# ALEXANDER v. RUSSO

> District Court, D. New Jersey · January 30, 2024

URL: https://www.frixlaw.com/law-library/cases/10278213

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** January 30, 2024
- **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/10278213

## How later opinions describe it (automated extraction)

- explaining that the second type of Mone// claim involves failures to train, supervise, or discipline
- noting that “[{Jhe Supreme Court has recognized that the right of a criminal defendant to proceed pro se is protected by the Sixth Amendment” but finding no such right for pro se plaintiffs in civil cases

## Opinion text

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KEVIN ALEXANDER, Civil Action No, 23-1514 (GC-DEA)
Plaintiff, :
OPINION
V.
DARRIN RUSSO, :
Defendants. :

CASTNER, District Judge
This matter comes before the Court on Plaintiff Kevin Alexander’s filing of a Second
Amended Complaint (“SAC”) (ECF No. 9-1) and two motions seeking preliminary injunctive
relief. (ECF Nos, 11, 29). Defendants Somerset County, Darrin Russo, Tim Pino, Kym Williams,
Edward Reese, Kelly Mager, and Sheriff Backer (First Name Unknown) have also filed a motion
to dismiss Plaintiff's Amended Complaint and responded to Plaintiff's motions for preliminary
injunctive relief. (ECF Nos. 20, 31.)
At this time, the Court directs the Clerk of the Court to file Plaintiffs SAC. For the reasons
explained below, the Court denies without prejudice Plaintiff’s motions for preliminary injunctive
relief in light of his recent transfer from Somerset County Jail to Aduit Corrections in Middlesex
County, New Jersey. The Court denies without prejudice Defendants’ motion to dismiss the
Amended Complaint because the SAC is now the operative complaint. The Court screens
Plaintiffs SAC pursuant to its screening authority under § 1915(e)(2)(B) and dismisses it in its
entirety for failure to state a claim for relief. Plaintiff may submit a third amended complaint

within 45 days to the extent he can cure the deficiencies in his federal claims, but he must put all
claims and supporting facts in a single all-inclusive third amended complaint,
1. PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS
a. Procedural History
On or about March 14, 2023, Plaintiff submitted a complaint and applied to proceed in
forma pauperis (“IFP application”). Plaintiff also sought additional time to submit an amended
complaint and a motion for a temporary restraining order. (See ECF No, |.) On or about March
30, 3023, Plaintiff submitted an Amended Complaint, which the Clerk of the Court docketed on
April 5, 2023. (ECF No. 3.) Plaintiff also sent piecemeal submissions to the Court, in which he
attempted, albeit improperly, to supplement his Amended Complaint. (ECF Nos, 5-6, 8.)
On May 1, 2023, the Court granted Plaintiff's [FP application and directed the Clerk’s
Office to file the Amended Complaint. (ECF No. 3.) The Court liberally construed Plaintiff's
additional submissions as a request to amend and provided him leave to submit an all-inclusive
amended complaint. (ECF No. 7.)
On May 10, 2023, Plaintiff submitted a SAC (ECF No. 9-1), a motion for pro bono counsel!
(ECF No, 10), a motion for a preliminary injunction (“First PI Motion”) (ECF No. 11), and a
Memorandum in support of his First PI Motion. (ECF No. 12.) The Clerk of the Court mistakenly
docketed Plaintiff's SAC as an exhibit to his other filings. (See ECF No. 9, 9-1).
On May 12, 2023, the Court administratively terminated Plaintiff's First PI Motion and
elected to treat it as a motion for a preliminary injunction after the Defendants had an opportunity
to respond. (See ECF No, 13.) The Court also deferred screening the matter, directed Plaintiff to

Magistrate Judge denied without prejudice the motion for pro bono counsel on July 5, 2023,
(ECF No. 21.)

complete the U.S.M. forms for Defendants Edward Reese, Warden Tim Pino, and Deputy Warden
Kym William, and directed Reese, Pino, and Williams to respond to the Amended Complaint and
the First Pl Motion.? Ud.)
On June 27, 2023, Defendants Somerset County, Russo, Pino, Williams, Reese, Kelly
Mager, and Sheriff Backer filed a motion to dismiss Plaintiff's Amended Complaint? (ECF No.
20.) On July 10, 2023, Plaintiff filed his opposition brief, and Defendants filed a reply brief on
July 27, 2023. (ECF Nos, 22, 24; see also ECF No, 25.)
Plaintiff continued to submit piecemeal filings. On October 5, 2023, Plaintiff filed a
‘Declaration in Support” of his requests for injunctive relief, and on November 13, 2023, Plaintiff
filed a second motion for a preliminary injunction (“Second PI Motion”). ECF Nos, 27, 29.) On
November 21, 2023, the Court directed Defendants to respond to Plaintiff's Second PI Motion.
(ECF No. 30.) The Defendants filed their response on December 4, 2023, and Plaintiff filed a
reply brief on December 29, 2023." (ECF No. 33.)
Finally, on or about December 29, 2023, Plaintiff submitted a notice of change of address.
(ECF No. 34.) According to this notice, Plaintiffis no longer incarcerated at Somerset County Jail
and is currently at Adult Corrections in Middlesex County, New Jersey. Ud)

2 Because the SAC was docketed incorrectly, the Court directed Defendants to answer the
Amended Complaint.
3 In their moving brief, Defendants do not provide citations to the relevant complaint, but the Court
assumes they are seeking dismissal of Plaintiff's amended complaint as directed in the Court’s
Order,
4 Plaintiffs reply brief also includes numerous exhibits in support his claims for relief. It is well
established, however, that a plaintiff cannot amend his complaint through his brief. See Frederico
y. Home Depot, 507 F.3d 188, 202 (3d Cir. 2007) (“It is axiomatic that the complaint may not be
amended by the briefs in opposition to a motion to dismiss.”) (internal quotation and citation
omitted); see also Mills v. Ethicon, Inc., 406 F. Supp.3d 363, 387 (D.N.J. 2019) (same).

b. The Second Amended Complaint
Plaintiff submitted his SAC (ECF No, 9-1) with leave of Court, and it is now the operative
pleading and replaces his prior complaints. Plaintiff's SAC asserts violations of his civil rights
arising from his incarceration at Somerset County Jail. The SAC names Sheriff Darrin Russo,
Warden Tim Pino, Deputy Warden Kym Williams, Law Librarian Edward Reese, County
Commissioner Kelly Mager, and “all of Somerset County” as Defendants.
Up until his recent transfer, Plaintiff was incarcerated at Somerset County Jail as a pretrial
detainee. He lists the date of his incarceration as August 14, 2020. (ECF No. 11, First PI Motion
at i.) In the SAC, Plaintiff alleges that the Somerset County Jail law librarian Edward Reese is a
retired police officer and is not trained as a librarian or paralegal. (SAC at 6.) When Plaintiff
asked Reese to make copies of his legal filings, Reese would hold Plaintiffs legal documents
overnight. Ud.) After Plaintiff “wrote this matter up,” Reese started giving Plaintiff's copies to
corrections officers to return to him. Ud.) Although Plaintiff is indigent and unable to pay for
copies, Reese refuses to provide Plaintiff with more than two copies of his legal filings, which
allegedly interferes with Plaintiff's access to the courts.° (SAC at 7.) Plaintiff filed grievances
about these issues to the Warden, and received responses from Deputy Warden Williams, who
upheld Reese’s decision to provide Plaintiff with only two copies of hts filings. (/d.)

The Court gleans from Plaintiff’s other filings that Plaintiff is preparing a defense against pending
criminal charges (See ECF No. 5, 5-1; 8, 8-1.) On or about April 12, 2023, Plaintiff submitted a
pro se motion to dismiss his criminal indictment to the Superior Court of New Jersey, Somerset
County and noted in his cover letter that he could only submit two copies of the motion because
jail officials denied him additional copies. (ECF No. 5-1 at 1-2.) On or about May 3, 2023,
Plaintiff filed a motion to proceed pro se and to remove his counsel in his criminal case. (See ECF
No. 8-1 at 1.)

In addition, Reese keeps “countless law books locked away” in his office and frequently
gives Plaintiff the “wrong forms.” (/d. at 7.) Reese also refused to provide Plaintiff with “caselaw
copies” and told Plaintiff to “hand write” the caselaw instead. (SAC at 10.) Reese also provides
him with copies with information cut off. (/d.) Plaintiffalso alleges that the law library has “old[,|
outdated law books” and only two “LexisNexis machines.” (See id. at 7.)
Plaintiff also briefly alleges in the SAC that Russo, Pino, and Williams failed to train
mailroom staff and that Mager is aware that his legal mail has been opened outside his presence.
(SAC at 5-7.)
Plaintiff further contends that his legal books and a pen were confiscated as contraband,
and he was not provided a confiscation form. (/d. at 5.) When Plaintiff complained to Warden
Pino, he simply acknowledged that the items were contraband and did not give Plaintiff the proper
time to appeal. Ud.) Plaintiff appears to allege that Pino, Williams, and Mager have failed to train
officers regarding confiscation of items. (7d, at 5-6, 10.}
Plaintiff also alleges that he “voiced his concerns” to Russo, Pino, and Williams about
nutritionally-deficient and cold food, lack of religious services and educational opportunities, and
insufficient visiting hours at Somerset County Jail, and that he grieved these issues to Pino and
Russo. (SAC at 2, 10.) He also informed Mager about these issues and informed her about the
inadequate grievance procedures at Somerset County Jail. Gad.)
In his SAC, Plaintiff asks the Court to appoint a special master pursuant to F.R.C.P, 53(b).
He also seeks a preliminary injunction to obtain the necessary number of copies without the
interference of Defendants. (See id at 10.)

c. The Motions for Preliminary Injunctive Relief
In Plaintiff's First PI Motion, Plaintiff contends that the law librarian has denied him access
to the court, interfered with his attorney-client privilege, and denied him equal protection of the
law. Plaintiff further alleges that Russo, Pino, Williams, and Mager know about the violations and
have failed to remedy them. (First PI Motion at 2-4.) Plaintiff seeks appointment of a special
master to investigate the conditions at Somerset County Jail. at 6-7.)
Ina Declaration dated October 3, 2023, Plaintiff also provides additional facts that occurred
after he submitted his SAC.® Plaintiff alleges that on July 4, 2023, the entire 2-C Pod was searched
and many of Plaintiff's law books and papers were removed by Sheriff Officer Backer at the
direction of Lt. Lai, who is in charge of the Special Investigations Division.’ (/d. at 2.) Plaintiff
was not provided with a contraband form pursuant to New Jersey administrative regulations, Ud.)
In his Declaration, Plaintiff also explains that Reese has retired as law librarian and has been
replaced by Somerset County Sheriff Captain Keith Covert. Ud at 2; ECF No. 29 at 4.) Plaintiff
contends that Covert, like Reese, is not a trained law librarian and has a conflict of interest because
he works for the Somerset County Sheriff's Office. Ud. at 2.) Plaintiff appears to seek injunctive
relief requiring prison officials at Somerset County Jail to hire a qualified law librarian and stop
violating inmates’ Fourth Amendment rights. CECF No. 27 at 2-3.)
On or about November 7, 2023, Plaintiff submitted a Second PI Motion, in which he
complains about the procedures for providing him with electronic discovery. (ECF No. 29.)
Plaintiff explains that he recetved a thumb drive of electronic discovery from the Somerset County
Prosecutor’s Office, presumably in connection with his criminal case. (Ud. at 3-4.) Although the

® These facts provide context for Plaintiffs Second PI motion.
? Lai and Backer are not named Defendants in the SAC.

law librarian is supposed to hold prisoner’s legal mail, Plaintiff received the thumb drive from Lt.
Lai. Ud.) Lt. Lai also told Plaintiff about the contents of the thumb drive. (d.) Moreover, the
receipt Lt. Lai provided Plaintiff in connection with the thumb drive is dated November 1, 2023,
but the Somerset County Prosecutor’s Office provided the electronic discovery on November 2,
2023. Ud.)
Plaintiff also contends that Lt. Lai, as the head of the Special Investigations Division, is
turning over prisoner’s cell phone records and personal property to the Somerset County
Prosecutor’s Office without obtaining a warrant. Ud. at 5.) Plaintiff also contends that his legal
books and papers were removed from his cell “at the behest of Lt. Lai[.]” /d Plaintiff further
alleges that Georgetown Law School sent many books to Plaintiff that were opened outside his
presence and that he has had “countless legal document(s) [sic] opened outside [his] presence.”
Ud.) Plaintiff alleges that Defendants make policies at Somerset County Jail and are allowing Lt.
Lai to review Plaintiff's electronic discovery. (/d.)
In his Second PI Motion, Plaintiff asks for injunctive relief to stop Lt. Lai from 1)
inspecting Plaintiffs electronic discovery, 2) searching his cell without notice, 3) taking his
property without providing a receipt, and 4) providing his cell phone records and personal property
to the Somerset County Prosecutor’s Office. (See Second PI Motion at 10.)
II, DISCUSSION
a. The Motions for Preliminary Injunctive Relief
The Court begins with Plaintiff's motions for preliminary injunctive relief. “A party
seeking a preliminary injunction must show: (1) a likelihood of success on the merits; (2) that [he
or she] will suffer irreparable harm if the injunction is denied; (3) that granting preliminary relief

will not result in even greater harm to the nonmoving party; and (4) that the public interest favors
such relief” Kos Pharms., Inc. vy. Andrx Corp., 369 F.3d 700, 708 Gd Cir, 2004),
“If developments occur during the course of adjudication that eliminate a plaintiff's
personal stake in the outcome of a suit or prevent a court from being able to grant the requested
relief, the case must be dismissed as moot.” Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690,
698-99 (3d Cir. 1996). Here, Plaintiff asks for injunctive relief to force officials at Somerset
County Jail to provide him with the copies, caselaw, and legal books he needs to litigate his
criminal case and to stop Somerset County Jail staff from inspecting his electronic discovery,
opening his legal mail, improperly searching his cell, and providing his personal information to
the Somerset County Prosecutor’s Office. He also asks the Court to appoint a special master.
Plaintiff, however, is no longer in the Defendants’ custody at Somerset County Jail, and the Court
is not able to provide this relief. See Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003) (“An
inmate’s transfer from the facility complained of generally moots the equitable and declaratory
claims,” (citing Abdul—Akbar v. Watson, 4 F.3d 195, 197 (3d Cir. 1993)), Even if Plaintiff's claims
are not moot, his transfer means that he is unable to show irreparable harm in the absence of
immediate injunctive relief, See Miller v. Hartwell, 834 F, App’x. 692, 694 3d Cir. 2020)
(explaining that a plaintiff can demonstrate neither likelihood of success on the merits of his claim
for prospective injunctive relief nor irreparable injury from the denial of preliminary injunctive
relief following his transfer to a new facility), For these reasons, the Court denies without
prejudice Plaintiffs motions for preliminary injunctive relief. (ECF Nos. 20, 31.)
b. Defendants’ Motion to Dismiss is Directed at a Superseded Complaint
The Court next addresses the effect of Plaintiff's SAC on his prior pleadings and on
Defendants’ motion to dismiss. “In general, an amended pleading supersedes the original pleading

and renders the original pleading a nullity” and “the most recently filed amended complaint
becomes the operative pleading.” Garrett v. Wexford Health, 938 F.3d 69, 82 (3d Cir. 2019).
Furthermore, “liberal construction of a pro se amended complaint does not mean accumulating
allegations from superseded pleadings.” Argentina v. Gillette, 778 F. App'x 173, 175 n.3 Gd Cir,
2019) (per curiam); see also Kreis y. Northampton Cnty. Prison, 564 F. Supp.3d 359, 361 (E.D.
Pa, 2021).
Defendants have moved to dismiss Plaintiff's Amended Complaint (ECF No. 3), and argue
that Plaintiff fails to state a claim for access to the Courts as a matter of law, Because Plaintiff's
SAC is now the operative complaint in this matter, the Court denies without prejudice the motion
to dismiss. This case, however, is subject to screening under 28 U.S.C. § 1915(€)(2)(B), which
the Court initially deferred. The Court now screens the SAC for dismissal.
ec, Screening the SAC under 28 U.S.C. § 1915(e)(2)(B)
Under the Prison Litigation Reform Act, Pub. L. 104-134, §§ 801-810, 110 Stat. 1321-66
to 1321-77 (Apr. 26, 1996) (“PLRA”), district courts must review prisoner complaints when the
prisoner is proceeding in forma pauperis. See 28 U.S.C, § 1915(e)(2)(B). The PLRA directs
district courts to suc sponte dismiss claims that are frivolous or malicious, that fail to state a claim
upon which relief may be granted, or that seek monetary relief from a defendant who is immune
from such relief. See 28 U.S.C. § 1915(e)(2)(B). Whether a complaint fails to state a claim under
§ 1915(e}(2\(BYii) is governed by the same standard applicable to motions to dismiss under
Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 Gd
Cir. 1999), which requires the Court to determine whether the complaint contains “sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
556 U.S. 662, 678 (2009) (quotations omitted). At this early stage of the litigation, the Court

accepts the facts alleged in the pro se complaint as true, draws all reasonable inferences in
Plaintiffs favor, and asks only whether the complaint, liberally construed, contains facts sufficient
to state a plausible claim. See Shorter vy. United States, 12 F.4th 366, 374 (d Cir, 2021) (quoting
Perez y, Fenoglio, 792 F.3d 768, 774, 782 (7th Cir, 2015)), Conclusory allegations do not suffice.
Iqbal, 556 U.S. at 678. Because Plaintiff proceeding pro se, the Court construes his allegations
liberally. See Higgs v. Att’y Gen., 655 F.3d 333, 339 Gd Cir. 2011).
The Court begins with standing, In his SAC and other filings, Plaintiff appears to seek
relief on behalf of other prisoners, and indigent prisoners in particular.’ Plaintiff, however, lacks
standing to assert claims on behalf of other prisoners. See Warth v. Seldin, 422 U.S. 490, 499
(1975) (a “plaintiff generally must assert his own legal rights and interests, and cannot rest his
claim to relief on the legal rights or interests of third parties”), The Court dismisses any claims
Plaintiff brings on behalf of other inmates for lack of standing.
Plaintiff also alleges violations of his own civil rights under 42 U.S.C. § 1983? “To
establish a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate a violation of a right
protected by the Constitution or the laws of the United States committed by a person acting under
the color of state law.” Natale v. Camden Cnty. Correctional Facility, 318 F.3d 575, 580-81 (3d
Cir, 2003) (citations omitted), The Court considers each of Plaintiff's § 1983 claims below,
1. Access to the Courts Claims
The Court first addresses Plaintiff's access to the courts claims. Prisoners maintain a
“fiindamental constitutional right of access to the courts,” embodied in the First and Fourteenth

Plaintiff also styles the caption of his SAC as though he is bringing a class action. A pro se
prisoner, however, cannot represent a putative class. Lewis v. City of Trenton Police Dep't, 175
F, App’x 552, 554 (3d Cir. 2006) (“Lewis, who is proceeding pro se, may not represent a putative
class of prisoners.”).
° The Court does not construe Plaintiff to allege any state law claims.
10

Amendments. Lewis v. Casey, 518 U.S, 343, 346 (1996) (quoting Bounds v. Smith, 430 U.S. 817,
828 (1977)). The Third Circuit has held that pretrial detainees have a right of access to the courts
with respect to legal assistance and participation in preparing a defense against pending criminal
charges. See, e.g., Prater v. City of Phila., 542 F. App’x. 135, 136-37 (3d Cir. 2013); see also May
vy. Sheahan, 226 F.3d 876, 883-84 (7th Cir. 2000). A pretrial detainee may also raise claims
alleging interference with his Sixth Amendment rights. See Prater, 542 F. App’x. at 137. In
contrast, convicted prisoners may only proceed on access-to-courts claims in two situations:
“challenges (direct or collateral) to their sentences and conditions of confinement.” /d. (citing
Lewis, 518 U.S. at 354-55). Because Alexander is a pretrial detainee, this restriction does not

apply to him.!?
There are two general types of access to the courts claims. Forward-looking claims involve
official action that “frustrates a plaintiff ... in preparing and filing suits at the present time.”
Christopher v. Harbury, 536 U.S. 403] at 413, 122 S. Ct, at 2185 (2002). In a forward-looking
claim, “[t}he opportunity has not been lost for all time, however, but only in the short term, and
the object of this type of suit is to place the plaintiff in a position to pursue a separate claim for
relief once the frustrating condition has been removed.” /d. at 413 (cleaned up). In backward-
looking claims, the official acts “allegedly have caused the loss or inadequate settlement of a
meritorious case” or the loss of a particular type of relief. Jd. at 414.
In both types of cases, however, the plaintiff must identify a “nonfrivolous” or “arguable”
underlying claim. See id. at 415. Indeed, “the underlying cause of action, whether anticipated or

Notably, Moving Defendants argue in their motion to dismiss that Plaintiff may only bring an
access to the courts claim if his underlying claim involves a direct or collateral challenge to his
conviction or a challenge to his conditions of confinement. Defendants, however, rely on the
standard for an access to the courts claim brought by convicted prisoners.

11

lost, is an element [of an access to the courts claim] that must be described in the complaint, just
as much as allegations must describe the officia! acts frustrating the litigation.” Jd This is so
because “a prisoner making an access-to-the-courts claim is required to show that the denial of
access caused actual injury.” Jackson v. Whalen, 568 F. App’x 85, 87 (3d Cir, 2014) (per curiam)
(quoting Lewis v. Casey, 518 U.S. at 350). That is, a prisoner claiming that he was denied access
to the courts must allege an injury traceable to the conditions of which he complains. Diaz v.
Holder, 532 F. App'x 61, 63 (3d Cir. 2013) (per curiam) (affirming dismissal of denial of access
claims where plaintiff failed to tie alleged deficiencies in library to harm in underlying action), As
explained by the Supreme Court, “because Bounds did not create an abstract, freestanding right to
a law library or legal assistance, an inmate cannot establish relevant actual injury simply by
establishing that his prison’s law library or legal assistance program is subpar in some theoretical
sense.” Lewis, 518 U.S. at 351.
In his SAC, Plaintiff alleges that Reese has denied him sufficient copies of his filings and
envelopes for mailing legal papers and has also denied him copies of caselaw and kept law books
locked away. He also alleges that the law library has insufficient resources. Plaintiff alleges that
the supervisory Defendants were on notice of some or all of these violations through Plaintiffs
grievances but failed to correct them and that Defendant Williams upheld Reese’s provision of
only two copies of legal filings as a matter of policy.!!
The Court gleans from Plaintiff's additional submissions that Plaintiff's underlying action
may be his state court criminal case and that Plaintiff has filed motions to dismiss his indictment

'! Unless otherwise stated, the Court construes Plaintiff to allege that Russo, Pino, Williams, and
Mager are liable under § 1983 as supervisors. See Santiago v. Warminster, 629 F.3d 121, 129 n.
5 (3d Cir. 2019) (defining the two theories of supervisory liability under § 1983, knowledge and
acquiescence and policy, practice, or custom) (quoting A.M. ex ref. AMLK vy. Luzerne Cnty,
Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)),
12

and to proceed pro se in that matter. Plaintiffs SAC does not include these allegations, and
Plaintiff may not amend his complaint by submitting addenda. See Martin vy. New Jersey, No. 19-
12979, 2021 WL 4776010, at *1 (D.N.J. Oct. 13, 2021); see also Lewis v. Sessions, No. 17-5475,
2017 WL 7313822, at *2 (D.N.J. Nov. 3, 2017) (“neither Fed. R. Civ. P. 8, which governs
pleadings, nor Fed. R. Civ. P. 15, which governs amended and supplementai pleadings, permits [a
plaintiff] to submit numerous addenda to his Complaint in ... piecemeal fashion”). Moreover, even
if the Court were to consider the additional filings, Plaintiff does not provide sufficient facts to
suggest that his motion to dismiss the indictment and/or motion to proceed pro se in his criminal
case have arguable merit.'?. Nor has he alleged that the Defendants’ actions in denying him
sufficient copies, envelopes, and legal materials, or that other deficiencies in the law library have
caused any actual injury in his underlying criminal proceedings. For instance, he does not allege
facts to suggest that his motions were rejected by the state court because he failed to provide
enough copies or because he could not research the relevant issues,
For these reasons, Plaintiff's SAC fails to state an access to the courts claim against Reese
or the supervisory defendants who allegedly acquiesced in Reese’s misconduct or created deficient
law library policies. The Court dismisses without prejudice the access to the courts claims as to
all individual Defendants and provides Plaintiff with leave to submit a third amended complaint
with respect to his access to the courts claims.
2. Equal Protection Claims
Plaintiff also alleges that denying him sufficient copies and envelopes because he is unable
to pay for them denies him equal protection of the law as an indigent prisoner. The Equal

2 The Court notes that Plaintiff appears to contend that he could not submit sufficient copies to
the Court in this litigation. Plaintiff is also unable to show injury with respect to the instant
litigation.
13

Protection Clause provides that “[nJo State shall ... deny to any person within its jurisdiction the
equal protection of the laws.” U.S, Const. amend. XIV, § 1. It “is essentially a direction that all
persons similarly situated should be treated alike.” City of Cleburne, Tex. vy. Cleburne Living Ctr.,
473 U.S. 432, 439 (1985). In reviewing an equal protection claim, a court must first determine
“whether the alleged state action burdens a fundamental constitutional right or targets a suspect
class.” State Troopers Non-Commissioned Officers Ass'n of New Jersey v. New Jersey, 399 F.
App’x 752, 754 (3d Cir, 2010), “Ifa ‘classification neither burdens a fundamental right nor targets
a suspect class, [the court] will uphold it so long as it bears a rational relation to some legitimate
Connelly v. Steel Valley Sch, Dist, 706 F.3d 209, 213 Gd Cir, 2013) (quoting Maldonado
v. Houstoun, 157 F.3d 179, 184 Gd Cir. 1998)). However, “a classification [that] trammels
fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion,
or alienage ... must meet the strict scrutiny standard, under which a law must be narrowly tailored
to further a compelling government interest.” Schumacher v. Nix, 965 F.2d 1262, 1266 3d Cir,
1992) (citation and internal quotation marks omitted).
Here, Plaintiff alleges that Defendants are discriminating against him because he is poor
and that they have violated his right to equal protection by denying him sufficient copies of his
legal filings and envelopes for mailing his legal filings. “Neither prisoners nor indigents are
suspect classes[,|” Abdul-Akbar v. McKelvie, 239 F.3d 307, 317 Gd Cir. 2001). Therefore,
Defendants’ policies are subject to rational basis review and fail to state a claim for relief unless
Plaintiff alleges that these policies burden his fundamental rights. Plaintiff, however, fails to plead
sufficient facts in his SAC to suggest that Defendants’ policies of providing him with two copies
of his legal filings and insufficient envelopes, without more, have interfered with his fundamental
rights.

14

Access to the courts is a4 fundamental right for purposes of the equal protection analysis.
See, e.g., Doyle v, Arete Financial Group LEC, No. 21-19935, 2022 WL 17253587, at *2 (D.NJ.
Nov. 28, 2022) (citing Bounds v. Smith, 430 U.S. 817 (1977)). The Sixth Amendment right to
self-representation is also a fundamental right. See id. (noting that “[{Jhe Supreme Court has
recognized that the right of a criminal defendant to proceed pro se is protected by the Sixth
Amendment” but finding no such right for pro se plaintiffs in civil cases) (citing Faretia v.
California, 422 U.S. 806, 819 (1975)); see also Griffin v. Ilinois, 351 U.S. 12, 17 (1956)
(explaining that “[i]n criminal trials a State can no more discriminate on account of poverty than
on account of religion, race, or color” and holding that failure to provide indigent defendants with
a transcript necessary for an appeal violated their rights to Due Process and Equal Protection of
the law).
Although Plaintiff contends that Defendants have denied him access to the courts, which
is a fundamental right, the Court has determined that Plaintiff's SAC fails to state an access to the
courts claim. In Plaintiff’s piecemeal submissions to the Court, he also alludes to his attempts to
represent himself in his criminal case, but the SAC does not provide sufficient facts showing that
Defendants’ policies have burdened that fundamental right. Plaintiff may be able to cure the
deficiencies in his equal protection claims through amendment, The Court dismisses without
prejudice the equa! protection claims against all Defendants and provides Plaintiff with leave to
submit an amended complaint.!?

3 The Court does not construe Plaintiff to allege an equal protection claim under a “class of one,”
theory, which requires him to allege “that [ Jhe has been intentionally treated differently from
others similarly situated and that there is no rational basis for the difference in treatment.” Solan
v. Zickefoose, 530 F. App’x. 109, 111 (3d Cir. 2013) (citing PG Publ’g Co. v. Aichele, 705 F.3d
91, 114 Bd Cir. 2013) (internal quotation marks omitted). Indeed, Plaintiff appears to allege all
indigent inmates are unable to obtain sufficient copies and does not allege that he has been singled
out for intentional discrimination.
15

3. Legal Mail Claims
In his SAC, Plaintiff also states in passing that Defendants Russo, Pino, and Williams failed
properly train mailroom personnel and also states that Mager was aware that his legal mail had
been opened outside his presence. He provides no additional facts about these violations in the
SAC. In his Second PI Motion, Plaintiff states that his legal mail from Georgetown Law School
has been opened outside his presence.
Inmates have a First Amendment right to communicate with the outside world by sending
and receiving mail. Thornburg v. Abbott, 490 U.S. 401, 407 (1989); Turner v. Safely, 482 US.
78, 85, (1987). That right, however, is not absolute. Rather, it is limited by concerns for
institutional security and public safety. Prisons and jails may impinge upon an inmate’s First
Amendment right to send or receive mail so long as their policies are “reasonably related to
legitimate penalogical interests.” Turner, 482 U.S. at 89. The Third Circuit has held that a pattern
or practice of opening a prisonet’s legal mail outside of his presence can violate a prisoner’s rights
to free speech and legal access to the courts under the First Amendment. See Fontroy □□□ Beard,
559 F.3d 173, 174-75 (3d Cir. 2009). In order to state a legal mail claim against Russo, Pino,
Williams and/or Mager, Plaintiff must include sufficient facts in his complaint showing that his
mail was opened outside his presence on an ongoing basis and that Defendants were on notice of
this issue but failed to correct it and/or failed to train staff. Because Plaintiff has not done so, his
legal claims against Russo, Pino, Williams and Mager are dismissed without prejudice for failure
to state a claim for relief, Plaintiff may submit a third amended complaint regarding his legal mail
claims.
Plaintiff also alleges in his Second PI motion that Lt. Lai is improperly viewing his
electronic discovery, Plaintiffs claims against Lt. Lai are not pleaded in his SAC and the Court

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declines to construe them as supplements to his SAC. Plaintiff is free, however, to name Lt. Lai
as a Defendant if he chooses to submit a third amended complaint.
4, Fourth Amendment Claims (Not Asserted in the SAC)
In his Second PI motion, Plaintiff also attempts to allege violations of his Fourth
Amendment rights by Lt. Lai and Backer." Plaintiff's SAC, however, does not allege Fourth
Amendment violations by Lt. Lai or Backer or name them as Defendants.'> As noted above, the
Court declines fo construe Plaintiff's Second PI Motion as a third amended complaint or consider
Plaintiff's piecemeal submissions as supplements to his SAC. The Court will permit Plaintiff to
submit a third amended complaint if he wishes to assert claims against Lt. Lai, Backer, and/or the
supervisory Defendants in connection with improper searches of his cell or confiscation of his
legal materials.
5. Deprivation of Preperty Claims
in his SAC, Plaintiff also alleges that prison officials confiscated his legal materials and
pen without providing him a confiscation form, and that Defendants failed to train staff regarding
confiscation of property. “‘[A]n unauthorized intentional deprivation of property” by prison
officials does not violate the Due Process Clause ‘if a meaningful postdeprivation remedy for the

44 Although the Third Cireuit has not addressed this issue, the Second Circuit has held that a pre-
trial detainee does retain Fourth Amendment protection against searches “at the instigation of non-
prison officials for non-institutional security related reasons.” See United States v. Cohen, 796
F.2d 20, 22-24 (2d Cir. 1986). In Cohen, the Second Circuit determined that the “Supreme Court
in Hudson did not contemplate a cell search intended solely to bolster the prosecution’s case
against a pre-trial detainee awaiting his day in court[,]” ic at 23; see also Reid—Douglas vy.
Harding, Civ. A. 10-2049, 2014 WL 3507292, at *7-9 (MLD. Pa, July 14, 2014) (affirming
validity of Fourth Amendment claim for cell search of pretrial detainee, but granting qualified
immunity); Santana v. Berks Cnty, Jail System, 2020 WL 3574544, at *6 (E.D. Pa, Jul, 1, 2020)
(allowing Fourth Amendment claim to proceed where the search of a pretrial detainee’s “cell may
have been undertaken for reasons unrelated to prison security or the safety of the inmates”).
'S Backer is named in the Amended Complaint in connection with the search of Plaintiff's ceil, but
he is not named or mentioned in the SAC.
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loss is available.’” Afonroe v. Beard, 536 F.3d 198, 210 3d Cir.2008) (quoting Hidson v. Palmer,
468 U.S, 517, 533 (1984)). “Pre-deprivation notice is not constitutionally required.” Jd. Plaintiff
has not provided sufficient facts about whether there is still a post-deprivation remedy for the ioss
of his egal materials and pen even if prison officials failed to provide him with a confiscation
form, As such, he fails to state a claim for relief, and this claim is dismissed without prejudice as
to all individual Defendants.
6. Conelusory Claims Against the Individual Defendants
In his SAC, Plaintiff also alleges in passing that he notified the supervisory Defendants
about cold and nutritionally-deficient food, insufficient visiting hours, and lack of educational and
religious programming at Somerset County Jail. These allegations are far too conclusory to state
any claims for relief under § 1983. See igbal, 556 U.S. at 678. These claims are dismissed against
all individual Defendants for failure to state a claim for relief, and Plaintiff may submit a third
amended complaint if he can provide more facts to support any of these claims.
7. Inadequate Grievance System or Response to Grievances
Plaintiff may be alleging that the individual Defendants have violated his civil rights by
failing to have adequate grievance procedures or failing to respond to his grievances, These
allegations fail to state a claim for relief because prisoners do not have a constitutionally protected
right to prison grievance procedures. Speight v. Sims, 283 F. App’x 880 (3d Cir. 2008) (citing
Massey v. Helman, 259 ¥.3d 641, 647 (7th Cir, 2001) (“[T]he existence of a prison grievance
procedure confers no liberty interest on a prisoner,”), In addition, a prison official’s inadequate
response to grievances (or failure to respond to grievances altogether) does not state a claim for
relief, Washington v. Crum, No. 19-14602022 WL 798372, at *11 (W.D. Pa. Mar. 16, 2022)
(explaining that a plaintiff “cannot recover from the named defendants [under § 1983] for failing

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to respond to his grievances”). The Court dismisses Plaintiff's claims against the individual
Defendants regarding the inadequate grievance system and inadequate response to grievances
because they fail to state a claim for relief.
8. Monell Claims
Finally, Plaintiff has sued “all of Somerset County” (“the County”) and may be attempting
to assert claims against the County pursuant to Monell y, Dep’t of Soc. Servs. of City of New York,
436 U.S. 658 (1978). In that decision, the Supreme Court recognized that while local government
units can be liable under § 1983, “a municipality cannot be held liable under § 1983 ona respondeat
superior theory.” Mone//, 436 U.S, at 691, Thus, a local government cannot be held liable for “an
injury inflicted solely by its employees or agents.” Jd at 694. A § 1983 claim against a
municipality may proceed in two ways. See Estate of Roinan y. City of Newark, 914 F.3d 789,
798-99 (3d Cir. 2019). A plaintiff may allege that an unconstitutional policy or custom of the
municipality led to his or her injuries, id. at 798 (citing Monel/, 436 U.S. at 694), or that his injuries
were caused by a failure or inadequacy by the municipality that “reflects a deliberate or conscious
choice,” see id. (internal quotation marks omitted) (quoting Brown v. Muhlenberg Twp., 269 F.3d
205, 215 (3d Cir. 2001)); see also Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019) (explaining
that the second type of Mone// claim involves failures to train, supervise, or discipline).
To assett a Monef/ claim against the County of Somerset, Plaintiff must provide facts
showing that the County had a relevant policy or custom and that policy or custom was the moving
force behind the constitutional violation or violations. See, e.g., Natale, 318 F.3d at 583-84 (citing
Ba. of County Comm'rs of Bryan County, Oklahoma v. Brown, 520 US. 397, 404 (1997)). Plaintiff
must identify a specific policy or custom of the County that caused the constitutional violation at
issue and must typically allege a pattern of similar past conduct to show that the County was on

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notice that the policy or custom caused the alleged violation. See, e.g., Schlaybach v. Berks Heim
Nursing & Rehabilitation, 839 F, App’x. 759, 760 Gd Cir. 2021). Alternatively, Plaintiff could
state a Monell claim by alleging a failure to supervise, train, or discipline, and must provide facts
showing that the failure amounts to deliberate indifference to his constitutional rights. Forrest,
930 F.3d at 106. Here, the Court has dismissed Plaintiff's § 1983 claims against the individual
Defendants based on their policies and failures to train, and Plaintiff has not otherwise alleged that
the County’s policies, customs, or failures to train resulted in any violations of his constitutional
rights. As such, the Court dismisses without prejudice the § 1983 claims against the County of
Somerset for failure to state a claim for relief. Plaintiff may submit a third amended complaint if
he is able to cure the deficiencies in his Monell claims.
Il. CONCLUSION
In conelusion, the Court directs the Clerk of the Court to file Plaintiff's SAC. The Court
denies without prejudice Plaintiff's motions for preliminary injunctive relief in light of his recent
transfer from Somerset County Jail to Adult Corrections in Middlesex County, New Jersey. The
Court dismisses Defendants’ motion to dismiss the Amended Complaint as moot because
Plaintiff's SAC is now the operative pleading. The Court dismisses without prejudice Plaintiffs
SAC in its entirety for failure to state a claim for relief pursuant to the Court’s screening authority

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under § 1915(e})(2\(B). Plaintiff may submit a third amended complaint within 45 days to the
extent he can cure the deficiencies in his federal claims for relief.
Plaintiff may not assert claims on behalf of other inmates, and he must put alli his claims
and supporting facts in a single all-inclusive complaint. An appropriate Order follows.

{ GEORGETTE CASTNER
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10278213. Public record. Not legal advice.