
Here, taking Plaintiff’s allegations as true, this
Court finds that Plaintiff’s Eighth Amendment claim appears
plausible, within the meaning of Iqbal, and should not be
dismissed at the sua sponte screening stage.
V.
CONCLUSION
For the foregoing reasons, the Court will grant Plaintiff's
application to file the Complaint without prepayment of the
filing fee.
The Court will proceed Plaintiff’s Eighth Amendment
excessive force challenges against Officers Fry, Nagy, Perez,
citation and quotation marks omitted). This is not to say that a
fact-finder at trial will disregard the extent of the injuries
suffered by a plaintiff. As the Supreme Court observed in Hudson:
Under the Whitley approach, the extent of injury suffered by
an inmate is one factor that may suggest “whether the use of
force could plausibly have been thought necessary” in a
particular situation, “or instead evinced such wantonness with
respect to the unjustified infliction of harm as is tantamount
to a knowing willingness that it occur.” 475 U.S. 312, 321.
In determining whether the use of force was wanton and
unnecessary, it may also be proper to evaluate the need for
application of force, the relationship between that need and
the amount of force used, the threat “reasonably perceived by
the responsible officials,” and “any efforts made to temper
the severity of a forceful response.” Id.
The absence of
serious injury is therefore relevant to the Eighth Amendment
inquiry, but does not end it.
Hudson, 503 U.S. at 7.
The Court finds that at this juncture it is premature to
determine whether Plaintiff’s injuries – a swollen forehead and a
swollen eye – were such to indicate, as a matter of law, that the
use of force was, in fact, de minimis.
Page -29-
Tyson and Wojciechowski past the sua sponte dismissal stage.
Plaintiff’s habeas challenges will be dismissed without
prejudice to initiation of an appropriate habeas action.
The remainder of Plaintiff’s challenges will be dismissed
with prejudice.
An appropriate Order accompanies this Opinion.
s/Freda L. Wolfson
FREDA L. WOLFSON,
United States District Judge
Dated: April 28, 2011
Page -30-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?