ALFORD et al v. WOJCHIECHOWICZ et al

Filing 6

OPINION filed. Signed by Judge Peter G. Sheridan on 9/30/2015. (mmh)

NOT FOR PUBLICATiON
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CRAIG ALFORD, et al.,
Civil Action No. 15-6750 (PGS)
Plaintiffs,
v.

OPINION

MR. WOJCHIECHOWICZ, et al.,
Defendants.

SHERIDAN,

District Judge

Plaintiffs Craig Alford, Vincent Parnell, Jamie Calderone, Carlos Barroso, Jason Mathis
and Rolphy Capellan (collectively, “Plaintiffs”), current and former prisoners confined at Bo
Robinson Halfway House in Trenton, New Jersey, seek to bring this action
Only Plaintiff Alford submitted an application to proceed
I.

in

forma

pauperis.

informa pauperis.

BACKGROUND

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 the

allegations.
Plaintiffs allege that Defendant Wojchiechowicz “did not disposition [sic] or grievances,
nor did he respond to [Plaintiffs’] complaints.” (Compi.

¶ 4(b).)

Specifically, Plaintiffs allege

that they informed Defendant Wojchiechowicz of the “heavy K2 marijuana drugs” in the facility
and he did nothing about the situation. (Id.) Plaintiffs allege that Defendants Newborn, High,
Stephens, Rogers, Dowling, Miguel, Scott and Miller were notified of the drug use at the facility

but also did not take any action. (Compl.

J 4(c)-(e).)

Defendant Lette, a parole officer, failed to

transfer his parolees even when they notified him of the drug situation at the facility. (Compl.

¶

4(f).)
Plaintiffs further allege that Plaintiff Calderone injured his thumb but the medical staff
“ignored his bunch of medical slips.” (Comp.

¶ 4(i).)

When he was finally seen and received x

rays, he learned that his thumb was fractured but still received no treatment. (Id.) Plaintiff
Barroso has also failed to receive treatment from the medical staff for his bruised ribs and fractured
arm.

(Id.)

Plaintiff Alford states that the psychologist at Bo Robinson has denied him his

medications for depression and migraines.

(Id.)

Finally, Plaintiffs allege that Defendant

Lachance verbally harassed Plaintiff Alford when he went to the front office. (Compl.

¶ 4(n).)

Plaintiffs are seeking monetary damages and a transfer to different halfway house.
(Compi.

¶ 7.)

II.

DISCUSSION

A.

Joinder

As an initial matter, the Court must determine if the claims from Plaintiffs are properly
joined together in one complaint. In Hagan v. Rogers, 570 F.3d 146 (3d Cir. 2009), the Court of
Appeals for the Third Circuit held that in forma pauperis prisoners are not categorically barred
from joining as co-plaintiffs under Rule 20 of the Federal Rules of Civil Procedure. Rule 20
provides the following regarding permissive joinder of parties:
(1) Plaintiffs. Persons may join in one action as plaintiffs if:
At the outset, the Court notes that no inmate has a Due Process liberty interest in being assigned
to, or remaining in, the correctional institution of his/her choice. See Ohm v. Wakinekona, 461
U.S. 238, 245 (1983); Meachutn v. Fano, 427 U.S. 215, 224—25 (1976); Hairston v. Nash, 165 F.
Appx 233, 234 (3d Cir. 2006) (per curiam).
2

(A) they assert any right to reliefjointly, severally, or in the alternative with respect
to or arising out of the same transaction, occurrence, or series of transactions or
occurrences; and
(B) any question of law or fact common to all plaintiffs will arise in the action.
(2) Defendants. Persons

...

may be joined in one action as defendants if:

(A) any right to relief is asserted against them jointly, severally, or in the alternative
with respect to or arising out of the same transaction, occurrence. or series of
transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.
FED.R.CIv.P. 20(a).
The requirements prescribed by Rule 20(a) are to be liberally construed in the interest of
convenience and judicial economy. Swan v. Ray, 293 F.3d 1252, 1253 (11th Cir. 2002). However,
the policy of liberal application of Rule 20 is not a license to join unrelated claims and defendants
in one lawsuit. See, e.g., Pruden v. SCI Camp Hill, 252 F. App’x 436 (3d Cir. 2007); George v.
Smith, 507 F.3d 605 (7th Cir. 2007); Coughlin v. Rogers, 130 F.3d 1348 (9th Cir. 1997).
In this case, only one plaintiff, Alford, has submitted an application to proceed injörnla
pauperis. Where more than one prisoner seeks to join in a complaint against a government official
or entity, the plaintiffs may prepay a single $400.00 filing fee or seek informapauperis status.
See Hagan, 570 F.3dat 150; Millerv. New Jersey, No. 13—2018, 2013 WL 2149692, at *2 (D.N.J.

May 16, 2013) (citations omitted). In the event that multiple prisoners seek to join as plaintiffs
and they do not prepay the $400 filing fee, then each plaintiff must submit a complete application
to proceed informapauperis if he desires the complaint to be filed on his behalf. See Hagan, 570
F.3d at 154—55. In that situation, if the Court permits more than one prisoner to join as a plaintiff
under Rule 20, then the Court is required to collect a $350 filing fee from each prisoner-plaintiff
by directing the agency having custody of each prisoner to deduct the filing fee in monthly
3

installments from each prisoner’s account as if each prisoner were filing his own individual
complaint. See Id. at 155—56.
In this case, only Alford submitted an application to proceed informapauperis. The other
plaintiffs may not have known about the filing fee requirement. Thus, all Plaintiffs other than
Alford will be administratively terminated from this action.

Plaintiff Alford’s application to

proceed in forma pauperis will be granted based on the information provided therein.
Accordingly, at this time, the Complaint only as to Plaintiff Alford (hereafter “Plaintiff’) will be
screened pursuant to 28 U.S.C.

§

1915(e)(2)(B) 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 suit. For the reasons
set forth below, the Complaint will be permitted to proceed in part.
B.

Screening of Plaintiff Alford’s Claims

1. Legal Standard
a. Standards for a Sua Sponte Dismissal

Perthe 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 inforina pauperis, see 28 U.S .C.
against a governmental employee or entity, see 28 U.S.C.
respect to prison conditions, see 28 U.S.C.

§

§

§

191 5(e)(2)(B), seeks redress

1915A(b), or brings a claim with

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.
191 5A because Plaintiff is proceeding as an indigent and is a prisoner.
4

§

1915(e)(2)(B) and

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.”
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 the complaint must allege “sufficient
,
2
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 inference that the defendant is
liable for the misconduct alleged.” Belmont v. MB mv. Partners, Inc., 708 F.3d 470, 483 n. 17 (3d
Cir. 2012) (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.”
Ma/a v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted) (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 Constitution and laws, shall
be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress
...

2

“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C.
§ 191 5(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. § 1 997e(c)( I )); Courteau v. United States, 287 F. App’ x 1 59, 162 (3d
Cir. 2008) (discussing 28 U.S.C. § 1915A(b)).
5

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).
2. Analysis
a. Failure to Respond to Grievances

Plaintiff alleges that he submitted many grievances to Defendants Wojchiechowicz,
Newborn, High, Stephens, Rogers, Dowling, Miguel, Scott, Miller, Lette, however they failed to
respond. “Prisoners do not have a constitutional right to prison grievance procedures.” Heleva
v. Kramer, 214 F. App’x 244, 247 (3d Cir. 2007) (citing Massey v. Helman, 259 F.3d 641, 647 (7th
Cir. 2001)); Pressley v. Johnson, 268 F. App’x 181, 184 (3d Cir. 2008) (“Pressley also complained
about the investigation and processing of his inmate grievances. Because there is no due process
right to a prison grievance procedure, Pressley’s allegations did not give rise to a Fourteenth
Amendment violation.”); Stringer v. Bureau of Prisons, 145 F. App’x 751, 753 (3d Cir. 2005)
(same). Because inmate grievance procedures do not give rise to a liberty interest protected by
the Due Process Clause, see Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996); Buckley v.
Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (per curiam); Mann v. Adams, 855 F.2d 639 (9th Cir.
1988) (per curiam), any failure to properly process and address Plaintiffs grievances is not
actionable under

§

1983. This claim will be dismissed for failure to state a claim upon which

relief may be granted.
b.

Medical Claim

Plaintiff states that he is a mental health patient, who is on “recorded” Trazodone for his
depression and insomnia. Plaintiff complained about not receiving his Trazodone and Excedrine
6

for migraines, but when he saw the psychologist at Bo Robinson, he or she refused to provide him
with said medications.

As a result, since August 18, 2015, Plaintiff has not received any

medication for his depression or migraines.
In order to set forth a cognizable claim for a violation of his right to adequate medical care,
a prisoner must allege: (1) a serious medical need; and (2) behavior on the part of prison officials
that constitutes deliberate indifference to that need. See Estelle v. Gamble, 429 U.S. 97, 106
(1976); Natale v. Camden Cly. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003). See also Lenhart
v. Pennsylvania, 528 F. App’x 111, 115 (3d Cir. 2013) (per curiam) (“In order to state a Fourteenth
Amendment claim of inadequate medical attention upon which relief may be granted, a plaintiff
must allege that a defendant acted with deliberate indifference to his serious medical needs.”).
“A medical need is serious if it has been diagnosed by a physician as requiring treatment,
or if it is so obvious that a lay person would easily recognize the necessity for a doctors attention.”
See Mitchell v. Beard, 492 F. App’x 230, 236 (3d Cir. 2012) (per curiam) (internal citations and
quotations omitted). “To act with deliberate indifference to serious medical needs is to recklessly
disregard a substantial risk of serious harm.” Giles v. Kearney, 571 F.3d 318, 330 (3d Cir. 2009).
Deliberate indifference requires proof that the official “knows of and disregards an excessive risk
to inmate health or safety.” Natale, 3 18 F.3d at 582 (quoting Farmer v. Brennan, 511 U.S. 825,
837 (1994)). The Third Circuit has found deliberate indifference where a prison official: “(1)
knows of a prisoner’s need for medical treatment but intentionally refuses to provide it; (2) delays
necessary medical treatment based on a nonmedical reason; or (3) prevents a prisoner from
receiving needed or recommended treatment.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.
1999). Notably, however, allegations of negligent treatment or medical malpractice do not trigger
constitutional protections. Pierce v. Pitkinc, 520 F. App’x 64, 66 (3d Cir. 2013) (per curiam)
7

(citing Estelle, 429 U.S. at 105—06); Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 192 n. 2 (3d
Cir. 2001).
Here, Plaintiff has stated that he is a diagnosed mental health patient who has a prescription
for Trazodone and Excedrine and he is being denied said necessary medication. At this juncture,
the Court finds that Plaintiff has alleged sufficient facts to allow his denial of medical care claim
to proceed against the psychologist at Bo Robinson.
c.

Drug and Tobacco Use

Plaintiff alleges that Defendants Wojchiechowicz, Newborn, High, Lette, Stephens,
Rogers, Dowling, Miguel, Scott and Miller have all been informed about the “epidemic” of drug
and tobacco use at the prison, but have done nothing to attempt to remedy the situation.
As interpreted by the Supreme Court, the Eighth Amendment prohibits punishments,
including conditions of confinement, which “involve the unnecessary and wanton infliction of
pain.” Rhodes v. Chapman. 452 U.S. 337. 347 (1981). The standard is a “flexible and dynamic”
one, that “draw[s] its meaning from the evolving standards of decency that mark the progress of a

maturing society.” Id. at 345—46.

However, “to be cruel and unusual punishment, conduct

which does not purport to be punishment at all must involve more than ordinary lack of due care
for the prisoner’s interests or safety.”

Whitleyv. Albers, 475 U.S. 312, 319 (1986).

To state a civil rights claim based on involuntary exposure to environmental tobacco smoke
(“ETS”), Plaintiff must show that: (a) “he himself [was] exposed to unreasonably high levels of

ETS,” Helling v. McKinney, 509 U.S. 25, 35 (1993); (b) “the risk of which he complains [was] not
one that today’s society chooses to tolerate,” Id. at 36; and (c) certain identified defendants were
deliberately indifferent to the serious risk to Plaintiffs future health from such exposure. See id.

8

at 35—36; see also Ford v. Mercer Cty. Corr. Center, 171 F. Appx 416 (3d Cir. 2006); Atkinson v.
Taylor, 316 F.3d 257, 262 (3d Cir. 2003).
Here, it appears that Plaintiff is attempting to allege a violation of his Eighth Amendment
rights based on his placement in a facility where other inmates are using drugs and tobacco.
However, it is not clear to the Court as to how said environment affects Plaintiff and violates his
Eighth Amendment rights. He alleges that he “fears for his life,” but he has not alleged any
incidents which threatened his life in any manner.

Plaintiff simply has not alleged with any

specificity why and how he has suffered due to the drug habits of other prisoners. Similarly, with
regard to the tobacco use, Plaintiff has failed to allege any facts regarding his exposure to tobacco
smoke. Rather, it appears that his claim is based purely on the fact that other prisoners are using
tobacco products and does not relate to the effect said usage has on him.
Because the Complaint does not identify with any specificity the exact basis for this claim,
including any injuries suffered by Plaintiff or how he is affected by other prisoner’s activities, it
will be dismissed without prejudice. See Nunez v. Salamack, No. 88-4587, 1989 WL 74940, at
*l..2 (S,D.N.Y. June 26, 1989) (“Merely being exposed to illegal drugs in prison did not constitute
the unnecessary and wanton infliction of pain. the Eighth Amendment does not guarantee
. .

[plaintiff] the right to be incarcerated in a drug-free environment, as another ‘desirable aid’ to his
rehabilitation.”)
c.

Verbal Harassment

Plaintiff appears to raise a claim for violation of his rights based on the verbal threats by
Defendant Lachance.

However, allegations of verbal abuse or threats, absent any injury or

damage, are not cognizable under

§ 1983. See Brown v. Hamilton Twp. Police Dep’tMercer Cty.,

N.i, 547 F. App’x 96, 97 (3d Cir. 2013) (per curiam) (citing A’IcBride v. Deer, 240 F.3d 1287,
9

1291 n.3 (10th Cir. 2001); Freeman v. Aipaio, 125 F.3d 732, 738 (9th Cir. 1997)); Barber v. Jones,
No. 12—2578, 2013 WL 211251, at *5 (D.N.J. Jan.18, 2013) (noting that general allegations of
verbal abuse unaccompanied by injury or damage are not cognizable under

§

1983). Therefore,

this claim will be dismissed.
d. Retaliation

Approximately three weeks after filing his Complaint, Plaintiff submitted a supplement to
(Suppl. Ltr., ECF Nos. 4-5.)

his Complaint.

In his supplemental letter, Plaintiff is seeking

immediate release on parole because, in retaliation for his filing of grievances, Defendants
transferred Plaintiff from the Bo Robinson halfway house to Mercer County Jail. (Suppl. Ltr. 1.)
However, to the extent Plaintiff is seeking release from confinement or parole, such a claim is not
cognizable in a

§

1983. See Preiserv. Rodriguez, 411 U.S. 475,500,93 S.Ct. 1827,36 L.Ed.2d

439 (1973) (“[Wjhen a state prisoner is challenging the very fact or duration of his physical

confinement

[

...

] his sole federal remedy is a writ of habeas corpus”).

such a claim in state court and then may file a

§

Plaintiff must first exhaust

2254 petition with this Court. Coady v. Vaughn,

251 F.3d 480 (3d Cir. 2001) (state prisoner’s challenge to denial of parole or challenge to the
legality of continued state custody must be brought under

§ 2254 which requires the exhaustion of

state court remedies); see also Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 237, 243 (3d
Cir. 2005) (finding that a challenge to regulations limiting pre-release transfer to community
corrections centers was properly brought in habeas, because community confinement is
‘‘qualitatively different from confinement in a traditional prison”) (citation omitted).
Since release from confinement appears to be the only relief sought by Plaintiff on this
ground, the Court will dismiss the retaliation claim without prejudice.

However, should Plaintiff

decide to file a motion to amend his Complaint to seek other relief on this ground, the Court notes
10

the following. Retaliation against a prisoner based on his exercise of a constitutional right violates
the First Amendment. Bistria,7 v. Levi, 696 F.3d 352, 376 (3d Cir. 2012) (citing Mitchell v. Horn,
318 F.3d 523, 529—31 (3d Cir. 2003); Rauser v. Horn, 241 F.3d 330, 333—34 (3d Cir.2001); Allah
v. Seiverling, 229 F.3d 220, 224—26 (3d Cir. 2000). To state a First Amendment retaliation claim,
a plaintiff must allege (1) that he was engaged in constitutionally protected conduct; (2) he suffered
some adverse action at the hands of the prison officials; and (3) his constitutionally protected
conduct was a substantial or motivating factor in the decision to take the adverse action. Bistrian,
696 F.3d at 376 (citing Rauser, 241 F.3d at 333).
Certainly, the filing of inmate grievances is a constitutionally protected activity.

See

Mearin v. Vidonish, 450 F. App’x 100, 102 (3d Cir. 2011)(”[T]he filing of grievances and lawsuits
against prison officials constitutes constitutionally protected activity”). With regard to the second
prong, transferring a prisoner to another prison is an example of adverse action. See Rauser v.
Horn, 241 F.3d 330, 333—34 (3d Cir.2001) (prison transfer). Finally, with regard to the third
prong, Plaintiff is advised that the mere fact that an adverse action occurs after either a complaint
or grievance is filed is relevant, but not dispositive, for the purpose of establishing a causal link
between the two events. See Lape v. Pennsylvania, 157 F. App’x 491, 498 (3d Cir. 2005). Only
where the facts of a particular case are “unusually suggestive” of a retaliatory motive will temporal
proximity, standing alone, support an inference of causation. Krouse v. American Sterlizer Co.,
126 F.3d 494, 503 (3d Cir. 1997). Moreover, a plaintiff must allege facts showing that any
defendants against whom he raises a retaliation claim were personally involved in the retaliation
because Section 1983 liability cannot be predicated on respondent superior. See Iqbal, 556 U.S.
at 675—77, 129 S.Ct. 1937; Rode v. Dellarciprete, 845 F.2d 1195, 1207—08 (3d Cir. 1988) (holding
that a plaintiff must establish that the defendants “have personal involvement in the alleged wrongs
11

[which]

...

can be shown through allegations of personal direction or of actual knowledge and

acquiescence”).
III. CONCLUSION

For the reasons set forth above, all co-plaintiffs except craig Alford will be dismissed from
this action. Plaintiff Alford’s denial of medical care claim against the Bo Robinson psychologist
will be permitted to proceed. All other claims will be dismissed without prejudice for failure to
state a claim pursuant to 28 U.S.C.

3
§ 1915(e)(2)(B) and § 1915A(b)(1). An appropriate order

follows.
Dated: fl

r

Peter G. Sheridan, U.S.D.J.

Plaintiffs “Motion for an Emergent Hearing” (ECF No. 1-4) and “Motion for an Injunction”
(ECF Nos. 1-5 and 3) are dismissed as moot. Though the basis for seeking such a hearing and
injunction is not entirely clear, it is certainly clear that it is unrelated to Plaintiff Alford’s medical
care claim, which is the only claim proceeding past screening. Plaintiffs Motion for Class
Certification (ECF No. 1-6) is also dismissed as moot because only Plaintiff Alford’s medical
claim is proceeding at this time.
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