JOHNSON v. ANDERSON et al

Filing 6

OPINION filed. Signed by Judge Anne E. Thompson on 7/28/2015. (mmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
LARRY 0. JOHNSON,
Plaintiff,

Civil Action
No. 13-7066 (AET-DEA)

v.
A. ANDERSON, II, et al.,

OPINION

Defendants.

RECEIVED

APPEARANCES:
Larry 0. Johnson, Plaintiff Pro Se
#552746/694526C
New Jersey State Prison
Second & Cass Street, PO Box 861
Trenton, New Jersey 08625

JUL 2 8 2015
AT 8:30
WILLIAM T. WALSH
CLERK

M

THOMPSON, District Judge:
I.INTRODUCTION

Before the Court is Plaintiff Larry Johnson's ("Plaintiff"),
submission of a civil rights complaint pursuant to 42 U.S.C.

§

1983

and application to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915. Plaintiff is a state prisoner currently confined at New

Jersey State Prison ("NJSP"), Trenton, New Jersey. Based on the in
forma pauperis application, the Court will grant Plaintiff's

application to proceed in forma pauperis pursuant to 28 U.S.C.
1915(a),

§

(Docket Entry 4), and order the Clerk of the Court to file

the Complaint,

(Docket Entry 1). At this time, the Court must

review the complaint pursuant to 28 U.S.C.

§§

1915(e) (2) and 1915A

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. For the reasons set forth below, the
Court concludes that the complaint will be dismissed for failure to
state a claim upon which relief may be granted.
I . BACKGROUND

On November 20, 2013, Plaintiff filed a complaint against SCO
A. Anderson, II, a NJSP corrections officer, and Lisa Jantz, a NJSP
courtline judge, as well as an application to proceed in forma
pauperis ("IFP").

(Docket Entry 1). This Court administratively

terminated the case on November 25, 2013 for failure to either pay
the filing fee or to comply with the requirements of 28 U.S.C. §
1915 in requesting to proceed IFP.

(Docket Entries 2 and 3). The

Court ordered the Clerk to provide Plaintiff with a blank IFP
application and gave Plaintiff 30 days to reopen the matter.
(Docket Entries 2 and 3). Plaintiff submitted a new IFP application
on December 6, 2013,

(Docket Entry 4), and this Court ordered the

Clerk to reopen the matter pending the Court's review of the
application and screening of the complaint.

(Docket Entry 5). The

following factual allegations are taken from the complaint and are
accepted for purposes of this screening only.

The Court has made

no findings as to the veracity of Plaintiff's allegations.
According to Plaintiff's complaint, Officer Anderson opened
Plaintiff's cell door and threatened to kill him and cover it up.
(Docket Entry 1 at 6). He did not have his handcuffs or his
2

nightstick with him at the time he made the threats.

(Docket Entry

1 at 6) . He also tried to start a fight with Plaintiff, but
Plaintif£ refused to take part.

(Docket Entry 1 at 6).

Additionally, Officer Anderson took a television set that had been
loaned to Plaintiff.

(Docket Entry 1 at 6). Plaintiff further

alleges Ms. Jantz conspired to find him guilty of an unidentified
prohibited act due to her intimate relationships with the male
staff.

(Docket Entry 1 at 5-6). Plaintiff requests this Court to

fire Defendants from their positions at NJSP and to order
Plainti£f's release.

(Docket Entry 1 at 7) . 1

II. DISCUSSION
A. Standards for a Sua Sponte Dismissa1
Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§
801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996)

("PLRA"),

district courts must review complaints in those civil actions in
which a prisoner is proceeding in forma pauperis,

see 28 U.S.C. §

1915(e) (2) (B), seeks redress against a governmental employee or
entity, see 28 U.S.C. § 1915A(b), or brings a claim with respect to
prison conditions, see 42 U.S.C. § 1997e. The PLRA directs district
courts to sua sponte dismiss any claim that is frivolous, is

1

A person may not obtain equitable relief under § 1983 ordering
release from confinement. See Preiser v. Rodriguez, 411 U.S. 475
(1973); Wolff v. McDonnell, 418 U.S. 539, 554 (1974). When a
person in custody is "challenging the very fact or duration of
his physical imprisonment, and the relief he seeks is a
determination that he is entitled to immediate release or a
speedier release from that imprisonment, his sole federal remedy
is a writ of habeas corpus." Freiser, 411 U.S. at 500.
3

malicious, fails to state a claim upon which relief may be granted,
or seeks monetary relief from a defendant who is immune from such
relief. This action is subject to sua sponte screening for
dismissal under 28 U.S.C. §§ 1915(e) (2) (b) and 1915A because
Plaintiff is a prisoner proceeding in forma pauperis.
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)
(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also
United Statesv. Day, 969 F.2d 39, 42 (3d Cir. 1992).
According to the Supreme Court's decision in Ashcroft v.
Iqba.l, "a pleading that offers 'labels or conclusions' or 'a
formulaic recitation of the elements of a cause of action will not
do.'" 556 U.S. 662, 678 ( 2009)

(quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007)). To survive sua sponte screening
for failure to state a claim, 2 the complaint must allege "sufficient
factual matter" to show that the claim is facially plausible.
Warren Gen. Hosp. v. Amgen Inc.,

643 F.3d 77, 84 (3d Cir. 2011). "A

claim has facial plausibility when the plaintiff pleads factual

2

"The legal standard for dismissing a complaint for failure to
state a claim pursuant to 28 U.S.C. § 1915(e) (2) (B) (ii) is the
same as that for dismissing a complaint pursuant to Federal Rule
of Civil Procedure 12(b) (6) ." Schreane v. Seana, 506 F. App'x
120, 122 (3d Cir. 2012) (citing Allah v. Seiverling, 229 F.3d
220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App'x 230,
232 (3d Cir. 2012) (discussing 28 U.S.C. § 1997e (c) (1));
Courteau v. United States, 287 F. App'x 159, 162 (3d Cir. 2008)
(discussing 28 U.S.C. § 1915A(b)).
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content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged." Fair Wind
Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)
(quoting. Iqbal, 556 U.S. at 678). Moreover, while pro se pleadings
are liberally construed, "pro se litigants still must allege
sufficient facts in their complaints to support a claim." Mala v.
Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013)
omitted)

(citation

(emphasis added) .

B. 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 Cons ti tut ion
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
v. George,

(1988); Malleus

641 F.3d 560, 563 (3d Cir. 2011); Piecknick v.

Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994).

5

C.

Eighth Amendment Cl.aim
Plaintiff asserts that Defendant Sgt. Anderson threatened to

kill him and cover it up, citing the fact that the nearby camera
was not working.

(Docket Entry 1 at 6). To the extent he is seeking

to assert a claim for excessive force in violation of the Eighth
Amendment, these allegations are not sufficient to state a claim.
The Supreme Court has stated, "[i]ntentional harassment of
even the most hardened criminals cannot be tolerated by a civilized
society." Hudson v. Palmer,

468 U.S. 517, 528 (1984). The Eighth

Amendment protects prisoners against calculated harassment. Id. at
530. Generally, however, mere verbal harassment does not give rise
to a constitutional violation. See McKay v. U.S. Dep't of Justice,
406 F. App'x 570, 570 n.1 (3d Cir. 2010); McBride v. Deer, 240 F.3d
1287, 1291 n.3 (10th Cir. 2001)

(taunts and threats are not an

Eighth Amendment violation) . Allegations that prison personnel have
used threatening language and gestures also are not cognizable
claims under § 1983, Collins v. Cundy,
1979)

603 F.2d 825 (10th Cir.

(defendant laughed at prisoner and threatened to hang him);

however threats "while brandishing a dangerous weapon poised for
immediate use" may amount to a constitutional violation. Douglas v.
Marino,

684 F. Supp. 395, 398 (D.N.J. 1988)

(citing Davidson v.

O'Lone, 752 F.2d 817 (3d Cir. 1984), aff'd sub nom. Davidson v.
Cannon;

474 U.S. 344 (1986)).

Here, Officer Anderson's threat to kill Plaintiff was
unaccompanied by any physical force or brandishing of a weapon.

6

Indeed, Plaintiff expressly alleges that Anderson had neither his
handcuffs nor his nightstick at the time of the alleged threat.
(Docket Entry 1 at 6). Plaintiff's claim therefore fails to reach
the level of an Eighth Amendment violation, and shall therefore be
dismissed. However, as it £s possible that Plaintiff could allege
facts sufficient to raise a constitutional claim, Plaintiff shall
be given leave to file an amended complaint on this claim.

D. Deprivation of Property
Plaintiff also claims Officer Anderson took his "loaner TV" in
violation of the Due Process Clause of the Fourteenth Amendment.
(Docket Entry 1 at 6) . Presuming for screening purposes that
Plaintiff had a property interest in the loaned television, the
Supreme Court has held that the "unauthorized intentional
deprivation of property by a state employee does not constitute a
violation of the procedural requirements of the Due Process Clause
of the Fourteenth Amendment if a meaningful postdeprivation remedy
for the loss is available." Hudson v. Palmer, 468 U.S. 517, 533
(1984); see also Tillman v. Lebanon Cnty. Corr. Facil;i.ty, 221 F.3d
410, 422

(3d Cir. 2000). Plaintiff expressly alleges that he did

not use NJSP's remedy system,

(Docket Entry 1 at 5), therefore his

deprivation claim is legally flawed and this claim shall be
dismissed with prejudice. See Toney v. Sassaman, 588 F. App'x 108,
110 (3d Cir. 2015); Fletcher-Harlee Corp. v. Pote Concrete

Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).

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E. Conspiracy
Plaintiff further claims Ms. Jantz conspired with Officer
Anderson to convict Plaintiff of a disciplinary charge without
cause, allegedly because of a sexual relationship between Jantz and
other male officers.

(Docket Entry 1 at 5).

"To make out a conspiracy claim under § 1983,

[Plaintiff] must

show that 'persons acting under color of state law conspired to
deprive him of a federally protected right.' As a threshold matter,
however, a § 1983 conspiracy claim only arises when there has been
an actual deprivation of a right." Perano v. Twp. of Tilden,
App'x 234, 239 (3d Cir. 2011)

423 F.

(quoting Ridgewood Bd. of Educ. v.

N.E. ex rel. M.E., 172 F.3d 238, 254 (3d Cir. 1999)). Here,
Plaintiff has not a.lleged any specific deprivation. Ibid.

(citing

Andree v. Ashland Cnty., 818 F.2d 1306, 1311 (7th Cir. 1987); Dixon
v. City of Lawton, 898 F.2d 1443, 1449 (10th Cir. 1990)). This
claim must therefore be dismissed.
Even if Plaintiff had alleged that his due process rights were
violated, however, the claim must still be dismissed. The Supreme
Court held in Heck v. Humphrey that a district court must dismiss a
§

1983 complaint if "a judgment in favor of the plaintiff would

necessarily imply the invalidity of his conviction or sentence
. unless the plaintiff can demonstrate that the conviction or
sentence has already been invalidated." 512 U.S. 477, 487

(1994).

The Court applied Heck to prison disciplinary proceedings in

Edwards v. Balisok, 520 U.S. 641, 648 (1997)
8

(holding claims for

declaratory relief and money damages that necessarily implied the
invalidity of the punishment imposed by prison disciplinary
proceedings are not cognizable under § 1983) .
In order to prove his conspiracy claim, Plaintiff must
demonstrate that Officers Anderson and Jantz agreed to violate
Plaintiff's due process rights by finding him guilty 0£ a
disciplinary charge regardless of the evidence. If Plaintiff were
to succeed on that claim at trial, it would necessarily imply the
invalidity of the disciplinary proceeding. Absent a showing that
the charge has already been invalidated,

Plaint~ff's

conspiracy

claim must be dismissed. However, ·if Plaintiff is able to
demonstrate the charge has already been invalidated, plaintiff may
file an amended complaint on this claim as well.
III.

CONCLUSION
For the reasons stated above, Plaintiff's Eighth Amendment and

conspiracy claims are dismissed without prejudice for failure to
state a claim. Plaintiff shall be granted leave to move to re-open
this action and to file an amended complaint on these claims. If
plaintiff chooses to file an amended complaint, it should be
complete on its face because an amended complaint supersedes the
initial complaint. Plaintiff's Fourteenth Amendment deprivation of
property claim is dismissed with prejudice for failure to
claim. An appropriate order

follow~~
ANNE E. THOMPSON
U.S. Distri.ct Judge
9

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