# GRAY v. UNIVERSITY CORRECTIONAL HEALTHCARE RUTGERS

> District Court, D. New Jersey · February 4, 2021

URL: https://www.frixlaw.com/law-library/cases/10269877

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** February 4, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10269877

## How later opinions describe it (automated extraction)

- 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

## Opinion text

NOT FOR PUBLICATION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).

2
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)).
3
(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).

4
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.,
5
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.

6
(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
7
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
8
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.

9
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
10
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
11
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.

12
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
13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10269877. Public record. Not legal advice.