BROWN v. SCHMIDT

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

KEISHAWN BROWN, : CIV. NO. 20-15672 (RMB-AMD)

:

Plaintiff :

:

v. : MEMORANDUM AND ORDER

:

SGT. N. SCHMIDT, et al., :

:

Defendants :

This matter comes before the Court upon Plaintiff’s

Supplemental Complaint1 filed on February 17, 2021. (Supp’l Compl.,

Dkt. No. 9.) On January 6, 2021, the Court granted Plaintiff’s

application to proceed in forma pauperis and proceeded in part and

dismissed in part Plaintiff’s complaint, pursuant to 28 U.S.C. §

1915(e)(2)(B). (Opinion, Dkt. No. 3; Order, Dkt. No. 4.) The Court

incorporates the January 6, 2021 Opinion and Order by reference

and sets forth only the new allegations in the supplemental

complaint, which the Court assumes to be true solely for purposes

of screening for dismissal under 28 U.S.C. §§ 1915(e)(2)(B),

1 The Court will treat Plaintiff’s amended complaint (Dkt. No. 9)

as a supplemental complaint under Federal Rule of Civil Procedure

15(d) because Plaintiff did not reallege claims that the Court

permitted to proceed upon screening the original complaint. The

Court assumes Plaintiff wishes to proceed with his original claims

but was unaware that an amended complaint completely replaces the

original complaint. Any future amended complaints by Plaintiff in

this action shall replace the original and supplemental complaints

and contain all allegations and claims that Plaintiff wishes to

bring in this action. If previous claims are eliminated from any

future amended complaint, the Court will assume Plaintiff no longer

wishes to proceed with those claims.

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

556 U.S. 662, 679, (2009) (“[w]hen there are well-pleaded factual

allegations, a court should assume their veracity and then

determine whether they plausibly give rise to an entitlement to

relief”)). The Court further holds Plaintiff to the requirement in

Federal Rule of Civil Procedure 11(b), that by signing his

supplemental complaint he represents “the factual contentions have

evidentiary support or, if specifically so identified, will likely

have evidentiary support after a reasonable opportunity for

further investigation or discovery[,]” subject to sanctions under

Rule 11(c) if the representations are false.

In the supplemental complaint, Plaintiff has alleged facts

that are sufficient to state a claim against Lieutenant Long for

violating Plaintiff’s right to association under the First

Amendment. Plaintiff alleged that Long deprived him of J-Pay

(email) or phone privileges despite knowing that Plaintiff did not

lose these privileges as a consequence of his prison disciplinary

hearing. (Supp’l. Compl., ¶¶ 1-9, Dkt. No. 9.)

With respect to his Eighth Amendment conditions of

confinement claims against Ganesh and Shimonis, Plaintiff alleges

that they deprived him of any opportunity for exercise, indoor or

outdoor, for 80 days. (Supp’l. Compl. ¶12, Dkt. No. 9.) The Court

will allow this claim to proceed. However, Plaintiff has not set

2

forth sufficient facts to reasonably infer that Ganesh and Shimonis

deprived Plaintiff of all physical exercise in retaliation for his

exercise of a constitutional right. Therefore, the First Amendment

retaliation claim in the supplemental complaint is dismissed

without prejudice.

IT IS on this 12th day of April 2021,

ORDERED that the Supplemental Complaint (Dkt. No. 9) shall be

filed; and it is further

ORDERED that Plaintiff’s First Amendment right of association

claim against Lieutenant Long in his individual capacity and

Plaintiff’s Eighth Amendment claims against Defendants Ganesh and

Shimonis in their individual capacities may proceed; Plaintiff’s

First Amendment retaliation claims are dismissed without

prejudice; and it is further

ORDERED that the Clerk shall issue summons in connection with

the USM-285 Forms for Defendants Schmidt, Salanitro, Long, Ganesh

and Shimonis that have been submitted by Plaintiff, and the Marshal

shall serve summons, the Complaint and Supplemental Complaint

(Dkt. Nos. 1 and 9), this Order, and the Court’s January 6, 2021

Opinion and Order (Dkt. Nos. 3, 4) to the addresses specified on

the USM-285 Forms, with all costs of service advanced by the United

States; and it is further

3

ORDERED that Defendants Schmidt, Salanitro, Long, Ganesh and

Shimonis shall file and serve responsive pleadings within the time

specified by the Federal Rules of Civil Procedure; and it is

further

ORDERED that the Clerk of the Court shall serve Plaintiff

with a copy of this Order via regular U.S. mail.

s/Renée Marie Bumb

RENÉE MARIE BUMB

United States District Judge

4