JACKSON v. MURPHY

F.*NOT FOR PUBLICATION ECF NO. 35

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

KEVIN JACKSON, : CIV. NO. 22-1630 (RMB/AMD)

:

Plaintiff, : OPINION

:

v. :

:

PHILIP D. MURPHY, et al., :

:

Defendants :

______________________________

APPEARANCES:

Kevin Jackson

207013/291833B

Bayside State Prison

PO Box F-1

Leesburg, NJ 08327

Plaintiff, Pro Se

Michael Ezra Vomacka, Deputy Attorney General

Office of the New Jersey Attorney General

Richard J. Hughes Justice Complex

25 Market Street, 2nd Floor

P.O. Box 112

Trenton, NJ 08625

On behalf of Defendants Victoria Kuhn, Keisha Fisher and Jay Cisrow

RENÉE MARIE BUMB, Chief United States District Judge

This matter comes before the Court upon the motion to dismiss Plaintiff’s

complaint by Defendants Victoria Kuhn, Keisha Fisher and Jay Cisrow (collectively

“Defendants”) (Mot. to Dismiss, Dkt. No. 53, and Defs’ Brief in Supp. of Mot. to

Dismiss, Dkt. No. 53-1), Plaintiff’s response in opposition to Defendants’ motion to

dismiss (“Pl’s Opp. Brief” Dkt. No. 54); and Defendants’ reply brief (Defs’ Reply

Brief, Docket No. 56). The Court will decide the motion on the briefs without an

oral hearing, pursuant to Federal Rule of Civil Procedure 78(b). For the reasons

discussed below, the Court will grant in part and deny in part the motion to dismiss.

I. PROCEDURAL HISTORY

This case arises out of the alleged destruction of Plaintiff Kevin Jackson’s

(“Plaintiff”) newly purchased legal reference book by Sergeant Cisrow, a mailroom

supervisor in South Woods State Prison (“SWSP”) and allegations that other

mailroom supervisors illegally confiscated or destroyed legal reference materials

purchased by prisoners within the New Jersey Department of Corrections

(“NJDOC”). (Compl., Dkt. No. 1.) Plaintiff and three other inmates filed this

putative class action against prison mailroom supervisors and administrators of the

prisons and New Jersey Department of Corrections. (Id.) This Court

administratively terminated from this action Plaintiffs Anthony Casale, Dano Tokley

and Ariel Fernandez for failing to pay the filing fee or submit an IFP application

under 28 U.S.C. § 1915(a). These plaintiffs were given an opportunity to cure the

filing fee defect but failed to do so. (Order, Dkt. No. 3.) Therefore, Plaintiff Kevin

Jackson is the sole remaining plaintiff.

By order dated March 24, 2022, this Court granted Plaintiff’s application to

proceed without prepayment of fees pursuant to 28 U.S.C. § 1915(a). (Order, Dkt.

No. 3.) Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court sua sponte screened the

complaint for dismissal1 based on frivolity, failure to state a claim, or immunity of

the defendants. (Order, Dkt. No. 3.) The Court dismissed the claims against

Governor Philip D. Murphy and otherwise permitted the complaint to proceed

beyond screening for sua sponte dismissal. (Id.) Plaintiff filed a motion for a

temporary restraining order (“TRO”) with his complaint, but he failed to establish

that a hearing on the TRO should proceed without notice to the defendants. (Mot.

for TRO, Dkt. No. 2.; Order, Dkt. No. 3.) The Court reserved judgment on the TRO

motion until Defendants were notified and provided an opportunity to respond. (Id.)

On June 21, 2023, this Court granted Defendant Jonathan Gramp’s motion to

dismiss with prejudice Plaintiff’s claims of First Amendment Retaliation, First

Amendment Access to Courts, and First Amendment Freedom of Speech under 42

U.S.C. § 1983; this Court also dismissed without prejudice Plaintiff’s § 1983 claims

against Defendants John Powell and Marcus O. Hicks. (Opinion and Order, Dkt.

Nos. 42, 43). This matter is now before the Court on the first motion to dismiss the

complaint in its entirety with prejudice by Sergeant Jay Cisrow, Administrator

Fisher, and Commissioner Kuhn. (Mot. to Dismiss, Dkt. No. 53.)

II. THE COMPLAINT

The complaint contains the following factual allegations against Sergeant

Cisrow, Administrator Fisher and Commissioner Kuhn in support of Plaintiff’s First

Amendment Retaliation, First Amendment Access to Courts, and First Amendment

1 The complaint was screened before it was known whether all plaintiffs would remain in

the action by paying the filing fee or submitting an IFP application.

Freedom of Speech claims under 42 U.S.C. § 1983 and the parallel provisions of the

New Jersey Constitution.2 Acting NJDOC Commissioner Kuhn (recently appointed

by the Governor as the NJDOC Commissioner) “was responsible for all matters of

policy enacted within the NJDOC….” (Compl. ¶ 6, Dkt. No. 1.) She has “personal

knowledge of various aspects of the unlawful conditions through written pleas . . .

from Class-plaintiffs but [has] permitted the unlawful conditions to persist in the

illegal confiscation of Class-plaintiffs’ law books and legal reference books and

documents.” (Id.)

Keisha Fisher was recently appointed Administrator of SWSP, and she “was

in charge” when Sergeant Cisrow engaged in the “common practice” of confiscating

books that were not on the NJDOC banned book list. (Compl. ¶ 8, Dkt. No. 1.)

Administrator Fisher was responsible for overseeing SWSP’s policies relating to the

possession of law books and legal reference materials by prisoners. (Id.) Plaintiff

alleges “Defendants failed to make reasonable modification and/or provide a stern

warning to the mailroom [sergeants] in South Woods State Prison… .” (Id., ¶ 29.)

Defendants further failed to change the New Jersey regulations regarding prison

2 “New Jersey courts ‘have consistently looked to federal § 1983 jurisprudence for guidance’

[on NJCRA claims] and have ‘repeatedly interpreted [the New Jersey Civil Rights Act,

N.J.S.A. 10:6-2 et seq.] analogously to § 1983.’” Ingram v. Twp. of Deptford, 911 F. Supp. 2d

289, 298 (D.N.J. 2012) (quoting Gonzalez v. Auto Mall 46, Inc., 2012 WL 2505733, at *4 (N.J.

Super. Ct. App. Div. July 2, 2012) (citing Rezem Family Assocs., LP v. Borough of Millstone, 423

N.J. Super. 103, 30 A.3d 1061 (2011), cert. denied, 208 N.J. 366, 29 A.3d 739 (2011)

(additional citations omitted, alteration added)). Therefore, the Court addresses these

claims together.

management or the SWSP rule book relating to the confiscation and destruction of

legal reference books. (Id., ¶¶ 31, 32.)

Sergeant Cisrow, SWSP mailroom supervisor, confiscated law books that

prisoners were permitted to purchase because they were not on the NJDOC banned

books list of 2019, 2020 or 2021. (Compl. ¶¶ 10, 12, Dkt. No. 1.) Sergeant Cisrow

destroyed Plaintiff’s legal reference book, the New Jersey Lawyer’s Diary Manual

2021, while his administrative appeal of her confiscation of the book was pending.

(Compl. ¶¶ 10, 17, 31.) The complaint suggests that Sergeant Cisrow created a

mailroom policy, which does not appear in the inmate handbook or prison

regulations, which allowed her to confiscate and perhaps even destroy the legal

reference book Plaintiff had purchased by mail. (Compl., ¶ 13, 25, 26.) The

complaint does not clearly allege what policy or policies Sergeant Cisrow created,

but it suggests she may have required inmates to obtain her advance permission to

“purchase a law book from a source of sale.”) (Id. ¶ 13.)

Plaintiff alleges:

Defendants have failed to change the N.J.A.C. 10A:

where it will be lodged of the legal changes via Notice of

the questionable law books, legal reference documents,

legal reference books, that’s allegedly illegal[] to have but

the contrary and defendants confiscated and destroyed

them despite the appeal process.

Defendants have failed to change the S.W.S.P. and

N.J.S.P. Rule Book, as well, that also would have notified

class-plaintiffs of the alleged changes, via. the S.W.S.P.

Rule Book.

(Compl. ¶¶ 31, 32, Dkt. No. 1.)

For relief, Plaintiff seeks costs, fees, and damages (Compl., Dkt. No. 1 at 19-

20), and injunctive relief preventing Defendants from seizing Plaintiff’s legal papers,

documentary evidence, and legal reference books “where no institutional policy

exists specifically limiting the amount of legal materials a prisoner is allowed to

retain or possess.” (Mot. for TRO, Dkt. No. 2 at 2.)

The Class-plaintiffs, of whom only Kevin Jackson remains in this action,

submitted the following certification in support of his motion for a TRO:

Class Plaintiff herein, submit[s] that there’s years of

incarceration involved and vary between [all plaintiffs] but

they have all persistently pursued relief in the courts

regarding their criminal case, and also have varying civil

litigation ongoing between them and thereby accumulating

a significant amount of legal materials and reference

materials required to advance their pursuit of justice via.

the U.S. Const. and N.J. Const. Specifically, that the

defendants refus[ed] to allow class-plaintiffs various non-

banned legal reference materials only behind a/or some

unwritten custody knowingly, intelligently, and deliberate

indifference own rules and own [remainder of sentence

omitted in certification].

(Certification of Class Plaintiffs, Dkt. No. 1-3 at 2) (emphasis in original, alterations

added).

III. DISCUSSION

A. Motion to Dismiss Rule 12(b)(6)

District courts addressing a Rule 12(b)(6) motion to dismiss for failure to state

a claim, “must ‘accept all factual allegations as true, construe the complaint in the light

most favorable to the plaintiff, and determine whether, under any reasonable reading

of the complaint, the plaintiff may be entitled to relief.’” Bruni v. City of Pittsburgh, 824

F.3d 353, 360 (3d Cir. 2016) (quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d

Cir. 2009) (internal quotation marks omitted). In determining whether a plaintiff has

failed to state a claim, courts must disregard allegations that are no more than legal

conclusions. Id. In performing this analysis, courts may consider exhibits attached to

the complaint, documents upon which the claims are based, and matters of public

record, but may not otherwise go beyond the facts alleged in the complaint. Id.

(citations omitted). Additionally, courts typically will not consider new factual

allegations that a plaintiff provides in opposition to a motion to dismiss. Buchanan v.

Ingram Content Grp., No. 20-CV-2421, 2022 WL 2063607, at *3 (D.N.J. June 8, 2022)

(citing Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (quoting

Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)).

B. The Parties’ Arguments

In support of their motion to dismiss the complaint, Defendants assert that: (1)

Plaintiff has failed to allege non-conclusory facts sufficient to state a claim; (2) Plaintiff

has failed to state a claim against Defendants Fisher and Kuhn because he does not

plead facts supporting their personal involvement or supervisory liability; (3) Plaintiff

fails to state a retaliation claim; (4) Plaintiff fails to state a right of access to courts

claim; and (5) the Court should dismiss Plaintiff’s freedom of speech claim because

Plaintiff has not identified any regulation that Defendants were enforcing when

allegedly confiscating/destroying Plaintiff’s materials. Plaintiff opposes the motion to

dismiss as premature and because the complaint contains sufficient factual allegations

to state a claim for relief. (Pl’s Opp. Brief, Dkt. No. 54.) In reply, Defendants submit

that: (1) Plaintiff failed to plead sufficient facts to support supervisory liability of

Defendants Kuhn and Fisher; (2) Plaintiff failed to address the sufficiency of his First

Amendment Retaliation claim; and (3) Plaintiff failed to plead a First Amendment

Access to Courts claim. (Reply Brief, Dkt. No. 56.) The Court will first address the

claims against Sergeant Cisrow, followed by the claims against her supervisors.

C. First Amendment Retaliation Claim Against Defendant Cisrow

The elements of a First Amendment retaliation claim are that: (1) the plaintiff

engaged in constitutionally protected conduct; (2) the plaintiff suffered an adverse

action at the hands of the defendants; and (3) the plaintiff’s constitutionally protected

conduct was a substantial or motivating factor in the adverse action by the defendants.

Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016) (citing Rauser v. Horn, 241 F.3d 330

(3d Cir. 2001). “An adverse action is one ‘sufficient to deter a person of ordinary

firmness from exercising his First Amendment rights.’” Id. at 422, n. 6 (quoting Allah

v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (internal quotation marks omitted in

Watson). The third element can be established by allegations “of (1) an unusually

suggestive temporal proximity between the protected activity and the allegedly

retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a

causal link.” Id. at 424 (citing Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259,

267 (3d Cir. 2007); Rauser, 241 F.3d at 334.))

In support of his First Amendment Retaliation claim against Sergeant Cisrow,

Plaintiff alleges the following facts. (Compl., Dkt. No. 1.) Sergeant Cisrow, a

mailroom supervisor at SWSP, confiscated “law books and legally authorized

reference books/documents … contrary to central office, dept. of corr. banned books

list for 2019, and 2020, 2021.” (Compl. ¶¶ 10-12, Dkt. No. 1.) Specifically, Sergeant

Cisrow destroyed a copy of the New Jersey Lawyer’s Diary Manual 2021 that Plaintiff

purchased by mail, while Plaintiff’s appeal of Sergeant Cisrow’s confiscation of the

book was pending before the administrator of SWSP, John Powell. (Id. ¶¶ 10-13, Dkt.

No. 1.) This book was not on the NJDOC banned book list, and Plaintiff was not

required to obtain advance permission to purchase the book. (Id.)

The Court construes the complaint as alleging that Sergeant Cisrow destroyed

Plaintiff’s legal reference book in retaliation for his appeal to Administrator Powell

after she confiscated his book. Filing a prison grievance is constitutionally protected

conduct. See, e.g., Mack v. Warden Loretto, FCI, 839 F.3d 286, 298 (3d Cir. 2016)

(holding prisoner’s grievance made for the purpose of seeking redress was

constitutionally protected conduct). Destruction of legal materials is a sufficient

adverse action for a retaliation claim. Lawson v. Ferguson, No. 22-2365, 2023 WL

2770820, at *1 (3d Cir. Apr. 4, 2023). Finally, the timing of the destruction of

Plaintiff’s book suggests a sufficient temporal connection between his protected

conduct, filing the appeal, and the adverse action, destroying the book. Therefore, the

Court denies Defendant Cisrow’s motion to dismiss Plaintiff’s First Amendment

Retaliation claim. The Court, however, notes that “prison officials may still prevail

[on a First Amendment Retaliation claim] if they establish that ‘they would have made

the same decision absent the protected conduct for reasons reasonably related to a

legitimate penological interest.’” Watson, 834 F.3d at 422 (quoting Rauser, 241 F.3d

at 334).

D. First Amendment Retaliation Claim against Fisher and

Kuhn

Under § 1983, supervisors “are liable only for their own unconstitutional

actions.” Barkes v. First Corr. Med., Inc., 766 F.3d 307, 319 (3d Cir. 2014), cert. granted,

judgment rev'd sub nom. on other grounds, Taylor v. Barkes, 575 U.S. 822 (2015)); Ashcroft

v. Iqbal, 556 U.S. 662, 676 (2009) (holding “a plaintiff must plead that each

Government-official defendant, through the official’s own individual actions, has

violated the Constitution.”). “[T]he level of intent necessary to establish supervisory

liability will vary with the underlying constitutional tort alleged.” Barkes, 766 F.3d at

319. “[T]o establish a claim against a policymaker under § 1983 a plaintiff must allege

and prove that the official established or enforced policies and practices directly

causing the constitutional violation.” Id. at 1114. Chavarriaga v. New Jersey Dep't of

Corr., 806 F.3d 210, 223 (3d Cir. 2015) (citations omitted). Supervisors may also be

liable “if [they] participated in violating the plaintiff's rights, directed others to violate

them, or, as the person in charge, had knowledge of and acquiesced in the

subordinate's unconstitutional conduct.” Id. (citations omitted). “Threadbare recitals

of the elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Id. (citations omitted).

Plaintiff seeks to hold Commissioner Kuhn and Administrator Fisher

responsible for Sergeant Cisrow’s alleged constitutional violations, including her

retaliation for his appeal. Plaintiff has not alleged any facts supporting Kuhn and

Fisher’s prior knowledge and acquiescence in Sergeant Cisrow’s confiscation and

destruction of his legal reference book. Although Plaintiff has alleged there is a custom

among mailroom supervisors in the NJDOC of arbitrarily confiscating and destroying

prisoners’ legal reference books, he has not alleged how frequently such acts occurred

or how Commissioner Kuhn and Administrator Fisher, both of whom he alleges were

newly appointed to their positions, became aware that custom required their response

to prevent constitutional violations from recurring. In sum, the complaint does not

allege a plausible claim of supervisory liability for retaliatory destruction of property

by mailroom supervisors. Therefore, Plaintiffs’ First Amendment Retaliation claims

against Commissioner Kuhn and Administrator Fisher will be dismissed without

prejudice for failure to state a claim.

E. First Amendment Access to Courts Claim

“[A] prisoner has a valid access-to-courts claim when he alleges that the denial

of access to legal materials—before and/or during trial—caused a potentially

meritorious claim to fail.” Rivera v. Monko, 37 F.4th 909, 922 (3d Cir. 2022). Plaintiff

has not identified a potentially meritorious legal claim that he was unable to pursue

without his personal copy of the New Jersey Lawyer’s Diary Manual. Amendment of

this claim, based solely on deprivation of his personal copy of this legal reference book,

would be futile because alternative legal resources are available for NJDOC prisoners

to pursue legal claims. Therefore, the First Amendment Access to Courts claims

against Sergeant Cisrow, Commissioner Kuhn, and Administrator Fisher will be

dismissed with prejudice.

F. First Amendment Freedom of Speech Claim

“If the First Amendment means anything, it means that a State has no business

telling a man, sitting alone in his own house, what books he may read or what films

he may watch.” Stanley v. Georgia, 394 U.S. 557, 565 (1969). Plaintiff, however, is

incarcerated. Therefore, he does not receive the same constitutional protections as he

would outside of prison because courts defer to the expertise of prison authorities in

the “inordinately difficulty undertaking” of managing a prison. Turner v. Safely, 482

U.S. 78, 85 (1987)). Therefore, “when a prison regulation impinges on inmates'

constitutional rights, the regulation is valid if it is reasonably related to legitimate

penological interests.” Id. at 89.

Plaintiff alleges Sergeant Cisrow’s arbitrary and capricious confiscation and

destruction of his legal reference book denied his First Amendment right to freedom

of speech. (See, e.g., Compl. ¶ 18 (asserting right to possess personal copies of law

books), Dkt. No. 1.) The book allegedly was not on the NJDOC’s banned book list,

and it was allegedly not confiscated and destroyed based on a limitation to the amount

of property a prisoner is permitted to possess. The complaint, however, suggests that

Sergeant Cisrow, as mailroom supervisor, created a mailroom policy that formed the

basis for her confiscation of the book. It is not clear, however. In the prison context,

a regulation that burdens an inmate’s right to freedom of speech is valid “if it is

reasonably related to legitimate penological interests.” Therefore, Plaintiff must allege

more, i.e. the nature of the policy Sergeant Cisrow allegedly created that formed the

basis for her confiscation of Plaintiff’s legal reference book. The nature of the claim is

not clear. This claim will, therefore, be dismissed without prejudice.

As with Plaintiff’s First Amendment Retaliation claim, Plaintiff has not alleged

sufficient facts to state a plausible claim that Commissioner Kuhn or Administrator

Fisher had advance knowledge of and acquiesced in Sergeant Cisrow’s confiscation or

destruction of his legal reference book or how Kuhn and Fisher became aware that

there was a custom of mailroom supervisors arbitrarily confiscating and destroying

inmates’ books, such that their failure to take any action would suggest their deliberate

indifference to the recurrence of constitutional violations. See Phillips v. Northhampton

Co., PA, 687 F. App’x 129, 132 (3d Cir. 2017) (per curiam) (holding that wholly

conclusory and generalized assertions about patters of misconduct are insufficient

allege municipal liability for federal constitutional violations). Therefore, the

supervisory liability claims against Commissioner Kuhn and Administrator Fisher for

violating Plaintiff’s First Amendment right to freedom of speech will be dismissed

without prejudice.

IV. MOTION FOR TRO

The claim remaining in this action is Plaintiff’s First Amendment Retaliation

claim. Relevant to this claim, Petitioner seeks a temporary restraining order or

preliminary injunction under Federal Rule of Civil Procedure 65, prohibiting NJDOC

from confiscating and destroying his personal legal reference books during the pending

of this lawsuit. (Mot. for TRO, Dkt. No. 2.) “A party seeking a preliminary injunction

[under Federal Rule of Civil Procedure 65(b)] must satisfy the traditional four-factor

test: (1) a likelihood of success on the merits; (2) he or she will suffer irreparable harm

if the injunction is denied; (3) granting relief will not result in even greater harm to the

nonmoving party; and (4) the public interest favors such relief.” Miller v. Mitchell, 598

F.3d 139, 147 (3d Cir. 2010) (citing Child Evangelism Fellowship of N.J. Inc. v. Stafford

Twp. Sch. Dist., 386 F.3d 514, 524 (3d Cir. 2004)). “[T]o demonstrate irreparable harm

the plaintiff must demonstrate potential harm which cannot be redressed by a legal or

an equitable remedy following a trial.” Instant Air Freight Co. v. C.F. Air Freight, Inc.,

882 F.2d 797, 801 (3d Cir. 1989). Thus, a preliminary injunction should be entered

when it is “the only way of protecting the plaintiff from harm.” Id.

Prisons must provide legal reference materials through a prison law library or a

legal assistance program.3 Therefore, Plaintiff may continue to pursue legal claims

without his personal copy of the New Jersey Lawyer’s Diary and Manual or other

legal books he might lawfully purchase. Plaintiff also has the availability of a damages

suit under state tort law if his legal reference materials are destroyed.4 Plaintiff has not

shown that he will suffer irreparable harm if preliminary injunctive relief is not

granted. Therefore, the Court will deny Plaintiff’s motion for a preliminary injunction.

3 Prisons are required to provide inmates with adequate tools “to attack their sentences,

directly or collaterally, and in order to challenge the conditions of their confinement.” Lewis

v. Casey, 518 U.S. 343, 355 (1996) (citing Bounds v. Smith, 430 U.S. 817, 826-27 (1977)).

4 The New Jersey Tort Claims Act, N.J. Stat. Ann. 59:1-1, et seq., provides an adequate post-

deprivation remedy for unauthorized acts of destruction of an inmate’s property by a state

employee. Ragland v. Commissioner New Jersey Department of Corrections, 717 F. App’x 175,

177-78 (3d Cir. 2017) (citations omitted).

V. CONCLUSION

In summary, the Court will grant in part and deny in part Defendants’ motion

to dismiss the complaint. Plaintiff’s First Amendment Retaliation claim against

Sergeant Cisrow may proceed, and the remainder of the claims in the complaint will

be dismissed. Plaintiff’s motion for a temporary restraining order or preliminary

injunction on his First Amendment Retaliation claim against Sergeant Cisrow will be

denied, and the motion for TRO is otherwise moot.

An appropriate Order follows.

Date: May 8, 2024

s/Renée Marie Bumb

RENÉE MARIE BUMB

Chief United States District Judge