WASSENAAR v. LANIGAN et al

Filing 73

MEMORANDUM OPINION filed. Signed by Judge Michael A. Shipp on 10/5/2016. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RICKY KURT WASSENAAR,
Civil Action No. 13-1485 (MAS) (DEA)
Plaintiff,

v.

MEMORANDUM OPINION

GARY LANIGAN, et al.,
Defendants.

Pro se Plaintiff Ricky Kurt Wassenaar is proceeding with a civil rights complaint filed
pursuant to 42 U.S.C. § 1983. The Court previously dismissed all of Plaintiffs claims, except for
the claim against Defendants Gary Lanigan, Michelle Ricci, Ken Nelsen, and Charles Warren
("Supervisory Defendants") for the loss and destruction of his personal property (Count IV), and
his claims against john doe defendants. (Op. 15-16, Apr. 29, 2016, ECF No. 63; see Order, Feb.
9, 2016, ECF No. 60; Order, Apr. 29, 2016, ECF No. 64.) Presently before the Court is the
Supervisory Defendants' motion for judgment on the pleadings, seeking to dismiss the last
remaining claim against them ("Motion"). (ECF No. 72.) To date, Plaintiff has not filed an
opposition. It appearing:
1. Every 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." Fed. R. Civ. P. 8(a)(2). "Specific facts are not
necessary; 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 plaintiffs
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 standard of
review on a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is
the same as on a motion under Rule l 2(b)( 6)-that is, Plaintiff must allege "sufficient factual
matter, accepted as true [and viewed in the light most favorable to the plaintiff], to state a claim to
relief that is plausible on its face." Hlista v. Safeguard Props., LLC, No. 15-1812, 2016 WL
2587986, at *1 n.4 (3d Cir. May 5, 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Defendants bears the burden of showing that no claim has been presented. See Hedges v. United

States, 404 F.3d 744, 750 (3d Cir. 2005).
2. In the prior opinion, the Court described Count IV against the Supervisor Defendants as
alleging that:
Plaintiffs personal properties were either taken and later found destroyed, or were
never returned to him at all. (See, e.g., Am. Compl. 3, 5[, ECF No. 44]; Addendum
3[, ECF No. 44-1].) Later on, Plaintiff alleges that he filed grievances about his
properties with supervisory officials. (See Addendum 7.) Indeed, in the exhibits
attached to the Amended Complaint, there are copies of grievances regarding
Plaintiffs personal properties. (See, e.g., Ex. A at 3; Ex.Bat 6; Ex.Cat 2; Ex. D
at 6.)
(Op. 15-16, Apr. 29, 2016.)
3. In the instant Motion, the Supervisory Defendants argue that Plaintiff has failed to state a
claim against them upon which relief may be granted, because there are no allegations of personal
involvement by the Supervisory Defendants. The Court agrees. As the Court stated in the prior
opinion, "[w]hile affirmative action by a supervisory official is not required to state a§ 1983 claim,
Plaintiff must still show that "a supervisor ... had knowledge and acquiesced in the subordinate' s
unconstitutional conduct." Barkes v. First Corr. Med. Inc., 766 F.3d 307, 316 (3d Cir. 2014) (rev'd

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on other grounds); see Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) ("Personal involvement
can be shown through allegations of personal direction or of actual knowledge and
acquiescence."). "[A]llegations [that] ... merely assert their involvement in the post-incident
grievance process" are insufficient to establish liability. Alexander v. Gennarini, 144 F. App'x
924, 925 (3d Cir. 2005). "Merely responding to or reviewing an inmate grievance does not rise to
the level of personal involvement necessary to allege an Eighth Amendment deliberate
indifference claim." Tenon v. Dreibelbis, 606 F. App'x 681, 688 (3d Cir. 2015)." (Op. 6, Apr.
29, 2016.) However, "repeated written complaints to a supervisory defendant of an ongoing
constitutional violation may be sufficient to establish deliberate indifference by circumstantial
evidence." Id.
4. Here, Plaintiffs claim concerns loss of personal property that were either taken or
destroyed by prison officials. With regard to the Supervisory Defendants, Plaintiff does not allege
direct personal involvement.

Instead, Plaintiff relies on his grievances to establish personal

involvement by knowledge and acquiescence. However, Plaintiff does not allege that the asserted
unconstitutional deprivation of property was ongoing-he merely complains about past conduct
that led to the loss of his property. As the Court opined previously, "[t]he receipt of, or response
to, grievances about past violations will not do because the supervisor's actions, or lack thereof,
would not have caused the plaintiff additional injury. See Robinson v. Ricci, No. 08-2023, 2012
WL 1067909, at *10 (D.N.J. Mar. 29, 2012) (finding no personal involvement when a supervisory
official was made aware of a constitutional violation after it had already occurred); Carter, 2009
WL 3088428, at *6 (distinguishing allegations of ongoing violations from those that already
occurred)."

Id. at 7.

Accordingly, the Court dismisses Count IV against the Supervisory

Defendants with prejudice, as leave to amend would be futile. See Id. at 8 n.5; Grayson v. Mayview

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State Hosp., 293 F.3d 103, 112-13 (3d Cir. 2002) (holding that futility of amendment is a proper

reason to deny leave to amend). Since the only claims remaining in the Amended Complaint are
against john doe defendants, the Court also dismisses the Supervisory Defendants from the case.
5. As discovery has closed at this point, (see Second Am. Scheduling Order, June 24, 2016,
ECF No. 69), the Court hereby directs Plaintiff to, within thirty days from the date of entry of the
accompanying Order, amend the Complaint and explicitly identify the john doe defendants.
Failure to do so will result in the dismissal of the Complaint. If Plaintiff believes that additional
discovery is necessary, and whatever discovery he had was inadequate to identify the unnamed
defendants, he may file an appropriate motion to reopen discovery.

Mic&'d~

United States District Judge
Date:

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