JOHNSON v. STOUT et al
Filing
6
OPINION filed. Signed by Judge Anne E. Thompson on 10/30/2015. (eaj)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
LARRY 0. JOHNSON,
Civil Action
No. 14-7388 (AET-DEA)
Plaintiff,
v.
OPINION
CARL STOUT, et al.,
Defendants.
APPEARANCES:
Larry 0. Johnson, Plaintiff Pro Se
#552746/694526C
New Jersey State Prison
Second & Cass Street, PO Box 861
Trenton, New Jersey 08625
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.
(Docket Entry 1) . Plaintiff is a state
prisoner currently confined at New Jersey State Prison ("NJSP"),
Trenton, New Jersey.
By Order dated March 16, 2015, this Court
granted Plaintiff's application to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915(a).
(Docket Entry 3)
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
shall be dismissed in part and shall proceed in part.
I . BACKGROUND
On October 31, 2014, Plaintiff filed a complaint against
NJSP corrections officers Carl Stout and Anthony Anderson, II,
Courtline Judge Lisa Jantz, and former NJSP Administrator
Kenneth Nelson.
(Docket Entry 1). 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, Plaintiff had trouble.
breathing in June 2012 due to the heat.
(Docket Entry 1 at 10).
He yelled for help and kicked on the cell door in an attempt to
get someone's attention.
(Docket Entry 1 at 10). Approximately
twenty-five minutes later, Defendant Stout walked by Plaintiff's
cell during his rounds, at which time Plaintiff requested
medical assistance.
(Docket Entry 1 at 10). Defendant Stout
responded that he would make a call after he finished his count.
(Docket Entry 1 at 10).
Plaintiff waited about thirty-five minutes, however no help
arrived. He began kicking his door aga.in, at which time Sgt.
Brown and Defendant Stout arrived at Plaintiff's cell.
2
(Docket
Entry 1 at 10). Plaintiff complained that Officer Stout had not
helped him with his medical request, and Sgt. Brown stated she
would help him once she finished her rounds.
(Docket Entry 1 at
11). She then left to continue her rounds; Defendant Stout
remained at Plaintiff's cell.
Defendant Stout demanded to know why Plaintiff had
complained to Sgt. Brown.
(Docket Entry 1 at 11). Plaintiff
responded with a racial epithet and told Defendant Stout he
''get [s] paid to be lazy and dumb." (Docket Entry 1 at 11).
Plaintiff states Defendant Stout noticed water on the side of
Plaintiff's cell from a leak in the roof, and upon Sgt. Brown's
return, he claimed Plaintiff had thrown a cup of liquid onto his
uniform.
(Docket Entry 1 at 11). Plaintiff denied splashing
Defendant Stout, however Sgt. Brown accepted the accusation and
called a Code 1033.
(Docket Entry 1 at 11). Plaintiff began to
yell that Defendant Stout had threatened his life and repeated
his racial slur to the officer.
(Docket Entry 1 at 12).
An unknown number of officers responded to the code called
by Sgt. Brown and esGorted Plaintiff to medical in handcuffs.
(Docket Entry 1 at 12). During the trip to medical, an
unidentified officer punched Plaintiff in the middle of his back
and whispered "you like to splash [officers], we will see about
that" and "this is our prison and we protect our actions by any
means cost, to keep the DOC united." (Docket Entry 1 at 12). ·
3
Upon arriving at medical, Plaintiff screamed for help and
told the nurse that the officers were going to kill him as soon
as he left medical.
(Docket Entry 1 at 12). After being cleared
to leave medical, the same officer took Plaintiff back to his
cell and told him "we do what we want in our house" and "we will
have to show you this is NJSP not Crackerville." (Docket Entry 1
at 13).
After approximately forty-three minutes, Plaintiff entered
I-Left lock up still in handcuffs.
(Docket Entry 1 at 13). He
was taken into a small search room and was punched in the back
of the head, pushed, tossed onto the ground, kicked, and stomped
on by numerous officers.
(Docket Entry 1 at 13). He was then
picked up off the floor and tossed into a dry cell.
(Docket
Entry 1 at 14). Plaintiff states the cell had no running water,
bugs, no mat, no sink, and no working toilet.
(Docket Entry 1 at
14). He further asserts he was given brown, contaminated water
and inedible food.
(Docket Entry 1 at 14). He complained to
nurses that he had received bug bites on his leg and right arm,
however they did not provide assistance.
(Docket Entry 1 at 14).
Plaintiff states he wrote to Defendant Nelson with no response.
(Docket Entry 1 at 14).
At the end of June 2012, Plaintiff received a disciplinary
charge for splashing Defendant Stout, N.J. ADMIN.
Coo~
10A:4-4.1,
*.012 ("throwing bodily fluid at any person or otherwise
4
purposely subjecting such person to contact with a bodily
fluid").
(Docket Entry 1 at 14). He was also charged with
assault in the New Jersey
Su~erior
Court Law Division.
(Docket
Entry 1at14).1
At Plaintiff's disciplinary hearing, Defendant Lisa Jantz
found him guilty of the prohibited act and ordered Plaintiff to
pay.for Defendant Stout's uniform.
(Docket Entry 1 at 15).
Plaintiff was shown photographs of Defendant Stout's uniform but
was not permitted to have lab work done or to take a polygraph
in his defense.
(Docket Entry 1 at 15). Plaintiff asserts
Defendant Jantz conspired with the other officers to find him
guilty because she performed "sexual favors" for certain
officers.
(Docket Entry 1 at 15). Plaintiff was transferred out
of the dry cell on August 1, 2012 and placed in the North
Compound MCU/Close Custody Unit 3B Right.
(Docket Entry 1 at
15) .
After the assault charges against Plaintiff were resolved
in April 2013, Defendant Stout and approximately six other
officers, including Defendant Anderson, came to Plaintiff's cell
door.
(Docket Entry 1 at 16-17). Defendant Stout identified
Plaintiff as the "jackass" who splashed him and stated "Never
press outside charges on [the prisoners]
just whip [their] ass
1 Plaintiff indicates the assault charge was downgraded to a fine
in April 2013. (Docket Entry 1 at 16).
5
because we got SID by our side to cover up our flaws."
(Docket
Entry 1 at 17). Defendant Stout told incoming officers that
Plaintiff "loves splashing" officers and complained that the
courts would not give Plaintiff any more prison time.
(Docket
Entry 1 at 17).
Plaintiff alleges Defendant Anderson thereafter engaged in
a -pattern of harassment against him in order to support
Defendant Stout and to penalize him for escaping further prison
time on the assault charge. In August 2013, Defendant Anderson
"fired" Plaintiff from his position as unit runner, and hired a
Protected Custody inmate to replace him.
(Docket Entry 1 at 17-
18). Plaintiff states that Defendant Anderson hired this
particular inmate to protect himself from any attacks.
(Docket
Entry 1 at 18). Plaintiff attempted to move out of Defendant
Anderson's unit, however his requests to Defendant Nelson were
never answered.
(Docket Entry 1 at 18). Plaintiff also states
the social worker avoided him whenever he attempted to ask her
about his grievances.
(Docket Entry 1 at 18).
He states Defendant Anderson additionally arranged for his
cell to be searched three times per week without cause.
(Docket
Entry 1 at 18). On October 20, 2013, Defendant Anderson entered
Plaintiff's cell and told him to exit for a cell search.
(Docket
Entry 1 at 20). Plaintiff asserts this was the first time only
one officer conducted a cell search.
6
(Docket Entry 1 at 20).
Plaintiff entered the shower area.
(Docket Entry 1 at 20) .-
Defendant Anderson then took Plaintiff's television, which had
been loaned to him by an unidentifie? officer.
(Docket Entry 1
at 15, 20).
In response, Plaintiff yelled after the officer and "busted
out the shower gate and climbed out and refuse[d] to lock in."
(Docket Entry 1 at 20-21). Plaintiff proceeded to "trash" the
unit by dumping trash cans and broke the gate on another shower.
(Docket Entry 1 at 21). Next, he went to the first floor control
booth and asked the officers there why Defendant Anderson was
bothering him. One responded that Defendant Anderson had a
personal problem with Plaintiff.
(Docket Entry 1 at 21).
Plaintiff yelled at the officer in the booth using racial slurs
to describe Defendant Anderson.
(Docket Entry 1 at 21). He
asserts a camera filmed the entire episode.
(Docket Entry 1 at
21). Plaintiff continued to refuse to "lock in," causing a code
to be called.
(Docket Entry 1 at 21).
Plaintiff asserts he intentionally sought to be charged
with refusing to obey an order, refusing to lock back in, and
conduct which disrupts or interferes with the security or
orderly running of the facility in order to expose the bias and
corruption at NJSP.
(Docket Entry 1 at 21-22). However,
Plaintiff claims none of the charges were imposed against him
because Defendant Anderson called nine officers to help him
7
assault Plaintiff.
(Docket Entry 1 at 22). Plaintiff states he
was "sprayed down," kicked in the lower back, punched in the
neck, and had his legs stomped on before being handcuffed.
(Docket Entry 1 at 22).
Plaintiff was taken to medical to be evaluated, however the
evaluation was cut short after one of the officers glared at the
nurse.
(Docket Entry 1 at 22-23). Plaintiff refused to leave the
chair and informed the nurse that the officers had threatened to
kill him upon returning to lock-up. The nurse cleared him to
leave medical.
(Docket Entry 1 at 23). Plaintiff was escorted
back to I-Left and placed into a dry cell.
(Docket Entry 1 at
23). Plaintiff resisted being placed into the cell, at which
point Officer Seanna told Plaintiff "because of what you did to
SCO/Sgt. Carl Stout and the courts didn't punish you with more
prison time, we need to teach you a lesson of our own .
.
"
(Docket Entry 1 at 23). When he refused to allow the officers to
uncuff him and leave him in the dry cell, Plaintiff was beaten
again.
(Docket Entry 1 at 23-24).
Plaintiff was charged with destroying Government property,
N.J. ADMIN. CODE 10A:4-4.1,
.152; and tampering with or blocking
any locking device, N.J. ADMIN. CODE 10A:4-4.1, *.154. He
contested the charges and asked for the camera footage.
Entry 1 at 24). He also requested a polygraph.
(Docket
(Docket Entry 1
at 24). Defendant Jantz told Plaintiff there was no camera
8
filming the episode.
(Docket Entry 1 at 25). Plaintiff again
alleges she did this because she was receiving money in exchange
for performing sexual acts on the other officers.
(Docket Entry
1 at 24). Plaintiff asserts that as a result of the false
charges and conspiracy, he was denied parole.
(Docket Entry 1 at
25). Plaintiff's disciplinary charges were upheld on
administrative appeal.
(Docket Entry 1-1 at 7). Plaintiff states
he was unable to file an appeal with the New Jersey Superior
Court Appellate Division because none of his legal papers made
it to a paralegal in East Jersey State Prison.
(Docket Entry 1
at 25-26) . He states the business office took money out of his
account, but the paralegal stated he never received the
documents.
Plaintiff was transferred to Northern State Prison ("NSP")
on December 4, 2013.
(Docket Entry 1 at 26). Sometime during his
multiple transfers between NJSP and NSP, Plaintiff lost his
family pictures, clothes, and legal papers.
26). He submitted property claim forms,
(Docket Entry 1 at
(see Docket Entry 1-1 at
9), however he did not receive any relief, even after contacting
the Off ice of the Corrections Ombudsman and Special
Investigation Division.
(Docket Entry 1 at 26; Docket Entry 1-1
at 10-16) .
In March 2014, NSP Officer Marsh claimed Plaintiff splashed
him.
(Docket Entry 1 at 27).
When Plaintiff denied the
9
allegation to an unidentified sergeant, the sergeant responded
"you did that to SCO Stout in NJSP." (Docket Entry 1 at 27). The
sergeant ordered a
"v~deo
movement," had Plaintiff evaluated by
a nurse, and placed Plaintiff into a dry cell in the SU/Hospital
I
area.
(Docket Entry 1 at 27-28). Plaintiff asked why he was
being placed into this unit, and an officer stated Defendant
Nelson had ordered Plaintiff to be placed there because of the
prior incident with Defendant Stout.
(Docket Entry 1 at 28).
Plaintiff was released from the dry cell after NSP's special
investigation division ("SID") cleared him for release.
(Docket
Entry 1 at 28).
Plaintiff appeared before Discipline Hearing Officer John
Odysse and was found guilty of splashing Officer Marsh.
(Docket
Entry 1 at 28-29). Plaintiff asserts he was denied due process
because Officer Odysse would not give him access to lab work or
pictures.
(Docket Entry 1 at 28-29). Plaintiff was ordered back
to Officer Marsh's unit, and he refused to go back to the
"hostile environment." He also noticed that his mother's wedding
band was missing from his cell.
(Docket Entry 1 at 29).
For refusing to move cells, Defendant Nelson ordered
Plaintiff to return to SU/Hospital dry cell. Plaintiff refused
to enter the dry cell and states the officers forced him into
the cell, causing his head to hit the edge of the wall.
(Docket
Entry 1 at 29) . Plaintiff later refused to lock back in after
10
his shower that evening.
(Docket Entry 1 at 29). Plaintiff
stayed in the dry cell until April 4, 2014, when he was
transferred to Cell 300 on I-wing.
(Docket Entry 1 at 29-30).
The next morning, April 5, 2014, Plaintiff informed Officer
Perez that his mother's wedding ring and other property had been
stolen.
(Docket Entry 1 at 30). Officer Perez and other officers
told Plaintiff to either get in the shower or back in his cell.
(Docket Entry 1 at 30). Plaintiff loudly refused to get back in
the cell until he spoke with a sergeant, at which time the
officers began shouting he had splashed them.
(Docket Entry 1 at
30). Other officers responded, handcuffed Plaintiff, and walked
him off camera and proceeded to punch Plaintiff in the stomach
and back.
(Docket Entry 1 at 30). One officer used a racial
epithet towards Plaintiff, and stated he was "'going to learn or
we will force him to the ground of Death.'" (Docket Entry 1 at
30). Plaintiff was then returned to a dry cell, and was
assaulted along the way.
(Docket Entry 1 at 30).
SID visited Plaintiff again to discuss the allegations.
(Docket Entry 1 at 30). Plaintiff told them he was being
s~t
up
so that he would fight back and accrue more "street charges,"
thus prolonging his prison term.
(Docket Entry 1 at 30). He told
them that Defendant Nelson started the trouble at NSP by telling
everyone about Plaintiff's encounter with Defendant Stout at
NJSP.
(Docket Entry 1 at 31). One SID officer responded "'We
11
don't believe inmates against bias, corruption or assaults. We
only believe inmates unless it deals with drugs or cell phone
and corrupted SCO's brought in,'" and that "'we don't believe
you are being assaulted and honestly we don't care.'" (Docket
Entry 1 at 31).
Plaintiff was again given disciplinary charges for
splashing the officers, however the hearing officer determined
there was insufficient evidence to substantiate the charges.
(Docket Entry 1 at 31) . Plaintiff told the officer that he
wanted to be transferred because he was afraid he was going to
be killed. Plaintiff indicates the hearing officer wrote this on
her form and sent it to Defendant Nelson.
(Docket Entry 1 at
31) .
A few days later, Plaintiff was ordered to move cells,
however he refused to comply.
(Docket Entry 1 at 31). He appears
to have ultimately have been moved, however, as he asserts that
on April 19, 2014, he claimed that he was going to kill himself
in order to be transferred out of that area.
(Docket Entry 1 at
31-32). Although it is unclear from the complaint, Plaintiff may
have placed a rope around his neck to demonstrate his intent.
(Docket Entry 1 at 32). A code was called, and the responding
officers handcuffed Plaintiff and beat him before taking him to
medical. Plaintiff was searched while he was in medical, and the
officers threw away the legal papers they found in his pocket.
12
(Docket Entry 1 at 32) . 2
The doctor ordered Plaintiff be
returned to a dry cell and to be placed under constant watch.
(Docket Entry 1 at 32).
On the way to the dry cell, Officers Winter, Fernandez,
Valdez, and an unidentified sergeant beat Plaintiff causing
severe damage to his back such that x-rays were taken.
(Docket
Entry 1 at 32). Plaintiff was beaten again upon entering the
cell.
(Docket Entry 1 at 33). Plaintiff informed a nurse what
happened, however she told him to just leave the officers alone
because the nurses do not like to get involved and risk losing
their jobs or getting harassed.
(Docket Entry 1 at 33).
Plaintiff was removed from the dry cell the next day.
(Docket
Entry 1 at 33).
Plaintiff was transferred back to NJSP on April 29, 2014.
(Docket Entry 1 at 33). He states the new NJSP Administrator,
Stephen D'Illio, set him up to fight another inmate. He further
states Officer Diaz informed the other inmates of his max out
date so that the gang members would kill him upon his release.
(Docket Entry 1 at 34). He asserts none of his remedy forms made
it out of the unit.
(Docket Entry 1 at 34).
Finally, Plaintiff states that on October 3, 2014, he
handed his mail to Officer Caswell.
2
(Docket Entry 1 at 35).
Plaintiff does not state to what matter these legal papers
pertained.
13
Because none of his mail was making it out of the unit,
Plaintiff placed another inmate's name and number on his
outgoing mail.
(Docket Entry 1 at 35). In spite of taking .this
precaution, another inmate informed Plaintiff that Officer
Caswell handed Plaintiff's outgoing mail to a member of the
Bloods gang with whom Plaintiff had been fighting.
(Docket Entry
1 at 35). Plaintiff learned from others that Defendant Stout and
Defendant Anderson had given orders to other staff members to
harass Plaintiff.
Plaintiff names twenty-seven co-conspirators,
(Docket Entry
1 at 35), however he only seeks relief from Defendant Stout,
Defendant Anderson, Defendant Jantz, and Defendant Nelson.
Accordingly, the Court construes the complaint as asserting
claims solely against ·these named defendants. 3
Plaintiff asks
this Court to remove the defendants from their positions and to
award him $200,000 in damages.
(Docket Entry 1 at 7).
II. DISCUSSION
A. Standards for a Sua Sponte Dismissal
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
3
If Plaintiff wishes to pursue claims against any of the other
alleged conspirators, he must submit an amended complaint
specifically naming them as defendants and describing the claims
he wishes to pursue against them.
14
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 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 and is seeking relief from
governmental employees.
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
(following Estelle v. Gamble,
(2007)
429 U.S. 97, 106 (1976)); see also
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
According to the Supreme Court's decision in Ashcroft v.
Iqbal, "a pleading that offers 'labels or conclusions' or 'a
formulaic recitation of the elements of a cause of action will
not do . ' "
5 5 6 U. S . 6 62 ,
678
(2 0 0 9 )
( quoting Be 11 At 1 antic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). To survive sua sponte
15
screening for failure to state a claim, 4 the complaint must
allege "sufficient factual matter" to show that the claim is
facially plausible. Fowler v. UPMS Shadyside, 578 F.3d 203, 210
(3d Cir. 2009)
(citation omitted). "A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable in£erence 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)
(citation omitted).
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,
4
"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 Ci.r. 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)).
16
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 ....
§
1983. 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); Malleus v. George, 641 F.3d 560, 563 (3d Cir.
2011).
C.
Eighth Amendment Claims
Plaintiff asserts that Defendants Stout, Anderson, and
Nelson violated his Eighth Amendment right to be free from cruel
and unusual punishment, and raises excessive force and
conditions of confinement claims.
1. Excessive Force
In an excessive force claim under the Eighth Amendment, the
inquiry is whether force was applied in a good faith effort to
maintain or restore discipline, or maliciously and sadistically
to cause harm. Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir.
2000). In assessing whether the force used was appropriate, the
Court considers the need for the application of force and its
relationship to the amount of force used as well as the injury
17
inflicted. Giles v. Kearney, 571 F.3d 318, 326 (3d Cir.
2009).
Construing all inferences in Plaintiff's favor, as the
Court must do at this preliminary screening stage, this Court
preliminarily finds that Plaintiff has pled facts sufficient to
state a plausible claim for relief as to Defendant Anderson's
actions on October 20, 2013. In particular, the facts, as
·alleged by Plaintiff in his complaint, are sufficient to
question the use of force, as well as the manner and purpose for
which the force was applied. Plaintiff alleges Defendant
Anderson and nine other officers assaulted Plaintiff by
"spraying" him, kicking, punching, and stomping on him in
response to Plaintiff's nonviolent refusal to lock into his
cell.
(Docket Entry 1 at 22). He also states a nightstick was
used against him while he was on the floor.
(Docket Entry 1 at
22). The Court will allow Plaintiff's excessive force complaint
against Defendant Anderson to proceed at this time. 5
5
Any excessive force complaints against Defendant Stout arising
from the June 2012 incident are barred by the statute of
limitations. The statute of limitations on civil rights claims
is governed by New Jersey's two-year limitations period for
personal injury. See Wilson v. Garcia, 471 U.S. 261, 276 (1985);
Dique v. New Jersey State Police, 603 F.3d 181, 185 (3d Cir.
2010); O'Connor v. City of Newark, 440 F.3d 125, 126-27 (3d Cir.
2006). This limitations period expired in June 2014, months
before Plaintiff mailed this complaint on October 31, 2014.
"Although the statute of limitations is an affirmative defense,
sua sponte dismissal is appropriate when 'the defense is obvious
from the face of the complaint and no further factual record is
18
2. Conditions of Confinement Claim
Plaintiff also appears to raise a conditions of confinement
claim against Defendant Nelson, stating that he "covered up the
beatings" and "kept me into a hostile environment to be killed
by staff members." (Docket Entry 1 at 8).
"Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of
respondeat superior." Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009) • State actors are liable only for their own
unconstitutional conduct. Bistrian v. Levi, 696 F.3d 352, 366
(3d Cir. 2012). The Third Circuit has identified two general
ways in which a supervisor-defendant may be liable for
unconstitutional acts undertaken by subordinates:
(1) "liability
may attach if they, with deliberate indifference to the
consequences, established and maintained a policy, practice or
custom which directly caused [the] constitutional harm"; or (2)
"a supervisor may be personally liable under § 1983 if he or she
participated in violating the plaintiffs rights, directed others
to violate them, or, as the person in charge, had knowledge of
and acquiesced in the subordinate's unconstitutional conduct."
Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir.
required to be developed.'" Cruz v. SCI-SMR Dietary Servs., 566
F. App'x 158, 160 (3d Cir. 2014) (quoting Fogle v. Pierson, 435
F.3d 1252, 1258 (10th Cir. 2006)) (other citations omitted).
19
2014)
(internal citations omitted), rev'd on other grounds sub
nom Taylor v. Barkes, 135 S.Ct. 2042 (2015).
Plaintiff has not alleged a policy enacted by Defendant
Nelson directly caused his harm. Plaintiff's allegations that
NSP hides prisoners in "DryCells, SU's and Hospital area[s] so
there won't be contact with help of any kind such as other
inmates and prison staff member[s] that are softhearted and do
their best to help an inmate out of the oppression, punishment
being done behind closed cell doors" (Docket Entry 1 at 27-28),
could be construed as a policy or practice, however Plaintiff
does not allege that Defendant Nelson established this policy.
See Barkes, 766 F.3d at 316 (holding "establish[ing] and
maintain[ing] a policy, practice or custom" directly causing
harm is basis for supervisory liability (emphasis added)); see
also A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr.,
372 F.3d 572, 586 (3d Cir. 2004).
Plaintiff has also insufficiently pled that Defendant
Nelson "had knowledge of and acquiesced in the subordinate's
unconstitutional conduct." Barkes, 766 F.3d at 316. Plaintiff
asserts he wrote to Defendant Nelson regarding the original
incident with Defendant Stout in 2012,
(Docket Entry 1 at 14),
and the October 20, 2013 incident with Defendant Anderson
(Docket Entry 1 at 25). He also states that after he was cleared
of splashing Officer Perez at NSP, the hearing officer wrote to
20
Defendant Nelson that Plaintiff's life was in danger.
(Docket
Entry 1 at 31). Receipt of grievances is an insufficient basis
of liability. See Stringer v. Bureau of Prisons, Fed. Agency,
145 F. App'x 751, 753 (3d Cir. 2005)
(alleged failure to process
or respond to inmate's grievances did not violate his rights to
due process and is not actionable); Rode v. Dellarciprete, 845
F.2d 1195, 1207-08
(3d Cir. 1988). Plaintiff alleges no response
from Defendant Nelson, or any other action on his part which
could be said to demonstrate that Defendant Nelson knew of the
aileged violations or acted in such a manner that he could be
said to have acquiesced to the actions of the assaulting
officers. Moreover, at one point Plaintiff asserts the officers'
actions were "taking place behind the Administrators backs,"
suggesting Defendant Nelson in fact had no knowledge of the
officers' actions.
(Docket Entry 1 at 14) . 6
Plaintiff's claims against Defendant Nelson must be
dismissed, however Plaintiff shall be given leave to amend. 7
6 Plaintiff includes a copy of the appeal of his disciplinary
proceeding addressed to Defendant Nelson. (Docket Entry 1-1 at
6). The hearing officer wrote: "[Plaintiff] states that he is in
fear 0£ his life and only acts out because officers in ad-seg
continue to assault him, so he prays for your help in
transferring him to NJSP or [South Woods State Prison] ad-seg."
(Docket Entry 1-1 at 6) . The form also indicates it was received
by "R. Ballester." (Docket Entry 1-1 at 6). There is therefore
no indication that Defendant Nelson ever received this notice.
7 To the extent Plaintiff attempts to allege a conditions of
confinement claim regarding bug bites, and inadequate food and
21
D. Conspiracy
Plaintiff's primary allegation is that Defendants engaged
in a massive conspiracy spanning two prisons and two years to
make his prison term uncomfortable.
(Docket Entry 1 at 36). "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,
423 F. App'x 234, 239 (3d Cir. 2011)
(quoting
Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 254
(3d Cir. 1999)).
Although the Court notes there is no right to a
"comfortable" prison term, Rhodes v. Chapman, 452 U.S. 337, 349
(1981), Plaintiff has alleged facts suggesting that his Eighth
Amendment right to be free from cruel and unusual punishment and
his First Amendment right to petition the courts for redress of
grievances have been violated at the direction of Defendants
Stout and Anderson.
(Docket Entry 1 at 35-36). Accepting
Plaintiff's facts as true for screening purposes only,
Defendants Stout and Anderson have engaged in, and have
encouraged others to engage in, the harassment of Plaintiff
water from his June 2012 dry cell stay, (Docket Entry 1 at 14),
that claim is barred by the statute of limitations.
22
since his original encounter with Defendant Stout. The Court
will therefore permit the conspiracy claim to proceed against
Defendants Stout and Anderson.
The conspiracy claim against Defendant Jantz must 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)
(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 against Defendant
Jantz, Plaintiff must demonstrate she agreed to violate
Plaintiff's due process rights. 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
23
has already been invalidated, 8 Plaintiff's conspiracy claim
against Defendant Jantz must be dismissed.
9
Plaintiff has also failed to sufficiently plead facts
implicating Defendant Nelson in the alleged conspiracy.
Plaintiff has alleged no facts that would enable this Court to
draw an inference that Defendant Nelson conspired with
Defendants Stout and Anderson. Although Plaintiff alleges his
troubles at NSP began upon Defendant Nelson's arrival from NJSP
and that Defendant Nelson told NSP officers about Plaintiff's
confrontation with Defendant Stout, he has provided no factual
basis to make Defendant Nelson's direct involvement facially
plausible. His allegations against Defendant Nelson are purely
conclusory in nature. The conspiracy claim shall therefore be
8
Plaintiff mentions that he was unable to pursue an appeal of
his disciplinary proceeding because his mail never made it to
the paralegal assisting him with the appeal. (Docket Entry 1 at
25-26) . The Court declines to construe this as a separate access
-to-the-court claim as "prisoners may only proceed on access to
the courts claims in two types of cases, challenges (direct or
collateral) to their sentences and conditions of confinement."
Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008) {per curiam).
It is not clear to the Court that Plaintiff's appeal of his
disciplinary charge would be considered a condition of his
confinement. Should Plaintiff wish to pursue an access-to-thecourts claim based on this incident, he must address this
limitation as well as the other access-to-the-courts factors in
an amended complaint.
9 To the extent Plaintiff raises a denial of due process claim
against Defendant Jantz, that claim must be dismissed as well as
being barred by Heck and Edwards.
24
dismissed as to Defendant Nelson, however Plaintiff shall be
given leave to amend his complaint in this regard.
D. Deprivation of Property
Plaintiff also asserts a deprivation of property claim
against Defendant Nelson. 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 aiso
Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410, 422 (3d
Cir. 2000). Plaintiff submitted property claim forms and inmate
remedy forms regarding his missing items.
(Docket Entry 1-1 at
8-9, 13) . He was also informed he had the right to pursue a
small claims court action or appeal to the Appellate Division if
he was not satisfied with the prison's response.
(Docket Entry
1-1 at 13). Because Plaintiff was afforded a post-deprivation
remedy, his deprivation claim is therefore 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).
25
E. Leave to Amend
As Plaintiff may be able to allege facts that would address
the deficiencies of his claims as noted by the Court, Plaintiff
may move for leave to file an amended complaint. Any motion to
amend the complaint must be accompanied by a proposed amended
complaint.
Plaintiff should note that when an amended complaint is
filed, the original complaint no longer performs any function in
the case and cannot be utilized to cure defects in the amended
complaint, unless the relevant portion is specifically
incorporated in the new complaint. 6 Wright, Miller & Kane,
Federal Practice and Procedure 1476 (2d ed. 1990)
(footnotes
omitted). An amended complaint may adopt some or all of the
allegations in the original complaint, but the identification of
the particular allegations to be adopted must be clear and
explicit. Id. To avoid confusion, the safer course is to file an
amended complaint that is complete in itself. Id. The amended
complaint may not adopt or repeat claims that have been
dismissed with prejudice by the Court.
III.
CONCLUSION
For the
reasons
stated above,
Plaintiff's
excessive
force
complaint against Defendant Anderson and his conspiracy complaint
against Defendants Stout and Anderson shall be permitted to proceed
at
this
time.
Plaintiff's
excessive
26
force
complaint
against
Defendant
complaints
Stout
is
against
dismissed
Defendant
with
Nelson
prejudice.
are
Plaintiff's
dismissed
without
prejudice, except for the deprivation of property claim which is
dismissed
with
prejudice.
Plaintiff's
conspiracy
complaint
Defendant Jantz is dismissed without prejudice.
An appropriate order follows.
,.,...,.....
..----:::~
~
G.---~
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~
U.S. District Judge
ANNE E. THOMPSON
27
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