IBRAHIM v. EMRICH

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

YUSUF IBRAHIM,

Plaintiff,

v. Civil Action No. 24-01780 (GC) (TBD)

AMY EMRICH, et al., OPINION

Defendants.

CASTNER, District Judge

THIS MATTER comes before the Court upon Defendant Amy Emrich’s and Derrick

Bodtmann’s Motion to Dismiss (ECF No. 7 (“Motion”)) the Amended Complaint (ECF No. 1-4,

Ex. B (“Amended Complaint”)) for failure to state a claim under Federal Rule of Civil Procedure

12(b)(6). Pro se Plaintiff Yusuf Ibrahim opposed the Motion. (ECF No. 8). Defendants filed a

reply (ECF No. 9), and Plaintiff submitted a sur-reply (ECF No. 10). The Court carefully reviewed

Plaintiff’s submissions and decides the matter without oral argument pursuant to Federal Rule of

Civil Procedure 78(b) and Local Civil Rule 78.1(b). For the reasons set forth below, and other

good cause shown, Defendants’ Motion is GRANTED in part and DENIED in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

a. The Complaint

In his Amended Complaint,1 Plaintiff claims that he is in the custody of the New Jersey

Department of Corrections (“NJDOC”) at the New Jersey State Prison (“NJSP”) located in

Trenton, New Jersey. (Amended Complaint ¶ 2.) He states that he is suing Defendants for denying

him access to the courts in violation of the First Amendment to the United States Constitution and

the Due Process Clause of the Fourteenth Amendment. (Id. at 1.2) He alleges that Defendant

Emrich was the NJSP Administrator and Defendant Bodtmann served as the Assistant

Administrator of the NJSP. (Id. ¶ 3.) Defendants allegedly denied Plaintiff access to the courts

by “A) Not adding Plaintiff’s Private Investigator (P.I.) to [the] confidential contact visit list, B)

Not allowing Plaintiff to add [the] P.I.’s number to the confidential calls list, and C) Not allowing

Plaintiff to hand ANY paperwork to P.I., Attorneys, Forensics Experts, or any Legal

Professionals.” (Id. ¶ 4.)

Plaintiff requests individual capacity damages in the amount of $15,000, and he also seeks

injunctive relief against Defendants in their official capacities. (Id. ¶¶ 5-6.) Specifically, he

requests enforcement of his rights: (i) under the United States Constitution to access the courts;

(ii) “to confidential contact visits with P.I.’s, Forensic Experts, and Professional Legal Services;”

(iii) “to strategize confidentially, encompassing the passing of paperwork on which the strategy

was drawn to the hired party during the visit;” (iv) to “strategize” over the phone by adding “the

hired Legal Professional” to the confidential call list under the same process for attorneys; (v) to

1 Plaintiff’s Amended Complaint was originally filed with the Superior Court of New Jersey,

Mercer County (“Superior Court”), and Defendants attached a copy of this operative pleading as

part of an exhibit to Defendants’ notice of removal (“Notice of Removal”). (See ECF No. 1-4.)

2 Page numbers for record citations refer to the page numbers stamped by the Court’s e-

filing system and not the internal pagination of the parties.

confidential communications with “the hired party” without abridgment; and (vi) “[e]qual

protection of confidential communications with non-attorney Legal Professionals (P.I.s, Forensic

Experts, etc.) to encompass the same level of protections afforded to attorney client

communications.” (Id. ¶¶ 7-12.)

Plaintiff also alleges that he “suffers from actual injury to a non-frivolous criminal matter

in State Court; Hudson County Indictment No. 14-04-00044-S (Motion for New Trial Based on

Newly Discovered Evidence; 2nd PCR).” (Id. ¶ 13.)

b. Procedural History

On October 18, 2023, Plaintiff filed a pro se complaint in the Superior Court, Docket

Number MER-L-002075-23, naming Emrich and Bodtmann, New Jersey Department of

Corrections (“NJDOC”) employees, as Defendants. (ECF No. 1-3, Ex. A (“Complaint”).) The

Complaint alleged that Plaintiff was denied access to the courts without citing any federal statutory

or constitutional provision. (Id.) On February 2, 2024, Plaintiff filed a motion to amend the

complaint in the Superior Court, which was granted on February 20, 2024. (ECF No. 1-4 at 1-7;

ECF No. at 6.) The Amended Complaint explicitly alleges claims under the First and Fourteenth

Amendments to the United States Constitution. (See Amended Complaint.) On March 7, 2024,

Defendants filed a Notice of Removal to this Court asserting federal question jurisdiction under

28 U.S.C. § 1331. (See ECF No. 1.)

On March 21, 2024, Plaintiff filed a motion to remand to the Superior Court of New Jersey,

Middlesex County (ECF No. 4), which Defendants opposed on March 28, 2024. (ECF Nos. 4, 6.)

On August 8, 2024, the Court denied Plaintiff’s remand motion. Ibrahim v. Emrich, No. 24-1780,

2024 WL 3728071, at *1-2 (D.N.J. Aug. 8, 2024).

On March 28, 2024, Defendants moved to dismiss Plaintiff’s Amended Complaint. (ECF

No. 7.) Plaintiff filed his opposition on or about May 2, 2024. (ECF No. 8.) He attaches the

following documents to his opposition: (1) copies of disapproved requests to have a contact visit

with Jeffrey A. Oster, Private Investigator (ECF No. 8-2, Ex. A (“Contact Visit Requests”) at 4-5;

(2) JPay grievances and responses regarding in-person and telephone contacts with his private

investigator (ECF No. 8-2, Ex. B (“Grievances”) at 7-10); (3) a denied telephone system

discrepancy and attorney change form asking to add Oster to the confidential call list (ECF No. 8-

2, Ex. C (“Telephone Form”) at 12); (4) the first page of a letter from an attorney at the New Jersey

Innocence Project at Rutgers University to NJDOC Commissioner Victoria L. Kuhn and Assistant

Commissioner Melinda S. Haley complaining that, during her visit with another prisoner, legal

documents were confiscated (ECF No. 8-2, Ex. D (“Innocence Project Letter”) at 14); and (5) a

letter from Plaintiff’s private investigator (Oster) about scheduling a confidential contact visit

(ECF No. 8-2, Ex. E (“Private Investigator Letter”) at 16).

Defendants filed their reply on May 10, 2024. (ECF No. 9.) On or about June 12, 2024,

Plaintiff filed a sur-reply without leave of Court. (ECF No. 10.) Local Civil Rule 7.1(d)(6) states

that “[n]o sur-replies are permitted without permission of the Judge to whom the case is assigned.”

The Court will consider the sur-reply given Plaintiff’s pro se status. See Richardson v. Cascade

Skating Rink, No. 19-8935, 2022 WL 2314836, at *2 n.1 (D.N.J. Jun. 28, 2022) (considering a sur-

reply filed by a pro-se plaintiff without prior leave of court due to the greater leeway typically

afforded to pro-se litigants (citing Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011))).

II. LEGAL STANDARD

On a motion to dismiss for failure to state a claim upon which relief can be granted, courts

“accept the factual allegations in the complaint as true, draw all reasonable inferences in favor of

the plaintiff, and assess whether the complaint and the exhibits attached to it ‘contain enough facts

to state a claim to relief that is plausible on its face.’” Wilson v. USI Ins. Serv. LLC, 57 F.4th 131,

140 (3d Cir. 2023) (quoting Watters v. Bd. of Sch. Directors of City of Scranton, 975 F.3d 406,

412 (3d Cir. 2020)). “A claim is facially plausible ‘when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.’” Clark v. Coupe, 55 F.4th 167, 178 (3d Cir. 2022) (quoting Mammana v. Fed. Bureau

of Prisons, 934 F.3d 368, 372 (3d Cir. 2019)). When assessing the factual allegations in a

complaint, courts “disregard legal conclusions and recitals of the elements of a cause of action that

are supported only by mere conclusory statements.” Wilson, 57 F.4th at 140 (citing Oakwood

Lab’ys LLC v. Thanoo, 999 F.3d 892, 903 (3d Cir. 2021)).

The defendant bringing a Rule 12(b)(6) motion bears the burden of “showing that a

complaint fails to state a claim.” In re Plavix Mktg., Sales Pracs. & Prod. Liab. Litig. (No. II),

974 F.3d 228, 231 (3d Cir. 2020). Because Plaintiff is proceeding pro se, the Court construes his

allegations liberally. See Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (noting that courts must

remain flexible, especially when dealing with imprisoned pro se litigants). However, “‘pro se

litigants must still allege sufficient facts in their complaints to support a claim.’” Id. (quoting Mala

v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)).

III. DISCUSSION

Defendants moves to dismiss the official capacity claims against them on the grounds that

they are not persons amenable to suit under 42 U.S.C. § 1983. (See ECF No. 7-1 at 11-13.) They

argue that the Amended Complaint fails to plead that Defendants were personally involved in any

alleged constitutional violations and, in any event, does not state any meaningful violation of his

right of access to the courts. (Id. at 13-19.) They further assert that they are entitled to qualified

immunity on the individual capacity claims for damages because Plaintiff fails to demonstrate a

violation of a clearly established constitutional right and that the official capacity claims for

injunctive relief must be dismissed because he fails to allege a continuing legal violation. (Id. at

19-25.) According to Defendants, the Amended Complaint should be dismissed with prejudice

because any curative amendment would be futile. (Id. at 25.)

It is undisputed that any official capacity claims for damages against Defendants must be

dismissed with prejudice. As to his other claims, Plaintiff emphasizes the fact that he is a pro se

litigant, and he asserts that Defendants’ arguments should be rejected because “[d]enying a pro se

criminal defendant constitutionally guaranteed protections under the 6th Amendment of

attorney/client communications extended to experts and investigators is a flagrant violation of

clearly established rights.” (ECF No. 10 at 2-3; see also ECF No. 8 at 1, 6.) In his opposition,

Plaintiff makes several additional factual allegations that are not included in his Amended

Complaint and discusses exhibits that, although attached to his opposition, are not attached to, or

referenced in, his operative pleading. (See generally ECF No. 8.) Defendants argue in their reply

that Plaintiff cannot amend or cure a deficient pleading in his briefing. (ECF No. 9 at 2-3.) They

also contend that, even if the Court were to consider the additional allegations and exhibits, they

fail to cure the deficiencies in the Amended Complaint, with the apparent exception of the

operative pleading’s lack of adequate allegations regarding Emrich’s personal involvement. (Id.

at 3-10.)

The Court concludes that the Amended Complaint fails to allege a facially plausible claim

against Defendants. Additionally, it agrees with Defendants that Plaintiff cannot use his briefs to

supplement or amend the Amended Complaint. See, e.g., Ziemba v. Incipio Techs., Inc., No. 13-

5590, 2014 WL 4637006, at *3 (D.N.J. Sept. 16, 2014). Even if it were to consider the additional

allegations and exhibits, it finds that, apart from presenting adequate factual content to permit a

plausible inference that Emrich was personally involved in the alleged unconstitutional conduct,

Plaintiff’s briefing does not cure the pleading deficiencies. Furthermore, the Court cannot

conclude at this time that, except for the official capacity claims for damages, further amendment

would be futile.

a. Official Capacity Claims for Damages

Defendants argue that the claims against them in their official capacities must be dismissed

with prejudice because Defendants are not “persons” liable to suit. (ECF No. 7-1 at 11-13.)

42 U.S.C. § 1983 provides, in relevant part, as follows:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of

Columbia, 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 . . . [.]

In Will v. Michigan Department of State Police, 491 U.S. 58 (1989), the Supreme Court held that

“[n]either a state nor its officials acting in their official capacities are ‘persons’ under § 1983,” id.

at 71. The Supreme Court further noted, however, that “a state official in his or her official

capacity, when sued for injunctive relief, would be a person under § 1983 because ‘official-

capacity actions for prospective relief are not treated as actions against the State.’” Id. at 71 n. 10

(quoting Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985); Ex parte Young, 209 U.S. 123,

159–60 (1908)).

It is undisputed that any official capacity claims for damages against Defendants must be

dismissed.3 In his Amended Complaint, Plaintiff alleges that Emrich and Bodtmann “were

employed by the NJDOC as NJSP’s Administrator and Assistant Administrator.” (Amended

Complaint ¶ 3.) As state officials, Defendants are not “persons” subject to a claim for damages in

their official capacities under § 1983. See Will, 491 U.S. at 71.

b. Plaintiff’s Request for Injunctive Relief

The Court further agrees with Defendants that the Amended Complaint does not allege an

ongoing constitutional violation for purposes of Plaintiff’s request for injunctive relief. (ECF No.

7-1 at 23-25.) “[A] state official in his or her official capacity, when sued for injunctive relief, [is]

a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as

actions against the State.’” Will, 491 U.S. at 71 n.10 (citing Graham, 473 U.S. 159, 167 n.14;

Young, 209 U.S. at 159-60). Here, however, Plaintiff does not plead any facts indicating a

continuing denial of his right to access to the courts. See e.g., City of Los Angeles v. Lyons, 461

U.S. 95, 105 (1983) (explaining that “Lyons’ standing to seek the injunction requested depended

on whether he was likely to suffer future injury from the use of the chokeholds by police officers”).

In his opposition, Plaintiff claims that there is “an ongoing violation” of his right to

unfettered access to an investigator or legal professional, which effectively deprives him of his

ability to construct a defense for a criminal matter or substantiate a claim in a civil proceeding.

(ECF No. 8 at 7.) He does not refer to any ongoing or future legal proceeding. In fact, he

acknowledges that the state trial court denied his motion for a new trial. (Id. at 5.) Plaintiff’s sur-

reply does mention “a 2nd PCR pending the outcome of a 1st PCR appeal” (ECF No. 9 at 4), but he

3 It is not clear whether Plaintiff advances damages claims against Defendants in their

official capacities. In his Amended Complaint, he distinguishes between his individual and official

capacity claims, requesting “INDIVIDUAL CAPACITY Monetary damages in the amount of

$15,000” and “OFFICIAL CAPACITY injunctive relief.” (Amended Complaint ¶¶ 5-6.)

cannot amend his pleading in a brief, see Ziemba, 2014 WL 4637006, at *3. Accordingly, the

Court dismisses Plaintiff’s request for injunctive relief.

c. Defendants’ Personal Involvement

According to Defendants, the Amended Complaint should be dismissed because Plaintiff

fails to plead that Defendants were personally involved in any alleged violations of his right to

access to the courts. (ECF No. 7-1 at 13-14.)

A civil rights plaintiff must establish that the defendant was personally involved in the

alleged constitutional violation to support an individual capacity claim for monetary relief. See

Parkell v. Danberg, 833 F.3d 313, 332 (3d Cir. 2016); Chavarriaga v. N.J. Dep't of Corr., 806

F.3d 210, 222 (3d Cir. 2015). Supervisory liability generally requires some affirmative conduct

by the supervisor, such as a supervisor's implementation or maintenance of a policy, practice, or

custom that caused the plaintiff constitutional harm. See Parkell, 833 F.3d at 330; Santiago v.

Warminster Township, 629 F.3d 121, 129 n.5 (3d Cir. 2010). Therefore, there are two potential

theories of supervisory liability. See A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372

F.3d 572, 586 (3d Cir. 2004). Under the first theory, officials may be sued as policy makers “if it

is shown that such defendants, ‘with deliberate indifference to the consequences, established and

maintained a policy, custom, or practice which directly caused [the] constitutional harm.’” Id.

(quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). The second

theory of liability provides that a supervisor may be personally liable under § 1983 if he or she

participated in violating the plaintiff's rights, directed others to violate them, or, as the person in

charge, had knowledge of and acquiesced in his or her subordinates’ violations. See Baker v.

Monroe Township, 50 F.3d 1186, 1190-91 (3d Cir. 1995). Allegations of personal involvement

“must be made with appropriate particularity.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d

Cir. 1988) (citations omitted).

Plaintiff’s Amended Complaint does not allege “with appropriate particularity” facts

plausibly suggesting that Defendants are liable under either theory. Instead, he merely alleges that

Emrich and Bodtmann were employed as the NJSP Administrator and Assistant Administrator,

respectively, and that “Defendant denied Plaintiff Access to the courts” and his rights under the

First and Fourteenth Amendments by not adding his private investigator’s number to the

confidential contact visit list, not allowing Plaintiff to add the private investigator’s number to the

confidential calls list, and not allowing Plaintiff to hand any paperwork to private investigators,

attorneys, forensic experts, or any legal professionals. (Amended Complaint at 1, ¶¶ 3-4.) He

does not provide facts as to what role each individual Defendant had in not allowing the private

investigator’s name and telephone number to be added to the lists or preventing Plaintiff from

handing paperwork to “legal professionals” (e.g., that they have established or maintained a policy

or custom barring private investigators from the confidential call and visit lists or personally

prevented Plaintiff from handing paperwork to the private investigator).

In his discussion of the “personal involvement” requirement in the opposition, Plaintiff

does not rely on the allegations in his Complaint. Instead, he asserts that “Defendants personally

denied plaintiff’s request to add Mr. Oster to the confidential visit list.” (ECF No. 8 at 4.) He

relies on the Contact Visit Requests in which Emrich personally disapproved two requests for a

contact visit with his private investigator on the grounds that private investigators are not permitted

on the visiting list. (Contact Visit Requests at 4-5.) It appears that Plaintiff was permitted one

confidential visit with Oster but was not permitted to add him to the visit or call lists. (ECF No. 8

at 2; Grievances at 10.) Plaintiff also refers to several grievances he filed regarding confidential

contact visits with a private investigator, the confidential contact and telephone lists, and the

prohibition against handing over paperwork during confidential visits. (Grievances at 7-10.) The

grievances were denied by Emrich, Bodtmann, or Craig Sears. (Id.) Finally, Plaintiff

acknowledges that it was an “unknown prison staff member” who denied his request to add Oster’s

telephone number to the confidential calls list; but he contends that Defendants were responsible

for shaping and upholding this policy, and “if Defendants cannot be held liable for this policy and

procedure, plaintiff requests that the complaint be amended to add the unknown person(s)

responsible as defendant(s).” (ECF No. 8 at 4.)

Defendants do not dispute that Plaintiff’s new factual allegations and exhibits would be

sufficient to allow a court to draw the reasonable inference that Emrich was personally involved

in the alleged unconstitutional conduct. (See, e.g., ECF No. 9 at 7 (“Specifically, Ibrahim attached

the attorney-client contact visit form scheduling a visit with his private investigator which was

disapproved by Defendant Emrich.” (citing Contact Visit Requests at 4-5).) They do contend that

the “new allegations and exhibits” do not plausibly establish Bodtmann’s personal involvement in

the alleged violations because he “simply advised [Plaintiff] of the [NJ]DOC’s policies and

procedures” and administratively closed one of Plaintiff’s grievances as duplicative to another

pending inquiry. (Id. at 3, 7 (citing Grievances at 7-10).) The Court agrees with Defendants. See

Miller v. Trometter, No. 11-811, 2012 WL 5933015, at *12 (M.D. Pa. Nov. 27, 2012) (“[T]he

filing of grievances, alone, is insufficient to show the actual knowledge necessary for personal

involvement.” (citing Rode, 845 F.2d at 126)).

In any event, Plaintiff’s new allegations and exhibits regarding the Defendants’ alleged

involvement cannot be considered for purposes of Defendants’ Motion. As Defendants note in

their reply (ECF No. 9 at 1-3), it is well established that, “to decide a motion to dismiss, courts

generally consider only the allegations contained in the complaint, exhibits attached to the

complaint and matters of public record.” Pension Benefit Guar. Corp. v. White Consol. Indus.,

Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). “[I]t is ‘axiomatic’ that a plaintiff cannot amend its

complaint by way of a brief in opposition to a motion to dismiss.” Ziemba, 2014 WL 4637006, at

*3 (quoting Commonw. of Pa. ex rel. Zimmerman v. PepsiCo, Inc. , 836 F.2d 173, 181 (3d Cir.

1998)). Plaintiff cannot defeat a motion to dismiss by raising new factual assertions or presenting

additional documentary evidence in his opposition. Accordingly, the Court dismisses Plaintiff’s

individual capacity claims for damages against Defendants based on his failure to allege in the

operative pleading sufficient facts indicating their participation in the allegedly unconstitutional

conduct.

d. Actual Injury

Defendants also move to dismiss on the grounds that Plaintiff fails to allege a meaningful

violation of the guarantee of access to the courts. (ECF No. 7-1 at 15-19.) Specifically, they assert

that he does not satisfy any of the elements of this claim: (1) that he suffered an injury in the form

of a loss of an opportunity to pursue a non-frivolous claim; (2) there are no remedies, save the

present civil rights suit, that can possibly compensate for his lost claim; and (3) a description of

“the underlying arguable claim well enough to show that it is ‘more than mere hope,’ and it must

describe the ‘lost remedy.’” (Id. (quoting Schranne v. Holt, 482 F. App’x 674, 676 (3d Cir. 2012)

(per curiam)).

Prisoners maintain a “fundamental constitutional right of access to the courts,” embodied

in the First and Fourteenth Amendments. Lewis v. Casey, 518 U.S. 343, 346 (1996) (quoting

Bounds v. Smith, 430 U.S. 817, 828 (1977)). Convicted prisoners may only proceed on access-to-

courts claims in two situations; “challenges (direct or collateral) to their sentences and conditions

of confinement.” Prater v. City of Phila, 542 F. App’x 135, 136-37 (3d Cir 2013) (citing Lewis,

518 U.S. at 354-55).

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, 413 (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.” Id. 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. Id. 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

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 official acts frustrating the litigation.” Id. 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, 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. See 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 Amended Complaint, Plaintiff presents only a single allegation regarding his alleged

injury: “Plaintiff suffers from actual injury to a non-frivolous criminal matter in State Court;

Hudson County Indictment No. 14-04-00044-S (Motion for New Trial Based on Newly

Discovered Evidence; 2nd PCR).” (Amended Complaint ¶ 13.) This allegation is insufficient to

satisfy the injury requirement. In fact, his conclusory assertion of “actual injury to a non-frivolous

criminal matter” must be disregarded. See Wilson, 57 F.4th at 140 (stating that courts “disregard

legal conclusions and recitals of the elements of a cause of action that are supported only by mere

conclusory statements” (citing Oakwood Lab’ys LLC, 999 F.3d at 903)). Plaintiff does not allege

any actual facts suggesting that his motion for a new trial has arguable merit. He also does not

provide any indication as to how the alleged refusal to add his private investigator to the contact

visit and confidential calls list and the prohibition against handing any paperwork to legal

professionals during a visit caused him injury in the state court action.

In his opposition, Plaintiff asserts that, while he was struggling with the prison

administration’s abridgement of his rights, the state trial court denied his motion for a new trial.

(ECF No. 8 at 5.) According to him, the case-by-case process for deciding whether Plaintiff could

have a confidential visit caused unnecessary delays and prevented him from “strategiz[ing] in time

[with his private investigator] to provide the criminal court with the evidence necessary to support

a motion for a new trial based on newly discovered evidence.” (Id.) “Although plaintiff believes

the criminal court ruled prematurely, had there been meaningful access to Legal Professionals

without hurdling Defendant’s obstacles to the access, plaintiff would have been able to present

irrefutable forensic evidence capable of convincing a jury of his innocence.” (Id.) Plaintiff further

indicates that the policy treating even an attorney who is handed a piece of paper by his client “like

a criminal” is designed to deter meaningful access to attorneys and other legal professionals. (Id.

at 5-6.)

According to his sur-reply, Plaintiff “has a 2nd PCR pending the outcome of a 1st PCR

appeal.” (ECF No. 10 at 4.) He states that “[t]he time to prepare ballistic and scientific evidence

for an evidentiary hearing is NOW” and that “meeting with experts and investigators cannot be

excessively burdensome and obstructed with unnecessary complex time consuming procedures.”

(Id.)

The Court is prohibited from considering these new allegations. See White Consol. Ind.,

Inc., 998 F.2d at 1196; Ziemba, 2014 WL 4637006, at *3. Even if the Court could consider them,

they do not cure the deficiencies in the Amended Complaint. Specifically, Plaintiff fails to

describe “the underlying cause of action, whether anticipated or lost,” Christopher, 536 U.S. at

414, and does not provide facts suggesting that his motion for a new trial has “arguable” merit, id.

at 415. Instead, he baldly declares that he “would have been able to present irrefutable forensic

evidence capable of convincing a jury of his innocence” and that “more than mere hope exists in

the concrete nature of forensic science that would exculpate plaintiff and vacate the current

sentence and conviction” (ECF No. 8 at 5-6); however, such conclusory statements are insufficient

to defeat a motion to dismiss. In addition, Plaintiff does not present any facts plausibly indicating

that he has no other remedy available to him in the state courts. See, e.g., State v. Szemple, 252

A.3d 1029, 1035 (N.J. 2021) (stating that motion for new trial based on newly discovered evidence

may be brought at any time).

Accordingly, Plaintiff’s claims are dismissed because he fails to state an access to the

courts claim.

e. Dismissal With or Without Prejudice and Leave to Amend

Defendants argue that Plaintiff’s Amended Complaint should be dismissed with prejudice

because any curative amendment would be futile. (ECF No. 7-1 at 25.) According to them, they

“are entitled to Qualified Immunity because [Plaintiff] cannot demonstrate a recognized liberty

interest or constitutional right to have confidential communications with a private investigator,”

and “[t]here are no amendments that would change this analysis.” (Id.).

Third Circuit “precedent supports the notion that in civil rights cases district courts must

offer amendment—irrespective of whether it is requested—when dismissing a case for failure to

state a claim unless doing so would be inequitable or futile.” Fletcher–Harlee Corp. v. Pote

Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). Except as to his official capacity

claims for damages, the Court cannot conclude at this juncture that it would be futile for Plaintiff

to file a second amended complaint curing the deficiencies identified by this Court in his Amended

Complaint.

Amendment of the official capacity claims for damages would be futile because, as a matter

of law, Plaintiff cannot pursue such claims against Defendants, or other NJDOC personnel. See

Will, 491 U.S. at 71. Accordingly, Plaintiff’s official capacity claims for damages are dismissed

with prejudice.

Defendants assert that it is not clearly established that the right to access to the courts

includes communications with a private investigator. (ECF No. 7-1 at 15-17); see also Ashcroft v.

al-Kidd, 563 U.S. 731, 735 (2011) (stating that, to overcome a claim of qualified immunity, a

plaintiff must show: “(1) that the official violated a statutory or constitutional right, and (2) that

the right was clearly established at the time of the challenged conduct.” (cleaned up)). However,

Defendants fail to meet their burden under the second prong of the qualified immunity defense.

See Gomez v. Toledo, 446 U.S. 635, 639 (1980) (noting qualified immunity is an affirmative

defense, and the burden of pleading it rests with the defendant). Significantly, the one case

Defendants cite in support of their argument (see ECF No. 71-1 at 21-22) did not distinguish

between attorneys and professional investigators for purposes of an access to the courts claim.

Instead, the Tenth Circuit rejected the prisoner’s argument that his Sixth Amendment right to

counsel entitled him to a confidential contact meeting with a privately retained investigator on the

grounds that “the Sixth Amendment does not require in all instances unfettered contact between

an inmate and counsel.” Kennedy v. Lake, F. App’x 900, 902 (10th Cir. 2006) (emphasis added)

(quoting Mann v. Reynolds, 46 F.3d 1055, 1060 (10th Cir. 1995)).

Accordingly, the Court dismisses with prejudice Plaintiffs official capacity claims for

damages. It dismisses his other claims without prejudice and grants Plaintiff 45 days to file a

second amended complaint.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motion is GRANTED in part and DENIED in

part. The Court DISMISSES WITH PREJUDICE the official capacity claims for damages and

DISMISSES WITHOUT PREJUDICE his remaining claims. Plaintiff may submit a second

amended complaint within 45 days if he can cure the deficiencies in his remaining claims. An

appropriate Order will be entered.

DATED: October 17, 2024 Gray th Cater

GEORGETTE CASTNER

United States District Judge

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