TURNER v. JOHNSON et al

Filing 45

OPINION filed. Signed by Judge Peter G. Sheridan on 6/11/2018. (km)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JUAN IBN-DON MUMIT TURNER,
Plaintiff,

Civ. No. 17-0541 (PGS-TJB)

V.

STEVEN JOHNSON, et a!.,

:

OPINION

Defendants.

PETER G. SHERIDAN. U.S.D.J.
I.

INTRODUCTION

This matter comes before the Court on Defendants Steven Johnson and Sgt. Doran’s
motion to dismiss Plaintiff Juan Ibn-Don Mumit Turner’s complaint, (ECF No. 28), and
Plaintiffs cross-motion to amend his complaint, (ECF No. 31). For the following reasons,
Defendants’ motion to dismiss is denied and Plaintiffs motion to amend is granted in part.
Plaintiffs amended complaint shall be permitted to proceed only on his access to the courts
claims against defendants Johnson and Doran.
II.

BACKGROUND

Petitioner is culTently incarcerated in New Jersey State Prison (“NJSP”) Trenton, New
Jersey. On January 26, 2017, he filed a complaint alleging NJSP Warden Stephen Johnson, Third
Circuit Clerk Marcia Waldron, and Mailroom Sgt. Doran had interfered with his access to the
courts by failing to give him Judge Jerome B. Simandle’s, U.S.D.J., opinion dismissing his
habeas corpus petition under 28 U.S.C.

§

2254 in a timely manner. (ECF No. 1).

According to the original complaint, Judge Simandle denied Plaintiffs habeas corpus
petition on August 31, 2015. See Turner v. Chiesa, No. 12-5224, 2015 WL 5116764 (D.N.J.

Aug. 31, 2015). Plaintiff alleges he did not receive Judge Simandle’s opinion and order until
November 3, 2015. See Compl. at 3A. Under the federal rules, Plaintiff had 30 days to appeal the
habeas denial, or until September 30, 2015. See Fed. R. App. P. 4(a)(1)(A). Plaintiff states he did
not receive the opinion and order until November 3, 2015.
Plaintiff filed a motion for leave to file an appeal as within time on November 19, 201 5.
Judge Simandle denied the motion: “The principal issue presented is whether this Court may
enlarge the time for appeal in this civil case where the prisoner petitioner did not receive the
Courts Order until 63 days after it was entered through no fault of his own, and where he filed
this motion to permit the appeal 17 days after receiving the Order. Unfortunately, such relief is
precluded by 28 U.S.C. 2 107(c) and Fed. R. App. P. 4( )(a)(6), and this Court must deny the
motion.” Turner v. Chiesa, No. 12-5224, 2016 WL 356029 (D.N.J. Jan. 29, 2016), certificate of
appealability denied, No. 16-1604 (3d Cir. May 25, 2016). Plaintiffs appeal of the

§ 2254 denial

was dismissed by the Third Circuit as untimely. Turner v. Alt y General ofNi, No. 15-3932 (3d
Cir.), cert. denied sub norn Turner v. Porrino, 137 S. Ct. 507 (2016).
Judge Simandle did not opine as to the definitive reason for the delay: “[aj photocopy of
this Court’s original mailing envelope

.

.

.

bears the postage meter date of mailing as August 31,

2015, the same date as when the Opinion and Order were entered on the docket. The cause for
the two month delay in delivery to Petitioner, from August 31, 2015 to November 3,2015,
cannot be determined with certainty

it may he due to the misaddressed zip code, or to delay

within the [NJSPI, or both.” Turner, 2016 WL 356029, at *1. Plaintiff alleges the prison
intentionally held up his mail for over two months, causing him to lose his ability to appeal the
denial of his habeas petition. ‘This Court dismissed Marcia Waldron from the case in its screening

2

opinion,

but permitted the claims to proceed against Warden Johnson and Sgt. Doran. Screening

Opinion and Order of March 30, 2017. (ECF No. 3).
Plaintiff filed a motion to expand the record to include documents allegedly showing a
pattern of NJSP’s interference with his legal mail. including an incident in which Special
Investigation Division Q’SID”) officers confiscated affidavits Plaintiff intended on asserting in a
motion for a new trial. (ECF No. 5).’ Magistrate Judge Bongiovanni granted this motion. (ECF
No. 15).
Defendants filed a motion to dismiss on December 31, 2017. (ECF No. 28). The Court
originally tried to hold oral argument on this motion on January 24, 2018, but Plaintiff was not
prepared to proceed. The Court permitted Plaintiff addition time to file opposition. which he used
to file his cross-motion to amend on February 2, 2018. (ECF No. 31). The Court conducted oral
argument on April 30, 2018, at which time Plaintiff appeared by telephone. Plaintiffs response
to Defendants’ opposition was received after argument on May 8, 2018. (ECF No. 42).
III.

LEGAL STANDARDS

When considering a motion to dismiss a complaint for failure to state a claim, Fed. R.
Civ. P. 12(b)(6), the Court must accept all well-pleaded allegations in the complaint as true and
view them in the light most favorable to the non-moving party. A motion to dismiss may he
granted only if the plaintiff has failed to set forth fair notice of what the claim is and the grounds
upon which it rests that make such a claim plausible on its face. Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007). Although Rule S does not require “detailed factual allegations,” it requires

These allegations form the basis of a separate complaint filed by Plaintiff in this Court, Turner
v. Burak, No. 17-3 189 (filed May 5, 2017). The Court denied Plaintiffs motion to consolidate
his complaints on December 4, 2017. (ECF No. 26).
3

‘more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcro/

i’.

Iqbal.

556 U.S. 662, 678 (2009) (citing Twoinbly. 550 U.S. at 555).
In reviewing the sufficiency of a complaint, the Court must “tak[e] note of the elements
[the] plaintiff must plead to state a claim. Second, it should identify allegations that, because they
are no more than conclusions, are not entitled to the assumption of truth. Finally, [w]hen there
are well-pleaded factual allegations, [the] court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Conneliy v. Lane Const. Coip., 809
F.3d 780, 787 (3d Cir. 2016) (alterations in original) (internal citations and quotation marks
omitted). “[A] complaint’s allegations of historical fact continue to enjoy a highly favorable
standard of review at the motion-to-dismiss stage of proceedings.” fd. at 790.
Rule 15(a) of the Federal Rules of Civil Procedure permits a party to amend a pleading
once as a matter of course twenty-one (21) days after serving the pleading or twenty-one (21)
days “after a responsive pleading or service of a motion under Rule 12(b), (e), or

(0’ whichever

is earlier.” Fed. R. Civ. P. 15(a)(1)(A)-(B). “In all other cases, a party may amend its pleading
only with the opposing party’s written consent or the court’s leave. The court should freely give
leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). As Plaintiffs time to amend his
complaint as of right has expired and Defendants object to amendment. Plaintiff must have leave
of Court to amend.
Leave to amend a pleading may be denied where the court finds: (I) undue delay; (2)
undue prejudice to the non-moving party; (3) had faith or dilatory motive; or (4) futility of
amendment. Shane v. F’auver, 213 F.3d 113, 115 (3d Cir. 2000).

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IV.

DISCUSSION

1. Original Complaint

Plaintiffs original complaint is vulnerable to dismissal under Rule 12(b)(6). In order to
set forth a prima facie case under

§ 1983, a plaintiff must show: ‘(l) a person deprived him of a

federal right; and (2) the person who deprived him of that right acted under color of state or
territorial law.” Grornan v. Tp. ofManalapan, 47 F.3d 628, 633 (3d Cir. 1995) (citing Gomez
v. Toledo, 446 U.S. 635, 640 (1980)). Generally, for purposes of actions under

§ 1983, “[t]he

term ‘persons’ includes local and state officers acting under color of state law.” Carver v.
Foerster, 102 F.3d 96, 99 (3d Cir. 1996) (citing Ha/’r v. Melo, 502 U.S. 21(1991)). However,
“person” is not strictly limited to individuals who are state and local government employees. For
example, municipalities and other local government units, such as counties, also are considered
“persons” for purposes of 1983. See Monell v. N YC. Dep’! ofSocial Services, 436 U.S. 658,
690—91 (1978). A State, agency, or an official of the State acting in his or her official capacity, is
not a “person” within the meaning of 1983. See Will v. Michigan Dept ofState Police, 491
U.S. 58, 71(1989). A suit against a public official “‘in his or her official capacity is not a suit
against the official but rather is a suit against the official’s office

.

.

.

.“

Printz v. United States,

521 U.S. 898, 930—31 (1997) (quoting Will, 491 U.S. at 71). The claims in Plaintiffs original

complaint against defendants in their official capacities are subject to dismissal because they are
immune to suit for monetary damages in federal court.
Moreover, Plaintiffs original complaint did not sufficiently allege personal involvement
by Warden Johnson and Sgt. Doran. Warden Johnson and Sgt. Doran are in charge of NJSP and
the NJSP mailroom, respectively. The original complaint did not set forth facts as to how they
each were personally involved in the alleged intentional delay of Judge Simandle’s opinion and

5

order. “Government officials may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior” Ashcro/1 v. Iqbal, 556 U.S. 662. 679 (2009).
However, ‘if a claim is vulnerable to dismissal under Rule 12(h)(6), but the plaintiff
moves to amend, leave to amend generally must be granted unless the amendment would not
cure the deficiency.” Sliane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). As Plaintiff has moved
to amend his complaint, the Court must consider whether his proposed amended complaint cures
the deficiencies of the original complaint.
2. Proposed Amended Complain!
Plaintiff alleges he began writing remedy forms concerning interference with his mail
beginning in September 2014. Proposed Amended Complaint (“PAC”) ¶ 14. (ECF No. 31) He
alleges that both Warden Johnson and Sgt. Doran were aware of the problems he was having
with the mailroorn. (See ECF No. 3 1 at 81-86). He states that after filing this lawsuit and his
lawsuit in Turner v. Burak, No. 17-3 189, he requested to be transferred to a different prison so as
to avoid defendants in NJSP. Id.
August 23, 2017. Id.

¶ 22. lIe was transferred to East Jersey State Prison (“EJSP”) on

¶ 23.

After being in EJSP for two days, Plaintiff was called to the pass office for “legal mail.”
Id. i 24. Instead of mail, two officers and a Special Investigations Officer were waiting for him
to “introduce” themselves. Id. According to Plaintiff, he was placed in temporary closed custody
within two weeks and transferred back to NJSP. Id.

¶ 25. Upon the return to NJSP, he began the

process of requesting ajob change. Id. ¶ 26. He then alleges his property returned from EJSP
three weeks later missing a manila envelope containing 35 affidavits from witnesses for his
motion for a new trial and copies of remedies Plaintiff had submitted regarding his mail. Id.

6

¶ 27.

Plaintiff followed up on his job change request, but the Classification Department said they had
not received any of his applications for the paralegal position. Id.

¶ 29-30.

A few weeks later, Plaintiff was placed in pre-hearing detention after disciplinary charges
were filed against him for “attempting conduct which disrupts or interferes with the
orderly ruiming of the correctional facility.” (ECF No. 31 at

43)2

security or

According to the Disciplinary

Report that Plaintiff included with his proposed amended complaint. Plaintiff “was observed on
video recording making several advances toward the 2 Left Housing Officers while they were
presently involved in a Code 33 staff assault with [another inmate]. [Plaintiff] was on the JPay
Kiosk and stood up and walked toward the altercation several times.” (ECF No. 31 at 43).
According to Plaintiff, these charges “were clearly retaliation from Defendant Johnson.” PAC
33. Allegedly, Sgt. Reardon testified during the hearing that he was told by someone, it was
never specified by whom. to issue the charges against Plaintiff. (ECF No. 3 1 at 48). Plaintiff was
informed that his job application was on hold. PAC

¶ 34.

Plaintiff was represented by an inmate paralegal for his disciplinary hearing. The
paralegal submitted questions on Plaintiffs behalf, but Plaintiff alleges that Officer Jantz refused
to ask Sgt. Reardon some of the questions and changed others. Id.

¶] 38-39. The paralegal

argued the charges were retaliation for the lawsuits and requested dismissal, alleging Officer
Jantz had deprived Plaintiff of his due process rights and ability to cross-examine Sgt. Reardon.
Id.

¶ 41. Officer Jantz found Plaintiff guilty of the charges on December 4,2017 and sentenced

Plaintiff to 100 days administrative segregation, 90 days loss of computation time, and 30 days

2

Plaintiff argues there is no such infraction as an “attempted conduct which disrupts.” But see
N.J. ADMIN. CODE § lOA:4-4.l(a)(lXxiv) (Prohibited act *.803: attempting to commit, aiding
another person to commit or making plans to commit any Category A and or B offense).
Prohibited act *.306, “conduct which disrupts or interferes with the security or orderly running of
the correctional facility”, is a Category B offense. N.J. ADMIN. CODE § 1OA:4-4.1(a) (2)(xxix).
7

loss of recreational privileges. Id.

¶ 44. That same day Plaintiff got notice that he was denied the

paralegal position due to being in administrative segregation. Id.

¶ 47 Plaintiff filed an

administrative appeal. Id.

¶ 49.

¶ 46.

Plaintiffs appeal was denied. Id.

He also alleges that he has been placed in “harsh” conditions as retaliation for filing these
lawsuits. He alleges that there is no hot water in his wing. and the water in his cell only comes
out in drips. Id.

¶ 51. He states that prisoners were not provided with bottled water when the City

of Trenton was having water problems and notified residents not to drink the water. Ibid. He
states the meals are small and cold. id.

¶ 52. According to him, his cell is leaking rusted, brown

water from the toilet in the cell above him, and there is little to no ventilation. Id. ¶ 53. Plaintiff
states he has asthma and extreme allergies, but the officers refuse to open one of the windows
near his cells to circulate air. Id.

¶ 53-54.

trash that never gets cleaned up.” Id.

He states he can see roaches and rats “feasting on the

¶ 55. He alleges that Sgt. Reardon and Officer Jantz

conspired with Warden Johnson to put him in these conditions to retaliate against him for filing
lawsuits against prison officials. Id.

¶ 57.

Plaintiff has sufficiently alleged a cause of action against an access to the courts claim
against Johnson and Doran in their individual capacities. As in his original Complaint, Plaintiff
alleges Warden Johnson and Sgt. Doran are responsible for the fact that he lost his ability to
appeal the denial of his habeas petition. The factual allegations regarding the petition have not
changed, i.e., Judge Simandle denied the petition on August 31, 2015 but Petitioner did not
receive a copy of the Opinion and Order until November 3, 2015. PAC ¶ 15. He filed a motion
for leave to file an appeal within time, but that was denied on January 29, 2016. PAC

¶

16. He

alleges Johnson and Doran are responsible for the loss of his habeas appeal because of their
supervisory positions:

8

Due to Defendant Johnson’s position during the time of the incident, and
the need for authorization regarding said complaint gave him first-hand
knowledge of the occurrence, meaning he could only have been the
orchestrator or co-conspirator of these violations. Plainly stated, nothing
goes on in the [NJSP] w/o the approval or authorization of, Defendant
Jolmson. and if there is an error committed by any staff member employed
by the [NJSP] on any compound. Defendant Johnson has the opportunity to
correct it.
PAC

¶ 9.

He makes similar allegations about Sgt. Doran, that “nothing goes on in the mailroom

area of the [NJSP]” without his approval or authorization and “if there is an error committed by
any staff member or correctional officer in the mailroom area,” Sgt. Doran “has the opportunity
to correct it.” Id.

¶

10.

An access to the courts claim requires a plaintiff to plead facts indicating “he has suffered
an actual injury to his ability to present a claim. A prisoner can show an actual injury only hen
a nonfrivolous, arguable claim is lost.” Henry v. Moore, 500 F. App’x 115, 117 (3d Cir. 2012)

(citing Christopherv. Ilarbury, 536 U.S. 403, 415 (2002); Lewis v. Casey, 518 U.S. 343, 352—54
(1996)). Additionally, “the claim must relate to either a direct or collateral challenge to the
prisoners sentence or conditions of confinement [and] a prisoner must demonstrate that no other
remedy will potentially compensate for the lost claim.” Ibid. (internal citations omitted); see also

Lewis, 518 U.S. at 355 (“Impairment of any other litigating capacity is simply one of the
incidental (and perfectly constitutional) consequences of conviction and incarceration.”).
Plaintiff argues he has lost his ability to challenge the denial of his habeas petition, so he has
sufficiently pleaded this element.
Plaintiff alleges that Johnson and Doran are liable because they are the NJSP Warden and
mailroom sergeant. respectively. As previously noted, government officials may not be held
liable under

§

1983 “solely on the operation of respondeat superior.” Rode

i’.

Dellarciprete, 845

F.2d 1195, 1207 (3d Cir. 1988), Unlike in his original complaint. Plaintiff has sufficiently pled
9

personal involvement because Plaintiff alleges he has been writing up remedy forms about not
receiving mail since 2014. PAC

¶

14. (See also ECF No. 31 at 83-86). “[W]here a grievance

alleges an ‘ongoing’ constitutional violation, the supervisory official who reviews the grievance
is personally involved’ if he is confronted with a situation that he can remedy directly.” Harne!!
v. Barr, 538 F. Supp. 2d 511, 524 (N.D.N.Y. 2008). See also Wassenaar v. Lanigan. No. 131485. 2016 WL 1718191. at *3 (D.N.J. Apr. 29, 2016) (citing cases). “{Ajt a minimum. Plaintiff

must demonstrate that (1) he made repeated attempts to notify the supervisory defendant, (2) of a
sufficiently long, ongoing violation, (3) that could have been remedied by the supervisor.” Id. at
*4• Plaintiff has satisfied this obligation for purposes of his motion to amend. The Court will
permit his access to the courts claim to proceed against only Johnson and Doran as he has not
sufficiently alleged any of the other proposed defendants were involved.
The PAC does not sufficiently allege retaliation. To allege a retaliation claim, Plaintiff
must provide facts suggesting that “(1) he engaged in a constitutionally protected activity; (2) he

suffered, at the hands of a state actor. adverse action sufficient to deter a person of ordinary
firmness from exercising his constitutional rights; and (3) the protected activity was a substantial
or motivating factor in the state actor’s decision to take adverse action.” Fan/one v. Latini, 780
F.3d 184, 191 (3d Cir. 2015), as amended (Mar. 24, 2015) (citing Rauser v. Ibm, 241 F.3d 330,
333 (3d Cir. 2001)). Here, Plaintiff has not sufficiently alleged a link between the

constitutionally-protected activity, tiling a lawsuit, and the disciplinary proceedings, loss of his
property, or conditions of his confinement. ‘To establish the requisite causal connection a
plaintiff usually must prove either (1) an unusually suggestive temporal proximity between the
protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with
timing to establish a causal link.” Lauren W. cx me!, Jean W. v. DeFlaminis, 480 F.3d 259. 267

10

(3d Cir. 2007). Flere. Plaintiffs lawsuits were filed in January and May 2017. According to the
PAC the allegedly retaliatory actions began several months later in August 2017. The timeframe
does not appear unusually suggestive, so the Court must determine whether it should infer a
pattern of antagonism based on the allegations.
Plaintiff concedes in his reply papers that “Defendant Johnson is in no way responsible
for the said confiscated manila envelope w/enclosed affidavit which were taken in between
Plaintiff being transferred from [EJSPI back to the [NJSP].” (ECF No. 42

¶ 20). Plaintiffs

allegations are fairly conclusory, stating that the charges “were clearly retaliation from
Defendant Johnson.” PAC

¶ 33. 1t is now clear to Plaintiff that Sgt. J. Reardon, and Courtline

Hearing Officer L. Jantz, played a ‘key role’ in conspiring with Defendant Johnson to retaliate
w/ malicious intent against Plaintiff by placing him in extreme harsh conditions within the prison
because of the litigating actions Plaintiff has taken against prison officials.” Id.

¶ 57.

Plaintiffs allegations regarding retaliation are vague and conclusory and do not sufficiently
plead a causal cormection between the filing of this lawsuits and the alleged start of the
retaliatory actions three months later. None of the submitted exhibits name the proposed
defendants as being involved in the retaliation.

(See

ECF 42-1 at 7-10). Matthew Schlusselfeld is

not named in the factual portion of the PAC at all beyond a cursory mention that he was working
at EJSP when Plaintiff arrived. PAC

¶1

23. Seeing as how Plaintiff alleges he only spent roughly

two weeks at EJSP, it is not clear how Schlusselfeld could have been plausibly involved in any
retaliation once Plaintiff returned to NJSP. Id.

¶1

25.

Moreover, Plaintiff cannot raise a retaliation claim based on his disciplinary charge.
Following the precedent in Heck v. Humphrey, 512 U.S. 477 (1994). Edwards v. Balisok, 520
U.S. 641 (1997) barred

§ 1983 actions seeking damages and declaratory relief challenging prison
11

disciplinary hearings forfeiting good-time credits. “For the First Amendment retaliation claim to
be barred by the Heck doctrine, the alleged [retaliatory action] must impugn [Plaintiffs]
conviction.” Ashton v. City of Uniontown, 459 F. Appx 185, 188 (3d Cir. 2012) (barring
plaintiffs retaliation claims under Heck because litigation over the allegedly retaliatory criminal
charges would constitute a parallel litigation over whether plaintiffs conduct warranted the
charges). “[I]f [the Court] were to hear the claim, [the Court] necessarily would have to decide
whether [Plaintiffs] conviction was valid or was an act of retaliation.” Id. at 189. Plaintiff alleges
defendants charged and convicted him under the prison disciplinary system solely as an act of
3
retaliation. Under Heck and Edwards, Plaintiff cannot bring this retaliation claim unless and
until his disciplinary charge has been overturned. Plaintiffs retaliation claims are dismissed
without prejudice as futile. See Shane v. Faaiver, 213 F.3d 113, 115 (3d Cir. 2000) (“Futility’
4
means that the complaint, as amended, would fail to state a claim upon which relief could be
granted.”).
The PAC’s claims based on the New Jersey Administrative Code are dismissed with
prejudice. The portions of the administrative code cited by Plaintiff do not explicitly provide for

The Court does not interpret the PAC as raising a due process violation based on Plaintiffs
allegations that he was not able to cross-examine Sgt. Reardon. See Wolff V. McDonnell, 418
U.S. 539 (1974). Plaintiff would have to bring a separate civil action regarding this claim. As
Plaintiff indicated during oral argument that he may be taking his disciplinary charges before the
New Jersey Superior Court, Appellate Division, the Court will not sever the complaint at this
time.
A letter to the Court requested permission to file another amended complaint. (ECF No. 43).
Plaintiff is free to file a motion to amend under Rule 15(a)(2). Plaintiff may also request the
appointment of pro bono counsel in a motion by addressing the factors in Tabron v. Grace, 6
F.3d 147 (3d Cir. 1993). In determining whether to appoint counsel, a court considers the
following: (1) the plaintiff’s ability to present his or her own case; (2) the complexity of the legal
issues; (3) the degree to which factual investigation will be necessary and the ability of the
plaintiff to pursue such investigation; (4) the amount a case is likely to turn on credibility
determinations; (5) whether the case will require the testimony of expert witnesses; and (6)
whether the plaintiff can attain and afford counsel on his own behalf. See Ed. at 155-56, 157 n,5.
12

a private cause of action. When a statute does not expressly provide a private right of action,
New Jersey courts “have been reluctant to infer” such a right. RI Gaydos Ins. Agency, Inc. v.
Nat’! Consumer Ins. Co., 773 A.2d 1132, 1142 (N.J. 2001). The factors used by courts to

determine whether a statute confers an implied private right of action include whether: “(1)
plaintiff is a member of the class for whose special benefit the statute was enacted; (2) there is
any evidence that the Legislature intended to create a private right of action under the statute;
and (3) it is consistent with the underlying purposes of the legislative scheme to infer the
existence of such a remedy.” Id. at 1143. While courts give weight to all three factors, “the
primary goal has almost invariably been a search for the underlying legislative intent.” Ibid.
(quoting Jalowiecki v. Leuc, 440 A.2d 21, 26 (N.J. Super. Ct. App. Div. 1981)). See also Ferraro
v. City ofLong Branch, 714 A.2d 945, 955 (N.J. Super. Ct. App. Div. 1998) (“[T]he breach of
administrative regulations does not of itself give rise to a private cause of action.”).
Plaintiff would appear to be among the class of persons for whom the code provision was
intended to benefit, i.e., an inmate at a state prison. See, e.g., N.J. ADMIN. CODE

§ 1OA:6-2.1.

(“Inmates have a constitutional right of access to the courts. Correctional facility authorities shall
assist inmates in the preparation and filing of meaningful legal papers by providing inmates with
adequate law libraries or adequate assistance from persons trained in the law.”). There is no
support that the Legislature intended these provisions to provide a basis for a civil suit for
damages, or authorized the Commissioner of the Department of Corrections to create a basis for
state civil liability in the administrative code.
5

The Legislature delegated rulemaking authority to the Commissioner: “The commissioner, as
administrator and chief executive officer of the department, shall Formulate, adopt, issue and
promulgate, in the name of the department such rules and regulations for the efficient conduct of
the work and general administration of the department, the institutions or noninstitutional
agencies within its jurisdiction, its officers and employees as may be authorized by law.” N.J.
STAT. ANN. § 30:1B-6(e).
13

V.

CONCLUSION

For the reasons stated above, the motion to dismiss is denied, and Plaintiffs cross-motion to
amend is granted. The amended complaint shall be filed and shall proceed only on the access to
the courts claims against defendants Johnson and Doran.
An appropriate order follows.

DATED:

/(

cc

,2018

—______

PETER G. SHERIDAN
United States District Judge

14