SHEPPERSON v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

OMAR SHEPPERSON, :

: CIV. NO. 19-19305 (RMB)

:

Plaintiff :

v. : OPINION

:

SGT. E. HERNANDEZ, et al., :

:

Defendants :

______________________________

Omar Shepperson,

South Woods State Prison

215 South Burlington Road

Bridgeton, NJ 08302

Plaintiff, pro se

Matthew John Lynch, Esq.

State of New Jersey

Office of the Attorney General

Division of Law

25 Market Street

P.O. Box 112

Trenton, NJ 08625

Attorney for Defendant E. Hernandez

BUMB, United States District Judge

This matter comes before the Court upon Defendant E.

Hernandez’s (“Hernandez”) unopposed motion to dismiss the

complaint (Mot. to Dismiss, Dkt. No. 10; Def’s Brief, Dkt. No. 10-

1).1 This Court will decide the motion on the briefs without an

1 Deputy Attorney General Matthew Lynch appears on behalf of

Defendant E. Hernandez (Not. of Mot., Dkt. No. 10 at 1) and has

not entered an appearance or waived service on behalf of the John

oral hearing, pursuant to Federal Rule of Civil Procedure 78(b).

For the reasons discussed below, the Court will grant in part and

deny in part Hernandez’s motion to dismiss.

I. BACKGROUND

A. Procedural History

Plaintiff Omar Shepperson is a prisoner at South Woods State

Prison who initiated this prisoner civil rights action by filing

a complaint on October 24, 2019, alleging primarily Eighth

Amendment claims of excessive force arising from an incident that

occurred in Northern State Prison in April 2018. The Court granted

Plaintiff’s IFP application under 28 U.S.C. § 1915(a) and screened

the complaint for dismissal pursuant to 28 U.S.C. §§ 1915(e)(2)(b),

1915A(b) and 42 U.S.C. § 1997e(c)(1). On January 6, 2020, the

Court: (1) dismissed with prejudice the § 1983 claims against the

New Jersey Department of Corrections and the remaining defendants

in their official capacities based on Eleventh Amendment immunity;

(2) dismissed without prejudice the § 1983 claims against Marcus

Hicks and Logan in their individual capacities; and (3) permitted

the remaining claims in the complaint to proceed. Defendant

Hernandez filed an unopposed motion to dismiss on October 15, 2020.

Doe Defendants. Therefore, the Court addresses only the claims

against E. Hernandez for dismissal under Federal Rule of Civil

Procedure 12(b)(6). The Court will, however, sua sponte address

the fair trial claim against all defendants pursuant to 28 U.S.C.

§§ 1915(e)(2)(B), 1915(A)(b)(1) and 42 U.S.C. § 1997e(c)(1).

B. The Complaint

Plaintiff alleges the following facts in his complaint. On

April 15, 2018, Plaintiff was confined in Northern State Prison.

Plaintiff was granted permission from Officer John Doe #1 to speak

to the unit nurse about the side effects from his medication. While

Plaintiff was speaking to the nurse, Hernandez approached and

shoved Plaintiff and began verbally berating him. An emergency

code was called and John Doe #1 pepper sprayed and physically

assaulted Plaintiff. Hernandez then slammed Plaintiff on the

ground. Plaintiff was handcuffed and removed from the area, where

he was physically assaulted by the Defendant John Doe Nos. 2-5.

Plaintiff was taken by ambulance to a hospital and a CT scan of

his head was negative, but he suffered neck pain, eye pain and

dizziness. Several days later, Plaintiff was diagnosed with a

concussion and required further treatment for an eye injury.

Disciplinary charges were brought against Plaintiff and heard by

two discipline hearing officers (“DHO”) but one (“DHO”) was removed

from the case. Plaintiff believes the DHO was removed because she

would have exonerated him. Plaintiff alleges he was in solitary

confinement for more than one month.

II. MOTION TO DISMISS

Hernandez raises the following issues in his motion to

dismiss: (1) the State Defendants in their official capacities are

not “persons” amenable to suit under 42 U.S.C. § 1983; (2) the §

1983 claims against the State Defendants in their official

capacities are barred by the Eleventh Amendment; (3) Plaintiff

fails to state an excessive force claim under the Eighth Amendment;

(4) Plaintiff fails to state a fair trial claim; (5) Sergeant

Hernandez is entitled to qualified immunity; (6) Plaintiff’s

request for punitive damages is unsupported.

III. DISCUSSION

A. Standard of Law

The standard for dismissal of a prisoner’s claim regarding

prison conditions for failure to state a claim under 42 U.S.C.

1997e(c)(1), and a prisoner’s claim against a government official

or entity under 28 U.S.C. § 1915A(b)(1), and for any litigant

proceeding in forma pauperis under 28 U.S.C. § 1915(e)(2)(B), is

the same standard as for a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6). See Shane v. Fauver, 213 F.3d 113 (3d

Cir. 2000) (discussing claims under 42 U.S.C. § 1997e; Byrd v.

Shannon, 715 F.3d 117, 126 (3d Cir. 2013) (discussing sua sponte

dismissal of prisoner claims). In reviewing the sufficiency of a

claim under Federal Rule of Civil Procedure 12(b)(6), courts must

first identify the legal elements required to state a cognizable

claim. Argueta v. U.S. Immigration and Customs Enforcement, 643

F.3d 60, 74 (3d Cir. 2011) (citing Ashcroft v. Iqbal, 556 U.S.

662, 679 (2009); Santiago v. Warminster Twp., 629 F.3d 121, 129-

30 (3d Cir. 2010).

Second, courts should identify allegations that are no more

than conclusions that are not entitled to an assumption of truth.

Argueta, 643 F.3d at 74; Connelly v. Lane Const. Corp., 809 F.3d

780, 789 (3d Cir. 2016). Under Twombly and Iqbal, “even outlandish

allegations” are entitled to a presumption of truth unless they

are merely “formulaic recitations of the elements of a … claim.”

Id. (citing Iqbal, 556 U.S. at 681.) “[T]he clearest indication

that an allegation is conclusory and unworthy of weight in

analyzing the sufficiency of a complaint is that it embodies a

legal point.” Connelly, 809 F.3d at 790 (citing Peñalbert–Rosa v.

Fortuño–Burset, 631 F.3d 592, 595 (1st Cir. 2011) (citation and

internal quotation marks omitted).

Third, courts must determine whether the “well-pleaded

factual allegations plausibly give rise to an entitlement to

relief.” Argueta, 643 F.3d at 74 (citations omitted.) The

plausibility requirement “‘is not akin to a ‘probability

requirement.’” Id. (quoting Iqbal, 129 S. Ct. at 1949.) The

plausibility requirement requires a pleading to show “‘more than

a sheer possibility that a defendant has acted unlawfully.’”

Connelly, 809 F.3d at 786 (citing Iqbal, 556 U.S. at 678)).

Allegations that are “merely consistent with a defendant's

liability” … are not enough. Santiago, 629 F.3d at 133 (quoting

Iqbal, 129 S. Ct. at 1949-50 (internal quotation marks omitted)).

Where there is an allegation consistent with a defendant’s

liability but there is an “obvious alternative explanation,” the

inference of the defendant’s liability is not plausible. Id.

A plaintiff has the burden of pleading sufficient “factual

matter” but not to plead “specific facts.” Schuchardt v. President

of the United States, 839 F.3d 336, 347 (3d Cir. 2016) (quoting

Boykin v. KeyCorp, 521 F.3d 202, 215 (2d Cir. 2008) (quoting

Twombly, 550 U.S. at 569; Erickson v. Pardus, 551 U.S. 89, 93

(2007)). “Implicit in the notion that a plaintiff need not plead

‘specific facts’ to survive a motion to dismiss is that courts

cannot inject evidentiary issues into the plausibility

determination.” Schuchardt, 839 F.3d at 347 (citation omitted). A

court may not dismiss a complaint based on the court’s “assessment

that the plaintiff will fail to find evidentiary support for his

allegations or prove his claim to the satisfaction of the

factfinder.” Id. (quoting Twombly, 550 U.S. at 573.) On a Rule

12(b)(6) motion to dismiss, courts must accept the Plaintiff’s

allegations as true “with the important caveat that the presumption

of truth attaches only to those allegations for which there is

sufficient “factual matter” to render them “plausible on [their]

face.” Id. at 353 (quoting Iqbal, 556 U.S. at 679).

B. The Court previously dismissed the § 1983 official

capacity claims

After Plaintiff filed his complaint, the Court screened

Plaintiff’s claims for dismissal pursuant to 28 U.S.C. §§

1915(e)(2)(B), 1915A(b)(1) and 42 U.S.C. § 1997e(c)(1). The Court

sua sponte dismissed the § 1983 claims against the New Jersey

Department of Corrections and the remaining defendants in their

official capacities based on Eleventh Amendment immunity.

(Opinion, Dkt. No. 2; Order, Dkt. No. 3.) Because Plaintiff did

not specifically request prospective injunctive relief for a

continuing violation of federal law, the Court dismissed the claims

with prejudice. See Green v. Mansour, 474 U.S. 64, 68, 106 S. Ct.

423, 426, 88 L. Ed. 2d 371 (1985) (citing Ex Parte Young, 209 U.S.

123, 155–156, 159 (1908) (holding that the Eleventh Amendment does

not prevent federal courts from granting prospective injunctive

relief to prevent a continuing violation of federal law.))

Hernandez’s motion to dismiss the official capacity claims is

denied as moot.

C. Plaintiff alleged an Eighth Amendment excessive force

claim against Hernandez in his individual capacity

For a prisoner to state an Eighth Amendment excessive force

claim he or she must allege “an objective and subjective

component.” Gibson v. Flemming, 837 F. App'x 860, 862 (3d Cir.

2020) (citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)). For the

objective component, even a “de minimis” use of force could be

“constitutionally significant” where the force is “repugnant to

the conscience of mankind” Brooks v. Kyler, 204 F.3d 102, 107 (3d

Cir. 2000) (quoting Hudson, 503 U.S. at 9-10.)) “Injury and force

… are … imperfectly correlated, and it is the latter that

ultimately counts.” Wilkins v. Gaddy, 559 U.S. 34, 38 (2010). “In

evaluating the subjective component of an excessive force claim,

the Court should consider ‘whether force was applied in a good-

faith effort to maintain or restore discipline, or maliciously and

sadistically to cause harm.’” Gibson, 837 F.3d App’x at 862

(quoting Ricks v. Shover, 891 F.3d 468, 480 (3d Cir. 2018)

(citations omitted)). Answering this question involves

consideration of the following factors:

(1) the need for the application of force; (2)

the relationship between the need and the

amount of force that was used; (3) the extent

of the injury inflicted; (4) the extent of the

threat to the safety of staff and inmates, as

reasonably perceived by responsible officials

on the basis of facts known to them; and (5)

any efforts made to temper the severity of the

forceful response.

Id. (quoting Hudson, 503 U.S. at 8) (internal quotations omitted)).

Hernandez argues that Plaintiff’s allegations fail to state

an Eighth Amendment claim because his actions “could certainly

have been thought necessary” to maintain order in a prison. (Def’s

Brief, Dkt. No. 10-1 at 13.) Plaintiff alleged that Hernandez

shoved him and verbally berated him, and an emergency code was

called, prompting John Doe #1 to spray Plaintiff in the face with

pepper spray. Plaintiff alleges Hernandez then slammed him to the

floor and he was handcuffed, moved, and physically assaulted by

John Doe Nos. 2-5 in another location. Plaintiff has also alleged

that he suffered a concussion, neck pain, dizziness and eye injury.

On a motion to dismiss, the Court must accept Plaintiff’s

allegations as true.2 The allegations are sufficient to support a

conclusion that Hernandez used force maliciously or sadistically

and in a manner that is repugnant to the conscience of mankind.

See Brooks, 204 F.3d 102, 107 (3d Cir. 2000) (“Hudson dictates

that we must assess the degree of force employed in relation to

the apparent need for it.”) Thus, the Court turns to Hernandez’s

qualified immunity defense.

D. Hernandez is entitled to qualified immunity at this

stage of the proceedings

In support of the qualified immunity defense, Hernandez

argues that Plaintiff has not alleged an Eighth Amendment

violation, and even if he has, there is no clearly established

2 The Court assumes that Plaintiff—under pain of this Court’s

inherent power to address baseless allegations—has complied with

Federal Rule of Civil Procedure 11’s requirement that factual

contentions have evidentiary support and are brought in good faith.

Fed. R. Civ. P. at 11(b)(3). During the course of the litigation,

if it becomes evident that he did not in fact have a good faith

belief that his factual contentions had evidentiary support, the

Court will not hesitate to consider the full range of appropriate

sanctions, up to and including filing preclusion. Fed. R. Civ. P.

11(c).

federal law indicating “a simple shove in the shoulder and tackling

to the ground constitutes excessive force and is cruel and

unusual.” (Def’s Brief, Dkt. No. 10 at 13, 17.) “Under the …

defense of qualified immunity, a state officer is shielded from a

suit for monetary damages under § 1983 unless ‘the official

violated a ... constitutional right,’ and ‘the right was clearly

established at the time of the challenged conduct.’” Weimer v.

Cty. of Fayette, Pennsylvania, 972 F.3d 177, 190 (3d Cir. 2020)

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (internal

quotation marks and citation omitted).

The Court has determined that Plaintiff alleged a cognizable

Eighth Amendment excessive force claim, and thus turns to whether

the plaintiff had a “clearly established right at the time of the

alleged conduct.”

The Third Circuit recently explained that

“[A] defendant cannot be said to have violated

a clearly established right unless the right's

contours were sufficiently definite that any

reasonable official in the defendant's shoes

would have understood that [s]he was violating

it.” Plumhoff v. Rickard, 572 U.S. 765, 778–

79, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014).

That is, the legal rule must have been

“dictated by controlling authority or a robust

consensus of cases of persuasive authority.”

District of Columbia v. Wesby, ––– U.S. ––––,

138 S. Ct. 577, 589–90, 199 L.Ed.2d 453 (2018)

(internal quotation marks and citation

omitted). The Supreme Court has repeatedly

emphasized that “clearly established law

should not be defined at a high level of

generality.” White v. Pauly, ––– U.S. ––––,

137 S. Ct. 548, 552, 196 L.Ed.2d 463 (2017)

(per curiam) (internal quotation marks

omitted). “A rule is too general if the

unlawfulness of the [official's] conduct does

not follow immediately from the conclusion

that the rule was firmly established.” Wesby,

138 S. Ct. at 590 (alteration, internal

quotation marks, and citation omitted).

Weimer v. Cty. of Fayette, Pennsylvania, 972 F.3d 177, 190 (3d

Cir. 2020).

Approximately eight years before Hernandez’s alleged use of

excessive force against Plaintiff, the Supreme Court, in 2010,

held that a prisoner need not allege a significant injury to state

an Eighth Amendment claim. Wilkins v. Gaddy, 559 U.S. 34, 39-40

(2010). Instead, the Court explained the Eighth Amendment inquiry

as follows:

The “core judicial inquiry,” we held, was not

whether a certain quantum of injury was

sustained, but rather “whether force was

applied in a good-faith effort to maintain or

restore discipline, or maliciously and

sadistically to cause harm.” 503 U.S. at 7,

112 S.Ct. 995; see also Whitley v. Albers, 475

U.S. 312, 319–321, 106 S.Ct. 1078, 89 L.Ed.2d

251 (1986). “When prison officials maliciously

and sadistically use force to cause harm,” the

Court recognized, “contemporary standards of

decency always are violated ... whether or not

significant injury is evident. Otherwise, the

Eighth Amendment would permit any physical

punishment, no matter how diabolic or inhuman,

inflicting less than some arbitrary quantity

of injury.” Hudson, 503 U.S. at 9, 112 S.Ct.

995; see also id., at 13–14, 112 S.Ct. 995

(Blackmun, J., concurring in judgment) (“The

Court today appropriately puts to rest a

seriously misguided view that pain inflicted

by an excessive use of force is actionable

under the Eighth Amendment only when coupled

with ‘significant injury,’ e.g., injury that

requires medical attention or leaves permanent

marks”).

Wilkins, 559 U.S. at 37.

The Supreme Court, in Hudson and Wilkins, has clearly

established that ‘[i]n an excessive force claim, the central

question is ‘whether force was applied in a good-faith effort to

maintain or restore discipline, or maliciously and sadistically to

cause harm.’” Brooks, 204 F.3d at 106 (quoting Hudson, 503 U.S. at

7). Here, Plaintiff alleges there was no reason for Hernandez to

slam him to the ground because he was simply speaking with a nurse

when Hernandez began harassing him and John Doe #1 sprayed his

face with pepper spray. At the motion to dismiss stage, the Court

must accept Plaintiff’s plausible allegations as true, therefore,

Hernandez was on notice based on the clearly established right to

be free from being “slammed” to the floor without any need to

maintain or restore discipline. The Court will deny Hernandez’s

motion to dismiss the excessive force claim based on qualified

immunity.

E. Plaintiff failed to allege a cognizable “fair trial”

claim against any defendant

Hernandez construed the complaint to raise a § 1983 claim

against him for denying Plaintiff a fair trial. (Def’s Brief, Dkt.

No. 10-1 at 14, citing Compl. ¶ 24). This claim was presumably

based on Plaintiff’s allegation that he was adjudicated guilty at

a disciplinary hearing heard by two different hearing officers.

(Def’s Brief, Dkt. No. 10-1 at 14.) The Court did not initially

construe this as a § 1983 claim, but agrees that Plaintiff fails

to state a claim against Hernandez or any other defendant for

depriving him of a fair disciplinary proceeding.

“Prisoners may be entitled to minimal due process guarantees

in connection with a prison disciplinary hearing that results in

loss of good conduct time or other sanctions that pose an atypical

and significant hardship in relation to the ordinary incidents of

prison life. Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (finding

a due process liberty interest where “prisoners … can only lose

good-time credits if they are guilty of serious misconduct, the

determination of whether such behavior has occurred becomes

critical, and the minimum requirements of procedural due process

appropriate for the circumstances must be observed”); Sandin v.

Conner, 515 U.S. 472, 486 (1995) (“discipline in segregated

confinement did not present the type of atypical, significant

deprivation in which a State might conceivably create a liberty

interest”); see Asquith v. Dep't of Corr., 186 F.3d 407, 412 (3d

Cir. 1999) (quoting Griffin v. Vaughn, 112 F.3d 703, 706 & n. 2

(3d Cir. 1997) (additional citations omitted) (“[T]he baseline for

determining what is ‘atypical and significant’—the ‘ordinary

incidents of prison life’—is ascertained by what a sentenced inmate

may reasonably expect to encounter as a result of his or her

conviction in accordance with due process of law.”)

Plaintiff alleges he was in solitary confinement for more

than a month, presumably as a sanction for a prison rule

infraction, but this alone is insufficient to establish a protected

liberty interest in procedural due process. Sandin, 515 U.S. at

486. Furthermore, even if Plaintiff were entitled to the due

process protections described in Wolff, including an impartial

hearing officer, Plaintiff alleges solely that “on information and

belief” a DHO was removed from his case because she would have

exonerated him. (Compl., ¶18, Dkt. No. 1.) Plaintiff does not

allege that the DHO who found him guilty was not impartial, nor

does he allege any basis for his belief that Hernandez or any other

defendant caused the DHO’s removal to ensure that he was found

guilty. Therefore, the Court will grant Hernandez’s motion to

dismiss the fair trial claim, construed as a Fourteenth Amendment

due process claim, and dismiss the claim without prejudice. The

Court will sua sponte dismiss the Fourteenth Amendment due process

claim against the remaining defendants pursuant to 28 U.S.C. §§

1915(e)(2)(B), 1915A(b)(1) and 42 U.S.C. § 1997e(c)(1).

F. Plaintiff’s Request for Punitive Damages

Without reference to any state law pleading requirement for

punitive damages, Hernandez seeks to have Plaintiff’s request for

punitive damages dismissed. The issue of damages is not ripe, and

the Court will deny the motion to dismiss the claim for punitive

damages without prejudice. See generally, BMW of N. Am., Inc. v.

Gore, 517 U.S. 559, 568, 116 S. Ct. 1589, 1595, 134 L. Ed. 2d 809

(1996) (“Punitive damages may properly be imposed to further a

State's legitimate interests in punishing unlawful conduct and

deterring its repetition”) (citations omitted)).

IV. CONCLUSION

For the reasons discussed above, the Court will grant in part

and deny in part Hernandez’s motion to dismiss, and sua sponte

dismiss the Fourteenth Amendment Due Process Claims against the

remaining defendants.

An appropriate Order follows.

Date: May 25, 2021

s/Renée Marie Bumb

RENÉE MARIE BUMB

United States District Judge