BRANDT v. ROSSI et al
Filing
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OPINION filed. Signed by Judge Freda L. Wolfson on 2/2/2012. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOHN BRANDT,
Plaintiff,
v.
LAWRENCE ROSSI, et al.,
Defendants.
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Civil Action No. 11-2627 (FLW)
OPINION
APPEARANCES:
Plaintiff pro se
John Brandt
Anne Klein Forensic Center
West Trenton, NJ 08628
WOLFSON, District Judge
Plaintiff John Brandt, a civilly-committed mental patient
confined at Anne Klein Forensic Center in West 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, this Court will
grant Plaintiff’s application to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915(a) and order the Clerk of the Court
to file the Complaint.
At this time, the Court must review the Amended 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.
I.
BACKGROUND
The following factual allegations are taken from Plaintiff’s
Complaint, or from sources of which this Court may take judicial
notice,1 and are accepted as true for purposes of this review.
In 2001, Plaintiff was charged, in two indictments, with
burglary, criminal mischief, and criminal trespass.
He was
subsequently diagnosed with bipolar disorder, manic type with
psychotic features, and with an antisocial personality disorder.
In 2003, the trial judge found him competent to stand trial on
both indictments and not guilty by reason of insanity.
Thereafter, he was involuntarily committed and placed on Krol2
status.
He remains committed and on Krol status as the result of
1
This Court will take judicial notice of the dockets of
this and other courts in cases related to this Amended Complaint.
See Fed.R.Evid. 201; Southern Cross Overseas Agencies, Inc. v.
Wah Kwong Shipping Group Ltd., 181 F.3d 410, 426-27 (3d Cir.
1999) (federal court, on a motion to dismiss, may take judicial
notice of another court’s opinion, not for the truth of the facts
recited therein, but for the existence of the opinion, which is
not subject to reasonable dispute over its authenticity).
2
See State v. Krol, 68 N.J. 236, 344 A.2d 289 (1975)
(detailing periodic review procedures for persons found not
guilty by reason of insanity and committed for mental health
treatment); N.J.S.A. 2C:4-8(b)(3) (“If the court finds that the
defendant cannot be released with or without supervision or
conditions without posing a danger to the community or to
himself, it shall commit the defendant to a mental health
facility approved for this purpose by the Commissioner of Human
Services to be treated as a person civilly committed.”).
2
the required periodic reviews.
See generally Brandt v. McQuaide,
2010 WL 5343233 (D.N.J. Dec. 20, 2010) and In the Matter of the
Commitment of J.B., 2009 WL 1658494 (N.J.Super.App.Div. June 16,
2009).
Before this Court, Plaintiff alleges that he was transferred
to Trenton Psychiatric Hospital on November 30, 2010, and was
placed on the Raycroft-E2 unit, under the supervision of
Defendant Program Coordinator Jacqueline Porter Stewart.
Plaintiff alleges that Defendant Stewart did not want Plaintiff
on her unit, because of his prior civil rights litigation.
Plaintiff alleges that, on December 22, 2010, Defendant
Maria Bella Sanchez, a housekeeper, told two other patients,
Wiley Smith and Mack Tyler, that Plaintiff had “snitched” on her
about selling narcotics to them.
Plaintiff alleges that
Defendant Sanchez told Smith and Tyler that she wanted something
done to Plaintiff and to have him moved off the unit.
Plaintiff
alleges that a third patient, James Edwards, told him about this
conversation at approximately 11:00 a.m. on December 22nd, after
which Plaintiff informed Defendant Sanchez that he had not
“snitched” on her and that she should stop trying to get Smith
and Tyler to attack him.
Thereafter, Tyler and Smith directly
threatened Plaintiff.
Plaintiff alleges that he immediately told Defendant Stewart
that Tyler and Smith were planning to attack him because of the
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false allegations made by Defendant Sanchez.
Plaintiff alleges
that this conversation was witnessed by the Treatment Team social
worker Nadine Klass.
Plaintiff alleges that Defendant Stewart
notified administrative officials3 of the threats by e-mail, but
took no other measures to protect Plaintiff.
Plaintiff describes
that the two threatening patients, Smith and Tyler, had a long
history of violence and assaults on other patients.
Plaintiff alleges that at 7:00 p.m. the same day, the two
threatening patients, Smith and Tyler, told the duty nurse
Defendant Ms. Sucharitha Ready that they were going to attack
Plaintiff if he was not taken off the unit.
Ms. Ready informed
the nursing supervisors Defendants Pierre Nigil and Kephe Carter,
and the on-call psychiatrist Defendant Dr. Waverly Andrews of the
threats.
Plaintiff alleges that these four Defendants failed to
take any action to protect Plaintiff.
Plaintiff alleges that at 8:00 p.m. that same evening, the
patients Tyler and Smith entered his room.
Plaintiff alleges
that another patient restrained Smith, but that Tyler attacked
Plaintiff, injuring him and breaking his finger.
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Specifically, Plaintiff alleges that Defendant Stewart emailed Defendants Medical Director Lawrence Rossi, Chief
Psychiatrist Evan Feibusch, Chief Executive Officer Teresa
McQuaide, Building Administrator Lee Acuff, Building
Administrator Maria Champagne, and Nursing Supervisor Dawn
Amentie, but that they failed to take any action, or took
inadequate action, to protect him.
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Plaintiff asserts that he has been treated differently from
other patients because of his litigation history.
Plaintiff
seeks compensatory damages as well as declaratory and injunctive
relief.
II.
STANDARDS FOR A SUA SPONTE DISMISSAL
This Court must dismiss, at the earliest practicable time,
certain in forma pauperis actions that are frivolous, malicious,
fail to state a claim, or seek monetary relief from a defendant
who is immune from such relief.
See 28 U.S.C. § 1915(e)(2).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United
States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
The Court must
“accept as true all of the allegations in the complaint and all
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).
In addition, any complaint must comply with the pleading
requirements of the Federal Rules of Civil Procedure.
Rule 8(a)(2) requires that a complaint contain “a short and
plain statement of the claim showing that the pleader is entitled
to relief.”
A complaint must plead facts sufficient at least to
“suggest” a basis for liability.
218, 236 n.12 (3d Cir. 2004).
Spruill v. Gillis, 372 F.3d
“Specific facts are not necessary;
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the statement need only ‘give the defendant fair notice of what
the ... claim is and the grounds upon which it rests.’” Erickson
v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).
While a complaint ... does not need detailed factual
allegations, a plaintiff’s obligation to provide the
“grounds” of his “entitle[ment] to relief” requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will
not do ... . Factual allegations must be enough to
raise a right to relief above the speculative level
... .
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations omitted).
The Court of Appeals for the Third Circuit has held that the
Twombly pleading standard applies in § 1983 civil rights actions.
See Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir.
2008).
Context matters in notice pleading. Fair notice under
Rule 8(a)(2) depends on the type of case -- some
complaints will require at least some factual
allegations to make out a “showing that the pleader is
entitled to relief, in order to give the defendant fair
notice of what the ... claim is and the grounds upon
which it rests.” Indeed, taking Twombly and the
Court’s contemporaneous opinion in Erickson v. Pardus,
127 S.Ct. 2197 (2007), together, we understand the
Court to instruct that a situation may arise where, at
some point, the factual detail in a complaint is so
undeveloped that it does not provide a defendant the
type of notice of claim which is contemplated by
Rule 8. Put another way, in light of Twombly, Rule
8(a)(2) requires a “showing” rather than a blanket
assertion of an entitlement to relief. We caution that
without some factual allegation in the complaint, a
claimant cannot satisfy the requirement that he or she
provide not only “fair notice,” but also the “grounds”
on which the claim rests.
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Phillips, 515 F.3d at 232 (citations omitted).
More recently, the Supreme Court has emphasized that, when
assessing the sufficiency of any civil complaint, a court must
distinguish factual contentions -- which allege behavior on the
part of the defendant that, if true, would satisfy one or more
elements of the claim asserted -- and “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
Although the Court must assume the veracity of the facts asserted
in the complaint, it is “not bound to accept as true a legal
conclusion couched as a factual allegation.”
Id. at 1950.
Thus,
“a court considering a motion to dismiss can choose to begin by
identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.”
Therefore, after Iqbal, when presented with a
motion to dismiss for failure to state a claim,
district courts should conduct a two-part analysis.
First, the factual and legal elements of a claim should
be separated. The District Court must accept all of
the complaint's well-pleaded facts as true, but may
disregard any legal conclusions. Second, a District
Court must then determine whether the facts alleged in
the complaint are sufficient to show that the plaintiff
has a “plausible claim for relief.” In other words, a
complaint must do more than allege the plaintiff's
entitlement to relief. A complaint has to “show” such
an entitlement with its facts. See Phillips, 515 F.3d
at 234-35. As the Supreme Court instructed in Iqbal,
“[w]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct,
the complaint has alleged-but it has not
‘show[n]’-‘that the pleader is entitled to relief.’”
This “plausibility” determination will be “a
Id.
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context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009)
(citations omitted).
Where a complaint can be remedied by an amendment, a
district court may not dismiss the complaint with prejudice, but
must permit the amendment.
Denton v. Hernandez, 504 U.S. 25, 34
(1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d
Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane
v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal
pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg
County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).
III.
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 ... .
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
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under color of state law.
West v. Atkins, 487 U.S. 42, 48
(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.
1994).
IV.
A.
ANALYSIS
The Failure-to-Protect Claim
Plaintiff alleges that all defendants violated his
Fourteenth Amendment right not to be deprived of liberty without
due process when they acted with willful disregard for his
safety.
"Due process requires that the nature of commitment bear
some reasonable relation to the purpose for which the individual
is committed." Foucha v. Louisiana, 504 U.S. 71, 79 (1992)
(citing Jones v. United States, 463 U.S. 354, 368 (1983); Jackson
v. Indiana, 406 U.S. 715, 738 (1972)).
See also Youngberg v.
Romeo, 457 U.S. 307, 324 (1982) and Jackson v. Indiana, 406 U.S.
715, 738 (1972)).
In Youngberg v. Romeo, 457 U.S. 307 (1982) the Supreme Court
evaluated the substantive Fourteenth Amendment liberty interests
retained by civilly-committed mental patients.
The Court held
that involuntarily-committed mentally retarded persons retain
substantive liberty interests in adequate food, shelter,
clothing, and medical care, Youngberg, 457 U.S. at 315, as well
as in safety, freedom of movement, minimally adequate or
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reasonable training to ensure safety, and freedom from undue
restraint, id. at 317-19.
These interests, however, are not absolute.
U.S. at 319-20.
Youngberg, 457
"In determining whether a substantive right
protected by the Due Process Clause has been violated, it is
necessary to balance "the liberty of the individual" and "the
demands of an organized society."
Id. at 320 (quoting Poe v.
Ullman, 367 U.S. 497, 542 (1961)(Harlan, J., dissenting)).
In
seeking this balance, a court must weigh "the individual’s
interest in liberty against the State’s asserted reasons for
restraining individual liberty."
Id.
In Youngberg, balancing
the interests of the State against the rights of involuntarily
committed mentally retarded persons to reasonable conditions of
safety and freedom from unreasonable restraints, the Court
adopted the standard advocated by a concurring judge, below, that
"the Constitution only requires that the courts make certain that
professional judgment in fact was exercised.
It is not
appropriate for the courts to specify which of several
professionally acceptable choices should have been made."
487
U.S. at 321 (quoting 644 F.2d 147, 178 (3d Cir. 1980) (Seitz,
C.J., concurring)).
Thus, even when treatment decisions violate
a protected liberty interest, such decisions made by a qualified
professional are presumptively valid;
liability may be imposed only when the decision by the
professional is such a substantial departure from
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accepted professional judgment, practice, or standards
as to demonstrate that the person responsible actually
did not base the decision on such a judgment. In an
action for damages against a professional in his
individual capacity, however, the professional will not
be liable if he was unable to satisfy his normal
professional standards because of budgetary
constraints; in such a situation, good-faith immunity
would bar liability.
457 U.S. at 323 (footnote omitted).
a.
The Claim Against Maria Bella Sanchez
The due process claim against housekeeper Maria Bella
Sanchez is based upon her allegedly false statement to patients
Smith and Tyler, that Plaintiff had “snitched” on her, and her
request that they do “something” to Plaintiff.
The Court of Appeals for the Third Circuit has held that,
even after Youngberg, nonprofessional employees who provide care
for involuntarily institutionalized mentally retarded persons are
subject only to a "deliberate indifference" standard.
Stackhouse, 920 F.2d 1135, 1147 (3d Cir. 1990).
Shaw v.
“The deliberate
indifference standard requires a showing, in cases alleging that
a state actor failed to provide adequate protection, that the
state actor was recklessly indifferent, grossly negligent, or
deliberately or intentionally indifferent.”
Id. at 1145
(citations omitted).
The allegations of the Amended Complaint are sufficient to
permit this claim to proceed.
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b.
The Claim Against All Other Defendants
The claim against all other defendants, all of whom are
described as mental health professionals, is based upon their
failure to take any action to protect Plaintiff against threats
made by other patients with a history of violent behavior.
Plaintiff alleges that this failure to act was a violation of the
institution’s own policies.
The allegation of complete failure to protect Plaintiff in
the face of credible threats of violence is sufficient to state a
claim.
B.
The Retaliation Claim
Plaintiff alleges that Defendant Jacqueline Porter Stewart
retaliated against him, because of his litigation history, by
failing to protect him and by failing to take any remedial
actions against the patients who assaulted him.
“Retaliation for the exercise of constitutionally protected
rights is itself a violation of rights secured by the
Constitution ... .”
Cir. 1990).
White v. Napoleon, 897 F.2d 103, 111-12 (3d
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
activity was a substantial or motivating factor in the state
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actor’s decision to take adverse action.
Rauser v. Horn, 2001 WL
185120 (3d Cir. 2001) (quoting Allah, 229 F.3d at 225).
See also
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)); Thaddeus-X v. Blatter, 175 F.3d 378, 386-99 (6th Cir.
1999), cited with approval in Allah, 229 F.3d at 225.
All citizens have a right under the First Amendment to
petition the courts for redress of grievances; retaliation for
exercise of that right is an actionable constitutional tort.
See, e.g., Peterkin v. Jeffes, 855 F.2d 1021, 1036 (3d Cir.
1988); Goldhaber v. Higgins, 576 F.Supp.2d 694 (W.D.Pa. 2007).
Thus, Plaintiff has adequately alleged that he engaged in a
protected activity.
In addition, the Amended Complaint adequately alleges that
Plaintiff’s litigation history was a motivating factor in
Defendant Stewart’s behavior toward him.
However, with respect
to the element of a retaliation claim that the plaintiff must
have suffered adverse action sufficient to deter a person of
ordinary firmness from exercising his rights, the Amended
Complaint states a claim only with respect to Defendant Stewart’s
actions in exposing Plaintiff to the risk of assault.
To the
extent Plaintiff rests his retaliation claim on Defendant
Stewart’s failure to take action against Smith and Tyler after
the assault, it cannot be said that such behavior would be
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sufficient to deter a person of ordinary firmness from exercising
his rights.
Accordingly, this claim may proceed only on the
theory that Defendant Stewart retaliated against Plaintiff by
knowingly exposing him to the risk of assault.
C.
The Equal Protection Claim
Finally, Plaintiff alleges that Defendant Stewart violated
his Fourteenth Amendment right to equal protection by treating
him differently from other similarly situated patients because of
his litigation history.
The Fourteenth Amendment’s Equal Protection Clause provides
that no State shall “deny to any person within its jurisdiction
the equal protection of the laws.”
U.S. Const. Amend. XIV, § 1.
It is well settled that the Equal Protection Clause
“protect[s] persons, not groups,” Adarand Constructors, Inc. v.
Pena, 515 U.S. 200 (1995) (emphasis omitted), and that the
Clause’s protections apply to administrative as well as
legislative acts, see, e.g., Raymond v. Chicago Union Traction
Co., 207 U.S. 20, 35-36 (1907).
Thus, in Village of Willowbrook
v. Olech, 528 U.S. 562, 564 (2000), the Supreme Court recognized
that an equal protection claim can in some circumstances be
sustained, even if the plaintiff has not alleged class-based
discrimination, but instead has alleged that he has been
irrationally singled out as a “class of one.”
To proceed on such
a claim, the plaintiff must allege that he has been
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“intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in
treatment.”
Id.
“[A]t the very least, to state a claim under
that theory, a plaintiff must allege that (1) the defendant
treated him differently from others similarly situated, (2) the
defendant did so intentionally, and (3) there was no rational
basis for the difference in treatment.”
Hill v. Borough of
Kutztown, 455 F.3d 225 (3d Cir. 2006).
However, the Court of Appeals for the Third Circuit has held
that “‘[a] pure or generic retaliation claim [] simply does not
implicate the Equal Protection Clause.’”
Thomas v. Independence
Twp., 463 F.3d 285, 298 n.6 (3d Cir. 2006) (citations omitted).
Plaintiff’s claim here is a pure, generic retaliation claim, and
thus fails to state a claim for violation of the Equal Protection
Clause.
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V.
CONCLUSION
For the reasons set forth above, the Amended Complaint may
proceed in part.
The failure to protect claims under the
Fourteenth Amendment may proceed against all defendants.
Plaintiff’s retaliation claim will be dismissed in part, with
prejudice, and Plaintiff’s Equal Protection Claim will be
dismissed, with prejudice, for failure to state a claim.
It does
not appear that Plaintiff could cure the defects in the dismissed
claims.
Accordingly, he will not be granted leave to further
amend.
An appropriate order follows.
s/Freda L. Wolfson
Freda L. Wolfson
United States District Judge
Dated: February 2, 2012
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