# WOODWARD v. NEW JERSEY STATE PAROLE BOARD

> District Court, D. New Jersey · January 25, 2023

URL: https://www.frixlaw.com/law-library/cases/10655155

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** January 25, 2023
- **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/10655155

## How later opinions describe it (automated extraction)

- affirming dismissal of § 1983 claims against New Jersey State Parole Board
- noting district court recognized need to liberally construe Rule 20.

## Opinion text

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
______________________________

SHAWN WOODWARD, :
: Civ. No. 22-3812 (RMB-SAK)
Plaintiff. :
:
v. :
: OPINION
CHRISTINA AHEARN, et al., :
:
Defendants. :
______________________________ :

RENÉE MARIE BUMB, United States District Judge
Plaintiff Shawn Woodward, previously confined in Mid-State Correctional
Facility ("MSCF") in Wrightstown, New Jersey and South Woods State Prison
("SWSP") in Bridgeton, New Jersey, filed this civil suit under 42 U.S.C. § 1983
against twenty defendants, alleging Fourteenth Amendment due process claims
regarding his parole revocation hearing, First Amendment free exercise of religion
claims, First Amendment retaliation claims, an Eighth Amendment inadequate
medical care claim, and Fourteenth Amendment discrimination claims. Plaintiff
submitted an IFP application (IFP App., Docket Nos. 4, 5) that establishes his
financial eligibility to proceed without prepayment of the filing fee, and it will be
granted. For the reasons, discussed below, the claims against improperly joined
defendants will be severed and opened in new civil actions, and Plaintiff's claims are
dismissed in part and may proceed in part.
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.) This Court will screen the
complaint and will then consider, pursuant to Federal Rule of Civil Procedure 21,
whether the claims and defendants are properly joined under Federal Rules of Civil
Procedure 18 and 20.
II. REVIEW OF CLAIMS IN THE COMPLAINT
Plaintiff asserts jurisdiction under 42 U.S.C. § 1983. The defendants named in

the complaint are the New Jersey State Parole Board ("NJSPB"); Steven Tallard,
Executive Director, NJSPB; Christina Ahearn, head of classification at MSCF;
Reverend Phillip Harden, SWSP; Dr. Yussuf, Chaplain, SWSP; Al Solanik,
Associate Administrator, SWSP; Sergeant Tambini, MSCF; Correctional Officer
("CO") Myers, MSCF; Nurse T. Robinson, MSCF; Kitchen Supervisor Myers,

MSCF; Minister/Reverend Lopez, MSCF; ITI Cook Leonard, MSCF; Secretary
Thurmond Miller, MSCF; and CO Hernandez, MSCF. Defendants are sued in their
individual and official capacities.
A. Fourteenth Amendment Due Process Claims Against Christina
Ahearn at MSCF

1. Factual Allegations
Plaintiff alleges the following facts in support of his due process claims against
Christina Ahearn at MSCF. After serving nineteen-and-a-half years in the custody of
the New York Department of Corrections ("NYDOC"), Plaintiff was extradited to
New Jersey in December 2019. Plaintiff received two misbehavior reports at SWSP
in 2020. In September 2021, Plaintiff was housed at MSCF. Pursuant to a prison
policy, after an inmate serves one year without any prison infractions, he may
request, from the prison's classification department, the restoration of 25% of

previously lost good conduct time. Christina Ahearn, head of MSCF's classification
department, repeatedly denied Plaintiff's requests because the limitations period
associated with his request expired in 2003-2004. Plaintiff complained that N.J. Stat.
§ 30:4-140 does not explain how an inmate, who had been incarcerated in another
state, could request restoration of lost good conduct time. He had no notice, from the

year 2000 through December 2019, of how to make such a request. Ahearn informed
Plaintiff that before she could grant his request, NYDOC would have to send a copy
of his disciplinary history to show that he had no infractions from June 20, 2000
through June 20, 2002. (See Compl., Ex. A, Docket No. 1-3 at 5.) Plaintiff could not
obtain these records. Without receiving this credit, he alleges that he was

incarcerated beyond his anticipated release date, in violation of his substantive and
procedural due process rights. For relief, he seeks money damages.
2. Legal Standard: 42 U.S.C. § 1983 and Fourteenth Amendment
Due Process Claims

42 U.S.C. § 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory ...
subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress ....

To state a claim for relief under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution or laws of the United States, and that the alleged
deprivation was committed or caused by a person acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir.
2011).
For a claim of "deprivation of procedural due process rights," under the
Fourteenth Amendment, "a plaintiff must allege that (1) he was deprived of an
individual interest that is encompassed within the Fourteenth Amendment's

protection of “life, liberty, or property,” and (2) the procedures available to him did
not provide “due process of law.” Hill v. Borough of Kutztown, 455 F.3d 225, 233–34
(3d Cir. 2006) (quoting Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)).
Prisoners typically have a protected liberty interest only in
“freedom from restraint” that “imposes atypical and
significant hardship ... in relation to the ordinary incidents
of prison life.” Sandin v. Conner, 515 U.S. 472, 484, 115
S.Ct. 2293, 132 L.Ed.2d 418 (1995). State regulations do
not create a liberty interest unless they confer a right to
freedom from restraint as described in Sandin. See Griffin v.
Vaughn, 112 F.3d 703, 708 (3d Cir. 1997).

Iwanicki v. Pennsylvania Dep't of Corr., 582 F. App'x 75, 80 (3d Cir. 2014).

3. Analysis
In relevant part, N.J. Stat. § 30:4-140 (effective February 1, 2021), provides:
Deductions for good behavior; calculation of time credits;
effect on eligibility for parole

For every year or fractional part of a year of a custodial
sentence imposed upon any person there shall be remitted
to the person from both the maximum and minimum term
of the person's sentence, for continuous orderly deportment,
the progressive time credits indicated in the schedule in this
section. When a sentence contains a fractional part of a year
in either the minimum or maximum thereof, then time
credits in reduction of the fractional part of a year shall be
calculated at the rate set out in the schedule for each full
month of the fractional part of a year of sentence. In case of
any flagrant misconduct the board of managers may declare
a forfeiture of the time previously remitted, either in whole
or in part, as they deem just.
This statute, cited by Plaintiff, does not govern the restoration of lost good conduct
time when a prisoner is free of disciplinary violations for two years. Plaintiff failed to
identify the prison regulation governing his due process claims. Review of the
regulation is necessary to determine whether the regulation confers a right to freedom
from restraint. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 557, 94 S. Ct. 2963, 2975, 41

L. Ed. 2d 935 (1974) ("the State having created the right to good time and itself
recognizing that its deprivation is a sanction authorized for major misconduct, the
prisoner's interest has real substance and is sufficiently embraced within Fourteenth
Amendment ‘liberty’….")). This Court is unable to determine whether the
regulation(s), described but unidentified by Plaintiff, creates a liberty interest (a

substantive due process right) that requires procedural due process protection.
Therefore, this claim will be dismissed without prejudice. See Iwanicki, 582 F. App'x at
80–81 ("Because Iwanicki relies on unspecified 'administrative law' and prison
policies, he has failed to meet the threshold requirement of alleging a protected liberty

interest.")
B. Claims Against NJSPB and Executive Director Steven Tallard
1. Factual Allegations
In March 2000, Plaintiff was released from NJDOC on parole. Plaintiff
reoffended three months later in New York. In October 2000, he pleaded guilty to a

crime in the State of New York and received an 18-year prison term, with 85%
parole ineligibility. That same month, Plaintiff's New Jersey parole officer requested
a final revocation hearing. Instead, on October, 27, 2000, New Jersey filed a parole
warrant on Plaintiff with the NYDOC, based on the New York conviction. NJSPB
never scheduled a final revocation hearing during the almost twenty years Plaintiff

was incarcerated in New York, although a hearing could have been conducted by
videoconferencing pursuant to N.J.A.C. 10A:71-7.13(b). NJSPB did not conduct a
preliminary hearing, notify Plaintiff of his rights at a revocation hearing, establish
probable cause of his parole violation, or conduct a hearing within 60 days of
October 27, 2000.

Plaintiff was extradited to New Jersey State Prison in December 2019. On
January 15, 2020, he was served with "parole hearing material." On January 31,
2020, Plaintiff had a final parole revocation hearing, and his parole was revoked.
Plaintiff appealed. On May 27, 2020, NJSPB Executive Director Steven Tallard
determined that Plaintiff should serve 2 years, 11 months and 6 days. Pursuant to a

January 2022 executive order signed by Governor Phil Murphy, Plaintiff was
released from NJDOC on March 10, 2022, after serving 27 months. Prior to his
release, Plaintiff had appealed the NJSPB decision in the New Jersey Superior Court,
Appellate Division, seeking immediate release based on alleged due process
violations. The defendant in that suit argued that the appeal was moot because

Plaintiff had been released. Plaintiff now seeks damages against NJSPB and
Executive Director Steven Tallard for depriving Plaintiff of his substantive and
procedural due process rights. He seeks money damages under § 1983.
2. Immunity From Liability and Scope of Section 1983

"The Eleventh Amendment makes explicit reference to the States' immunity
from suits 'commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.'" Alden v. Maine, 527
U.S. 706, 712–13, (1999) (quoting U.S. Const., Amdt. 11.)) Congress, in enacting §
1983, did not intend to create "a federal forum for civil rights claims against States"
by overriding sovereign immunity of the States. Will v. Michigan Dep't of State Police,

491 U.S. 58, 66 (1989)). New Jersey did not waive its sovereign immunity with
respect to § 1983 claims in federal courts. Mierzwa v. United States, 282 F. App'x 973,
976 (3d Cir. 2008) (citation omitted).
"Sovereign immunity extends to state agencies and state officers, 'as long as
the state is the real party in interest.'" Est. of Lagano v. Bergen Cnty. Prosecutor's Off., 769

F.3d 850, 857 (3d Cir. 2014) (quoting Fitchik v. N.J. Transit Rail Operations, 873 F.2d
655, 659 (3d Cir. 1989)). “[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. As such,
it is no different from a suit against the State itself.” Will, 491 U.S. 58, 71 (1989)
(internal citations omitted); Ali v Howard, 353 F. App'x 667, 672 (3d Cir. 2009).

Moreover, § 1983 imposes liability against "persons[,]" and state agencies are not
persons within the meaning of the statute. Est. of Lagano, 769 F.3d at 854 (quoting
Will, 491 U.S. at 71)).
3. The New Jersey State Parole Board and Steven Tallard in his
Official Capacity are Immune Under § 1983

The New Jersey State Parole Board is not a "person" who is subject to suit
under § 1983. Madden v. New Jersey State Parole Bd., 438 F.2d 1189, 1190 (3d Cir.
1971); Thrower v. The New Jersey State Parole Bd., 438 F. App'x. 71, 72 (3d Cir. 2011)
(affirming dismissal of § 1983 claims against New Jersey State Parole Board).
Moreover, the New Jersey State Parole Board was established within the New Jersey
Department of Corrections, see N.J. Stat. § 30:4-123.47(a); and the NJDOC is a state
agency entitled to Eleventh Amendment immunity. Fox v. Bayside State Prison, 726 F.
App'x 865, 867 (3d Cir. 2018) (finding NJDOC "is quintessentially an arm of the

state.") Executive Director Steven Tallard, in his official capacity, is immune from
suit for damages under § 1983. Indeed, all defendants named in the complaint are
state officials or employees who are immune from suit for damages under § 1983 in
their official capacities. Accordingly, the § 1983 claims for money damages against
NJSPB and all defendants in their official capacities, will be dismissed with

prejudice.
4. Fourteenth Amendment Due Process Claims Against
Executive Director Steven Tallard in his Individual Capacity

Plaintiff seeks to hold Executive Director Steven Tallard liable in his
individual capacity for due process violations with respect to NJSPB's 2020 decision
to revoke his parole. In March 2022, Plaintiff was released from custody before the
New Jersey Superior Court, Appellate Division ruled on his due process challenges
to his parole revocation. His state habeas petition was dismissed as moot. He now
seeks damages under § 1983.
"In Heck, the Supreme Court held that where success in a § 1983 action would

implicitly call into question the validity of conviction or duration of sentence, the
plaintiff must first achieve favorable termination of his available state or federal
habeas remedies to challenge the underlying conviction or sentence." Williams v.
Consovoy, 453 F.3d 173, 176 (3d Cir. 2006) (citing Heck v. Humprhey, 512 U.S. 477).

The Heck rule is applicable where success on a § 1983 action would necessarily
demonstrate the invalidity of a parole board's decision to revoke parole. Id. at 177.
A challenge to the timeliness of a parole revocation hearing in a § 1983 action is
Heck-barred if the untimeliness deprived the Board of legal authority to revoke
parole. Butler v. Pennsylvania Bd. of Prob. & Parole, 613 F. App'x 119, 121–25 (3d Cir.

2015). The Heck-bar remains in force even if habeas relief is no longer available to the
plaintiff. Williams, 453 F.3d at 177.
Plaintiff alleges that his 2020 parole revocation is invalid because it was
untimely, and seeks damages for time served on the parole violation. Such a claim is
Heck-barred because, according to the complaint, Plaintiff's habeas appeal of his

parole revocation was dismissed as moot. Therefore, his parole revocation was not
invalidated, a prerequisite to a § 1983 suit for damages.
Even if his claim was not Heck-barred, Plaintiff's claim is meritless because
"the loss of liberty as a parole violator does not occur until the parolee is taken into
custody under the warrant." U.S. ex rel. Caruso v. U.S. Bd. of Parole, 570 F.2d 1150,
1154 (3d Cir. 1978) (quoting Morrissey v. Brewer, 429 U.S. at 86-87.) Plaintiff alleges
he was taken into custody on the parole warrant in December 2019, and his parole

revocation hearing was held within sixty days, on January 31, 2020. Thus, Plaintiff
did not suffer a loss of liberty as a parole violator before he was taken into custody on
the parole warrant in December 2019. Moody v. Daggett, 429 U.S. 78, 89 (1976)
(holding there is "no constitutional duty to provide [a] petitioner an adversary parole

hearing until he is taken into custody as a parole violator by execution of the
warrant.") Therefore, in the alternative to dismissing the claim without prejudice as
Heck-barred, the Court will dismiss this claim with prejudice on the merits.
Plaintiff also alleges deprivation of his procedural due process rights to a
preliminary parole revocation hearing, timely notification of his rights at a

revocation hearing, and the requirement of probable cause to establish a parole
violation. When a plaintiff raises procedural due process claims that would not
necessarily invalidate his parole revocation, a showing of prejudice is essential to
state a claim. Butler, 613 F. App'x at 124 (citing e.g., Burkett v. Cunningham, 826 F.2d
1208, 1221 (3d Cir.1987) (“[P]roof of prejudice is generally a necessary but not

sufficient element of a due process claim”) (quoting United States v. Lovasco, 431 U.S.
783, 790 (1977)). There is no prejudice when "[a] criminal conviction conclusively
establishes a parole violation, and a parolee cannot 'relitigate' these matters at his
revocation hearing." Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 490 (1992)).
Based on the allegations in the complaint, Plaintiff's 2000 criminal conviction in
New York conclusively established his New Jersey parole violation. Butler, 613 F.
App'x at 124 (citing Lovasco, 431 U.S. at 790); Razzoli v. U.S. Navy, 248 F. App'x 473,
475 (3d Cir. 2007) (same). Therefore, the Court will dismiss with prejudice the

Fourteenth Amendment due process claims against Executive Director Steven
Tallard in his individual capacity.
C. Claims Against Reverend Harden, Dr. Yussuf, and
Associate Administrator Al Solanik at SWSP

1. Factual Allegations

Plaintiff, a practicing Muslim, arrived at SWSP on January 2, 2020. He
immediately requested to be placed on lists to attend all Islamic classes and Friday
congregational prayers. Plaintiff told Dr. Yussuf, the Muslim Chaplain, that he had
to attend all Islamic classes to learn the basic tenets of his religion. Plaintiff's requests
to attend the classes were ignored, and in April 2020, the pandemic hit. Although
Plaintiff had been placed on the class and prayer lists at that time, it was too late,
everything was cancelled. Before the pandemic struck, Plaintiff did not have access
to any Islamic texts as an alternative method for study.
Additionally, in May 2020, Plaintiff was not timely provided with Ramadan
festive meals, which Dr. Yussuf was in charge of providing. Plaintiff filed a
grievance, which caused Dr. Harden, Dr. Yussuf's supervisor, to set up a meeting.
On the way to the meeting with Dr. Yussuf, Reverend Harden threatened Plaintiff

that prisoners who write grievances "don't last long." Dr. Yussuf then told Plaintiff
that he did not have any rights in jail, and that he didn't like Plaintiff's grievances.
Plaintiff left, and Dr. Yussuf followed, screaming at him. Dr. Yussuf told an officer
to call a sergeant, and then he told the sergeant that Plaintiff had threatened him.
Plaintiff was taken to the Special Housing Unit ("SHU"). Dr. Yussuf falsified an

incident report that Plaintiff had threatened him, and Dr. Harden co-signed it.
Also at SWSP, from January 2020 to July 2020, the institution provided only
Christian television programs. Plaintiff complained that Muslims did not have access
to religious television programs during the pandemic. Associate Administrator Al
Solanik was in charge of what was played on the institution television, and he

refused to allow each religious group to have religious programs, in violation of
Plaintiff's right to free exercise of religion.
2. First Amendment Free Exercise of Religion Claims
"The Free Exercise Clause of the First Amendment provides that 'Congress

shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof....'" U.S. Const. amend. I. Sutton v. Rasheed, 323 F.3d 236, 250–51
(3d Cir. 2003), as amended (May 29, 2003). “Inmates clearly retain protections
afforded by the First Amendment, ... including its directive that no law shall prohibit
the free exercise of religion.” DeHart v. Horn, 227 F.3d 47, 50 (3d Cir. 2000) (quoting

O'Lone v. Shabazz, 482 U.S. 342, 348 (1987) (citations omitted)). "[O]nly those beliefs
which are both sincerely held and religious in nature are entitled to constitutional
protection." Id. at 51-52 (citing Africa v. Pennsylvania, 662 F.2d 1025, 1029–30 (3d
Cir.1981)). Assuming a sincerely held religious belief is established, "a prison inmate
'retains [only] those rights that are not inconsistent with his status as a prisoner or
with the legitimate penological objectives of the corrections system.'" Id. (quoting Pell
v. Procunier, 417 U.S. 817, 822–23 (1974)).
The test announced in Turner v. Safley applies to an inmate's free exercise of

religion claim. Dehart, 227 F.3d at 51. Thus, "'[w]hen a prison regulation impinges
on inmates' constitutional rights, the regulation is valid if it is reasonably related to
legitimate penological interests.'" Id. (quoting Turner v. Safely, 482 U.S. 78, 89
(1987)). "[U]nder the Turner framework, four factors must be considered in assessing

the reasonableness of such regulations." Fraise v. Terhune, 283 F.3d 506, 516 (3d Cir.
2002). Those factors are (1) whether there is a “valid, rational connection” between
the prison regulation and the legitimate governmental interest put forward to justify
it[;] (2) whether "there are alternative means of exercising the right that remain open
to prison inmates[;] (3) what "impact accommodation of the asserted constitutional

right will have on guards and other inmates, and on the allocation of prison
resources generally[;]" and (4) the existence or absence "of ready alternatives…." Id.
at 89-90.
3. Analysis
Plaintiff's First Amendment free exercise of religion claim against Dr. Yussuf

may proceed. These claims are ultimately subject to consideration of the Turner
factors, when more information is available concerning any governmental interest
that may justify the defendants' actions. Plaintiff, however, has not alleged sufficient
facts concerning Reverend Harden's personal involvement in failing to put Plaintiff
on the attendance lists for Islamic classes and Friday congregational prayers and for
not timely providing festive religious meals. See Iqbal, 556 U.S. at 676 (holding there
is no vicarious liability under § 1983). Therefore, Plaintiff failed to state a claim of

supervisory liability against Reverend Harden, as Dr. Yussuf's supervisor. See
Santiago v. Warminster, 629 F.3d 121, 129 n. 5 (3d Cir. 2010) (defining the two
theories of supervisory liability under § 1983, knowledge and acquiescence and
policy, practice or custom) (quoting A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det.

Ctr., 372 F.3d 572, 586 (3d Cir. 2004)).
Plaintiff's First Amendment free exercise claim against Associate
Administrator Solanik lacks sufficient factual allegations for this Court to conclude
that the lack of Islamic television programs burdened Plaintiff's right to free exercise
of religion. Plaintiff has not alleged that access to Islamic television programs was

required to practice a tenet of his religion. Even if Plaintiff intended to raise this
claim under the Equal Protection Clause of the Fourteenth Amendment, he failed to
allege his request for Islamic television programs, comparable to Christian television
programs that were available, was denied based on intentional discrimination. See
Robinson v. Superintendent Houtzdale SCI, 693 F. App'x 111, 118 (3d Cir. 2017) (citing

Washington v. Davis, 426 U.S. 229, 240 (1976) (intentional discrimination is an
element of a Fourteenth Amendment Equal Protection claim)). If Plaintiff wishes to
assert an Equal Protection claim, he may include it in an amended complaint.
4. First Amendment Retaliation Claims

The elements of a retaliation claim for engaging in constitutionally protected
conduct are "that: (1) [the plaintiff's] conduct was constitutionally protected; (2) [the
plaintiff] suffered an adverse action at the hands of prison officials; and (3) [the
plaintiff's constitutionally protected conduct was a substantial or motivating factor in
the decision to discipline him." Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016)

(citing Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2000)). A plaintiff can satisfy
the third element "with evidence of either (1) an unusually suggestive temporal
proximity between the protected activity and the allegedly retaliatory action, or (2) a
pattern of antagonism coupled with timing that suggests a causal link." Id. (citation
omitted).

Plaintiff's First Amendment retaliation claims may proceed against Dr. Yussuf
and Reverend Hardin for allegedly falsifying an incident report against Plaintiff in
retaliation against him for filing grievances concerning festive religious meals in May
2020.
D. First and Fourteenth Amendment Discrimination Claims Against
Sergeant Tambini and CO Myers at MSCF

1. Factual Allegations

Pursuant to a prison practice by housing unit staff, Plaintiff had "seniority" for
a "nonhighway" bunk in his housing facility at MSCF in July 2021. When the
inmates were transferred to a new housing unit, Sergeant Tambini and CO Myers
said that Inmates Arroyo and Rodriguez would be assigned the "non-highway beds"
based on their Hispanic nationality, because inmates do not like to have Muslims in
the area praying all day. Plaintiff alleges that CO Myers and Sergeant Tambini

discriminated against him based on his Non-Hispanic race and Islamic religion, in
violation of his rights under the First and Fourteenth Amendments.
2. Fourteenth Amendment Equal Protection Claims
"The Equal Protection Clause of the Fourteenth Amendment to our

Constitution provides that '[n]o State shall ... deny to any person within its
jurisdiction the equal protection of the laws.'" Hassan v. City of New York, 804 F.3d
277, 294 (3d Cir. 2015), as amended (Feb. 2, 2016) (quoting U.S. Const. Amend. XIV,
§ 1.) "To prevail on an equal protection claim, a plaintiff must present evidence that
he has been treated differently from persons who are similarly situated." Williams v.

Morton, 343 F.3d 212, 221 (3d Cir. 2003) (citing City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 439 (1985)). The plaintiff must also allege intentional discrimination.
Robinson, 693 F. App'x at 118. "[I]ntentional discrimination based on religious
affiliation must survive heightened equal-protection review." Hassan, 804 F.3d at 301.
To state a claim, the plaintiff's "religious affiliation must have been a substantial

factor in that different treatment." Id. at 294 (citing Washington, 426 U.S. at 235; Pers.
Adm'r of Mass. v. Feeney, 442 U.S. 256, 276 (1979)). The Third Circuit has not
determined whether heightened review of such claims involves strict scrutiny or an
intermediate level of review. Id. at 301. Thus, at a minimum, more than a rational
basis is required to permit intentional discrimination based on religion. Strict
scrutiny applies to race-based discrimination claims. Adarand Constructors, Inc. v. Pena,
515 U.S. 200, 227 (1995). Plaintiff's Fourteenth Amendment equal protection claims

against Sergeant Tambini and CO Myers may proceed.
E. Eighth Amendment Inadequate Medical Care Claim Against Nurse
T. Robinson at MSCF

On October 21, 2021, Nurse Robinson did not give Plaintiff Suboxone as
prescribed, because he arrived too late for the pill line. Plaintiff was late because he
was following the instructions of his housing unit officer. As a result of not getting
Suboxone that day, Plaintiff suffered headache, stomach ache, cramps and diarrhea.
He alleges Nurse T. Robinson's conduct violated the Eighth Amendment.
Deliberate indifference to a prisoner's serious medical need violates the Eighth
Amendment where:
(1) prison authorities deny reasonable requests for medical
treatment, (2) knowledge of the need for medical care is
accompanied by the intentional refusal to provide it, (3)
necessary medical treatment is delayed for non-medical
reasons, and (4) prison authorities prevent an inmate from
receiving recommended treatment for serious medical
needs. [Monmouth County Correctional Institutional Inmates
v.] Lanzaro, 834 F.2d [326,] 347 [3d Cir. 1987].

Pearson v. Prison Health Serv., 850 F.3d 526, 538 (3d Cir. 2017).
Plaintiff has not alleged that Nurse Robinson was aware that missing a single
dose of Suboxone could result in Plaintiff suffering pain or deterioration of his
health. Given that Plaintiff missed his medical appointment, Nurse Robinson was
not deliberately indifferent unless she was aware her failure to accommodate Plaintiff
was likely to result in his pain or illness, or if she refused to treat Plaintiff after he
reported suffering from headache, stomachache, cramps and diarrhea. Therefore, this
claim will be dismissed without prejudice.

F. First Amendment Free Exercise of Religion Claim Against Secretary
Thurman Miller at MSCF

On October 3, 2021, Plaintiff filed a request to use areas outside his housing
unit for Muslim prayer, and he alleges this would not have disrupted administration
of the prison or posed any security concern. Secretary Miller received and then
closed Plaintiff's request without doing anything or providing any reason. Plaintiff
alleges that Secretary Miller violated his First Amendment right to free exercise of
religion. This claim will be dismissed without prejudice because Plaintiff has not
alleged that his inability to pray outside his housing unit impinged on his free
exercise of religion. DeHart, 227 F.3d at 51 (noting "the Turner analysis is appropriate
only in cases where a prison policy is impinging on inmates' constitutional rights.")
G. Claims Against Kitchen Supervisor Myers, Reverend/Minister
Lopez, ITI Cook Leonard and CO Hernandez at MSCF

1. Free Exercise of Religion Claim Against Myers and Lopez
There was a Muslim holiday on July 20, 2021, which required Muslims to
engage in a festive meal. Myers, who is in charge of MSCF's kitchen, and Lopez,
who is in charge of all religious activity in the prison, delayed service of festive meals
to all Muslim until July 28, 2021, for non-security reasons. On July 28, 2021,
Plaintiff was told the religious meal would be delayed again until August 4, 2021,
because the kitchen had to cook for Officers Appreciation Day. Plaintiff filed
grievances about this incident. Plaintiff's First Amendment free exercise of religion
claim may proceed against Myers and Lopez, although the claim is ultimately

subject to consideration of the Turner factors.
2. First Amendment Retaliation Claims

Plaintiff worked in the kitchen under the supervision of Myers and Leonard.
After Myers responded to Plaintiffs' complaint about late service of his festive meal,
Myers and others began making derogatory comments about Plaintiff filing
grievances. While working in the kitchen on November 27, 2021, Leonard said that
all black people steal, which caused Plaintiff to file a complaint. Two days later,
Myers told Plaintiff that he and Leonard filed a job removal request against Plaintiff
for filing so many complaints. Plaintiff reported this to CO Hernandez, who told

Plaintiff she would not go against her coworkers. On December 8, 2021, Plaintiff
went before the classification committee on the job removal request. He was
removed from his kitchen job because Myers does not tolerate complaints.
Plaintiff's First Amendment retaliation claims may proceed against Myers and
Leonard. Plaintiff has failed to allege sufficient facts to establish Hernandez took an

adverse action against Plaintiff for filing complaints, and this claim will be dismissed
without prejudice.
III. JOINDER OF DEFENDANTS
The complaint contains many unrelated allegations against multiple
defendants. "Misjoinder of parties is not a ground for dismissing an action. On
motion or on its own, the court may at any time, on just terms, add or drop a party.
The court may also sever any claim against a party." Fed. R. Civ. P. 21. For the
reasons discussed below, this Court will sever Plaintiff's claims against improperly

joined parties.
Federal Rule of Civil Procedure 18(a) states that “[a] party asserting a claim ...
may join, as independent or alternative claims, as many claims as it has against an
opposing party.” In a multi-defendant case, however, Rule 20 limits joinder of
defendants. Federal Rule of Civil Procedure 20(a)(2) provides:

Persons ... may be joined in one action as defendants if:

(A) Any right to relief is asserted against them jointly,
severally, or in the alternative with respect to or arising out
of the same transaction or occurrences; and

(B) Any question of law or fact common to all defendants
will arise in the action.

Rule 20 must be liberally construed. Salley v. Sec'y Pennsylvania Dep't of Corr., 565 F.
App'x 77, 82 (3d Cir. 2014) (noting district court recognized need to liberally
construe Rule 20.)
Plaintiff has mis-joined unrelated defendants under the standard announced in
Rule 20, and this Court will sever his claims into multiple civil actions. The present
civil action, No. 22-3812, will be reserved for Plaintiff's due process claims against
Christina Ahearn, which will be dismissed without prejudice. The Court will sever
Plaintiff's claims, as follows, into four new civil actions. Plaintiff may join his claims
against 1) NJSPB and Executive Director Steven Tallard; 2) Reverend Harden, Dr.
Yussuf, and Associate Administrator Al Solanik at SWSP; 3) Nurse T. Robinson at
MSCF; and 4) Sergeant Tambini, CO Myers, Secretary Thurman Miller, Kitchen
Supervisor Myers, Reverend/Minister Lopez, ITI Cook Leonard, and CO

Hernandez at MSCF.
Because Plaintiff has demonstrated his financial eligibility to proceed in forma
pauperis as a non-prisoner, and he is not required to pay a filing fee, he will be
granted in forma pauperis status in each action, and he and may proceed with any

claims that have not been dismissed. For any claims dismissed without prejudice,
Plaintiff is granted leave to file an amended complaint, in the appropriate case, if he
can cure the deficiencies in his claims by alleging additional facts.
IV. CONCLUSION
For the reasons stated above, the Court will grant Plaintiff's IFP application,

sever improperly joined defendants into multiple civil actions, and proceed in part
and dismiss in part Plaintiff's claims.

An appropriate Order follows.

DATE: January 25, 2023 s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10655155. Public record. Not legal advice.