MINOR v. DILKS

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DEMETRIUS MINOR,

Plaintiff, Civil Action No. 19-18261 (KMW) (AMD)

OPINION

SGT, DAVID DILKS, et al.,

Defendants.

WILLIAMS, District Judge:

This matter comes before the Court on the moving Defendants”! motion to dismiss (ECF

No. 67) Plaintiff's Second Amended Complaint (ECF No. 43) in this prisoner civil rights matter.

Plaintiff filed a response to the motion (ECF No. 70), to which Defendants replied. (ECF No. 71.)

For the following reasons, the moving Defendants’ motion shall be granted.

BACKGROUND

Plaintiff is a biological male who was born in 1995. (ECF No. 43 at 6.) In 2019, while

serving a thirty-seven year manslaughter sentence in South Woods State Prison, Plaintiff informed

prison staff that Plaintiff identified as transgender, Ud. at 6-8.) Following a formal diagnosis with

gender dysphoria in 2020, Plaintiff began requesting hormone therapy, surgery, and the provision

of feminine items in furtherance of Plaintiffs desire to live as a “transgender woman.” □□□□□

Following this expression, Plaintiff contends that prison staff denied Plaintiff female commissary

Tn using the term “moving Defendants” in this opinion, this Court only refers to the following:

Defendants Hicks, Brown, Goncharov, Matish, Solanik, Torres, Young, Malinowski, Powell (see

ECF No. 82), and the New Jersey Department of Corrections.

items, referred to Plaintiff as a man, and continued to place Plaintiff in cells with men at South

Woeds State Prison. (/d. at 8.) Plaintiff believes that the denial of female commissary items is

improper as women housed in female prisons are permitted to purchase those items. (/d. at 8.)

Plaintiff contends that Defendants Hass, Solanik, and Powell specifically denied Plaintiff the

ability to purchase these commissary items. (/d. at 9.)

In January 2020, Plaintiff requested to be housed with another inmate who was either

“gender non-conforming ... or transgender.” (Ud) Solanik “through his designee” denied this

request. (/d.) This denial occurred because the facility determined that the other inmate was

improper in light of the charges that this inmate had accrued, though it is not clear what these

charges are. (/d. at 13.) Plaintiff asserts that thereafter, Plaintiffs cellmates imposed

“humiliation{,] harassment[,] and targeting” upon Plaintiff, which exacerbated Plaintiff's mental

health issues. (id. at 9.) These comments include derogatory and harassing name calling, and

being referred to as a “he/she” or an “it.” Ud.) Plaintiff reported one instance of sexual harassment

to prison staff, but the only apparent result was a disciplinary charge Plaintiff received for making

a prohibited 3-way call which Plaintiff admitted to doing. (Ud. at 10.)

Plaintiff admits in the second amended complaint that the New Jersey prison system has

adopted various policies requiring respectful treatment of those identifying as transgender,

including policies which permit such inmates to “request correctional facility housing based on

gender identity that differs from the inmate’s sex.” (Ud. at 13.) Plaintiff contends, however, that

the prison did not make these policies known to Plaintiff or others, and that it is improper for such

requests to consider “inappropriate” factors such as mental health history, criminal history,

medical history, and the likelihood the inmate will perpetrate abuse if rehoused. (/d.) As of the

filing of the second amended complaint, Plaintiff contended that no such inmates had been

transferred under the policy. (id. at 14.) Contrary to that assertion, however, Plaintiff explicitly

admits in the second amended complaint that Plaintiff currently housed in a prison for women

— the Edna Mahan Correctional Facility for Women. (/d. at 1.)

In June 2019, Plaintiff began submitting proposals for new policies for the housing of

inmates such as Plaintiff. Ud. at 15.) At that time, Plaintiff was working in the prison’s law library,

(id. at 15.) As part of that effort, Plaintiff began filing grievances both for and on behalf of “LGBT

inmates” who were receiving disciplinary charges for not locking in their cells, which Plaintiff

contends occured because these inmates “felt unsafe” in their cells and were not moved to new

housing. (/d. at 16.) These grievances did not produce results Plaintiff felt were satisfactory. Ud.

at 18.) Plaintiff contends that being denied reassigned housing by Defendants Weinstein, Dilks,

Khulen, and John Does places Plaintiff at risk due to the “homophobic” nature of prison

confinement with other men, which caused Plaintiff psychological harm. Ud.)

In June 2019, Plaintiff brought his housing proposal te Defendant Weinstein. □□□□□□

Weinstein denied transfers to other inmates as he did not believe they had safety concerns

watranting a cell change. Ud at 19.) Plaintiff filed grievances regarding this issue. Ud.)

Plaintiff's advocacy resulted in him being told by Defendant Goncharov that he “knew” that

Plaintiff was responsible for the grievances, and Plaintiff being called a homophobic slur. (id. at

20.) Defendant Dilks thereafter made a snide and homophobic remark to Plaintiff and another

inmate while they were working in the law library. Ud. at 20-21.) On August 26, 2019, Plaintiff

was transferred to another housing unit by Weinstein, being forced to switch cells with “another

gay inmate,” which resulted in Defendant Khulen also making homophobic remarks to Plaintiff.

Cd, at 21.) Plaintiff contends that this transfer moved Plaintiff to a “more restrictive unit,” though

Plaintiff provides little detail to that affect, and subjected Plaintiff to “homophobic slurs and

harassment.” (/d, at 22.) Plaintiff complained to Khulen that the move was discriminatory and a

result of filing grievances, but was told that the move “was random, and simply because of the fact

that custody needed a bed.” Ud.) Khulen allegedly also turned a deaf ear to Plaintiff's desire to

file a claim under the Prison Rape Elimination Act regarding the move. Ud.)

Plaintiff then went back to a cell and placed a sign on the ceil stating that Plaintiff wanted

to make a PREA complaint. (/d. at 23.) Plaintiff was moved to a holding cell and was interviewed

by mental health who told Plaintiff they were following up on Plaintiffs PREA complaint. (d.)

Following the complaint, Plaintiff met with the prison’s Special Investigations Division, at which

time Plaintiff told the SID that Plaintiff was being transferred and targeted as retaliation for filing

grievances. (/d.) Plaintiff remained in the dry holding cell for five hours, and was not provided

bathroom access by Khulen, and thus “slightly urinated,” wetting Plaintiff's clothing and causing

pain and discomfort. (/d.) After the five hours, Plaintiff was taken to the new prison unit and

placed in a cell with a prisoner who was a “Muslim and member of the bloods gang” by Defendant

Dilks, purportedly to “kill two birds with one stone.” (Ud. at 24) Plaintiff also asserts that

Weinstein told Plaintiff that he “still won” in the transfer and that Plaintiff would “pay” for helping

another inmate. Ud. at 25.) Plaintiff’s belongings were also packed and moved by other inmates,

who damaged some of the property. (/d. at 25-26.) Plaintiff contends that being placed in this

new cell contributed to sleep loss and other mental health issues, and resulted in receiving

numerous homophobic slurs from other inmates. (/d. at 26.)

On January 27, 2020, Plaintiff was suspected of committing a disciplinary infraction and

was temporarily placed in solitary confinement with the approval of defendant Solanik. Ud. at 26,

36.) This placement resulted in Plaintiff spending “80 hours” in a cell without clothing or shower

access, although Plaintiff was seen by mental health staff. Ud. at 36-37.) Plaintiff was cleared of

the charges, but was thereafter moved to a new unit, causing Plaintiff to lose the prison library job.

(id. at 26) Plaintiff also had some property stolen. (/d.) Plaintiff was thereafter subjected to

harassment by other inmates, and in May of 2020 was assaulted by an inmate, resulting in the

assaulting inmate being punished and the officer who permitted the inmate access to Plaintiff being

fired. Cid. at 27.) Plaintiff was thereafter moved to Edna Mahan in August 2020. (/d. at 28.)

In addition to asserting retaliation claims related to the treatment received by individual

officers, Plaintiff also asserts that various requests for reassignment and transfer to a female prison

were ignored or denied by Defendants Hicks, the commissioner of the NJDOC; Hass, the NJ

DOC’s PREA compliance officer; Malinowski, a DOC planning commissioner; Solanik, the

associate administrator of South Woods; and Powell, the prison administrator for South Woods.

(id. at 33-37.) This left Plaintiff in a single occupancy cell. Ud. at 32.) It is not entirely clear how

these supervisory Defendants were involved in the denial of transfers or specific placement

decisions, although Plaintiff contends that they were aware of Plaintiff’s placement and did not

move Plaintiff to a female prison at Plaintiff’s initial request. (Ud. at 32-37.) Plaintiff contends

that the failure of these Defendants to move Plaintiff to the placement of Plaintiff’s choosing

amount to both a denial of Due Process insomuch as Plaintiff was not made aware of the policy

permitting transfer to a woman’s prison and a denial of Equal Protection insomuch as Plaintiff was

not treated the same as female inmates at female prisons. (/d, at 38-40.)

II, LEGAL STANDARD

In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 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, Cnty. of Allegheny, 515 F.3d

224, 228 (3d Cir. 2008). “[A] complaint attacked by a... motion to dismiss does not need detailed

factual allegations.” Beil Atlantic v. Twombly, 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.” Jd. (citing

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

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

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

right to relief above the speculative 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, 550 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 “Determining whether the allegations in a complaint are

plausible is a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Jd. at 679. “[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.’” fd. (citing Fed. R. Civ. P. 8(a)(2)),

TI. DISCUSSION

Defendants first contend that the New Jersey Department of Corrections and Defendants

to the extent they are named in their official capacity, are not subject to suit in this matter. Arms

of the state, such as a state Department of Corrections or a state prison are not subject to suit in a

civil rights matter before this Court both because they are not “persons,” the only class of

defendants available in a civil rights suit under 42 U.S.C. § 1983, and because they are entitled to

Eleventh Amendment immunity. See, e.g., Christ the King Manor, Inc. v. See’y US. Dep’t of

Health & Human Servs., 730 F.3d 291, 318 Gd Cir. 2013); Walker v. Beard, 244 F. App’x 439,

440-41 (3d Cir. 2007); Grabow v. S. State Corr, Facility, 726 F. Supp. 537, 538-39 (D.N.J, 1989),

As “a suit against a state official in his or her official capacity is not a suit against the official but

rather is a suit against the official’s office,” state officials are likewise immune under the Eleventh

Amendment for claims seeking damages against them in their official capacities. Grohs vy.

Yatauro, 984 F. Supp. 2d 273, 280 (D.N.J. 2013). As Plaintiff seeks only money damages in the

second amended complaint, and does not seek injunctive relief, all of Plaintiff's claims against the

Department of Corrections and against the individual Defendants in their official capacities must

be dismissed with prejudice. Jd.

Defendants assert that Plaintiff's claims against them must be dismissed as Plaintiff failed

to plead an adequate basis for relief against them. A defendant may only be held Hable in a federal

civil rights matter where he had personal involvement in the alleged wrongs. See, e.g., Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Since a supervisor may not be held vicariously

liable for the actions of his subordinates, a supervisory defendant will therefore only be subject to

a civil rights suit where he was directly involved in the alleged violation, directed others to engage

in the alleged improper conduct, or had actual knowledge of the alleged wrong and acquiesced in

its occurrence. Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 222 (3d Cir. 2015),

The moving Defendants first contend that Plaintiffs retaliation claims against them must

be dismissed because Plaintiff fails to plead a plausible First Amendment retaliation claim as to

any moving Defendant. “In order to plead a retaliation claim under the First Amendment, a

plaintiff must ailege: (1) constitutionally protected conduct, (2) retaliatory action sufficient to deter

a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link

between the constitutionally protected conduct and the retaliatory action.” Thomas v. Indep. Twp.,

463 F.3d 285, 296 (3d Cir. 2006), Defendants first contend that Plaintiff has pled no facts

regarding Young’s motive or connecting Young’s involvement in an assault by another inmate

upon Plaintiff to any protected activity sufficient to warrant a retaliation claim. While Plaintiffs

complaint certainly suggests that Plaintiff may have a claim against Young on a different basis,

Plaintiffs complaint does net connect that failing to any protected activity. Plaintiff's retaliation

claim against Young must therefore be dismissed without prejudice.

Defendants next contend that Plaintiff's retaliation claim against Defendant Goncharov

must be dismissed for failure to state a claim, Although Plaintiff does plead facts suggesting that

Goncharov may have read Plaintiff's mail and may have made some unwelcome comments

regarding Plaintiffs sexuality, Plaintiff does not plead that Goncharov’s actions were retaliatory

in nature or were responsive to some active protected activity. While Goncharov’s alleged

comments and actions were certainly disrespectful, Plaintiff has failed to plead that they amount

to an actionable claim of retaliation, and those claims are dismissed without prejudice as a resuit.

Defendants also contend that, while Plaintiff has pled a retaliation claim against the non-

moving Defendants who are at the center of Plaintiff's retaliation claim, Plaintiff has failed to

plead adequate facts to show retaliation by the other moving Defendants, and any retaliation claim

must be dismissed, As noted by Defendants, Plaintiff makes scant allegations against most of the

moving Defendants — noting only that they referred to Plaintiff as a “man,” harassed Plaintiff, told

Plaintiff that Plaintiff was being given what Plaintiff had requested, or in the case of Defendants

Torres and Matish, the complaint contains no allegations connected to Plaintiff's retaliation claim

whatsoever. Defendants are also correct that Plaintiff connects the supervisory Defendants —

Hicks, Powell, Solanik, Malinoski, and Hass — to the retaliation clatms only through claims of

respondeat superior ~ i.e., their failure to properly oversee their subordinates — or through

allegations that Plaintiff filed grievances and complaints of which these Defendants became aware.

Such allegations are insufficient to form a valid basis for a retaliation claim — Plaintiff pleads no

facts supporting a causal connection between Plaintiff's complaints and advocacy and these

Defendants’ actions, nor any clear retaliatory actions by these Defendants. That they denied

transfers or the like, absent some clear connection beyond a mere conclusory allegation to a

retaliatory motive,” does not support a claim of retaliation. Thomas, 463 F.3d at 296. As Plaintiff

has failed to plead a valid retaliation claim against any moving Defendant, Plaintiff's retaliation

claim is dismissed without prejudice as to all moving Defendants.

Defendants next contend that Plaintiff's equal protection claim must be dismissed as

Plaintiff has failed to allege a similarly situated individual who is being treated differently. To

state a claim for a violation of equal protection, a plaintiff must plead facts showing the plaintiff

was “treated differently from other similarly situated [persons], and that this different treatment

was the result of intentional discrimmmation based on his membership in a protected group.”

Watlington ex. rel. FCI Schuylkill African Am. Inmates v. Reigel, 723 F. App’x 137, 139 Gd Cir.

2018). Alternatively, an individual can also proceed on an equal protection claim under a “class

of one” theory where he does not allege discrimination based on his belonging to a protected class

but instead by showing that he was treated differently from others similarly situated without a

rational basis for this difference. See, e.g, Wofford v. Lanigan, No. 14-5723, 2015 WL 9480016,

at *5 (D.N.J. Dec. 28, 2015) (citing Vill, of Willowbrook v, Olech, 528 U.S. 562, 563 (2000)).

Here, Plaintiff's claim is essentially that Plaintiff was not treated the same as female prisoners

housed in female prisons while housed at South Woods. Even putting aside biological differences

which may make doing so more difficult, Plaintiff does not identify any specific female prisoner

who was in a similar situation to Plaintiff and was treated differently. As mere allegations of

* While Plaintiff provides some conclusory allegations to the effect that Defendants Solanik and

Powell retaliated as a result of complaints and policy proposals, Plaintiff doesn’t actually connect

them to retaliatory activity or motive in a non-conclusory fashion. Although Plaintiff states that

Plaintiff lost a library job, Plaintiff asserts that this was the result of a prison transfer resulting

from the machinations of non-moving Defendants and doesn’t provide adequate allegations of

what involvement these Defendants had in the moves. Likewise, although Plaintiff contends that

Solanik “authorized” Plaintiff's placement in solitary confinement, this placement was the result

of a disciplinary charge and Plaintiff does not adequately plead facts indicating that it was the

result of a retaliatory motive or connected to protected activity.

mn

profiling or bigoted views by prison staff are insufficient to make out an equal protection claim,

and the failure to identify other similarly situated individuals who were treated differently is fatal

to such a claim, Plaintiffs equal protection claim must be dismissed as to the moving Defendants

without prejudice. Watlington, 732 F. App’x at 139.

Putting that issue aside, the Court further notes that many of the issues Plaintiff connects

to the equal protection claim are either the result of the actions of Defendants’ subordinates or

prisoners, or are the result of actions which do not appear to be related to Plaintiff's transgender

status. Specificatly, the Court notes that many of Plaintiffs equal protection related claims are the

result of the supervisory Defendants allegedly failing to prevent prison guards and inmates from

using slurs against Plaintiff or from referring to Plaintiff by terms with which Plaintiff does not

associate. Such allegations amount to little more than an improper respondeat superior claim, and

must be dismissed for that reason as well? The Court further notes that the remaining allegations

against the moving supervisory Defendants are, per the second amended complaint, the ancillary

results of disciplinary charges, cell transfers following Plaintiff’s own requests for transfers, albeit

not to units or cells Plaintiff desired, or the slow process of policy adoption. While the Court

understands that Plaintiff may have been unhappy with the transfers and the prison jobs or

opportunities lost as part of the process, these ancillary consequences are insufficient to make out

an equal protection claim against the supervisory Defendants, especially where, as here, Plaintiff

fails to clearly identify what Defendants were involved in which decisions or had the power to

impose the requested changes and instead intermixes allegations of direct involvement with

3 The Court further notes that the use of slurs or harsh language or other degrading terms, standing

alone, is generally not sufficient to make out a constitutional claim. See, e.g., Richardson v.

Sherrer, 344 ¥. App’x 755, 757 (3d Cir. 2009); Salley v. Pa. Dep’t of Corr., 181 F. App’x 258,

266 (3d Cir, 2006); McBride v. Deer, 240 F.3d 1287, 1291 n. 3 (10th Cir, 2001); DeWalt v. Carter,

224 F.3d 607, 612 (7th Cir, 2000); Williams v. Bramer, 180 F.3d 699, 706 (Sth Cir. 1999).

improper vicarious liability allegations. In light of these issues, and Plaintiff's failure to clearly

identify individuals who are similarly situated, Plaintiff's equal protection claims must be

dismissed without prejudice at this time as to the moving Defendants.

Defendants next contend that they are entitled to qualified immunity as to Plaintiff's Due

Process claim which relates to Defendant’s alleged failure to move Plaintiff either to a female

prison or to being housed with another transgender inmate in what Plaintiff considers to be a timely

fashion, and for using factors in such a decision that Plaintiff considers irrelevant such as medical

and mental health history, and likelihood of perpetrating abuse in the event of a transfer.’ “The

doctrine of qualified immunity shields government officials who perform discretionary functions

4 Although Plaintiff makes mention of being housed in solitary confinement for a few days during

a disciplinary proceeding and being placed in a dry cell without rest room access for five hours

during the PREA complaint incident, Plaintiff does not make those the subject of the Due Process

claim raised in the second amended complaint. Even had Plaintiff done so, however, neither of

those events would amount to a denial of due process. See, e.g., Sandin v. Conner, 515 U.S. 472,

485-86 (1995) (placement in solitary confinement for brief periods as long as six months or other

non-dramatic departures from basic prison conditions does not give rise to a protected liberty

interest sufficient to support a Due Process claim); Cook v. Wetzel, No. 13-6575, 2015 WL

2395390, at *5 (E.D. Pa. May 20, 2015) (the denial of access to a lavatory serves as a basis for a

constitutional claim only where it “is unconscionably long or where it constitutes an ongoing

feature of an inmate’s confinement”). Likewise, that Plaintiff was transferred within the prison,

lost a prison job or had property improperly damaged or lost in contravention of standard prison

policies do not support claims of Due Process violations. See, e.g., Watson v. Sec’y Pennsylvania

Dep’t of Corr., 567 F. App’x 75, 78 Gd Cir. 2014) (prisoners “do not have a liberty or property

interest in their job assignments that would give rise to Due Process Clause protection”); Johnson

v. Burris, 339 F. App’x 129, 130 3d Cir. 2009) (prisoners have no protected interest in any specific

level of custody or prison unit within a prison); Love v. New Jersey Dep’t of Corr., No. 14-5629,

2015 WL 2226015, at *5 (D.N.J. May 12, 2015) (deprivation of property without authorization

does not support a Due Process claim where post-deprivation process, such as use of the N.J. Tort

Claims Act, is provided). The Court finally notes that, as prisoners have no right to a prison

prievance system, it is not a constitutional violation that Defendants did not respond to grievances

or did not provide the relief Plaintiff requested through grievances. See, e.g. Roberts v. Aviles,

No. 10-5916, 2012 WL 603790, at *1 n. 4 (D.N.J. Feb. 16, 2012); Wilson v. Horn, 971 F. Supp,

943, 947 (E.D. Pa.), aff'd, 142 F.3d 430 Gd Cir. 1998); see also Adams v. Rice, 40 F.3d 72, 75

(4th Cir. 1994) (“the Constitution creates no entitlement to grievance procedures or access to any

such procedure voluntarily established by a state”).

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‘from liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.’” Santini v.

Fuentes, 795 F.3d 410, 417 Gd Cir. 2015) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). “When properly applied, [qualified immunity] protects all but the plainly incompetent or

those who knowingly violate the law.” Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 637 (3d

Cir. 2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, (2011)). In determining whether immunity

applies, courts use a two pronged test: “a court must decide ‘whether the facts that a plaintiff has .

shown make out a violation of a constitutional right’[, ajnd second, the Court must determine

‘whether the right at issue was clearly established at the time of [the] defendants alleged

misconduct.’” Jd. (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)).

For a claim to be clearly established, “existing precedent [must have] placed the □□ .

constitutional [right in] question beyond debate.” Id. at 638. With the exception of cases involving

“obvious violations” of prior Supreme Court rulings, a plaintiffs claim will only be “clearly

established” where “the violative nature of the particular conduct [was] clearly established.”

James v. New Jersey State Pol., 957 F.3d 165, 169 Gd Cir. 2020). The conduct in question must

therefore be defined at an “appropriate level of specificity,” Spady, 800 F.3d at 638, and, when so

defined, the plaintiff must identify “a case where an officer acting under similar circumstances . .

. was held to have violated” the constitutional provision in question. James, 957 F.3d at 169-70.

For the purposes of this analysis, “clearly established rights are derived either from binding

Supreme Court and Third Circuit precedent or from a robust consensus of cases of persuasive

authority in the Courts of Appeals” in effect at the time of the conduct in question, /d. at 170,

Here, the alleged violation in question is Defendants’ failure to immediately transfer

Plaintiff to a female prison or housing with other transgender inmates when Plaintiff told officials

that Plaintiff was transgender without considering factors beyond self-identification. This Court

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is aware of no Supreme Court decision, binding Third Circuit case, or clear consensus of circuit

courts establishing a right to any such result in 2019 or 2020. What few cases do exist on the issue

of the appropriate prison placement of transgender inmates suggest that no such clearly established

right exists, See, e.g., Guy v. Espinoza, No. 19-498, 2020 WL 309525, at * 5 (B.D. Cal. Jan. 21,

2020) (“there is not any clearly established law determining the appropriate classification and

housing of transgender inmates”), As there is no clearly established law supporting a Due Process

claim premised on the alleged failure to transfer a transgender inmate to a female facility or to a

unit only with other transgender inmates, Plaintiff has failed to show that the Due Process claim

raised in the second amended complaint asserts a clearly established constitutional right.

Defendants are therefore entitled to qualified immunity as to Plaintiff's Due Process claims, and

those claims must be dismissed as a result.

IV. CONCLUSION

In conclusion, Defendants’ motion (ECF No. 67) is GRANTED, Plaintiffs’ official

capacity claims and claims against the New Jersey Department of Corrections are DISMISSED

WITH PREJUDICE, and Plaintiffs’ remaining claims against the moving Defendants are

DISMISSED WITHOUT PREJUDICE. An appropriate order follows.

United States District Judge

+4

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DEMETRIUS MINOR,

Plaintitt, Civil Action No. 19-18261 (KMW) (AMD)

□ ORDER

SGT, DAVID DILKS, et al,

Defendants.

This matter having come before the Court on the motion to dismiss (ECF No. 67, Michael

Vomacka, Deputy Attorney General, appearing) filed by Defendants Hicks, Brown, Goncharov,

Matish, Solanik, Torres, Young, Malinowski, Powell (see ECF No. 82), and the New Jersey

Department of Corrections, this Court having considered the motion, the record of proceedings in

this matter, Plaintiff's response (ECF No. 70, Betsy Ramos, appearing), and Defendants’ reply

(ECF No. 71), and for the reasons expressed in the accompanying opinion,

IT IS on this 1S lay of August, 2022,

ORDERED that Defendants’ motion (ECF No, 67) is GRANTED; and it is further

ORDERED that Plaintiffs’ official capacity claims and claims against the New Jersey

Department of Corrections are DISMISSED WITH PREJUDICE; and it is further

ORDERED that Plaintiffs remaining claims against Defendants Hicks, Brown,

Goncharov, Matish, Solanik, Torres, Young, Malinowski, and Powell are DISMISSED

WITHOUT PREJUDICE; and it is finally

ORDERED that the Cierk of the Court shall serve a copy of this Order and the

accompanying opinion upon the parties electronically.

n. Karen M. Williams,

United States District Judge