# MCMILLAN v. COMMISSIONER OF THE NEW JERSEY DEPARTMENT OF CORRECTIONS

> District Court, D. New Jersey · August 28, 2020

URL: https://www.frixlaw.com/law-library/cases/10268919

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** August 28, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

:
DONTA MCMILLAN, :
:
Plaintiff, :
:
v. : Case No. 3:18-cv-13379-BRM-LHG
:
COMM’R OF THE N.J. DEP’T OF :
CORRS., et al. :
: OPINION
Defendants. :
:
MARTINOTTI, DISTRICT JUDGE
Before this Court is a Motion for Partial Judgment (the “Motion”) filed by defendants
Commissioner of the New Jersey Department of Corrections, Administrator Jonathan Gramp,
Major Daniel Gerdes, Major Tracy Shimis-Kaminsky, Hearing Officer E. Dibenedetto, Hearing
Officer D. Hunter, Sgt. J. Brown, Sgt. G. Holman, Sgt. M. Stepniewski, Sgt. Wyche, SCO Officer
Young, SCO M. Cirulli (B425), SCO R. Schreck (B703), SCO G. Spinner (B186), SCO C. Coacci
(B127), SCO T. Ficarra (B629), SCO C. Platt (B249), SCO A. Vitale (B44), SCO Mitrosky, SCO
Titus, SCO Selby, SCO Fournier, and SCO Rauch (collectively, “State Defendants”) seeking
partial judgment of plaintiff Donta McMillan’s (“Plaintiff”) Complaint pursuant to Federal Rule
of Civil Procedure 12(c). (ECF No. 57.) The Motion is opposed. (ECF No. 59.) Having reviewed
the submissions filed in connection with the Motion and having declined to hold oral argument
pursuant to Federal Rule of Civil Procedure 78(b), for the reasons set forth below and for good
cause appearing, State Defendants’ Motion is DENIED.
I. BACKGROUND
A. Factual Background
This action arises out of events which occurred during Plaintiff’s detention in various state-
operated facilities in New Jersey. (ECF No. 1.) Plaintiff, at all times relevant, was a convicted and

sentenced state prisoner housed by the New Jersey Department of Corrections. (Id. at ¶ 4.) Plaintiff
lived at the Albert C. Wagner Youth Correctional Facility (“WYCF”) in Bordentown, New Jersey
before he was transferred to the New Jersey State Prison (“NJSP”) in Trenton, New Jersey. (Id.)
On September 10, 2016, an inmate at WYCF assaulted a corrections officer. (Id. at ¶ 15.) As a
result, the prison went on lockdown for two and a half days. (Id.) On September 13, 2016,
Corrections Officer Young removed Plaintiff from his cell and directed him to retrieve paper and
water from the “dugout,” even though the only inmates allowed out of their cell during the
lockdown were kitchen workers and barbers. (Id.)
As Plaintiff was coming upstairs holding the canister of hot water, Corrections Officer M.
Cirulli attacked Plaintiff without provocation. (Id. at ¶ 16.) As several other defendant officers

joined in, they “repeatedly and viciously punched, kicked, and beat [P]laintiff until he could no
longer walk and was unconscious.” (Id. at ¶ 17.) As the defendant officers took Plaintiff to a
holding cell, it was readily apparent Plaintiff could not walk. (Id. at ¶ 20.) Once Plaintiff regained
consciousness, he complained of pain in his ribs, difficulty breathing, and the inability to walk.
(Id.)
Shortly thereafter, Plaintiff was strip-searched and transferred to the NJSP for a prehearing
detention. (Id. at ¶ 22.) Plaintiff remained in solitary confinement for approximately three months
before he was transferred to administrative segregation, where he spent the majority of the time in
his cell for 365 days. (Id. at ¶ 24.) The NJSP medical staff defendants “agreed with one another to
minimize [P]laintiff’s injuries . . . for the purpose of denying [P]laintiff necessary medical
treatment for his serious injuries and to cover up the use of excessive force by the assaulting
defendant officers.” (Id. at ¶ 25.) The unnamed transporting officers, along with Lt. Miller, Lt.
Richards, and Sgt. Stephiewski, also conducted a “painful and unwarranted” strip search prior to

Plaintiff’s transfer to NJSP. (Id. at ¶ 26.)
Plaintiff contends he “requested to file an internal complaint against the defendant officers
and medical providers for falsifying reports against him, the use of excessive force against him,
and the denial of medical treatment.” (Id. at ¶ 31.) An unidentified major in the FNU and LNU,
two unidentified employees of the Special Investigation Division (“SID”), and Sgt. J. Brown were
assigned to investigate Plaintiff’s claims. (Id.) While Plaintiff was in solitary confinement, Sgt. J.
Brown and the two employees of the SID met with him to obtain a videotaped statement
immediately after the incident. (Id. at ¶ 32.) Nonetheless, Plaintiff contends they failed to
investigate his claims or ensure he received medical care for his injuries. (Id.) He submits they
also viewed footage depicting him running away from an officer who was attempting to drag him

back into the dugout. (Id.) Plaintiff alleges he did not disobey any order to “give up his hands” as
the officers beat and dragged him until he was unconscious and unable to walk. (Id.) Plaintiff also
contends a major within the FNU and LNU reviewed the defendant officers’ reports of the incident,
but failed to launch an investigation. (Id. at ¶ 33.) Plaintiff submits the unidentified major approved
his solitary confinement placement without providing any medical evaluation. (Id.) Furthermore,
Plaintiff contends the complaints he submitted to the Commissioner and Administrators Gramp
and Johnson were ignored. (Id. at ¶ 34.)
On September 13, 2016, Plaintiff was charged with punching and threatening to cause
bodily harm to SCO M. Cirulli. (Id. at ¶ 27.) Additionally, Plaintiff was charged with refusing to
obey a staff member’s order, as well as disrupting or interfering with the security of a correctional
facility. (Id.) On September 23, 2016, Plaintiff was found guilty of all charges at a disciplinary
hearing, despite his denial of assaulting SCO M. Cirulli. (Id. at ¶ 28.) Plaintiff contends defendant
D. Hunter refused to allow him to present witnesses and conduct cross-examination. (Id.) Plaintiff

was sanctioned to 365 days of administrative segregation, 365 days loss of commutation, and thirty
days loss of recreation. (Id.) Nevertheless, he remained in solitary confinement for at least three
months. (Id.)
The Commissioner and Administrators Johnson and Gramp upheld the decision and
sanctions. (Id. at 29.) Plaintiff subsequently filed a pro se notice of appeal to the New Jersey
Appellate Division1; however, the Commissioner’s motion to remand to the administrative level
was granted before the matter was decided by the state court. (Id. at 30.) The Commissioner
conceded Plaintiff was denied his right to present witnesses and cross examine witnesses. (Id. at ¶
34.) A second disciplinary hearing was convened, which resulted in a sanction of sixty days lost
of “comp time” rather than the 365-day loss imposed after the first disciplinary hearing. (Id. at ¶¶

34-35.) Although it is unclear whether this occurred before the first or second disciplinary hearing,
Plaintiff claims defendant Dibenedetto advised him “the only way for [him] to secure his release,
was that he rescind his request to call witnesses and for cross-examination and that DiBenedetto
find him guilty, over his denial, of assaulting Cirulli based on the false reports submitted by the
defendant officers.” (Id. at ¶ 36.) Nonetheless, Plaintiff did not make any admissions of guilt. (Id.)

1 Plaintiff also submits he “had to move before the Appellate Division to obtain the video of the
defendant officers beating [him].” (Id.) It is unclear whether he actually obtained the video.
B. Procedural Background
Almost two years after the aforementioned events, Plaintiff filed his initial complaint in
this Court on August 29, 2018. (ECF No. 1.) Plaintiff alleges federal violations under (i) 42 U.S.C.
§ 1983; (ii) the New Jersey Civil Rights Act; and (iii) tort claims under New Jersey law. Plaintiff

seeks compensatory and punitive damages along with court costs and attorneys’ fees. (Id.) In
addition to the previously named defendants, Plaintiff also raised claims against various medical
professionals whom he alleged failed to provide adequate care after the assault. (Id.) On February
15, 2019, the medical professional defendants filed an opposed motion to dismiss for failure to
state a claim, which the Court granted in part and denied in part on September 30, 2019. (ECF
Nos. 44, 50-51.) Also on February 15, 2019, State Defendants filed an answer to the complaint.
(ECF No. 46.) The medical professional defendants subsequently filed an answer to the complaint
on October 10, 2019. (ECF No. 53.) On January 27, 2020, the parties entered a consent order
dismissing SCO P. Keesser from the complaint with prejudice. (ECF No. 62.)
State Defendants now move for partial judgment pursuant to Federal Rule of Civil

Procedure 12(c) (ECF No. 57), to which Plaintiff filed a response in opposition. (ECF No. 59.)
II. LEGAL STANDARD
A. Motion for Judgment on the Pleadings
Federal Rule of Civil Procedure 12(c) states that “[a]fter the pleadings are closed−but early
enough not to delay trial−a party may move for judgment on the pleadings.”
“The difference between Rules 12(b)(6) and 12(c) is purely procedural as 12(c) requests
for dismissal are governed by the same standards as 12(b)(6) motions.” Glob. Naps, Inc. v. Bell
Atl.-N.J., Inc., 287 F. Supp. 2d 532, 539 (D.N.J. 2003) (citing Turbe v. Gov’t of the V.I., 938 F.2d
427, 428 (3d Cir. 1991)). As with a Rule 12(b)(6) motion, in deciding a 12(c) motion, the court
must “view the facts alleged in the pleadings and the inferences to be drawn from those facts in
the light most favorable to the plaintiff.” Barnard v. Lackawanna Cty., 696 F. App’x 59, 61 (3d
Cir. 2017) (internal quotation marks and citations omitted). Under this standard, the court may
only consider well-pleaded factual allegations, rather than conclusory statements. Ashcroft v.

Iqbal, 556 U.S. 662, 663 (2009).
The Third Circuit has explained that a court may only grant a motion for judgment on the
pleadings if the moving party “clearly establishes that no material issue of fact remains to be
resolved and that [the movant] is entitled to judgment as a matter of law.” Rosenau v. Unifund
Corp., 539 F.3d 218, 221 (3d Cir. 2008) (quoting Jablonski v. Pan Am. World Airways, Inc., 863
F.2d 289, 290-91 (3d Cir. 1988)) (internal quotation marks and citations omitted).
B. Section 1983 Action
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 . . . .

Therefore, to state a claim for relief under Section 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).
III. DECISION
A. Eleventh Amendment
1. Immunity for State Officials
State Defendants move for dismissal of all the claims against them in their official capacity.

(ECF No. 57 at 8-12.) They argue the Eleventh Amendment bars such an action against state
officials.
The Eleventh Amendment bars an action against the state regardless of whether the plaintiff
seeks legal or equitable relief. See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 116 S.Ct.
1114, 134 L.Ed.2d 252 (1996). Additionally, the Eleventh Amendment extends immunity to suits
against state officials in their official capacity because “a suit against a state official in his or her
official capacity is . . . no different from a suit against the State itself.” Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989).
Here, however, Plaintiff's complaint does not appear to sue any State Defendants in their
official capacities. Plaintiff also confirms this in his reply brief. (ECF No. 59 at 8-9.) Because the

complaint does not raise any claims against State Defendants in their official capacities, State
Defendants’ motion for partial judgment is denied to the extent it seeks dismissal of claims against
all moving defendants in their official capacities.
2. Forum
State Defendants next contend Plaintiff’s second cause of action raising due process claims
under both the Fourteenth Amendment and the New Jersey Civil Rights Act (“NJCRA”) should
be brought in New Jersey state court. (ECF No. 57 at 12-14.) They argue New Jersey state law
provides the Appellate Division with sole jurisdiction over appeals of agency decisions. (Id. at 13.)
State Defendants further allege Plaintiff characterized his claim as a constitutional due process
issue in order to circumvent litigating the matter in the state court. (Id. at 13-14.)
Although State Defendants characterize the prison disciplinary proceeding as an “agency
decision,” which must be appealed to the New Jersey Appellate Division, Section 1983 only

requires a prisoner to appeal the disciplinary hearing decision to the warden or other prison official.
The Prison Litigation Reform Act (PLRA) mandates that a prisoner exhaust any available
administrative remedies before bringing a § 1983 suit in federal court. See 42 U.S.C. § 1997e(a);
Spruill v. Gillis, 372 F.3d 218 (3d Cir.2004).
The record is unclear whether Plaintiff appealed the final disciplinary hearing decision to
the warden or another prison official. Therefore, the Court cannot determine whether Plaintiff
exhausted his prison remedies at this time. Nonetheless, State Defendants’ assertion that Plaintiff
is required to appeal the prison disciplinary decision to the Appellate Division is incorrect. State
Defendants’ motion for judgment on the pleadings on the basis of Plaintiff’s failure to appeal to
the Appellate Division is denied.

B. Personal Involvement by the Commissioner

State Defendants next contend Plaintiff’s claims against the Commissioner must be
dismissed for lack of personal involvement. (ECF No. 57 at 14-18.)
“Personal involvement can be shown through allegations of personal direction or of actual
knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence,
however, must be made with appropriate particularity.” Rode v. Dellarcriprete, 845 F.2d 1195,
1207 (3d Cir. 1988) (citations omitted).
Plaintiff submits, inter alia, “[d]efendant Commissioner conceded that plaintiff was denied
due process with respect to plaintiff’s first administrative hearing . . . .” (ECF No. 1 at ¶ 49.)
Plaintiff also argues “Commissioner, Administrator Gramp, and hearing officer DiBenedetto[]
further denied [P]laintiff his right to a polygraph test . . . . ” (Id.) Based on the standard set forth
in Rode, Plaintiff’s complaint has alleged the necessary level of personal involvement by the
Commissioner for the complaint to proceed beyond this stage.

Accordingly, to the extent the defendants seek judgment on Plaintiff's claim against the
Commissioner for lack of personal involvement, the motion is denied.
C. Due Process Related to Plaintiff’s Disciplinary Hearings

State Defendants next move to dismiss Plaintiff’s claim alleging his due process rights
were violated during the disciplinary hearing proceedings. (ECF No. 57 at 18-21.) They submit
“the NJCRA does not provide claimants a private right of action for deprivations of procedural
rights.” (Id. at 18-19.)
“[T]he NJCRA and § 1983, when pled together, are analyzed under the same standard.”
Hottenstein v. City of Sea Isle City, 977 F. Supp. 2d 353, 365 (2013). In order for a plaintiff to state
a claim for either procedural or substantive due process, he must allege a protectable interest under
the Fourteenth Amendment. Harley v. City of N.J. City, 2017 WL 2779466 at *10 (D.N.J. June 27,
2017).
Plaintiff submits he “was finally given a 60 day suspended loss of 365 days comp time.”
(ECF No. 1 at ¶ 54.) Plaintiff states his release date was consequently postponed by five months
as a result of the loss of comp time. (Id. at ¶ 55.) Although Plaintiff does not elaborate on what
“comp time” entails, he contends the loss of comp time delayed his release from incarceration. See
Wolff v. McDonnell, 418 U.S. 539, 557 (1974) (prison inmate’s loss of good-time credits is a liberty
interest entitling him to the Fourteenth Amendment’s due process requirements).
Consequently, because Plaintiff has adequately pled a Fourteenth Amendment due process
claim, his parallel claim under the NJCRA stands. Therefore, State Defendants’ motion to dismiss
Plaintiff’s due process claim is denied.
D. Mandatory Notice Provisions of the New Jersey Tort Claims Act (“TCA”)

Finally, State Defendants move for judgment on the pleadings on Plaintiff’s intentional
infliction of emotional distress claim because he failed to comply with the notice provision of the
TCA. (ECF No. 57 at 27-30.)
“The TCA sets forth a procedural framework for making claims against public entities and
public employees. See N.J.S.A. 59:8–3. The TCA was enacted with the purpose of limiting a public
entity's or a public employee's liability in certain situations.” Davis v. Twp. of Paulsboro, 371 F.
Supp. 611, 617 (2005) (citations omitted).
Under the relevant statute, a notice must contain:
(a) The name and post office address of the claimant;
(b) The post-office address to which the person presenting the claim
desires notices to be sent;
(c) The date, place and other circumstances of the occurrence or
transaction which gave rise to the claim asserted;
(d) A general description of the injury, damage or loss incurred so
far as it may be known at the time of presentation of the claim;
(e) The name or names or the public entity, employee or employees
causing the injury, damage or loss, if known; and
(f) The amount claimed as of the date of presentation of the claim,
including the estimated amount of any prospective injury damage,
or loss, insofar as it may be known at the time of the presentation of
the claim, together with the basis of computation of the amount
claimed.

N.J. Stat. Ann. 59:8–4.
State Defendants contend while Plaintiff complied with the TCA’s ninety-day statutory
window, the notice “omits any description of the injuries suffered by Plaintiff as a result thereof.”
(ECF No. 57 at 23.) In turn, Plaintiff alleges the contested matter should not be resolved at this
stage of the litigation. (ECF No. 59 at 13.)
The Court cannot decide whether the TCA notice requirements have been adequately
satisfied at this juncture. Even if the Court were to consider extrinsic documents, see In re

Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997), for purposes of deciding
this particular issue, the parties have not supplied a copy of Plaintiff’s notice of claim.
Therefore, the Court will allow Plaintiff’s intentional infliction of emotional distress claim
to proceed. State Defendants’ motion to dismiss the intentional infliction of emotional distress is
denied.
IV. CONCLUSION
For the foregoing reasons, State Defendants’ motion for partial judgment is DENIED in
its entirety. An appropriate order will follow.

Date: August 28, 2020 /s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10268919. Public record. Not legal advice.