# GEORGES v. MCELROY

> District Court, D. New Jersey · May 31, 2022

URL: https://www.frixlaw.com/law-library/cases/10273072

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** May 31, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10273072

## How later opinions describe it (automated extraction)

- holding that the court “is unwilling to conclude that [a] Judge erred by not sua sponte recusing [himself]” without explicit evidence of bias, even assuming “actual knowledge” of a misconduct complaint

## Opinion text

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
ASHLEY GEORGES, :
:
Plaintiff, : Civ. No. 21-cv-17394
:
v. :
:
OFFICER MCELROY, : OPINION
:
Defendant. :
_________________________________________ :

CECCHI, District Judge.
Pro se Plaintiff Ashley Georges (“Plaintiff”), an inmate at East Jersey State Prison
(“EJSP”) seeks to commence a civil rights action against EJSP Officer McElroy (“McElroy”) by
filing a Complaint alleging that McElroy denied Plaintiff law library access. ECF No. 1. Plaintiff
seeks to proceed in forma pauperis (“IFP”). ECF No. 1-1. Plaintiff also seeks this Court’s recusal.
ECF No. 2. For the reasons below, this Court will grant IFP and, after screening the Complaint,
dismiss the Complaint without prejudice. Further, the Court will deny recusal.
I. BACKGROUND
For the purposes of screening, this Court presumes the Complaint’s allegations to be true.
On June 24, 2021, Plaintiff, known for helping other prisoners with their legal work, was allegedly
at the EJSP law library preparing legal documents for a pending case. ECF No. 1 at 8. Plaintiff
contends that McElroy, whose “job consists of security” and “has no say concerning” law library
scheduling, was also in the law library that day. Id. Plaintiff asserts that McElroy “has a history
of harassing and punishing inmates who file grievances against himself” and other staff members.
Id.
Plaintiff alleges that while he was working in the law library, McElroy ordered Plaintiff to
leave before his allotted library time had expired. Id. at 9. When Plaintiff asked to save his work
before exiting, McElroy allegedly threatened to deny Plaintiff future access to the law library and
to file a disciplinary charge against him. Id. Plaintiff asserts that, as a result of McElroy’s threats,

he was “deterred from writing the incident up and had to leave the law library without being able
to save all his legal work.” Id.
Plaintiff further alleges that the following day McElroy improperly impeded Plaintiff’s use
of the law library and levied additional threats against him when he confronted McElroy about his
decision to restrict Plaintiff’s library time. Specifically, Plaintiff asserts that McElroy again
threatened to file a disciplinary charge against Plaintiff. Id. at 10. Plaintiff further contends that
McElroy also asked a supervisor present during the incident to revoke Plaintiff’s library privileges
completely, and to file disciplinary charges against Plaintiff for using the library too frequently.
Id. Plaintiff contends that the supervisor first attempted to send Plaintiff to his cell and to come
back later. Id. at 10. After conferring with the law librarian, who explained Plaintiff’s access was

limited to that particular scheduling period, the supervisor took no action, indicating to “McElroy
that he did not have the authority to deny Plaintiff access to the law library and thus had to allow
him access.” Id. at 10–11.
Plaintiff asserts he filed a grievance and appeal, but each resulted in a determination that
“nothing was wrong.” Id. at 5, ¶ 5. Plaintiff alleges that McElroy violated Plaintiff’s First
Amendment rights by denying him law library access as retaliation for past grievances, and
threatening to file disciplinary charges to discourage Plaintiff from filing future grievances. Id. at
11, ¶¶12-15.
II. DISCUSSION
A. IFP
The Prison Litigation Reform Act of 1995, Pub.L. 104-134, §§ 801-810, 110 Stat. 1321-
66 to 1321-77 (Apr. 26, 1996) (the “PLRA”), which amended 28 U.S.C. § 1915, establishes certain
financial requirements for prisoners who are attempting to bring a civil action IFP. Pursuant to

the PLRA, a prisoner bringing a civil action IFP must submit an affidavit, including a statement
of all assets, which states that the prisoner is unable to pay the fee. 28 U.S.C. § 1915(a)(1). The
prisoner also must submit a certified copy of his inmate trust fund account statement for the six-
month period immediately preceding the filing of his complaint. 28 U.S.C. § 1915(a)(2). Here,
Plaintiff has complied with the PLRA’s requirements and demonstrated indigence. ECF No. 1-1.
Accordingly, IFP status is appropriate.
B. Screening Standards
Under the PLRA, district courts must review complaints in those civil actions in which a
plaintiff is proceeding IFP. See 28 U.S.C. § 1915(e)(2)(B). The PLRA directs district courts to
sua sponte dismiss any claim that is frivolous, malicious, fails to state a claim upon which relief

may be granted, or seeks monetary relief from a defendant who is immune from such relief. See
28 U.S.C. § 1915(e)(2)(B).
“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App'x 120, 122 (3d Cir. 2012) (citing
Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)). That standard is set forth in Ashcroft v.
Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). To survive
screening, the complaint must allege ‘sufficient factual matter’ to show that the claim is facially
plausible. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted).
“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.” Fair Wind
Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014) (quoting Iqbal, 556 U.S. at 678).
“[A] pleading that offers ‘labels or conclusions’ or ‘a formulaic recitation of the elements of a

cause of action will not do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
Pro se pleadings, as always, will be liberally construed. See Haines v. Kerner, 404 U.S.
519 (1972). Nevertheless, “pro se litigants still must allege 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). “A pro se plaintiff's well-pleaded complaint must recite factual allegations which are
sufficient to raise the plaintiff’s claimed right to relief beyond the level of mere speculation, set
forth in a ‘short and plain’ statement of a cause of action.” Johnson v. Koehler, No. 18-00807,
2019 WL 1231679, at *3 (M.D. Pa. Mar. 15, 2019).
A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of
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 or the District of Columbia, 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, except that in any action brought
against a judicial officer for an act or omission taken in such officer's judicial
capacity, injunctive relief shall not be granted unless a declaratory decree was
violated or declaratory relief was unavailable.

Thus, 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 Harvey v.
Plains Twp. Police Dep't, 635 F.3d 606, 609 (3d Cir. 2011) (citations omitted); see also West v.
Atkins, 487 U.S. 42, 48 (1988).
C. Analysis of Complaint
Plaintiff alleges that McElroy retaliated against Plaintiff by denying law library access for

past grievances and lawsuits. “A prisoner alleging retaliation must show (1) constitutionally
protected conduct, (2) an adverse action by prison officials sufficient to deter a person of ordinary
firmness from exercising his constitutional rights, and (3) a causal connection between the exercise
of his constitutional rights and the adverse action taken against him.” Mack v. Yost, 427 F. App'x
70, 72 (3d Cir. 2011) (quoting Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)). “Government
actions, which standing alone do not violate the Constitution, may nonetheless be constitutional
torts if motivated in substantial part by a desire to punish an individual for exercise of a
constitutional right.” Allah v. Seiverling, 229 F.3d 220, 224–25 (3d Cir. 2000).
Plaintiff has not alleged any substantive adverse action. Of course, Plaintiff is correct that
he has the right to access from the courts, and therefore the right to be free from retaliation from

exercising that right. “Under the First and Fourteenth Amendments, prisoners retain a right of
access to the courts.” Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008) (citing Lewis v. Casey,
518 U.S. 343 (1996)). “Prisoners must be allowed ‘adequate, effective and meaningful’ access to
the courts. Petlock v. Nadrowski, No. 16-310, 2016 WL 7173781, at *10 (D.N.J. Dec. 8, 2016)
(quoting Bounds v. Smith, 430 U.S. 817, 822 (1977) (holding that prisons must give convicted
inmates access to law libraries or direct legal assistance)). Similarly, an inmate’s filing of a
grievance constitutes conduct protected by the First Amendment. See Laurensau v. Romarowics,
528 F. App’x 136, 139 (3d Cir. 2013); Mack, 427 F. App’x at 72 (“Filing a formal prison grievance
clearly constitutes protected activity....”).
However, “Bounds did not create an abstract, freestanding right to a law library or legal
assistance.” Lewis v. Casey, 518 U.S. 343, 351 (1996). Where a prisoner asserts that a defendant’s
actions, including law library access, “have inhibited the opportunity to present a past legal claim,
they must show (1) that they suffered an ‘actual injury’—that they lost a chance to pursue a

‘nonfrivolous’ or ‘arguable’ underlying claim; and (2) that they have no other ‘remedy that may
be awarded as recompense’ for the lost claim other than in the present denial of access suit.”
Monroe, 536 F.3d 198 (citing Christopher v. Harbury, 536 U.S. 403, 415, (2002)). Thus, “[t]he
complaint must describe the underlying arguable claim well enough to show that it is ‘more than
mere hope,’ and it must describe the ‘lost remedy.’” Id. at 205–06 (citing Christopher, 536 U.S.
at 416–17). Indeed, in the context of alleging the underlying claim that the plaintiff was prevented
from pursuing, “the complaint should state the underlying claim in accordance with Federal Rule
of Civil Procedure 8(a), just as if it were being independently pursued[.]” Christopher, 536 U.S.
at 417.
Here, Plaintiff has not provided any information about the legal document he was

attempting to save on June 24, 2021 (or any other), or any concrete injury suffered as the result of
being unable to save his work before leaving the library at McElroy’s directive. Similarly, with
respect to events of the next day, June 25, 2021, whereupon Plaintiff attempted to enter the library,
Plaintiff references an interaction with McElroy, but does not actually allege that he was denied
access. ECF No. 1 at 9, et seq. Further, regarding the supervisor, even after the supervisor initially
told Plaintiff to go back to his cell, Plaintiff does not state that he actually did go back to his cell,
or that he was ultimately unable to use the library that day. Id. Plaintiff does not allege any other
denial of access, or injury flowing from these incidents. At most, both situations are examples of
de minimis, non-actionable behavior. Turner v. Johnson, No. 17–541, 2020 WL 6323698, at *6
(D.N.J. Oct. 28, 2020) (dismissing claim that plaintiff was prevented from visiting the law library
one afternoon in retaliation for filing grievances and lawsuit), citing Meeks v. Schofield, 625 F.
App'x 697, 701-02 (6th Cir. 2015) (denial of access to law library on one occasion was de minimis
conduct that did not constitute an adverse action); Miller v. Sanchez, No. 20–06–GW, 2020 WL

528010, at *6 (C.D. Cal. Feb. 3, 2020) (assignment to a job that conflicted with law library access
for a single day is de minimis and does not rise to the level of an adverse action that would deter a
prisoner of “ordinary firmness” from further First Amendment activities).
Nor can McElroy’s conduct be read as deterring Plaintiff’s exercise of his right to access
the courts, as evidenced by Plaintiff’s subsequent grievances and this Complaint. Monroe v.
Phelps, 520 F. App'x 67, 71 (3d Cir. 2013) (plaintiff was not “subject to adverse actions of the
type that would deter a prisoner of ordinary firmness from exercising his constitutional rights”
where plaintiff filed several grievances after the incident). Accordingly, Plaintiff has not
adequately alleged retaliation. Because, however, it is plausible that Plaintiff could amend his
Complaint to allege additional facts, this dismissal will be without prejudice.

D. Motion for Recusal
Finally, during the screening process, Plaintiff filed a motion for recusal (ECF No. 2)
arguing that, because Plaintiff filed a complaint against the undersigned, the Court cannot be
impartial in this case. “The test for recusal under § 455(a) is whether a reasonable person who is
aware of all of the facts might reasonably question a judge’s impartiality.” In re Onishi, 856 F.
App’x 426, 427 (3d Cir. 2021).
Plaintiff has presented no allegations of judicial bias. Rather, Plaintiff makes the
conclusory assertion that he has “reason to believe” that he will not receive a fair and impartial
review in this matter based on a complaint that he filed against the undersigned. ECF No. 2.
Plaintiff’s contention is without merit as this Court maintains no bias towards Plaintiff and has
endeavored to rule on his motions based on the “reasoned assessment of the applicable law, and
no other factors.” Binsack v. Lackawanna Cty. Dist. Attorney’s Off., No. 08-1166, 2009 WL
3739408, at *2 (M.D. Pa. Nov. 6, 2009) (finding that the district court judge did not err in failing

to recuse himself even though the defendant had threatened to file a judicial misconduct complaint
against the judge); see also United States v. Vampire Nation, 451 F.3d 189, 208 (3d Cir. 2006)
(holding that the court “is unwilling to conclude that [a] Judge erred by not sua sponte recusing
[himself]” without explicit evidence of bias, even assuming “actual knowledge” of a misconduct
complaint); Bey v. Bruey, No. 09–1092, 2010 WL 276076, at *1 (D.N.J. Jan 19, 2010)
(“Conclusory allegations of bias are insufficient to warrant recusal.”) (citing Hill v. Carpenter, 323
F. App’x 167, 170 (3d Cir. 2009)). “Moreover, the Court recognizes that to submit to recusal
because a party threatens baseless misconduct charges would be to allow litigants to choose their
judge based on a mere threat.” Binsack, 2009 WL 3739408, at *2. Accordingly, recusal is not
warranted.

III. CONCLUSION
For the reasons above, Plaintiff’s IFP application will be GRANTED, the Complaint will
be DISMISSED WITHOUT PRJEUDICE, and Plaintiff’s recusal motion will be DENIED. An
appropriate Order follows.
s/ Claire C. Cecchi
Hon. Claire C. Cecchi, U.S.D.J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10273072. Public record. Not legal advice.