BROWN v. SCHMIDT

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

KEISHAWN BROWN, :

: CIV. NO. 20-15672 (RMB-AMD)

Plaintiff :

:

v. : OPINION

:

SGT. N. SCHMIDT, et al., :

:

Defendants :

BUMB, DISTRICT JUDGE

Plaintiff Keishawn Brown, a prisoner incarcerated in Garden

State Correctional Facility (“GSCF”) in Yardville, New Jersey,

filed this civil rights action pro se on November 5, 2020. (Compl.,

Dkt. No. 1.) Plaintiff has submitted an application which

establishes his financial eligibility to proceed without

prepayment of the filing fee under 28 U.S.C. § 1915(a) (“IFP

application,” Dkt. No. 1-1.)

I. SUA SPONTE DISMISSAL

When a prisoner is permitted to proceed without prepayment of

the filing fee for a civil action against a government entity or

employee or based on prison conditions, 28 U.S.C. §§ 1915(e)(2)(B),

1915A(b)(1), and 42 U.S.C. § 1997e(c)(1) 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.

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.

(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

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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).

II. DISCUSSION

A. The Complaint

For the purpose of screening the complaint under 28 U.S.C.

§§ 1915, 1915A and 42 U.S.C. § 1997e, the Court accepts Plaintiff’s

allegations as true. Plaintiff asserts jurisdiction under 42

U.S.C. § 1983. On June 2, 2020, Plaintiff returned to his cell in

the West Compound at GSCF, after recreation in the yard.

Plaintiff’s property was strewn about the cell, indicating there

had been a cell search. Plaintiff learned that an officer had

poured milk and shampoo in his sneakers. Defendant Sgt. N. Schmidt

(“Schmidt”) then moved Plaintiff’s cellmate to an empty cell.

Schmidt and two other officers escorted Plaintiff to the East

Compound, where they took an elevator to the third floor. Plaintiff

asked why they had put milk and shampoo in his sneakers. Schmidt

said Plaintiff liked fighting his officers, and he had separated

Plaintiff from his roommate so an unintended target would not

suffer for something meant only for Plaintiff. Plaintiff refused

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his housing assignment for fear of his safety. A riot team arrived

on the third floor to extract Plaintiff. Schmidt sprayed pepper

spray in Plaintiff’s face, and Plaintiff tried to block the spray

from his eyes. While he was lying on the floor and handcuffed, the

officers punched and kicked Plaintiff. Defendant Officer Salanitro

(“Salanitro”) landed multiple punches. After putting Plaintiff in

a shower to wash the pepper spray off, he was placed in a suicide

room.

Plaintiff was visited by a discipline hearing officer

(“DHO”). He told the DHO that Schmidt was targeting him over

something that happened at another facility. The DHO said everyone

as GSCF knew about it. Plaintiff asked the DHO for a transfer to

another facility. The DHO forwarded Plaintiff’s statement to

S.I.D.

Plaintiff was placed on camera-move status in the suicide

room, then moved to Room 102 in the West Compound. Plaintiff

requested to use the phone, but Schmidt told the tier officer that

Plaintiff could not use the phone or J-Pay email. On June 6, 2020,

Plaintiff had to ask another inmate to file an S.I.D. remedy for

him via J-Pay. Several days later, during an S.I.D. interview,

Plaintiff described the incident with the cell search and his

sneakers, and the assault on him. S.I.D. told Plaintiff they were

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working on approving a transfer. Plaintiff also complained to

S.I.D. that he was prohibited from using the phone or J-Pay.

While on camera-move status, officers made Plaintiff wait

seven days for a shower. After he was allowed to shower on June

16, 2020, Plaintiff protested the conditions by refusing his

housing assignment. This led to another extraction of Plaintiff by

officers in riot gear. Plaintiff was sprayed with pepper spray,

and Schmidt and other officers punched Plaintiff while he laid on

the floor. After he was brought to medical, bruised and bloody,

Plaintiff was placed in a suicide room on the East Compound.

The DHO visited Plaintiff in the suicide room and took his

statement about the beating, which she forwarded to S.I.D. The DHO

requested that Plaintiff be transferred. For fifty days, Plaintiff

was prevented from using the phone or J-Pay and was permitted to

shower only once per seven days. When an East Compound supervisor

learned Plaintiff was being prevented from using the phone or J-

Pay, she intervened and allowed Plaintiff to use the phone and

take a shower. Plaintiff remained on camera-move status at that

time. From June 2 through July 19, 2020, Plaintiff was not allowed

any recreational time outside his cell.

Plaintiff went on a hunger strike on July 19, 2020, to protest

that he had not been transferred to another facility. The next

day, LT. Long explained to Plaintiff that the rules required the

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water to be turned off when a prisoner was on a hunger strike.

Defendant Ganesh visited Plaintiff on July 21, 2020, to ask about

his hunger strike. Plaintiff complained that an officer had turned

off his drinking water. Ganesh told Plaintiff that happens when

you go on a hunger strike. Plaintiff requested a transfer. Ganesh

told Plaintiff that the Governor had locked down the prisons due

to COVID and prohibited transfers.

After going a full day without water, Plaintiff complained to

medical staff. Nurses gave Plaintiff water and told custody staff

that Plaintiff could have drinking water during his hunger strike.

They did not turn his water back on. Plaintiff spent two weeks off

and on his hunger strike, until his phone and J-Pay privileges

were restored. He spent a total of 80 days in his cell without

recreation time.

Plaintiff alleges the following constitutional violations.

Schmidt violated the Fourth Amendment by searching Plaintiff’s

cell in a manner intended to harass, intimidate or punish. Schmidt,

Salanitro, and John Does used excessive force against Plaintiff in

violation of the Eighth Amendment. Lt. Long violated the Eighth

Amendment by permitting Plaintiff only one shower every seven days.

Lt. Long violated the Eighth Amendment by authorizing that

Plaintiff’s drinking water be turned off during his hunger strike,

and he violated the First Amendment by preventing Plaintiff from

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communicating with this family and friends by phone or J-Pay for

50 days. Shimonis and Ganesh violated the Eighth Amendment by

placing Plaintiff on camera-move status for 80 days without

recreational time outside the cell. Shimonis and Ganesh violated

Plaintiff’s due process rights “regarding transfers and

segregation.” Plaintiff alleges that Shimonis and Ganesh subjected

him to harsh conditions because he complained of conditions in the

facility, which the Court construes as a First Amendment

retaliation claim. For relief, Plaintiff seeks money damages and

declaratory and injunctive relief. Therefore, the Court construes

the claims as alleged against Defendants in their individual

capacities (for damages and declaratory relief) and official

capacities (for injunctive relief).

B. Section 1983 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 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....

To state a claim for relief under § 1983, a plaintiff must allege

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

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the United States, and that the constitutional deprivation was

caused by a person acting under color of state law. West v. Atkins,

487 U.S. 42, 48 (1998); Malleus v. George, 641 F.3d 560, 563 (3d

Cir. 2011).

1. Fourth Amendment Claim

Plaintiff claims that Schmidt’s search of his cell, where

Schmidt filled Plaintiff’s sneakers with milk and shampoo,

violated the Fourth Amendment because it was intended to harass,

intimidate or punish him. “[T]he Fourth Amendment has no

applicability to the contents of a prisoner's cell.” Humphrey v.

Sec'y Pennsylvania Dep't of Corr., 712 F. App'x 122, 125 (3d Cir.

2017) (citing Hudson v. Palmer, 468 U.S. 517, 536 (1984)

(additional citation omitted). The Court will dismiss the Fourth

Amendment claim with prejudice.

2. Eighth Amendment Claims

Plaintiff’s Eighth Amendment excessive force claims against

Schmidt, Salanitro, and John Does may proceed. Plaintiff’s Eighth

Amendment claims against Lt. Long and Defendant Ganesh for turning

off his water while he was on a hunger strike may also proceed.

Plaintiff brings several more Eighth Amendment conditions of

confinement claims. First, a claim against Lt. Long for limiting

Plaintiff to one shower a week, over the course of fifty days. The

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Eighth Amendment standard for a conditions of confinement claim

requires a showing that

the alleged deprivation is “sufficiently

serious” and … the inmate has been deprived of

the “minimal civilized measure of life's

necessities.” Farmer v. Brennan, 511 U.S. 825,

834 … (1994) (citing Rhodes v. Chapman, 452

U.S. 337 … (1981)). An inmate must demonstrate

that “he is incarcerated under conditions

posing a substantial risk of serious harm” and

that prison officials demonstrated

“deliberate indifference” to his health or

safety. Id. However, only “extreme

deprivations” are sufficient to present a

claim for unconstitutional conditions of

confinement. Hudson [v. McMillian], 503 U.S.

[1,] 8–9 [1992]…. “Relevant considerations

include the length of confinement, the amount

of time prisoners must spend in their cells

each day, sanitation, lighting, bedding,

ventilation, noise, education and

rehabilitation programs, opportunities for

activities outside the cells, and the repair

and functioning of basic physical activities

such as plumbing, ventilation and showers.”

Nami v. Fauver, 82 F.3d 63, 67 (3d Cir.1996)

(citing Tillery v. Owens, 907 F.2d 418, 427

(3d Cir.1990)).

Dockery v. Beard, 509 F. App'x 107, 112 (3d Cir. 2013). Limiting

showers to once a week for fifty days is not an extreme deprivation

that denies the minimal civilized measure of life’s necessities.

Id. at 113 (citing Davenport v. DeRobertis, 844 F.2d 1310, 1316

(7th Cir.1988) (limiting inmates to one shower per week does not

violate the Eighth Amendment)). The Eighth Amendment claim against

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Lt. Long regarding shower restrictions will be dismissed with

prejudice for failure to state a claim.

Plaintiff has also alleged that Shimonis and Ganesh violated

the Eighth Amendment by denying him recreational time outside of

his cell for eighty days. “[A] temporary denial of outdoor exercise

with no medical effects is not a substantial deprivation.” Fantone

v. Herbik, 528 F. App'x 123, 127 (3d Cir. 2013) (quoting May v.

Baldwin, 109 F.3d 557, 565 (9th Cir.1997)). Plaintiff has not

alleged that he had no opportunity for any type of exercise or

that he suffered any medical effects from the deprivation of

exercise outside his cell. The Court will dismiss this claim

without prejudice.

3. Due Process Claims

Plaintiff alleges Shimonis and Ganesh violated his right to

due process “regarding transfers and segregation.” A prisoner is

deprived of a legally cognizable liberty interest when “the prison

‘imposes atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.’” Jones v.

Davidson, 666 F. App'x 143, 147 (3d Cir. 2016) (quoting Sandin v.

Conner, 515 U.S. 472, 484 (1995)). The Third Circuit has held that

imposition of disciplinary segregation for as long as fifteen

months does not impose an atypical and significant hardship in

relation to the ordinary incidents of prison life. Id. (citing

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Smith v. Mensinger, 293 F.3d 641, 653 (3d Cir. 2002) (holding seven

months of disciplinary confinement did not implicate liberty

interest); Torres v. Fauver, 292 F.3d 141, 151–52 (3d Cir. 2002)

(holding disciplinary detention for fifteen days and

administrative segregation for 120 days did not implicate liberty

interest); Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997)

(holding administrative detention for fifteen months did not

implicate liberty interest)). Plaintiff has not alleged that he

was deprived of a protected liberty interest by his placement on

camera-move status for eighty days. Furthermore, the Due Process

Clause does not create a liberty interest in a particular housing

location or custody level while under the jurisdiction of

correctional authorities. Green v. Williamson, 241 F. App'x 820,

822 (3d Cir. 2007) (citing Meachum v. Fano, 427 U.S. 215, 224–25

(1976); Montanye v. Haymes, 427 U.S. 236, 242 (1976); Olim v.

Wakinekona, 461 U.S. 238, 244–45 (1983)). The Court will dismiss

Plaintiff’s Due Process claims with prejudice.

4. First Amendment Claims

a. Freedom of association

Plaintiff alleges that Lt. Long violated his First Amendment

right to have contact with his family and friends by denying him

access to a phone and J-Pay email for fifty days while he was on

camera-move status. “[F]reedom of association is among the rights

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least compatible with incarceration.” Overton v. Bazzetta, 539

U.S. 126, 131 (2003) (citing Jones v. North Carolina Prisoners’

Labor Union, Inc., 433 U.S. 119, 125–126 (1977); Hewitt v. Helms,

459 U.S. 460 (1983)). Although prisoners retain some right to

association,

four factors are relevant in deciding whether

a prison regulation affecting a constitutional

right that survives incarceration withstands

constitutional challenge: whether the

regulation has a “‘valid, rational

connection’” to a legitimate governmental

interest; whether alternative means are open

to inmates to exercise the asserted right;

what impact an accommodation of the right

would have on guards and inmates and prison

resources; and whether there are “ready

alternatives” to the regulation. [Turner v.

Safely], 482 U.S. [78 ] 89–91 [1987].

Id. at 132. The burden is on the prisoner to disprove the validity

of a prison regulation that infringes a constitutional right. Id.

Plaintiff alleged that he was placed on camera-move status

during the 50-day period where he was restricted from using the

phone or J-Pay email. He has not explained the reason given to him

for placing him on camera-move status or whether there is a prison

regulation that restricts phone and J-Pay use while on camera-move

status. If a prison regulation imposes the restriction, Plaintiff

must allege why the restriction is not rationally related to a

legitimate governmental interest, pursuant to the four factors

discussed above. Therefore, the Court will dismiss Plaintiff’s

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First Amendment freedom of association claim against Lt. Long

without prejudice.

b. Retaliation

Plaintiff alleges that Shimonis and Ganesh subjected him to

harsh conditions on camera-move status for eighty days because he

complained of conditions in the facility. “In order to establish

illegal retaliation for engaging in protected conduct,” a

plaintiff must allege that: “(1) his conduct was constitutionally

protected; (2) he suffered an adverse action at the hands of prison

officials; and (3) his constitutionally protected conduct was a

substantial or motivating factor” in the adverse action. Watson v.

Rozum, 834 F.3d 417, 422 (3d Cir. 2016). The third element of a

prima facie case of retaliation can be established with evidence

of: “(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.” Id. at 424 (citations omitted). “‘[T]he timing of the

alleged retaliatory action must be ‘unusually suggestive’ of

retaliatory motive before a causal link will be inferred.’” Id.

(quoting Estate of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir.

2003) (internal quotation marks omitted) (quoting Krouse v. Am.

Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997)).

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Plaintiff has not established how the decision to place him

on camera-move status was connected in time to a specific complaint

that he made about the conditions of confinement, nor did he allege

any other facts indicating that Shimonis and Ganesh had a

retaliatory motive. Further, Plaintiff alleged he was placed in a

suicide room, but he did not explain if this was related to his

camera-move status. Plaintiff has not provided sufficient facts to

establish a retaliation claim. Therefore, the Court will dismiss

the retaliation claims against Shimonis and Ganesh without

prejudice.

C. New Jersey Tort Claims

Plaintiff seeks to bring each of his claims under the New

Jersey Tort Claims Act (“TCA”), N.J. Stat. Ann. 59:1-1 et seq.

Prior to bringing a personal injury claim against public employees

under the TCA, a plaintiff must file a notice of claim not later

than the 90th day after accrual of the cause of action. N.J. Stat.

Ann. § 59:8-8 (West). § 59:8-3 and 59:8-8. A plaintiff is “forever

barred from recovering against a public entity or public employee

if he “failed to file the claim with the public entity within 90

days of accrual of the claim except as otherwise provided in N.J.S.

59:8-9[.]” N.J. Stat. Ann. § 59:8-8. The claim must be filed “with

(1) the Attorney General or (2) the department or agency involved

in the alleged wrongful act or omission.” N.J. Stat. Ann. 59:8-7.

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“A claimant who fails to file notice of his claim within 90 days

as provided in section 59:8-8 of this act, may, in the discretion

of a judge of the Superior Court, be permitted to file such notice

at any time within one year after the accrual of his claim provided

that the public entity or the public employee has not been

substantially prejudiced thereby.” N.J. Stat. Ann. § 59:8-9.

Based on the allegations in the complaint, Plaintiff’s claims

accrued on August 26, 2019. Plaintiff has not alleged that he

timely satisfied the notice of claim requirement of the TCA.

Therefore, the Court will dismiss Plaintiff’s state tort claims

without prejudice. See Melber v. United States, 527 F. App'x 183,

186 n. 2 (3d Cir. 2013) (noting the New Jersey Superior Court

Appellate Division has suggested the TCA claim notice requirement

is jurisdictional) (citing State v. J.R.S., 939 A.2d 226, 229 (N.J.

Super. Ct. App. Div. 2008)).

III. CONCLUSION

The Court will grant Plaintiff’s application to proceed in

forma pauperis under 28 U.S.C. § 1915, and proceed his Complaint

in part and dismiss it in part.

DATE: January 6, 2021

s/Renée Marie Bumb

RENÉE MARIE BUMB

United States District Judge

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