GRAY v. UNIVERSITY CORRECTIONAL HEALTHCARE RUTGERS

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

HERBERT GRAY, :

: CIV. NO. 21-970 (RMB-KMW)

Plaintiff :

:

v. : OPINION

:

JOHN POWELL, ADMINISTRATOR :

SOUTH WOODS STATE PRISON :

et al., :

:

Defendants :

BUMB, DISTRICT JUDGE

Plaintiff Herbert Gray, a prisoner incarcerated in South

Woods State Prison in Bridgeton, New Jersey, filed a “Motion for

Emergency Relief, Motion for Temporary Restraining Order, and/or

Preliminary Injunction and Order to Show Cause” on January 21,

2021, which this Court construes as a prisoner civil rights

complaint. On February 3, 2021, the Court received a brief in

support of Plaintiff’s complaint/motion for emergency relief. The

Court will treat both documents as Plaintiff’s civil rights

complaint. (Compl., Dkt. Nos. 1, 2.)

Plaintiff failed to pay the $402 filing and administrative

fee for a civil action or alternatively submit an application to

proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915. 28 U.S.C.

§ 1915(a) provides, in relevant part,

(a)(1) Subject to subsection (b), any court of

the United States may authorize the

commencement … of any suit … without

prepayment of fees … by a person who submits

an affidavit that includes a statement of all

assets such prisoner possesses that the person

is unable to pay such fees …. Such affidavit

shall state the nature of the action, defense

or appeal and affiant's belief that the person

is entitled to redress.

(2) A prisoner seeking to bring a civil action

… without prepayment of fees … in addition to

filing the affidavit filed under paragraph

(1), shall submit a certified copy of the

trust fund account statement (or institutional

equivalent) for the prisoner for the 6-month

period immediately preceding the filing of the

complaint or notice of appeal, obtained from

the appropriate official of each prison at

which the prisoner is or was confined.

The Court will administratively terminate this action.1

Plaintiff may reopen this action if he timely submits a properly

completed IFP application or pays $402.00 for the filing and

1 U.S.D.C. District of New Jersey Local Civil Rule 54.3(a)

provides:

Except as otherwise directed by the Court, the

Clerk shall not be required to enter any suit,

file any paper, issue any process or render

any other service for which a fee is

prescribed by statute or by the Judicial

Conference of the United States, nor shall the

Marshal be required to serve the same or

perform any service, unless the fee therefor

is paid in advance. The Clerk shall receive

any such papers in accordance with L.Civ.R.

5.1(f).

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administrative fees. Plaintiff should be aware that, even if

granted IFP status, he must pay the $350.00 filing fee in

installments, if available in his prison trust account, regardless

of whether the complaint is dismissed, see U.S.C. § 1915(b)(1).

I. Sua Sponte Dismissal

When a prisoner is permitted to proceed without prepayment of

the filing fee or when the prisoner pays the filing fee for a civil

action and seeks redress from a governmental entity, officer or

employee of a governmental entity, 28 U.S.C. §§ 1915(e)(2)(B) and

1915A(b) and 42 U.S.C. § 1997e(c) require courts to review the

complaint and sua sponte dismiss any claims that are (1) frivolous

or malicious; (2) fail to state a claim on which relief may be

granted; or (3) seek monetary relief against a defendant who is

immune from such relief.2

Courts must liberally construe pleadings that are filed pro

se. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.

Gamble, 429 U.S. 97, 106 (1976)). Thus, “a pro se complaint,

however inartfully pleaded, must be held to ‘less stringent

standards than formal pleadings drafted by lawyers.’” Id.

2 Conclusive screening is reserved until the filing fee is paid or

IFP status is granted. See Izquierdo v. New Jersey, 532 F. App’x

71, 73 (3d Cir. 2013) (district court should address IFP

application prior to conclusive screening of complaint under 28

U.S.C. § 1915(e)(2)).

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(internal quotation marks omitted). A pleading must contain a

“short and plain statement of the claim showing that the pleader

is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a

motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)). “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.”

Id. (quoting Twombly, 550 U.S. at 556.) Legal conclusions, together

with threadbare recitals of the elements of a cause of action, do

not suffice to state a claim. Id.

Thus, “a court considering a motion to dismiss can choose to

begin by identifying pleadings that, because they are no more than

conclusions, are not entitled to the assumption of truth.” Id. at

679. “While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations.” Id. If

a complaint can be remedied by an amendment, a district court may

not dismiss the complaint with prejudice but must permit the

amendment. Grayson v. Mayview State Hospital, 293 F.3d 103, 108

(3d Cir. 2002).

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For the reasons discussed below, the Court would dismiss the

complaint without prejudice upon screening. Plaintiff also seeks

a TRO or preliminary injunction. To secure such relief, a plaintiff

must demonstrate that “(1) he is likely to succeed on the merits;

(2) denial will result in irreparable harm; (3) granting the

injunction will not result in irreparable harm to the defendants;

and (4) granting the injunction is in the public interest.” Cooper

v. Sharp, No. CIV.A. 10-5245 FSH, 2011 WL 1045234, at *18 (D.N.J.

Mar. 23, 2011) (quoting Maldonado v. Houston, 157 F.3d 179, 184

(3d Cir.1998), cert. denied, 526 U.S. 1130 (1999) (as to a

preliminary injunction); see also Ballas v. Tedesco, 41 F.Supp.2d

531, 537 (D.N.J. 1999) (as to temporary restraining order). Where

all claims in the complaint are dismissed for failure to state a

claim, the plaintiff has not alleged sufficient facts to show that

he is likely to succeed on the merits, as required for a TRO or

preliminary injunction. See e.g. id. at *18.

II. DISCUSSION

A. The Complaint

In his initial filing, Plaintiff seeks an Order enjoining

South Woods State Prison, the New Jersey Department of Corrections,

and all of their agents from denying him medical care, denying him

a specially prescribed mattress, denying him pain medication, and

denying him an appointment with a medical specialist. (Compl.,

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Dkt. No. 1 at 1.) Plaintiff explains that he is legally blind and

wheelchair-bound because he is unable to walk. (Id. at 2.) He

alleges that the defendants have “denied [him] access to serious

medical care and to programs available under the ADA and in

violation of the NJCRA.” (Id.) He further alleges that the

defendants’ actions or inactions violated the Eighth Amendment ban

on cruel and unusual punishment. (Id.) Plaintiff submitted a copy

of one medical record from Essex County Correctional Facility,

dated February 1, 2019. (Compl., Dkt. No. 1 at 7.) The medical

record does not establish who denied Plaintiff medical care, what

care was denied or when.

Plaintiff’s second submission to the Court names as

defendants to this action Administrator John Powell, Nurse

Practitioner Stacy Williams-Hall and the South Woods State Prison

(“SWSP”) Medical Director. (Compl., Dkt. No. 2 at 1.) Plaintiff

alleges that

SWSP’s and New Jersey Department of

Corrections’ (“NJDOC”) “lack of Internal

Management Procedures regarding “prisoner

legal rights to medical attention” and "access

to the courts" have created an attitude of

indifference in custody staff (specifically

Sgt. McKewon, and Sgt. Muessig), towards the

constitutional protections afforded inmate

legal materials, and has created a pervasive

risk of injury and unnecessary future harm.

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(Compl., Dkt. No. 2 at 1-2.) Plaintiff alleges that two Sergeants

directed Officer Martinez to warn Plaintiff that they were

concerned with the volume of legal materials he possessed. (Compl.,

Dkt. No. 2 at 5.) Fearing his legal materials will be confiscated,

Plaintiff seeks a temporary restraining order preventing this from

happening. (Id.) In the alternative to a TRO, Plaintiff seeks

preliminary injunctive relief after the defendants have answered

his complaint. (Id. at 9.)

B. Section 1983 and NJCRA Claims

42 U.S.C. § 1983 provides, in relevant part,

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State … subjects, or causes to be

subjected, any citizen of the United States …

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….

“To state a claim under § 1983, a plaintiff must allege the

violation of a right secured by the Constitution and laws of the

United States, and must show that the alleged deprivation was

committed by a person acting under color of state law.” West v.

Atkins, 487 U.S. 42, 48 (1988). Plaintiff also brings claims under

the New Jersey Civil Rights Act (“NJCRA “), which was modeled after

§ 1983. Lapolla v. County of Union, 157 A.3d 458, 469 (N.J. Super.

Ct. App. Div. 2017). Claims under the NJCRA are generally subject

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to the same defenses and immunities as those brought under § 1983.

Id. (citing Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443-

44 (D.N.J. 2011)). Therefore, courts in New Jersey generally

interpret the NJCRA analogously to § 1983. O’Neal v. Middletown

Twp., No. 3:18-CV-5269-BRM-LHG, 2019 WL 77066, at *8 (D.N.J. Jan.

2, 2019) (citing Chapman v. New Jersey, No. 08–4130, 2009 WL

2634888, *3 (D.N.J. August 25, 2009)).

Before turning to the necessary elements of the

constitutional claims at issue, certain of the named defendants

are immune from suit under § 1983 and the NJRCA. Under the Eleventh

Amendment, state prisons are immune from suit in federal court,

absent waiver of that immunity. Baker v. James T. Vaughn Corr.

Ctr., 425 F. App'x 83, 84 (3d Cir. 2011) (citing e.g., Puerto Rico

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144

(1993). New Jersey has not waived sovereign immunity for § 1983

claims. Mierzwa v. United States, 282 F. App'x 973, 976 (3d Cir.

2008) (citing Ritchie v. Cahall, 386 F. Supp. 1207, 1209–10 (D.N.J.

1974) (holding that State of New Jersey did not waive its sovereign

immunity for purposes of lawsuits filed in federal court when it

enacted the Tort Claims Act)). “Moreover, although Congress can

abrogate a state's sovereign immunity, it did not do so through

the enactment of 42 U.S.C. § 1983.” Baker, 425 F. App'x at 84

(quoting Quern v. Jordan, 440 U.S. 332, 345 (1979)). The Court

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will next address Plaintiff’s § 1983 and NJCRA claims against the

remaining defendants.

1. Eighth Amendment Inadequate Medical Care Claim

To state an Eighth Amendment claim for inadequate medical

care, a plaintiff must allege facts showing “deliberate

indifference to serious medical needs of prisoners” which

“constitutes … ‘unnecessary and wanton infliction of pain,’”

Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v.

Georgia, 428 U.S. 153, 173 (1976). Deliberate indifference may be

manifested by prison doctors in their responses to a prisoner's

needs or by prison guards in intentionally denying or delaying

access to medical care or intentionally interfering with the

treatment once prescribed. Estelle, 429 U.S. at 104-5. “[A]

complaint that a physician has been negligent in diagnosing or

treating a medical condition does not state a valid claim of

medical mistreatment under the Eighth Amendment.” Id. at 106. To

establish liability under the Eighth Amendment for inadequate

medical care against supervisors or nonmedical personnel,

a party must show personal involvement by each

defendant. Rode [v. Dellarciprete], 845 F.2d

[1995], 1207 [1988]. Such involvement may be

established through: (1) personal direction or

actual participation by the defendant in the

misconduct; or (2) knowledge of and

acquiescence in the misconduct. Id.

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Brito v. U.S. Dep't of Justice, 392 F. App'x 11, 14 (3d Cir. 2010).

Additionally, supervisory liability may be found where a

supervisor “established and maintained a policy, practice or

custom which directly caused [the] constitutional harm,” Santiago

v. Warminster Twp., 629 F.3d 121, 129 n. 5 (3d Cir. 2010). “[P]roof

of the mere existence of an unlawful policy or custom is not enough

to maintain a § 1983 action.” Bielevicz v. Dubinon, 915 F.2d 845,

850 (3d Cir. 1990). There must be evidence of a link between the

policy or custom and the specific constitutional harm to the

Plaintiff, and the link must be credible. Id.

Plaintiff has not described any of the circumstances

surrounding his claim that defendants denied him medical

evaluation or treatment. He appears to allege that he has been

denied a specially prescribed mattress and pain medication, but he

has not alleged who denied him these items, when or why. Plaintiff

should submit an amended complaint describing each incident where

a specific defendant denied his request for medical treatment or

evaluation. Legal conclusions that the defendants violated

Plaintiff’s rights are insufficient to state a claim, and

Plaintiff’s allegations are no more than his conclusion that his

rights were violated.

It appears that Plaintiff is trying to state a § 1983 claim

for supervisory liability by alleging “lack of Internal Management

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Procedures” regarding “prisoner legal rights to medical attention”

and "access to the courts have created an attitude of indifference

in custody staff (specifically Sgt. McKewon, and Sgt. Muessig).”

Plaintiff must allege the specific internal management procedure

that is lacking and how the lack of that procedure caused the

denial of medical care for Plaintiff’s serious medical need.

Likewise, for his access to courts claim, Plaintiff must allege a

specific internal management procedure that would have prevented

a constitutional denial of access to the courts. In sum, Plaintiff

has failed to allege sufficient facts to state a § 1983 or NJCRA

Eighth Amendment claim based on inadequate medical care by any of

the defendants, and the Court would dismiss those claims without

prejudice upon conclusive screening of the complaint.

2. First Amendment Access to the Courts Claim

The Third Circuit has described the contours of a prisoner’s

First Amendment rights as follows.

While inmates retain the “protections afforded

by the First Amendment,” O'Lone v. Estate of

Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 96

L.Ed.2d 282 (1987), they “retain[ ] [only]

those First Amendment rights that are not

inconsistent with [their] status as [ ]

prisoner[s] or with the legitimate penological

objectives of the corrections system,” Pell v.

Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800,

41 L.Ed.2d 495 (1974). To determine whether a

regulation infringing upon constitutional

rights is reasonable, courts apply the four

factors set forth in Turner v. Safley, 482

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U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).

These factors require courts to consider: (1)

“whether the regulation bears a ‘valid,

rational connection’ to a legitimate and

neutral government objective;” (2) “whether

prisoners have alternative ways of exercising

the circumscribed right;” (3) “whether

accommodating the right would have a

deleterious impact on other inmates, guards,

and the allocation of prison resources

generally;” and (4) “whether alternatives

exist that ‘fully accommodate[ ] the

prisoner's rights at de minimis cost to valid

penological interests.” Fraise v. Terhune, 283

F.3d 506, 513-14 (3d Cir. 2002) (quoting

Turner, 482 U.S. at 89-90, 107 S.Ct. 2254).

Aulisio v. Chiampi, 765 F. App'x 760, 763–64 (3d Cir. 2019). Where

a prisoner alleged that a corrections officer refused to allow him

to keep boxes of legal materials in his cell and threatened to

destroy the materials, the Third Circuit held that the prisoner

failed to state a claim because he did not allege he was actually

injured by having limited access to his legal materials. Gay v.

Shannon, 211 F. App'x 113, 115–16 (3d Cir. 2006) (citing Lewis v.

Casey, 518 U.S. 343, 350–51 (1996) (requiring an actual injury to

establish a violation of the right of access to the courts).

Plaintiff’s access to the courts claim suffers the same deficiency

identified by the Third Circuit in Gay. The Court would dismiss

the § 1983 and NJCRA First Amendment claims without prejudice upon

conclusive screening of the complaint.

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C. Americans with Disabilities Act

Plaintiff alleges that he is legally blind and wheelchair

bound and that the defendants denied him access to programs.

Plaintiff has not alleged who denied him access, when the denial

occurred or which programs and services he was denied access to,

nor did he allege any reason he was given for denial of access. To

state a claim under Title II of the Americans with Disabilities

Act (“ADA”), a plaintiff “must allege that he is a qualified

individual with a disability, who was precluded from participating

in a program, service, or activity, or otherwise was subject to

discrimination, by reason of his disability.” Furgess v.

Pennsylvania Dep't of Corr., 933 F.3d 285, 288–89 (3d Cir. 2019).

The Court would dismiss Plaintiff’s ADA claim without prejudice

upon conclusive screening, but Plaintiff may be able to state a

claim by alleging additional facts in an amended complaint.

III. CONCLUSION

The Court will administratively terminate this action,

subject to reopening. An appropriate Order follows.

DATE: February 4, 2021

s/Renée Marie Bumb

RENÉE MARIE BUMB

United States District Judge

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