LOVE v. JOHN DOES 1-9

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

:

KELVIN RAY LOVE, :

: Civil Action No. 17-cv-1036 (BRM) (DEA)

Plaintiff, :

:

v. : OPINION

:

JOHN DOES, et al., :

:

Defendants. :

:

MARTINOTTI, DISTRICT JUDGE

Before this Court is a Motion to Dismiss filed by Defendants Bruce Davis, Imam J. Elchabi,

Imam Suluki, and Charles Warren, Jr. (collectively, “Defendants”) seeking to dismiss Plaintiff

Kelvin Ray Love’s (“Plaintiff”) claims against them pursuant to Federal Rule of Civil Procedure

12(b)(6). (ECF No. 154.) Plaintiff filed his Opposition to Defendants’ Motion (ECF No. 160),

Defendants filed a Reply (ECF No. 162), and Plaintiff filed a Response (ECF No. 163). Having

reviewed the parties’ submissions filed in connection with the Motion and having declined to hold

oral argument pursuant to Federal Rule of Civil Procedure 78(b), for the reasons set forth below,

and for good cause shown, the Motion to Dismiss is GRANTED in part and DENIED in part.

I. BACKGROUND1

A. Factual History

Plaintiff’s Fourth Amended Complaint mirrors the majority of his Third Amended

Complaint. (See ECF Nos. 45 & 104.) This Court summarized the facts alleged in Plaintiff’s Third

Amended Complaint in the Court’s Opinion granting previous Defendant’s George Hanuschik and

1 For the purposes of this Motion to Dismiss, the Court accepts as true all factual allegations in the

Complaint and draws all inferences in the facts alleged in the light most favorable to the Plaintiff.

See Phillips v. Cty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008).

Mrs. Zimmerman’s Motion to Dismiss (ECF No. 54). (See ECF No. 81 at 1-5.) Considering

Plaintiff reiterates verbatim his allegations, the Court will cite to the prior summarized factual

history. Plaintiff adds new allegations in this Fourth Amended Complaint, which the Court will

also summarize.

This action arises out of a series of incidents that occurred on or about

December 2011 through May 2015, while Plaintiff was an inmate at

the New Jersey State Prison in Trenton, New Jersey. (ECF No. 1042.)

In December 2011, Plaintiff “submitted a request pursuant to ACA

10A: 17-5.9(d) to Imam Suluki . . . , the then New Jersey State Prison

Chaplaincy Supervisor, asking that I be provided a weekly Sabbath

day diet, having any choice of items to the discretion of the prison.”

(ECF No. 104 at 8.)

Approximately one month later, on January 10, 2012, Imam Suluki

informed Plaintiff that his request has been denied because his request

“was not according to Jewish law.” (Id.) Imam Suluki also informed

Plaintiff that his request had been forwarded to the Religious Issues

Committee (“RIC”). (Id.) Plaintiff followed up with Imam Suluki

about the status of the RIC review three times in the months following

the initial denial. (Id. at 8-9.) On May 15, 2012, Imam Suluki indicated

that he did not have any information about the RIC’s review of

Plaintiff’s request. (Id. at 9.)

Plaintiff subsequently sent correspondence to Director Hicks

requesting follow up information regarding his dietary

accommodation request to the RIC. (Id.) Shortly thereafter Plaintiff

received a response from Cindy Ford, Coordinator Inmate

Correspondence Unit advising Plaintiff that his correspondence had

been forwarded to New Jersey State Prison Administrator, Charles

Warren. (Id.)

Although Plaintiff does not specify the start date of the alleged

conduct that resulted in the aforementioned grievances, he alleges the

prison’s failure to provide him an adequate kosher diet resulted in his

suffering from nutritional deficiencies. (Id. at 10-11.) He contends

that, between March 2013 through February 2014, he suffered a

twenty-pound weight loss as a result of the inadequate dietary

provisions. (Id. at 11.) He alleges Defendants George Hanuschik and

2 The ECF docketing numbers have been altered to reflect the document pages from Plaintiff’s

Fourth Amended Complaint.

Christine Vaughan, “Cook House ITI’s,”3 provided kosher meals that

were smaller portions because “there is no set standard menu for the

Kosher diet as there is with all the other common fare diets served to

the regular non-kosher prisoners.” (Id. at 12.) Moreover, he alleges

Defendant Hanuschik, as supervisor, “is aware of the ITI’s practice of

arbitrary and capricious selection but turns a blind eye to this

practice.” (Id.)

Plaintiff’s dietary grievance stems not only from the quantity and

quality of the food but also from the Defendants’ alleged refusal to

comply with his request that he be provided non-perishable foods

before the start of the Sabbath, which he can consume once Sabbath

ends. (ECF No. 104 at 9.)

I sincerely believe that I should and must observe the

seventh day Sabbath (day of rest) on which, to the

best of my circumstances, I refrain from all work and

observe a prohibition of not eating, on the Sabbath,

foods prepared, cooked and or served to be on the

Sabbath. Which my interpretation of the Holy

Scriptures dictates I must observe from Saturday

evening til [sic] Sunday evening, as I have

consistently observed from before the year 2000. On

or around what time the 8th Circuit Court of Appeals

affirmed the decision /findings of the U.S. District

Court of Arkansas directing the Arkansas Dept. of

Corrections to provide me bread and peanut butter on

Saturdays, before evening, to be consumed by me on

Sundays during my seventh-day Sabbath.

(Id. at 57-8.)

Additionally, Plaintiff provides that he asked that he not receive meals

on Sundays. (Id. at 9-10.)

Plaintiff also alleges he suffered retaliation in the form of disciplinary

sanctions4 as a result of lawsuits he filed in New Jersey Superior

Court. (ECF No. 45 at 155.) Plaintiff does not elaborate on what the

3 Defendants indicate that “ITI” is an Institutional Training Instructor. (ECF No. 54-1 at 5.)

4 Defendants indicate Plaintiff was charged with Disciplinary charge .254-Refusing a work or

housing assignment in violation of N.J. Admin. Code § 10A:4-4.1. (ECF No. 54-1 at 6.)

5 It appears that Plaintiff’s unintentionally failed to include two pages in his fourth amended

complaint. This portion of Plaintiff’s fourth amended complaint is a mirror image of Plaintiff’s

specific subject of those court filings were other than that they were

“civil law suits against NJSP employees (Docket Nos. L 558-15; L

559-15) for civil rights violations suffered while in Ad-Seg.” (Id.)

Plaintiff alleges that the disciplinary sanctions were in response to his

court filings despite the defendants’ pretext. In his complaint, he

states, in pertinent part:

On or around the years of 2013; 2014, because of two

fights I had while in general population (gp) (Unit 2-

A; Unit 2-R (Mess Hall)), I feared for my life and or

safety, to return to gp from Administrative

Segregation (Ad-Seg). Before my Ad-Seg sentence

was completed I asked the Ad-Seg Unit Offices and

sergeants to be put on Protective Custody (PC). I

submitted numerous Grievances requesting PC and I

appealed directly to SID and the New Jersey State

Prison (NJSP) Administration for PC status. They all

refused me PC status, so upon my release from Ad-

Seg I refused to move to 1-Right Unit because I

feared for my safety in gp. For refusing to move I

was charged with an infraction and placed into

detention, where I continued to request PC. Finally I

was placed on temp. PC status and moved to a

Management Control Unit (MCU) for several days,

where I was given a hearing, asked to sign documents

acknowledging my request for voluntary PC and told

that I would not be recommended for PC status. At

this point I had to choose between continuing to

refuse to return to gp (which meant indefinite Ad-Seg

time) or take my changed in gp. Because I had an

Arkansas Habeas Corpus Petition to perfect I chose

gp where I could research etc. in the law library,

which I could not do in Ad-Seg. A change at possible

freedom was worth risking my life.

In gp, for over a year or more straight I was housed

on Unit 4C North in cell #28 (single-lock[6]). While

in cell #28 I filed (submitted for filing two (2) civil

law suits against NJSP employees (Docket Nos. L

558-15; L 559-15) for civil rights violations suffered

third amended complaint. Therefore, the Court will consider and cite to pages 14 and 15 from

Plaintiff’s third amended complaint.

6 Defendants submit in their brief that “single-lock” is a single occupancy cell. (ECF No. 54-1 at

6.)

while in Ad-Seg. On the morning of 5-20-15 I was

moved to unit 1-Right (1-R). While on 1-R I

overheard the Unit Offices saying that “it doesn’t

matter because he will be in detention soon anyhow.”

On the morning of 5-22-15 I was told that the

lieutenant had called and told me to pack up to be

moved to 4-C or 4A. I elected 4-C and when I got to

4-C I was ordered to lock in Cell # 5 (double-lock[

7]). I refused and was placed in detention. I went to

disciplinary court 5- 29-15 and Hearing Officer

(H/O) Mrs. Zimmerman gave me a 90 days

suspended sentence (max. amount for violation).

Upon my release from detention I again refused to

double-lock, went to court and received 180 days.

The previous 90 days which were suspended plus the

90 days just received, to run consecutive.

While in detention, the first time 5-26-15 I received

legal mail from the Mercer County Superior Court,

postdated 5-19-15 (the day before I was moved to 1-

R). In this correspondence were two (2) ORDERS

from the Superior Court ruling that I had 45 days

from 5- 8-15 to pay a $22.62 partial filing fee on each

of the two separate complaints (L 558-15; L 559-15)

or they would be dismissed without prejudice.

Someone in the NJSP mailroom the morning of 5-20-

15, or previous to same; upon receipt of my legal

mail from the court either opened my legal mail or

accessed the public records of the Court’s filing of its

then pending ORDER of DISMISSAL, and then

notified pertinent custody and or other NJSP stay on

or before the morning of 5-20-15 who then contrived

to and in fact did retaliate against me by moving me

to 1-R with intent of locking me up in Ad-Seg

wherein I receive no State Pay, my sole source of

income. Thereby inhibiting/preventing me from

meeting the courts deadline to pay the partial filing

fee.

(Id. at 15-16.)

(ECF No. 81 at 1-5.)

7 Defendants submit in their brief that “double-lock” is a double occupancy cell. (ECF No. 54-1 at

6.)

Plaintiff’s Fourth Amended Complaint additionally alleges the John Doe Lieutenants and

or Sergeants “that moved [Plaintiff] the mornings of 5-20-15 and 5-22-15 maliciously prosecuted

me, considering all facts alleged.” (ECF No. 104 at 24.) Plaintiff submits they accomplished this,

“because by law, they have the unbridled discretion to move me at will for any ‘legitimate’

penological purpose.” (Id.)

Plaintiff also alleges “pertinent defendants” were deliberately indifferent to Plaintiff’s

health and safety when they failed to provide and ensure him reasonably sanitary and safe housing

for a period of five months. (Id. at 4.) Plaintiff submits:

On or about Mar., 2013 I was placed on 7-Wing, 7-Right Cell # 15,

Tier #3 to serve approx. 364 days of Administrative Segregation (Ad-

Seg) time. Upon entering cell # 15/3 I noticed the smell of sewage,

and the rear metal wall directly over and affixed to the stainless steel

recessed toilet was streaked with reddish brown tunnels of sewage

waste water. I had to sit ‘within’ the rear wall in the recessed metal

toilet on a metal outhouse like round hole to relieve myself. Often

times sewage water would drip down on my head and body. In a

matter of days the volume and viscosity of the dripping sewage water

increased, forcing me to rig a makeshift gutter under the top rim of

the square toilet in order to relieve myself without being drenched by

sewage water. Before dripping on me this sewage water flowed in

and out again among the wiring of three connected electrical junction

boxes in-line directly over my head as I sat in the toilet. The first (top)

junction box housed an incandescent light bulb, the second (middle)

junction box housed a light switch and third (bottom) junction box

housed four electrical outlets (two being surge suppressed).

Subsequently the smell and volume of the sewage increased and

small maggot like worms could be seen wiggling down the rivulets

of sewage. That sewage and the contaminated air it produced, that I

was forced to breath for 5 months was a serious threat to my health

and water mingling with the electrical wiring subjected me to the real

threat of electrocution every time I had to use the toilet.

(Id. at 4-5.) Plaintiff alleges the pertinent officers and their supervising sergeants and lieutenants

on all three 8-hour shifts were “completely indifferent to his serious health and safety conditions.”

(Id. at 5.) Plaintiff alleges they had to have known because they could not “fail to see and smell it

as they looked into [his] cell.” (Id.) Further, Plaintiff states:

[I]t is my belief that cell # 15 had been condemned as unfit for

human occupation before I was placed inside. And that the 3-Tier

duty officers and their supervisors have documentation of this fact

and conspired to place me in and keep me in cell #15 for 5

consecutive months.

(Id.)

Plaintiff also alleges “pertinent defendants” discriminated against him because of his

“documented” handicap status. (Id. at 6.) Plaintiff alleges head officers refer to him as “retarded”

and “idiot” and they would treat him with condescension and disparagement. (Id.) Plaintiff also

alleges the officers would bring his Kosher food tray with seals opened, mouse dropping on the

tray, and moldy fruit. (Id.) Plaintiff alleges the officers would also leave off food from the tray or

not deliver the tray altogether. (Id.)

B. Procedural Background

Plaintiff filed a Complaint in the Superior Court of New Jersey, Mercer County on August

7, 2015. (See ECF Nos. 136 at 1 & 1 at 2.) Plaintiff filed an Amended Complaint and a Second

Amended Complaint against multiple John Does, George T. Hanuschik, Steven Johnson, Rev. W.

Wilcox, Mrs. Ryan, Christine Vaughan and Mrs. Zimmerman. (See ECF Nos. 1 & 1-1.) Defendants

Hanuschik, Johnson, Wilcox, and Zimmerman filed a Notice of Removal pursuant to 28 U.S.C. §§

1441(a), 1443 and 1446(b), arguing Plaintiff’s federal claims should be brought pursuant to 42

U.S.C. § 1983. (ECF No. 1 at 2.) According to Defendant’s Notice of Removal, Defendant Ryan,

although served with the Second Amended Complaint in state court, filed a Motion to Dismiss that

was granted by the state court. (Id.)

Plaintiff filed a Motion to Remand opposing Defendants’ Notice of Removal, arguing the

removal was “invalid” because Defendants waived removal by failing to file the motion to remove

within the “30-day time frame” as provided in 28 U.S.C. § 1441(c), and Defendants conspired with

the New Jersey Superior Court clerk to “summarily, arbitrarily, prematurely” have Plaintiff’s

action dismissed. (ECF No. 6 at 4-5.) This Court denied Plaintiff’s Motion to Remand on

November 28, 2017. (ECF Nos. 26-27.)

Plaintiff filed a Motion to Amend the Second Amended Complaint on December 28, 2017

(ECF No. 34), which was granted on March 27, 2018. (See ECF No. 44.) Plaintiff Third Amended

Complaint was nearly identical to the Second Amended Complaint, except that Plaintiff removed

Defendant Ryan as a named Defendant and replaced Defendants Wilcox and Johnson with

Defendants Warren and Suluki. (See ECF No. 1-1, see also ECF No. 34 at 4-23.) Plaintiff argued

he inadvertently omitted Defendants Warren and Suluki. (See ECF No. 34 at 28.) Summons for

Defendants Warren and Suluki were returned unexecuted. (ECF No. 55.) Plaintiff’s Third

Amended Complaint raised claims of First, Fifth, Eighth, and Fourteenth Amendment violations

as well as a conspiracy claim. (See ECF No. 45.)

Defendants Hanuschik and Zimmerman moved to dismiss Plaintiff’s Third Amended

Complaint for failure to state a claim. (See ECF No. 54.) Plaintiff then filed a Request for Default

against Defendants Johnson and Wilcox and a Request for Default against Defendants Davis and

Elchabi. (See ECF Nos. 67 and 73.) On August 9, 2018, the Clerk entered a quality control message

regarding Plaintiff’s Request for Default against Defendants Johnson and Wilcox, explaining the

request could not be granted “because the requested parties are no longer defendants in this

matter.” The Clerk entered a quality control message on November 9, 2018, denying Plaintiff’s

Requests for Default against Defendants Davis and Elchabi “because the persons named are not

parties in this case.”

Plaintiff also filed two Motions to Substitute Party. (ECF Nos. 74 and 75.) In these

Motions, Plaintiff sought, pursuant to Federal Rule of Civil Procedure 25, to substitute “Jane Doe”

for Defendant Christine Vaughan and to substitute Defendants Davis and Elchabi for Defendants

Johnson and Wilcox. (See id.) On January 31, 2019, this Court granted Defendants’ Motion to

Dismiss (ECF No. 54), denied Plaintiff’s Motion to Strike (ECF No. 76), and granted Plaintiff’s

Motions to Substitute (ECF Nos. 74 and 75). (See ECF No. 82.)

Plaintiff then filed a Motion to Amend the Third Amended Complaint (ECF No. 89), which

was granted on September 13, 2019. (ECF No. 103.) Plaintiff’s Fourth Amended Complaint

includes First, Eighth, Fourteenth Amendment claims, an RLUIPA violation, a 42 U.S.C. §

1985(1) claim, and a malicious prosecution claim. (See ECF No. 104.) Plaintiff raises a First

Amendment Free Exercise Clause and Fourteenth Amendment Equal Protection violation against

Defendants Warren and Suluki. (Id. at 7-10.)

Plaintiff sought an Order extending his deadline to serve Defendants Warren and Suluki.

(See ECF No. 110.) The Court entered an Order on October 24, 2019, requiring either the NJDOC

file, ex parte and under seal, the last known addresses of Defendants Warren and Suluki or that

the New Jersey Attorney General agree to accept service on behalf of Defendants Warren and

Suluki. (ECF No. 113 at 3.) The last known addresses for Defendants Warren and Suluki were

filed, under seal, on October 30, 2019. (See ECF No. 114.) On January 2, 2020, Plaintiff moved

for an Order revising the Court’s Order (ECF No. 113) to direct the NJDOC to provide the last

known addresses of Defendant Christine Vaughan and Department of Corrections Commissioner,

Marcus Hicks. (ECF No. 123 at 1.) The Court directed the NJDOC to provide the last known

addresses for Ms. Vaughan and Mr. Hicks. (Id. at 3). Defendants explain that on February 5, 2020,

the Office of the Attorney General for the State of New Jersey accepted service of Plaintiff’s Fourth

Amended Complaint on Mr. Hicks’s behalf and filed Ms. Vaughan’s last known address under

seal. (ECF No. 136 at 18.) On February 6, 2020, Plaintiff filed a Motion to Amend the Fourth

Amended Complaint. (ECF No. 126.)

On September 28, 2020, Magistrate Judge Douglas E. Arpert denied Plaintiff’s Motion to

Amend the Fourth Amended Complaint. (ECF No. 146.) Judge Arpert found Plaintiff’s proposed

Fifth Amended Complaint was a re-pleading of prior allegations, as well as alleging new, mostly

time-barred claims. (Id. at 36.) Judge Arpert found the newly added claims failed to sufficiently

state claims for relief. (Id.) Relevant here, Judge Arpert ruled Plaintiff was not permitted to rename

Defendant Vaughan as a Defendant because Plaintiff previously substituted Jane Doe for

Defendant Vaughan and Plaintiff was not permitted to rename a Defendant he intentionally sought

to remove from this action. (Id. at 20.) Similarly, Judge Arpert denied Plaintiff’s attempt to add

Commissioner Hicks as a Defendant. (Id. at 26-27.) Judge Arpert explained Plaintiff had

mentioned Hicks in prior complaints, indicating Plaintiff clearly knew about Hicks, yet he waited

until the proposed Fifth Amended Complaint to name him as a Defendant. (Id.) Plaintiff filed a

Motion to Appeal Magistrate Order on October 15, 2020. (ECF No. 151.) The Court denied the

Motion to Appeal on May 26, 2021. (ECF No. 181.)

II. LEGAL STANDARD

A. Motion to Dismiss

In deciding a motion to dismiss pursuant to Rule 12(b)(6), a district court is “required to

accept as true all factual allegations in the complaint and draw all inferences in the facts alleged in

the light most favorable to the [plaintiff].” Phillips v. County of Alleghany, 515 F.3d 224, 228 (3d

Cir. 2008). “[A] complaint attacked by a . . . motion to dismiss does not need detailed factual

allegations. Bell Atlantic v. Twombley, 550 U.S. 544, 555 (2007). However, the Plaintiff’s

“obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (citing

Papasan v. Allain, 478 U.S. 265, 286 (1986)). A court is “not bound to accept as true a legal

conclusion couched as a factual allegation.” Papasan, 478 U.S. at 286. Instead, assuming the

factual allegations in the complaint are true, those “[f]actual allegations must be enough to raise a

right to relief above the speculation level.” Twombly, 550 U.S. at 555.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (citing Twombly, 560 U.S. at 570). “A claim has facial plausibility when the

pleaded factual content allows the court to draw the reasonable inference that the defendant is

liable for misconduct alleged.” Id. This “plausibility standard” requires the complaint allege “more

than a sheer possibility that a defendant has acted unlawfully,” but it “is not akin to a “probability

requirement.’” Id. (citing Twombly, 550 U.S. at 556). “Detailed factual allegations” are not

required, but “more than ‘an unadorned, the defendant-harmed-me accusation’” must be pled; it

must include “factual enhancements” and not just conclusory statements or a recitation of the

elements of a cause of action. Id. (citing Twombly, 550 U.S. at 555, 557).

“Determining whether a complaint states a plausible claim for relief [is] . . . a context-

specific task that requires the reviewing court to draw on its judicial experience and common

sense.” Iqbal, 556 U.S. at 678. “[W]here the well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]-

‘that the pleader is entitled to relief.’” Id. at 679. (quoting Fed. R. Civ. P. 8(a)(2)). The pleadings

of pro se plaintiffs are liberally construed. Haines v. Kerner, 404 U.S. 519 (1972). Nevertheless,

“pro se litigants still must alleged sufficient facts in their complaints to support a claim.” Mala v.

Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted).

B. Section 1983 Actions

A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of his

constitutional rights. Section 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 . . . .

Therefore, to state a claim for relief under § 1983, a plaintiff must allege, first, the violation of a

right secured by the Constitution or laws of the United States and, second, that the alleged

deprivation was committed or caused by a person acting under color of state law. See West v.

Atkins, 487 U.S. 42, 48 (1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

III. DECISION

Defendants raise five arguments in support of their Motion to Dismiss. (See ECF No. 154-

2.) First, Defendants argue Plaintiff’s claims should be dismissed to the extent they are against

Defendants in their official capacities. (Id. at 30-328.) Second, Defendants argue the claims against

Defendants Warren and Suluki, as they are time barred by the State of New Jersey’s Two- Year

Statute of Limitations. (Id. at 25-29.) Third, Defendants argue, even if timely filed, Plaintiff’s

Fourteenth Amendment Equal Protection claim fails to plead sufficient facts. (Id. at 29-33.) Fourth,

Defendants argue any claims against Defendants Warren and Suluki implicating the First

8 The Court refers to the page numbers assigned by the Court’s electronic filing system.

Amendment right to Free Exercise fails to state a plausible claim for relief. (Id. at 33-38.) Finally,

Defendants argue to the extent the Court construes the Fourth Amended Complaint to assert any

other claim against Defendants Warren, Suluki, Davis, and/or Elchabli Plaintiff has failed to plead

personal involvement or supervisory liability. (Id. at 38-42.)9

A. Plaintiff’s Official Capacity Claims

Moving Defendants first assert Plaintiff’s claims against all Defendants in their official

capacities should be dismissed because they are not “persons” subject to § 1983 liability. (ECF

No. 154-2 at 30-32.)

A state official sued in his official capacity for monetary damages is not a “person” for

purposes of § 1983. See House v. Fisher, No. 14-2133, 2016 WL 538648, at *15 (M.D. Pa. Feb.

11, 2016) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 63-71 (1989)); Goode v. New

Jersey Dep’t of Corr., No. 11-6960, 2015 WL 1924409, at *10 (D.N.J. Apr. 28, 2015) (finding

state officials sued in official capacities for monetary damages are not “persons” within meaning

of § 1983); Johnson v. Mondrosch, No. 13-3461, 2013 WL 12085239, at *6 (E.D. Pa. Dec. 3,

9 Plaintiff also raises an Eighth Amendment deliberate indifference to prison conditions claim

regarding sewage in his cell, a Fourteenth Amendment cruel and unusual punishment claim

regarding the sewage in his cell and the quality of the Kosher food that was provided to him, a

claim of discrimination based on his “special needs” status, a § 1985 conspiracy claim, and a

malicious prosecution claim. Plaintiff also titles a claim as a Religious Land Use and

Institutionalized Persons Act (“RLUIPA”) claim. While Plaintiff does not elaborate on that claim,

however, it appears to the Court that Plaintiff is asserting the claim in relation to the Kosher meals

that were delivered to him in opened and moldy conditions. (See ECF No. 104 at 4-7, 22-25.)

Defendants do not address these claims in detail, as the claims are not directed at the moving

Defendants. Rather, the claims are directed at “pertinent defendants,” “John Doe Lieutenants and

Sergeants,” and “3-Tier duty officers and their supervisors.” (See ECF No. 154-2 at 45-49, see

also ECF No. 104 at 4-7, 22-25.)

2013) (same). Therefore, Plaintiff’s claims for monetary damages against all Defendants, moving

and not moving, in their official capacity are dismissed with prejudice.10

B. Statute of Limitations

Defendants argue Plaintiff’s First Amendment Free Exercise and Fourteenth Amendment

Equal Protection claims must be dismissed because they are time-barred. (See ECF 154-2 at 32-

36; see also ECF No. 161.) A statute of limitations defense is generally unavailable in a motion to

dismiss filed under Rule 12(b)(6). However, there is an exception, “where the complaint facially

shows noncompliance with the limitations period and the affirmative defense clearly appears on

the face of the pleading.” Oshiver v. Levin, Fishebein, Sedran & Berman, 38 F.3d 1380, 1384 n.1

(3d Cir. 1994); see also Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002). Here, the Court

finds, on the face of Plaintiff's Fourth Amended Complaint, a determination cannot be made on

the statute of limitations issue.

“It is well-settled that actions seeking a remedy under 42 U.S.C. § 1983 are governed by

the statute of limitation applicable to state personal injury claims, depending on where the cause

of action accrued.” Cnty. of Hudson v. Janiszewski, 520 F. Supp. 2d 631, 649 (D.N.J. 2007) (citing

Cito v. Bridgewater Twp. Police Dep't, 892 F.2d 23, 25 (3d Cir. 1989). A two-year statute of

limitations period applies to personal injury claims in New Jersey. N.J. Stat. Ann. 2A:14-2. Thus,

claims brought pursuant to § 1983 that accrued in New Jersey are subject to a two-year statute of

limitations period. While the statute of limitations period is determined by state law, federal law

governs when the cause of action accrued. Wallace v. Kato, 549 U.S. 384, 388, 127 S. Ct. 1091,

1095, 166 L.Ed.2d 973 (2007). A cause of action accrues once the plaintiff has a “complete and

10 Any claims dismissed are dismissed with prejudice, as the Court had ruled Petitioner can no

longer amend his Complaint.

present cause of action” meaning “the plaintiff can file suit and obtain relief.” Id. (quoting Bay

Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201,

118 S. Ct. 542, 139 L.Ed.2d 553 (1997). Importantly, the date of accrual stems from the date when

a plaintiff knew or should have known the injury occurred, not when a plaintiff realizes he or she

realizes the injury gives rise to a legally cognizable claim. Pederson v. Nat'l Collegiate Athletics

Ass'n, No. 14-2544, 2015 WL 7573200, at *3 n.5 (D.N.J. Nov. 24, 2015).

Defendants argue, at the latest, Plaintiff’s cause of action accrued on July 23, 2012, when

Defendant Warren denied Plaintiff’s request for a “weekly Sabbath Day diet.” (ECF No. 154-2 at

28.) Plaintiff argues in his reply brief he is entitled to equitable tolling of the statute of limitations.

(ECF No. 161-1.) Plaintiffs generally bear the burden of demonstrating a tolling doctrine applies.

Schmidt v. Skolas, 770 F.3d 241, 251 (3d Cir. 2014) (citing Dalrymple v. Brown, 549 Pa. 217, 701

A.2d 164, 167 (1997); see also Pizio HTMT Glob. Sols., 555 F. App’x 169, 176-77 (3d Cir. 2014);

see also Hammer v. Cardio Med. Prod., Inc., 131 F. App’x 829, 831 (3d Cir. 2005). The Supreme

Court and Third Circuit have both noted the doctrine of equitable tolling should be applied

sparingly. Winder v. Postmaster Gen. of U.S., 528 F. App’x 253, 256 (3d Cir. 2013) (citing Irwin

v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)). Here, Plaintiff asserts he filed civil

complaints in the Mercer County Superior Court regarding these claim in October 2013 and April

2014, and the Mercer County Superior Court failed to inform Plaintiff until May 2015 that his

complaints were not filed for failure to pay the fee. (See ECF No. 160.) The Court recognizes

Defendants argue Plaintiff’s own failure to comply with a procedural requirement should not toll

the statute of limitations. However, based on Plaintiff’s allegation that it took the Mercer County

Superior Court two years to inform him of his procedural deficiency, the Court finds dismissal as

time-barred is not appropriate at the motion to dismiss phase.

C. Plaintiff’s First Amendment Free Exercise Clause Claim

Defendants Warren and Suluki move for the dismissal of any potential First Amendment

Free Exercise claim. (ECF No. 154-2 at 40-45.) Defendants assert Plaintiff fails to allege he was

denied the opportunity to practice his faith, or that Defendants deprived him of Kosher food in a

way that was harmful to his health. (Id. at 43.) The law regarding a prisoner’s ability to practice

his or her faith is well-settled and, at this stage of the litigation, warrants denial of the Motion to

Dismiss.

The Court construes Plaintiff’s Complaint to raise a claim that Defendants Warren and

Suluki violated his First Amendment right to Free Exercise based on his allegation that he was

denied his request for food to enable him to observe his Sabbath. (ECF No. 104 at 7-10.) Plaintiff

states he sincerely believes he “should and must observe the seventh day Sabbath.” (Id. at 7.)

Plaintiff submits his interpretations of the holy scripture dictates he not eat anything prepared,

cooked or served to him on his Sabbath, which is he believes is sundown Saturday to sundown

Sunday. (Id. at 7-8.) Plaintiff asserts he submitted a request to Defendant Suluki that Plaintiff be

provided “a weekly Sabbath day diet, leaving any choice of food items to the discretion of the

prison.” (Id. at 8.) Plaintiff states he asked to be provided “non-perishable Kosher foods on

Saturdays, in the morning, for [his] consumption on [his] Sunday Sabbath observances.” (Id. at 9.)

His request was denied “on the grounds that although sincerely held my beliefs are not according

to Jewish law.” (Id. at 8.) Plaintiff’s request was forwarded to the Religious Issues Committee

(“RIC”). (Id.) Following no response from RIC, Plaintiff sent an appeal to Director Hicks, which

was forwarded to Defendant Warren. (Id. at 9.) Plaintiff asserts Defendant Warren denied his

request to be provided a Sabbath day diet. (Id.) Plaintiff alleges in denying his request, Defendants

Warren and Suluki violated the rights afforded to him by the Supreme Court’s decision in Cruz v.

Beto, 405 U.S. 319 (1972). (Id. at 10.)

“[A] prison inmate retains those First Amendment rights that are not inconsistent with his

status as a prisoner or with the legitimate penological objectives of the corrections system.” Pell

v. Procunier, 417 U.S. 817, 822 (1974). To determine whether a regulation infringing upon

constitutional rights is reasonable, courts apply the four factors set forth in Turner v. Safley, 482

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 there are alternative means of exercising the right that remain open to

prison inmates”; (3) “the impact accommodation of the asserted constitutional right will have on

guards and other inmates, and on the allocation of prison resources generally”; and (4) “the absence

of ready alternatives.” Id. at 89–90, 107 S. Ct. 2254; see also Fraise v. Terhune, 283 F.3d 506,

513–14 (3d Cir. 2002) (citations omitted).

Plaintiff submits he sincerely believes his religion requires him to observe the “seventh day

Sabbath,” which prohibits him from eating foods “prepared, cooked and or served to [him] on the

Sabbath.” (ECF No. 104 at 7-8.) Defendants argue Plaintiff’s claim should be dismissed because

it does not allege he was denied the opportunity to practice his faith. (Id. at 43.) The Court

disagrees. Plaintiff alleges he is being denied the opportunity to refrain from eating foods delivered

or cooked on his Sabbath, which is how he practices his faith. The United States Court of Appeals

for the Third Circuit has recognized a clearly established right “to a religiously-motivated diet, so

long as the views underlying the diet are ‘(1) sincerely held, and (2) religious in nature, in [his]

scheme of things.’” Parkell v. Senato, 704 F. App’x 122, 127 n.11 (3d Cir. 2017) (quoting DeHart

v. Horn, 227 F.3d 47, 52 (3d Cir. 2000), and Africa v. Pennsylvania, 662 F.2d 1025, 1029 (3d Cir.

1981)). Therefore, under Turner, we must determine whether there is a rational connection

between the prison’s refusal to give Plaintiff prepacked kosher meals on Saturday for consumption

Sunday and a legitimate penological interest. Defendants also argue standardized meal practices

serve a legitimate penological interest. (ECF 154-2 at 44.) The Court recognizes the prison has an

interest in an efficient food system. (See DeHart, 227 F.3d at 52-53.) However, that does not end

the Court’s inquiry. The Court must consider the burden on whether there are alternative means

for Plaintiff to engage in his constitutionally protected activity, the impact an accommodation

would have on the prison as a whole, and if there are any available alternatives. Turner, 482 U.S.

at 89-90. Defendants have not argued any of these points. Thus, the analysis of Plaintiff's claim

requires a factual inquiry that is not appropriate at this initial stage of the litigation given Plaintiff's

allegations that the denial of kosher meals delivered on Saturday for Sunday substantially

interferes with his First Amendment right to exercise his faith.

D. Plaintiff’s Fourteenth Amendment Equal Protection Claim

Defendant’s Warren and Suluki move for the dismissal of Plaintiff’s Fourteenth

Amendment Equal Treatment claim, arguing Plaintiff fails to plead facts sufficient to support a

finding he was treated differently from similarly situated persons. (ECF No. 154-2 at 36-40.)

Plaintiff claims Defendants Warren and Suluki violated his Fourteenth Amendment right

to be provided with an equal means to celebrate and observe the Sabbath. (ECF No. 104 at 7-10.)

Plaintiff argues “Muslims are provided a means to observe Ramadan, the Christians are

provided/allowed banquets, and the recognized practicing Jews are provided the means to observe

Passover,” and Plaintiff is being denied a reasonable opportunity to pursue his faith. (Id. at 10.)

To prevail on an equal protection claim, a plaintiff must present evidence he has been

treated differently from persons who are similarly situated. See City of Cleburne v. Cleburne Living

Center, 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L.Ed.2d 313 (1985). Turner is equally applicable

to prisoners’ equal protection claims. See Williams v. Morton, 343 F.3d 212, 221 (citing DeHart,

227 F.3d at 61).

Plaintiff alleges he is treated differently than other inmates because of his religion.

Specifically, Muslim and Jewish prisoners are provided means to observe their beliefs during

Ramadan and Passover, respectively, and Christians are “provided/allowed banquets.” (ECF No.

104 at 10.) Defendants argue Plaintiff’s allegations amount to Plaintiff arguing that, “in refusing

to deviate from the standard practice of serving Saturday meals on Saturdays and Sunday meals

on Sundays, the prison’s officials somehow violated his rights to equal protection.” (ECF No. 154-

2 at 39.) For the purposes of this Motion to Dismiss, the Court must accept as true all factual

allegations in the Fourth Amended Complaint. See Phillips, 515 F.3d at 228. Therefore, without

further information regarding what accommodations are made for Muslim and Jewish prisoners

during Ramadan and Passover, the Court is unable to determine if they are similarly situated

individuals. As such, Defendants’ Motion to Dismiss is denied as to this issue.

E. Qualified Immunity

Defendants further contend Plaintiff’s claims must be dismissed on the basis of qualified

immunity. (ECF No. 154-2 at 44-45.) They argue there is no binding Third Circuit case mandating

prisons to accommodate an inmate’s religion by providing him with extra meals on Saturdays, to

be consumed on Sundays. (Id.)

“Qualified immunity is ‘an entitlement not to stand trial or face the burdens of litigation.’”

Saucier v. Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

Under this doctrine, a government official is immune from claims for damages unless, interpreting

the allegations most favorably to the plaintiff, they show (1) that the official violated the plaintiff’s

constitutional rights and (2) that the constitutional right violated was clearly established. Id. at 201;

see also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (“[G]overnment officials performing

discretionary functions . . . are shielded from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a reasonable person

should have known.”). A right is considered clearly established if it is “sufficiently clear that every

reasonable official would have understood that what he is doing violates that right.” Reichle v.

Howards, 566 U.S. 658, 664 (2012) (internal quotation marks and alterations omitted); see also

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015). While courts generally address the first

prong−whether a constitutional violation is alleged−first, a court may exercise discretion in

considering these elements in the order it sees fit. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

The Third Circuit has established that defendants generally bear the burden of proving the

affirmative defense of qualified immunity. Thomas v. Independence Twp., 463 F.3d 285, 292 (3d

Cir. 2006). On this motion, however, Defendants’ briefing on qualified immunity consists of brief

boilerplate legal standard and a citation to one case which found it was not clearly established that

a prisoner was “entitled to place on the state the burden of furnishing separate religious services

for them” on the state. (ECF No. 154-2 at 44 (citing Sharp v. Johnson, 669 F.3d 144, 159-60 (3d.

Cir. 2012).) As noted above, the Third Circuit has recognized there may be circumstances in which

a prison’s failure to accommodate religious dietary practices becomes a violation of First

Amendment rights. Senato, 704 F. App’x at 127 n.11 (quoting DeHart, 227 F.3d at 52). Given the

inadequacy of this briefing, the Court is left unable to evaluate Defendants’ defense of qualified

immunity.11

11 The Court notes qualified immunity only shields Defendants in their individual capacities and

only against claims for damages. See Williams v. Sec’y Pa. Dep’t of Corr., 848 F.3d 549, 572

n.151 (3d Cir. 2017); Hill v. Borough of Kutztown, 455 F.3d 225, 244 (3d Cir. 2006). A qualified

F. Plaintiff’s Failure to Allege Defendants Warren, Suluki, Davis and Elchabi

Next, Defendants Warren and Suluki submit Plaintiff failed to allege their personal

involvement in any claims other than the Fourteenth Amendment Equal Protection claim and the

First Amendment Free Exercise claim that pertains to Plaintiff being provided food on Saturdays

for the Sabbath. (ECF No. 154-2 at 45-46.) Therefore, Defendants Warren and Suluki assert any

First Amendment retaliation claims, additional First Amendment free exercise claims, First

Amendment right to access claims, Eighth Amendment conditions of confinement claims, Eighth

Amendment cruel and unusual punishment claims, additional Fourteenth Amendment equal

protection claims, conspiracy claims arising under 42 U.S.C. § 1985, and a claim of malicious

prosecution should be dismissed. (Id.)

Defendants Davis and Elchabi submit Plaintiff failed to allege their personal involvement

in any claims in the Fourth Amended Complaint. (Id. at 46-47.) Defendants Davis and Elchabi

argue they are not mentioned throughout the entirety of the Fourth Amended Complaint. (Id.)

Defendants Warren, Suluki, Davis and Elchabi also argue Plaintiff has not alleged any facts that

support a supervisory liability claim. (Id. at 47-49.)

“Personal involvement can be shown through allegations of personal direction or of actual

knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence,

immunity defense would not affect a Religious Land Use and Institutionalized Persons Act, 42

U.S.C. § 2000cc-1(a)(RLUIPA) claim, which seeks injunctive relief against Defendants in their

official capacity. Considering Plaintiff’s pro se status, the Court construes Plaintiff’s claim as also

raising an RLUIPA argument. A viable claim under RLUIPA must establish Plaintiff had a

sincerely held religious belief and a prison policy or official practice substantially burdened his

exercise of those religious beliefs. Plaintiff explicitly alleges his Sabbath day belief is “sincerely”

held and he is being denied the opportunity to pursue his faith. (See ECF No. 104 at 7-10.)

Defendants do not move for dismissal of this claim, so the Court does not consider whether an

RLUIPA claim should be dismissed.

however, must be made with appropriate particularity.” Rode v. Dellarcriprete, 845 F.2d 1195,

1207 (3d Cir. 1988) (citations omitted).

This Court analyzes supervisory liability claims using one of two theories. A supervisor

can be held liable if they “established and maintained a policy, practice or custom which directly

caused the constitutional harm, and another under which they can be liable if they participated in

violating plaintiff’s rights, directed others to violate them, or as the persons in charge, had

knowledge of and acquiesced in their subordinates’ violations.” Parkell v. Danberg, 833 F.3d 313,

330 (3d Cir. 2016) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010)).

In order to establish a supervisory liability claim, Plaintiff would have to show: (1) the prison

official had knowledge of the prisoner’s problem; (2) “the official either failed to act or took any

ineffectual action under circumstances indicating that his or her response to the problem was a

product of deliberate indifference to the prisoner’s plight”; and (3) a causal connection exists

between the official’s response and the harm. Sample v. Diecks, 885 F.2d 1099, 1110 (3d Cir.

1989) (holding evidence was insufficient to hold Commissioner of Corrections liable for

constitutional violations).

Plaintiff makes no allegations against Defendants Warren, Suluki, Davis or Elchabi that

support either theory of supervisory liability. Aside from the Fourteenth Amendment Equal

Protection claim discussed above involving Defendants Warren and Suluki, Plaintiff fails to

mention Defendants Warren or Suluki in any of the remaining claims. Plaintiff also fails to assert

any claims against Defendants Davis or Elchabi in the entirety of the Fourth Amended complaint.

Plaintiff lists Defendants Davis and Elchabi in the Defendants caption, however, the remainder of

the Fourth Amended Complaint is devoid of their names.

The Motion to Dismiss admits all four Defendants have held supervisory positions at the

New Jersey State Prison. (ECF No. 154-2 at 47.) Defendant Warren was formerly employed as the

Administrator of New Jersey State Prison, Defendant Suluki was formerly employed as the

prison’s Chaplaincy Supervisor, and Defendants Davis and Elchabi took over these roles,

respectively, several years later. (Id.) However, Defendants Warren, Suluki, Davis and Elchabi

argue Plaintiff cannot hold them as supervisors vicariously liable for the conduct of others merely

because they are supervisors. (Id.)

Although Defendants admit they were supervisors (ECF No. 154-2 at 47) Plaintiff fails to

make any argument how the moving Defendants personally violated Plaintiff’s rights or directed

other to do so. As such, the Fourth Amended Complaint is dismissed with prejudice as it pertains

to any potential claims against Defendants Davis and Elchabi for failure to allege any personal

involvement by Defendants Davis and Elchabi. See Rode, 845 F.2d at 1207. The Fourth Amended

Complaint is also dismissed with prejudice as it pertains to any claims, other than the Fourteenth

Amendment equal protection claim regarding the Sabbath and the First Amendment free exercise

claim regarding the Sabbath, against Defendants Warren and Suluki, for failure to allege any

personal involvement. See id.

G. Plaintiff’s Claims against Defendant Vaughan

Plaintiff raises several claims against non-moving Defendant Vaughan. (ECF No. 10-16.)

Plaintiff alleges a First Amendment Free Exercise Clause challenge, Eighth Amendment deliberate

indifference challenge, and Fourteenth Amendment Equal Treatment challenge arguing the kosher

meals Plaintiff was provided were lacking in quantity and nutritious value. (Id.)

As explained by the Court above, on September 28, 2020, Magistrate Judge Douglas E.

Arpert denied Plaintiff’s Motion to Amend the Fifth Amended Complaint. (ECF No. 146.) In that

decision, Judge Arpert ruled Plaintiff was not permitted to rename Defendant Vaughan as a

Defendant because Plaintiff previously substituted Jane Doe for Defendant Vaughan and Plaintiff

was not permitted to rename a Defendant he intentionally sought to remove from this action. (Id.

at 20.) Plaintiff filed a Motion to Appeal Magistrate Order on October 15, 2020. (ECF No. 151.)

The Court denied the Motion to Appeal on May 26, 2021. (ECF No. 181.) As Plaintiff’s attempt

to rename Defendant Vaughan as a Defendant in this matter has been previously denied by the

Court, any claims against Defendant Vaughan in the Fourth Amended Complaint are dismissed

with prejudice.

H. Plaintiff’s Retaliation Claims

Plaintiff reiterates his retaliation accusations against unnamed John Doe officers and Mrs.

Zimmerman from his Third Amended Complaint. (ECF No. 45 at 15-18, ECF No. 104 at 16-22.)

The claim is still being brought against unnamed officers and Mrs. Zimmerman. (See id.) The

Court previously reviewed this issue in response to Defendant Zimmerman’s motion to dismiss

(ECF No. 54) and dismissed the claim. (See ECF No. 81 at 11-16.) Plaintiff’s retaliation claim

again alleges the same facts against Mrs. Zimmerman and unnamed officers. Thus, the Court’s

dismissal of such claims will stand.

IV. CONCLUSION

Based on the foregoing, Defendants’ Warren and Shuluki Motion is DENIED as it relates

to Plaintiff’s First Amendment Free Exercise claim and his Fourteenth Amendment Equal

Protection claim. Defendants’ Davis and Elchabi Motion is GRANTED as Plaintiff failed to allege

their personal involvement in any claims in the fourth amended complaint. The claims against the

moving Defendants in their official capacity for monetary damages are dismissed with prejudice.

Defendants’ Warren and Shuluki Motion is GRANTED as it relates all claims other than

Plaintiff’s First Amendment Free Exercise claim and his Fourteenth Amendment Equal Protection

claim, as Plaintiff failed to allege their personal involvement in any other claims. Plaintiff’s claims

against Defendant Vaughan are dismissed with prejudice based on the Court’s prior decisions.

Plaintiff’s retaliation claims are dismissed with prejudice based on the Court’s prior decision.

The First Amendment Free Exercise claim, the Fourteenth Amendment Equal Protection

claim and the RLUIPA claim remain against Defendants Warren and Suluki. The Eighth

Amendment Deliberate Indifference Claim, the Fourteenth Amendment cruel and unusual

punishment claim, the §1985 conspiracy claim, and the malicious prosecution claim remain against

John/Jane Doe Defendants.

An appropriate order accompanies this Opinion.

Date: June 29, 2021

/s/Brian R. Martinotti

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE