JOHNSON v. DILLIO et al

Filing 5

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

LARRY JOHNSON,
Plaintiff,

Civil Action
No. 15-1816 (AET-LHG)

v.
OPINION

S. D'ILLIO, et al.,
Defendants.

RECEIVED

APPEARANCES:

JUL 2 8 2015

Lar~y

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

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.

(Docket Entry 1). Plaintiff is a convicted

and sentenced state prisoner currently confined at New Jersey
State Prison ("NJSP"), Trenton, New Jersey.

By Order dated May

7, 2015, this Court granted Plaintiff's application to proceed
in forma pauperis pursuant to 28 U.S.C.

§

1915(a).

(Docket Entry

4). 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 with leave to amend.
I . BACKGROUND

On March 11, 2015, Plaintiff filed a complaint against NJSP
Administrator Stephen D'Illio, NJSP Social Worker M. Fon, and
John Doe Supervisors of the NJSP Classification department, and
John Doe Parole Counselors.

(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, Administrator D'Illio
refused to transfer Plaintiff out of a "hostile environment." He
also asserts that D'Illio is part of a conspiracy to have
Plaintiff killed upon his release date by "inside NJSP
corruption and undercover gang members status [sic]." (Docket
Entry 1 at 4) .
Plaintiff also asserts that the Supervisors of the NJSP
Classification departments refused to transfer Plaintiff out of
the "hostile environment," and that they are part of the
conspiracy.

(Docket Entry 1 at 5). He states the Parole

Counselors are aware of the hostile environment and the fact
that he is housed with prisoners serving life terms, however
2

they have refused to transfer him to Pennsylvania so that
Plaintiff may be released there on his max out date.

(Docket

Entry 1 at 5).
Plaintiff states Mr. Fon denied numerous requests for
remedies due to the fact that he "is brothers to SCO/Sgt. Carl
Stout in NJSP." (Docket Entry 1 at 6) . 1

He also states Mr. Fon

is part of the conspiracy to kill him upon his release.

(Docket

Entry 1 at 6).
Plaintiff asks this Court to remove the defendants from
their positions and to award him $12.5 m£llion in damages.
(Docket Entry 1 at 8).
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
actions in which a prisoner is proceeding in forma pauperis, see
2 8 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

1

The Court notes that Carl Stout is a defendant in one of
Plaintiff's other§ 1983 complaints, see Johnson v. Stout et
al., Civil Action No. 3:14-cv-07388 (D.N.J).

3

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.
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 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 6 2 , 6 7 8 ( 2 0 0 9 )

( quoting Be 11 At 1 antic 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

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)).
4

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 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
all'ege 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

ri~hts.

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
5

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);

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

Cruel and Unusual Punishment
Plaintiff appears to raise violations of the Eighth

Amendment right to be free from cruel and unusual punishment due
to Defendants' deliberate indifference to the hostility and
threats leveled against him.
Deliberate indifference on the part of prison officials
"describes a state of mind more blameworthy than negligence[,]"

Farmer v. Brennan, 511 U.S. 825, 835 (1978), and must be more
than "ordinary lack of due care for the prisoner's interests or
safety." Ibid. "[A] prison official cannot be found liable .
for denying an inmate humane conditions of confinement unless
the official knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts from
which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference." Id.
at 837.
Plaintiff's conclusory allegations against Defendants fail
to state a claim upon which relief may be granted. Plaintiff
admits he did not pursue administrative remedies against any of
the Defendants,

(Docket Entry 1 at 6), and there are no

allegations, beyond Plaintiff's conclusory statements, that any
6

of them were aware "of facts from which the inference could be
drawn that a substantial risk of serious harm exists." Farmer,
511 U.S. at 837. Plaintiff likewise has not alleged any facts in
his complaint that would permit this Court to infer Defendants
did in fact draw an inference that there is a substantial risk
of serious harm. See Fair Wind Sailing, Inc. v. Dempster, 764
F.3d 303, 308 n.3 (3d Cir. 2014)

("A claim has facial

plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged."). This claim
must be dismissed, however Plaintiff shall be given leave to
amend.

D. Conspiracy
Plaintiff also appears to allege that the Defendants
engaged in a conspiracy to have him killed upon his release from
prison.

(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)).

7

Plaintiff has failed to allege Defendants all acted in
concert to deprive him of a federally protected right.
Furthermore, he has not alleged that there has been an actual
deprivation of any right. This claim must also be dismissed,
however Plaintiff shall be given leave to amend.
E. Retaliation
Finally, Plaintiff appears to allege a retaliation claim
against Defendant Fon. Plaintiff asserts Defendant Fon denied
him remedial assistance due to his close association with Sgt.
Stout and the fact that Plaintiff filed a lawsuit against Sgt.
Stout.
"Retaliation for the exercise of constitutionally protected
rights is itself a violation of rights secured by the
Constitution . . . . " White v. Napoleon, 897 F.2d 103, 111-12
(3d Cir. 1990). To prevail on a retaliation claim, Plaintiff
must demonstrate that "(1) he had engaged in constitutionallyprotected conduct;

(2) he suffered adverse action by prison

officials that is sufficient to deter a person of ordinary
firmness from exercising his constitutional rights; and (3) a
causal link between the exercise of the constitutional right and
the adverse action taken against him." Obiegbu v. Loretto, 577
F. App'x 94, 95 (3d Cir. 2014)

(citing Carter v. McGrady, 292

F.3d 152, 157-58 (3d Cir. 2002); Rauser v. Horn, 241 F.3d 330,
333 (3d Cir. 2001)).
8

The question of whether Plaintiff engaged in a protected
activity is a question of law. Hill v. Borough of Kutztown, 455
F.3d 225, 241 (3d Cir. 2006). It is clear Plaintiff engaged in a
constitutionally protected activity when he filed a lawsuit
against Sgt. Stout. Mearin v. Vidonish,
(3d Cir. 2011)

(per curiam)

450 F. App'x 100, 102

("[T]he filing of grievances and

lawsuits against prison officials constitutes constitutionally
protected activity."). Assuming for screening purposes only that
a reasonable person would be dissuaded from pursuing further
legal action by the denial.of "remedy assistance," the alleged
harm suffered by Plaintiff,

(Docket Entry 1 at 6), Plaintiff

fails to sufficiently plead a causal connection between the
protected activity and the alleged harm. His complaint contains
no facts suggesting that Defendant Fon denied Plaintiff's
institutional remedy requests out of a "substantial or
motivating" desire to punish Plaintiff for pursuing a cause of
action against Sgt. Stout, nor any facts suggesting Defendant
Fon even knew of the suit. See generally Rauser, 241 F.3d at
333. This claim must therefore be dismissed, however Plaintiff
may amend this claim to address the deficiencies.3

3 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
9

I.II.

CONCLUSION

For the reasons stated above, Plaintiff's complaint shall be
dismissed without prejudice for failure to state a claim upon which
relief may be granted.

As Plaintiff may be able to correct the

deficiencies noted herein, however, he shall be granted leave to
amend the complaint. An appropriate order follows.

ANNE
U.S. District Judge

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.
10