FONTANEZ v. KUHN

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

______________________________

ANTHONY FONTANEZ, :

: Civ. No. 22-3046 (RMB-MJS)

Plaintiff. :

:

v. :

: OPINION

COMMISSIONER VICTORIA :

L. KUHN, et al., :

:

Defendants. :

______________________________ :

RENÉE MARIE BUMB, United States District Judge

Plaintiff Anthony Fontanez, a prisoner incarcerated in East Jersey State

Prison in Rahway, New Jersey, filed this civil suit under 42 U.S.C. § 1983 and the

Americans with Disabilities Act, alleging that in October 2020, correctional officers

at South Woods State Prison used excessive force against him and engaged in other

civil rights violations related to this incident. Plaintiff submitted an IFP application

(IFP App., Docket Nos. 1-2 and 1-4) that establishes his financial eligibility to

proceed without prepayment of the filing fee.

I. Sua Sponte Dismissal

When a person files a complaint and is granted IFP status, 28 U.S.C. §

1915(e)(2)(B) requires courts to review the complaint and sua sponte dismiss any

claims that are: (1) frivolous or malicious; (2) fail to state a claim on which relief may

be granted; or (3) seek monetary relief against a defendant who is immune from such

relief. Courts, however, must liberally construe pleadings that are filed pro se.

Erickson v. Pardus, 551 U.S. 89, 94 (2007). 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 dismissal under Federal Rule of Civil Procedure 12(b)(6). See,

Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012). “To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. (quoting Twombly, 550 U.S. at 556.)

II. THE COMPLAINT

Plaintiff asserts federal question jurisdiction under the Americans with

Disabilities Act, 42 U.S.C. § 12101 et seq., and jurisdiction premised on the First,

Eighth and Fourteenth Amendments, which this Court construes as asserting

jurisdiction under 42 U.S.C. § 1983. The defendants named in the complaint1 are

New Jersey Department of Corrections Commissioner Victoria L. Kuhn, and the

1 The spelling of the defendants' names is subject to this Court's interpretation of Plaintiff's

handwritten complaint.

following administrators and employees at South Woods State Prison:

Administrator Al Solanik, Administrator Anthony Degner, S.I.D. Investigator

Ronald Tobolski, Lt. M. Poloff, Sgt. P. Betancourt, Sgt. C. Muessig, Senior

Correctional Police Officer ("SCPO") G. Corson, SCPO S. Brobst, SCPO W.

Gaskill, SCPO K. McMahan, SCPO M. Van Kline, SCPO N. Goswick, SCPO A.

Sorrell, SCPO J. Morales, RN Hogans, RN T. Andino, K. Liborio and Dr. F.

Massumove.2 Defendants are sued in their individual and official capacities.

Plaintiff alleges the following facts in support of his claims. Plaintiff was

incarcerated in South Woods State Prison on October 7, 2020. He was assigned, as

an extra duty, to mop the floors in the H-2-1 foyer area. McMahan was supervising

this activity. Brobst came through the area and yelled for Plaintiff to move a wet

floor sign. Before Plaintiff could move the sign, Brobst ordered Plaintiff to put his

hands against the wall for a pat search. Plaintiff complied. Brobst falsely accused

Plaintiff of assaulting him using his shoulders. Brobst knocked Plaintiff on the

ground and punched him in the head and body. Lt. M. Poloff called an emergency

code. McMahan, Gaskill and Goswick responded to the code. Upon their arrival,

Plaintiff did not resist, and they punched him with their fists and batons. Plaintiff

was placed in mechanical restraints and escorted to a holding cell. RN Andino saw

Plaintiff's injuries on his face and head but denied him a full medical assessment

because he was clothed and handcuffed. Plaintiff was strip searched and left naked in

2 For brevity, the Court will refer to each defendant by his/her last name only.

a dry cell in another building until the third shift. Plaintiff was not reevaluated for his

medical complaints until two days later, after his attorney called to complain about

his lack of medical treatment. Brobst fabricated an administrative charge against

Plaintiff for noncompliance and assault, which was the basis to use force against

Plaintiff. Defendants knew there was no camera in the area where the incident

occurred.

Tobolski, in the Special Investigation Division, was assigned to investigate the

incident. He placed all officers who were alleged to be involved in the excessive use

of force on administrative investigative hold. Plaintiff was read his Miranda rights

and interviewed on October 9, 2020. He told the interviewer what happened,

consistent with the allegations in this complaint. On the same day, Discipline

Hearing Officer Chrissy Ralph found Plaintiff guilty of the prison infraction of

assault and sanctioned him with 120 days loss of comp. time and 10 days loss of

recreation privileges.

On November 25, 2020, Tobolski filed allegedly false criminal charges against

Plaintiff for third degree assault against Brobst, without informing the Cumberland

County Prosecutor, Charles Wettstein, that there was no video of the incident, and

that Plaintiff did not receive medical treatment after the incident. Plaintiff alleges that

he suffered physical and mental injuries from the excessive force employed by

Corson, Brobst, Gaskill, McMahan, Van Kline, Goswick, Sorrell and Morales, and

that he was falsely prosecuted for assaulting Brobst. He seeks damages, declaratory

relief, and any other relief to which he is entitled.

III. DISCUSSION

A. Americans with Disabilities Act ("ADA") Claims

Plaintiff alleges violation of the ADA by failing to provide him with medical

and mental health treatment after he was alleged beaten by the officers. The

elements of a claim under Title II of the ADA are that "(1) [the plaintiff] is a

qualified individual with a disability; (2) he was either excluded from participation in

or denied the benefits of some public entity's services, programs, or activities, and (3)

such exclusion, denial of benefits, or discrimination was by reason of his disability.

Pierce v. Pitkins, 520 F. App'x 64, 67 (3d Cir. 2013) (citing 42 U.S.C. § 12132.)

Plaintiff has not alleged that he has a disability, let alone that he was denied medical

or mental health treatment by reason of his disability. See Brown v. Pennsylvania Dep't

of Corr., 290 F. App'x 463, 467 (3d Cir. 2008) (ignoring a prisoner's disabilities does

not establish discriminatory animus based on those disabilities.) Therefore, Plaintiff's

ADA claims will be dismissed without prejudice.

B. Eighth Amendment Excessive Force Claims

Accepting Plaintiff's allegations as true, his Eighth Amendment excessive

force claims may proceed against Brobst, McMahan, Gaskill, and Goswick. Plaintiff

also alleges Corson, Muessig, Betancourt, Van Kline, Sorrell, Morales, and Poloff

used excessive force against him, but unlike the above Defendants, Plaintiff does not

describe any of the involvement of these officers in the incident, apart from the

allegation that Poloff called the emergency code. In the absence of allegations

describing how these defendants used force maliciously, without a good faith effort

to maintain or restore discipline, Plaintiff fails to state a claim against them. Iqbal,

556 U.S. at 678 ("threadbare recitals of the elements of a cause of action, supported

by mere conclusory statements, do not suffice.”); Wilkins v. Gaddy, 559 U.S. 34, 40

(2010) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992) (to state an Eighth

Amendment excessive force claim, a plaintiff must allege facts indicating force was

used maliciously and sadistically, "rather than as part of 'a good-faith effort to

maintain or restore discipline.'")) The excessive force claims against Corson,

Muessig, Betancourt, Van Kline, Sorrell, Morales, and Poloff will be dismissed

without prejudice.

C. Eighth Amendment Failure to Protect Claims

Liberally construing the pro se complaint, Plaintiff alleges that Commissioner

Kuhn and Administrators Solanik and Degner are liable for failing to protect him

from excessive force, because they were aware there were no cameras in the area of

the prison where the alleged excessive force occurred. To state an Eighth

Amendment claim for failure to "prevent harm, the inmate must show that he is

incarcerated under conditions posing a substantial risk of serious harm." Farmer v.

Brennan, 511 U.S. 825, 834 (1994). Further, a plaintiff must show the defendant was

deliberately indifferent to inmate health or safety. Id. To make this showing, "the

official must both be aware of facts from which the inference could be drawn that a

substantial risk of serious harm exists, and he must also draw the inference." Id. at

837. The allegation that these defendants knew there were no cameras in the area

where Plaintiff was beaten is insufficient to establish their knowledge that this posed

a substantial risk of serious harm. Plaintiff has not alleged that excessive force

against prisoners was so frequent in this area that the defendants must have been

aware that cameras were necessary to deter corrections officers from continuing the

alleged misuse of the area to hide their misconduct. These claims will be dismissed

without prejudice.3

D. Eighth Amendment Inadequate Medical/Mental Health Care Claims

"An incarcerated plaintiff asserting a § 1983 claim for inadequate medical care

under the Eighth Amendment must show the existence of a serious medical need and

that facility staff demonstrated deliberate indifference to that medical need." Romero

v. Ahsan, 827 F. App'x 222, 226 (3d Cir. 2020). "Serious medical needs include those

that have been diagnosed by a physician as requiring treatment…." Andrews v.

Camden Cnty., 95 F. Supp. 2d 217, 227 (D.N.J. 2000) (citing Monmouth County

Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir.1987), cert.

denied, 486 U.S. 1006 (1988)). The Third Circuit has found deliberate indifference

in a variety of circumstances, including where the prison

official (1) knows of a prisoner's need for medical

treatment but intentionally refuses to provide it; (2) delays

3 This might also be construed as a supervisory liability claim; that the administrators are

liable for the excessive force used by their subordinates because they failed to install

cameras. The same pleading deficiency, that it was so frequent of an occurrence as to

constitute a custom or practice that correctional officers used excessive force on prisoners in

the H-2-1 foyer area, precludes this claim from proceeding. See Santiago v. Warminster Tp.,

629 F.3d 121, 129 n. 5 (3d Cir. 2010) (describing the two recognized theories of supervisory

liability under § 1983).

necessary medical treatment based on a non-medical

reason; or (3) prevents a prisoner from receiving needed or

recommended medical treatment.

Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).

Plaintiff alleges that he suffered pain and injuries from being punched and

beaten with batons on October 7, 2020, and that RN Andino saw his visible injuries

but refused to provide a full medical assessment or treatment. This Eighth

Amendment claim may proceed against Andino.

Plaintiff alleges RN Hogan denied him medical care based on the instructions

of the correctional officers. He further alleges that mental health providers Liborio

and Dr. Massumove knew that he was suffering a mental health crisis after the

beating, but they allowed the correctional officers to make decisions about Plaintiff's

mental health treatment, which this Court construes as alleging that the correctional

officers instructed Liborio and Dr. Massumove not to provide treatment. Plaintiff

alleges he received medical treatment on December 9, 2020, only after his attorney

contacted the prison. Plaintiff's Eighth Amendment inadequate medical and mental

health care claims may proceed against Hogan, Liborio, Massumove and the

correctional officers alleged to have prevented Plaintiff from receiving medical or

mental health treatment, including Poloff, Betancourt, Muessig, Corson, Brobst,

Gaskill, McMahan, Van Kline, Goswick, Sorrell and Morales.

Plaintiff has failed to allege the administrators' knowledge and acquiescence in

the failure to treat Plaintiff's injuries and mental health on October 7, 2020, nor has

Plaintiff alleged a specific supervisory policy or custom that caused Plaintiff to be

denied immediate medical or mental health treatment after he was beaten. Santiago,

629 F.3d at 129 n. 5. Therefore, the supervisory liability claims against Kuhn,

Solanik and Degner are dismissed without prejudice.

E. Eighth Amendment Strip Search Claim and Conditions of

Confinement Claim

The Eighth Amendment ban on cruel and unusual punishments governs a

convicted prisoner's claim that a strip search was carried out to intentionally

humiliate or abuse him/her. Graham v. Connor, 490 U.S. 386, 394 (1989) (Eighth

Amendment governs physical abuse of prisoner) (citing Whitley v. Albers, 475 U.S.

312, 318–326 (1986) (excessive force to subdue convicted prisoner analyzed under an

Eighth Amendment standard); Florence v. Board of Chosen Freeholders of County of

Burlington, 566 U.S. 318, 339 (2012) (constitutional rights may be implicated where a

strip search is carried out in such a way as to intentionally humiliate or abuse a

prisoner) (citing Hudson v. Palmer, 468 U.S. 517, 528 (1984) (noting a calculated

harassment unrelated to prison needs is protected by the ban on cruel and unusual

punishments)). The Eighth Amendment also governs a prisoner's conditions of

confinement and protects prisoners against deprivations of basic necessities, such as

adequate food, clothing, shelter, medical care and reasonable steps to guarantee their

safety. Farmer, 511 U.S. at 832 (citations omitted).

Plaintiff has not alleged that there was no prison policy based on legitimate

security measures that required his strip search after he was escorted to a different

area of the prison, nor has he alleged which defendants were personally involved in

intentionally humiliating him during the strip search. Regarding his conditions of

confinement, Plaintiff has not alleged how long he was left naked before the third

shift officer brought him clothes. More facts are necessary to state these Eighth

Amendment claims. These claim, as to all defendants, will be dismissed without

prejudice.

F. Failure to Perform Adequate Investigation Claims

Plaintiff alleges Tobolski performed a sham investigation into Plaintiff's

excessive force claim, and he seeks to hold other supervisory defendants liable for

failing to respond to his grievances about excessive force, inadequate medical and

mental health treatment, and false charges. These claims fail because “there is no

constitutional right to the investigation or prosecution of another.” Sanders v. Downs,

420 F. App'x 175, 180 (3d Cir. 2011) (per curiam); and there is no constitutional right

to prison grievance procedures. Heleva v. Kramer, 214 F. App'x 244, 247 (3d Cir.

2007) (citing e.g., Massey v. Helman, 259 F.3d 641, 647 (7th Cir.2001) (collecting

cases)). These claims will be dismissed with prejudice as to all defendants.

G. Fabrication of Evidence and Malicious Prosecution Claims

Plaintiff alleges Tobolski fabricated evidence against him to bring assault

charges in Cumberland County. A necessary element of a due process claim for

malicious prosecution is that the plaintiff was deprived of his liberty as a

consequence of the criminal charges. Gray v. Wittman, 839 F. App'x 669, 671 (3d

Cir. 2021). Plaintiff was a convicted state prisoner incarcerated in a state prison when

the assault charges were brought by Tobolski. Because Plaintiff was not deprived of

his liberty as a result of the charges, he fails to state a due process claim for malicious

prosecution. Gray, 839 F. App'x at 671 (citing Curry v. Yachera, 835 F.3d 373, 380 (3d

Cir. 2016)). Moreover, even if Plaintiff had been deprived of his liberty as a result of

these charges, Plaintiff has not alleged that the criminal proceeding ended in his

favor, another necessary element of a malicious prosecution claim. Id. Thus, the

complaint fails to state a malicious prosecution claim.

There is a stand-alone Fourth Amendment claim for use of fabricated

evidence. Halsey v. Pfeiffer, 750 F.3d 273, 295 (3d Cir. 2014). Disputed evidence,

however, is not fabricated evidence. Id. A claim of fabrication is unsupported "in the

absence of persuasive evidence supporting a conclusion that the proponents of the

evidence were aware that "the evidence was incorrect" and "offered the evidence in

bad faith." Id. Plaintiff's denial of the assault charge and the fact that there was no

video footage of the alleged assault are insufficient to show that Tobolski knew the

assault charge was false, and that he fabricated evidence to support it. The

fabrication of evidence claim will be dismissed without prejudice.

H. First Amendment Retaliation Claims

To state a claim for relief from retaliation in violation of the First

Amendment, a plaintiff must allege facts supporting the following elements:

(1) “that the conduct which led to the alleged retaliation

was constitutionally protected”; (2) “that he suffered some

‘adverse action’ at the hands of the prison officials”; and

(3) “a causal link between the exercise of his constitutional

rights and the adverse action taken against him,” or more

specifically, “that his constitutionally protected conduct

was ‘a substantial or motivating factor’ in the decision” to

take that action. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.

2001).

Oliver v. Roquet, 858 F.3d 180, 190 (3d Cir. 2017).

Plaintiff alleges Solanik, Degner, Poloff, Betancourt and Corson retaliated

based on Plaintiff's "freedom of speech and freedom of expression in his confinement

at South Woods State Prison which [led] to excessive force on him." Plaintiff made

virtually the same allegation against Brobst, Gaskill, McMahan, Van Kline,

Goswick, A. Sorrell and J. Morales. These allegations are too vague for this Court to

determine whether the defendants took an adverse action against Plaintiff that was

substantially motivated by his free exercise of speech or expression. Therefore, these

claims will be dismissed without prejudice. Similarly, Plaintiff alleges Tobolski

retaliated "for freedom of speech, freedom of expression without threat safety and

security of South Woods State Prison." This too lacks sufficient information to state

a claim and will be dismissed without prejudice.

Plaintiff has also alleged Brobst, Poloff, Betancourt, Corson and Muessig filed

a false prison disciplinary report to cover up the use of excessive force. The Court

construes this as a retaliation claim; that these defendants allegedly made a false

accusation of assault, in the context of a prison disciplinary action, because Plaintiff

had alleged Brobst and others used excessive force against him. See Mack v. Warden

Loretto FCI, 839 F.3d 286, 298 (3d Cir. 2016) (oral grievance concerning prohibited

conduct by prison staff, when made by a prisoner in a reasonable manner, is

protected under the First Amendment right to petition for grievances). This claim

may proceed against Brobst, Poloff, Betancourt, Corson and Muessig.

Likewise, this Court construes Plaintiff's claim, that Corson, Brobst, Gaskill,

McMahan, Van Kline, Goswick, Sorrell and Morales falsely reported to Tobolski

that Plaintiff had assaulted Brobst, was out of retaliation for Plaintiff reporting their

use of excessive force against them, and that this led to Tobolski filing criminal

charges against Plaintiff. These claims may also proceed.

I. Fourteenth Amendment Equal Protection Claims

By refusing to provide him with medical and mental health treatment after he

was allegedly beaten by Brobst and other defendants, Plaintiff alleges Hogan,

Andino, Liborio, Massumove, Poloff, Betancourt, Corson, Muessig, Goswick,

Gaskill, Van Kline, Brobst and McMahan violated his right to equal protection

under the law because other similarly situated prisoners were treated differently.

"[T]o state a claim" of "class of one" equal protection violation, "a plaintiff must

allege that (1) the defendant treated him differently from others similarly situated, (2)

the defendant did so intentionally, and (3) there was no rational basis for the

difference in treatment." Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006).

Whether there was a rational basis to treat Plaintiff differently than other inmates

who were similarly situated is a distinct element that must be alleged to state a claim.

Plaintiff has not attempted to explain why there was no rational basis to delay his

medical and mental health treatment, only that it was delayed or denied based on the

correctional officers' instructions. It is unclear from the complaint whether the

correctional officers' instructions not to immediately treat Plaintiff lacked a rational

basis. These equal protection claims will be dismissed without prejudice, as will the

related supervisory liability claims against Defendants Kuhn, Solanik and Degner.

IV. CONCLUSION

For the reasons stated above, the Court will grant Plaintiff's IFP application

and proceed the complaint in part and dismiss it in part.

An appropriate Order follows.

DATE: November 16, 2022 s/Renée Marie Bumb

RENÉE MARIE BUMB

United States District Judge