NIBLACK v. MALBREEN et al
MEMORANDUM OPINION filed. Signed by Judge Michael A. Shipp on 4/25/2016. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
STANLEY L. NIBLACK,
Civil Action No. 15-5298 (MAS) (LHG)
SCO MALBREEN, et al.,
SHIPP, District Judge
Pro se Plaintiff Stanley L. Niblack ("Plaintiff') brings this action pursuant to 42 U.S.C.
§ 1983, alleging violations of his constitutional rights. The case was originally filed with the
Superior Court of New Jersey and was removed to this Court by Defendants. (See Notice of
Removal, ECF No. 1.)
Presently before the Court is a Motion to Dismiss ("Motion") by
Defendants SC0 1 Barnes, SCO Togno, John Powell, and Commissioner Gary M. Lanigan
("Moving Defendants"). (ECF No. 5.) Plaintiff opposes the Motion. (ECF No. 9.) The Court
has carefully considered the parties' submissions and decides the matter without oral argument
pursuant to Local Civil Rule 78.1. For the reasons stated below, the Motion is granted. 2
Plaintiff does not explain what "SCO" stands for, but the Court assumes it stands for "Senior
Moving Defendants also move, in the alternative, for summary judgment. Because the Court is
granting the motion to dismiss, the Court need not address their arguments for summary judgment.
For the purpose of this Opinion, the Court accepts all facts alleged in the Complaint as true,
and views them in the light most favorable to Plaintiff. Plaintiff alleges that sometime during April
of 2014, various defendants--officers at the prison where Plaintiff was confined-impermissibly
and unjustifiably used excessive force and assaulted him on two occasions. 3 (Compl. 3-4, ECF
No. 1-1.) Plaintiff further alleges that he filed several letter grievances regarding these alleged
assaults with Defendants Powell and Lanigan, but did not receive any response to his grievances.
(Id. at 4-5.) Plaintiff does not allege that the constitutional violations are ongoing. In addition,
the Complaint provides that Lanigan was the "NJDOC Commissioner," (id. at 5), and that Powell
was the administrator of the prison, (id.), i.e. they are not officers immediately in charge of prison
STANDARD OF REVIEW
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." "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 ....
The details of the alleged assaults are not relevant to this Memorandum Opinion, as the Moving
Defendants do not move to dismiss the substantive assault and excessive force claims on the merits.
Bell At!. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted); see Connelly v. Lane
Constr. Corp., 809 F.3d 780, 786-87 (3d Cir. 2016).
In determining the sufficiency of a pro se complaint, the Court must be mindful to accept
its factual allegations as true, see James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012),
and to construe it liberally in favor of the plaintiff. See Haines v. Kerner, 404 U.S. 519, 520-21
(1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
A plaintiff can pursue a cause of action under § 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 ....
42 U.S.C. § 1983. Thus, to state a claim for relief under§ 1983, a plaintiff must establish, 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. Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50-51 (1999); Morrow v. Balaski, 719 F.3d 160, 16667 (3d Cir. 2013).
Supervisory Claims against Powell and Lanigan
Based on Plaintiffs allegations, the Court construes the Complaint as raising supervisory
claims against Powell and Lanigan. Although the Complaint does state, in the "Relief Requested"
section, that Powell and Lanigan failed "to have a grievance, remedy or complaint system in place
to address Prisoners['] grievances, concerns and complaints of Correctional Officers['] physical
abuse upon prisoners" (Compl. 7), the Court does not construe that statement as raising a claim for
failure to adopt proper policy because Plaintiffs allegations elsewhere establish that the prison
had such a system in place. (See id. at 5 ("On April 11, 2014, plaintiff wrote another letter
grievance with an enclosed remedy form on the assaults by [the] officers ....").) Nor does the
Court construe the Complaint as raising a claim that Powell and Lanigan failed to follow
established policies, since Plaintiff makes no factual allegations supporting such a claim.
Moving Defendants argue that Plaintiffs claims against Powell and Lanigan should be
dismissed for failure to state a claim upon which relief may be granted, because respondeat
superior claims are not actionable under § 1983. The Court agrees. With respect to a § 1983 claim,
"[g]overnment officials may not be held liable for the unconstitutional conduct of their
subordinates[.]" Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). "[A] plaintiff must plead that each
Government-official defendant, through the official's own individual actions, has violated the
Constitution." Id. While 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 on other grounds, 135 S. Ct. 2042; 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.
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.
Here, Plaintiff simply alleges that he filed several letter grievances with Powell and
Lanigan regarding the alleged assaults by correctional officers and did not receive any response.
Plaintiff does not expressly allege that Lanigan, the commissioner of the entire Department of
Corrections, or Powell, the administrator of the entire prison, had personal knowledge of the
alleged violations. Rather, Plaintiff alleges that these defendants are high-level officials and may
conceivably have been involved in the post-grievance process. But, as the cases above held, mere
involvement in the post-grievance process is insufficient to incur Eighth Amendment liability.
Plaintiff argues that Powell and Lanigan "simply ignored" and "did not take any action"
regarding the letter grievances that placed them on notice of the misconduct by their subordinate
officers. (Pl.'s Opp'n Br. 9, ECF No. 9.) According to Plaintiff, this amounted to "acquiesce[nce]
in the assaultive behavior and excessive force or misconduct by their officers." (Id.) The Court
recognizes that case law suggests that submitting repeated written complaints to a supervisory
defendant of an ongoing constitutional violation may be sufficient to establish deliberate
indifference by circumstantial evidence. See, e.g., Cardona v. Warden - MDC Facility, No. 127161, 2013 WL 6446999, at *5 (D.N.J. Dec. 6, 2013) (holding that plaintiff stated a valid denial
of medical services claim against the prison warden because plaintiff alleged an ongoing
constitutional violation, and alleged that the warden was made aware of the ongoing violation
through repeated written requests); Carter v. Smith, No. 08-279, 2009 WL 3088428, at *6 (E.D.
Pa. Sept. 23, 2009) ("Where a grievance alleges an ongoing constitutional violation, a supervisory
defendant who reviews it is personally involved in that violation because he is confronted with a
situation he can remedy directly'') (citing Harnett v. Barr, 538 F. Supp. 2d 511, 524-25 (N.D.N.Y.
Here, however, Plaintiff does not allege an ongoing violation against him, as his grievances
were related to assaults that had already occurred. So, at the time he sent his grievances to Powell
and Lanigan, there was no continuing conduct for them to remedy; the harm to Plaintiff had already
transpired. Therefore, the Court finds that Plaintiff has failed to state a claim upon which relief
may be granted with regard to his constitutional claims against Powell and Lanigan. Accordingly,
the Court grants the Motion on those claims.
In the interest ofjustice, the Court dismisses the claims against Powell and Lanigan without
prejudice. Plaintiff is afforded thirty days to amend the Complaint. Plaintiff may add additional
factual allegations, consistent with the holdings of this Memorandum Opinion, that suggest Powell
and Lanigan had pre-grievance knowledge of and acquiesced in the alleged assaults. Failure to
amend the Complaint within this timeframe will result in the dismissal with prejudice of Powell
and Lanigan from this case.
State Law Tort Claims
Next, Moving Defendants seek to dismiss any potential state law tort claims against them
in the Complaint, on the assertion that Plaintiff has failed to file a notice of claims as required by
state law. Under the New Jersey Tort Claims Act, when asserting a state tort claim against a public
entity or a public employee, a plaintiff must give notice of the claim within ninety days after the
cause of action has accrued. See N.J.S.A. 59:8-8; Konah v. City of Newark, No. L-962-10, 2011
WL 1598957, at *2 (N.J. Sup. Ct. App. Div. Apr. 29, 2011); Brown v. Twp. of Neptune, No. 117162, 2014 WL 3517776, at *7 (D.N.J. July 15, 2014). This notice requirement applies to common
law intentional torts claims, Ptaszynski v. Uwaneme, 371 N.J. Super. 333, 343 (App. Div. 2004),
as well as negligent conduct claims, Velez v. City ofJersey City, 180 N.J. 284, 292-93 (2004). This
ninety-day notice period may be extended by a court upon a finding of "sufficient reasons
constituting extraordinary circumstances for [the plaintifr s] failure to file notice of claim within
the period of time prescribed," but only if the plaintiff files a late notice "within one year after the
accrual of his claim[.]" N.J.S.A. 59:8-9; see Slater v. Hardin, No. L-8574-09, 2014 WL 923337,
at *5 (N.J. Sup. Ct. App. Div. Mar. 11, 2014). Plaintiffs who do not comply with this requirement
are "forever barred" from recovering on their claim. See N.J.S.A. § 59:8-8. Notice is important
because it provides state agencies with the "opportunity to investigate the claims, and take
disciplinary or other appropriate action to rectify inappropriate behavior or flawed practices."
Mawhinney v. Francesco, No. 08-3317, 2010 WL 2557713, at *9 (D.N.J. June 22, 2010) (citing
Velez, 180 N.J. at 293). Failure to file a notice of claim is a ground for dismissal at the motion to
dismiss stage. See William v. Westampton Police Dep 't, No. L-1144-13, 2014 WL 5393184, at *3
(N.J. Sup. Ct. App. Div. Oct. 24, 2014).
Here, there is no allegation in the Complaint that Plaintiff filed the required notice of claim.
Furthermore, Plaintiff implicitly admits in his opposition that he has not filed the required notice. 4
(Pl.'s Opp'n Br. 14.) Under New Jersey law, Plaintiff is required to file the notice of claims before
he initiates any state law tort action against Moving Defendants. See N.J.S.A. § 59:8-3. As such,
Plaintiff must demonstrate, at the time he filed the Complaint, that such notice of claims had
Plaintiff argues that his claims "are not barred by N.J.S.A. 59:8-8 for failure to file a notice of
claim [of] a § 1983 claim alleging the violation of constitutional rights." (Pl.'s Opp'n Br. 12.)
However, Moving Defendants only seek to dismiss claims arising under the Tort Claims Act for
failure to file a notice of claim. (See Defs.' Moving Br. 13, ECF No. 5-2 ("Accordingly, any claims
against New Jersey Department of Corrections and its employees arising under the New Jersey
Tort Claims Act must be dismissed with prejudice") (emphasis added).) In addition to his federal
claims, Plaintiff specifically alleges state law tort claims. (See Compl. 6 ("The physical abuse of
the plaintiff ... constituted assault and battery under State Law[.]").) It is these claims that Moving
Defendants seek to dismiss; when Plaintiff claims relief under state law, he must follow established
state procedures. See Murphy v. Bloom, 443 F. App'x 668, 670 (3d Cir. 2011) ("The District Court
... properly recognized that Murphy did not follow the proper procedure for bringing a [state law]
claim ... as required by state law.").
already been served. See Ptaszynski v. Uwaneme, 371 N.J. Super. 333, 343 (App. Div. 2004)
(holding that the notice requirement under the Tort Claims Act is a jurisdictional precondition to
filing suit). No such demonstration has been made in the Complaint. See Fed. R. Civ. P. 8(a) ("A
pleading that states a claim for relief must contain ... the grounds for the court's jurisdiction[.]");
Bethea v. Roizman, No. 11-254, 2012 WL 2500592, at *7 (D.N.J. June 27, 2012) (dismissing
plaintiff's state law tort claims for failure to plead compliance with the notice requirement under
the Tort Claims Act). Thus, the Court finds that Plaintiff has failed to state a claim upon which
relief may be granted on his state law claims, and grants the Motion on those claims. Additionally,
because the alleged assaults occurred in April of 2014, and personal injury claims accrue at the
time of injury, Tevis v. Tevis, 79 N.J. 422, 431 (1979), all of Plaintiff's state law claims accrued
more than a year from the date of this Memorandum Opinion, so the Court is without jurisdiction
to allow Plaintiff to file a late notice of claims under the Tort Claims Act. N.J.S.A. § 59:8-9;
Slater, 2014 WL 923337, at *5 ("The court is without jurisdiction to permit filing of a late notice
of claim more than one year after the accrual of the claimant's cause of action.") (quoting Williams
v. Maccarelli, 266 N.J. Super. 676, 679 (App. Div. 1993)). Therefore, the Court dismisses
Plaintiff's state law claims with prejudice, as Plaintiff no longer has an opportunity to cure his
In Forma Pauperis Status
The Court takes this occasion to address Plaintiff's objection, in his opposition brief, to the
Court's prior holding that Plaintiff has not been granted in forma pauperis status in this Court. In
a text order denying Plaintiff's request for service by the United States Marshal, the Court stated
that "Plaintiff cannot use the U.S. Marshal for service, because Plaintiff has not been granted in
forma pauperis status by this Court. If Plaintiff wishes to proceed in forma pauperis, Plaintiff must
submit an in forma pauperis application." (Text Order, Sept. 25, 2015, ECF No. 7.) Plaintiff
objects, contending that since he has already been granted in forma pauperis status by a state court
order, this Court must consider that order as an order of this Court. (Pl.'s Opp'n Br. 1.)
"[O]nce a case has been removed to federal court, it is settled that federal rather than state
law governs the future course of proceedings, notwithstanding state court orders issued prior to
removal." Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Local No. 70 of
Alameda Cty., 415 U.S. 423, 437 (1974). Provisions of federal law, including the Federal Rules
of Civil Procedure and, by implication, the federal in forma pauperis statute, "govern the mode of
proceedings in federal court after removal." Id. at 438; see Fed. R. Civ. P. 81(c)(l) ("These rules
apply to a civil action after it is removed from a state court.").
Here, when the state court granted Plaintiff in forma pauperis status, its effect was to allow
Plaintiff to proceed in that court with all the benefits afforded to litigants who qualify for in forma
pauperis status there. No argument can be made that the state court intended that order to somehow
govern a proceeding in federal court once the case was removed. Nothing in the removal statute
or other federal law prohibits a federal court from enforcing its own rules, and litigants are subject
to the protections, as well as the limitations, of federal court rules once the case is removed to
federal court. See Granny Goose, 415 U.S. at 438. As such, Plaintiff is required to satisfy the
federal requirements for in forma pauperis status if he wishes to proceed in this Court with such
status. See Wassenaar v. Lanigan, No. 13-1485, 2015 WL 1712869, at *5 (D.N.J. Apr. 15, 2015)
(requiring plaintiff to seek in forma pauperis status in federal court before requesting pro bono
counsel in a removed case); Abdullah v. New Jersey, No. 12-4202, 2012 WL 2916738, at *2
(D.N.J. July 16, 2012) ("[A] litigant ... seeking removal to a federal forum must ... duly apply
for in forma pauperis status."). If Plaintiff wishes to proceed in this Court in forma pauperis,
Plaintiff must apply for it anew.
For the reasons set forth above, the Motion is granted. Plaintiffs constitutional claims
against Defendants John Powell and Commissioner Gary M. Lanigan are dismissed without
prejudice, and Plaintiffs state law tort claims against all Moving Defendants are dismissed with
prejudice. Plaintiffs constitutional claims against all other defendants remain in the case. Plaintiff
shall have thirty days from the date of entry of the accompanying Order to amend the Complaint.
UNITED STATES DISTRICT JUDGE
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