PATRICK v. NEW JERSEY STATE PRISON

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

KHALIL PATRICK,

Plaintiff,

v. Civil Action No. 18-17324 (GC) (JTQ)

NEW JERSEY STATE PRISON, e7 al., OPINION

Defendants.

CASTNER, District Judge

THIS MATTER comes before the Court on the third motion to dismiss pro se Plaintiff

Khalil Patrick’s amended complaint (see ECF No. 24 (“Amended Complaint” or “Am. Compl.”))

filed by Defendants New Jersey Department of Corrections (““NJDOC”), New Jersey State Prison

(NJSP”), Sgt. Samosuk, SCO Smalis, Lt. Bundy, Sgt. Adams, Set. Patoe, and SCO Mandap

(“Moving Defendants”),! (ECF No. 49 (“Third Motion to Dismiss”).) Plaintiff has not filed any

opposition to the Third Motion to Dismiss. The Court has carefully considered the Amended

Complaint and the submissions and decides the matter without oral argument pursuant to Federal

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

and other good cause shown, the Third Motion to Dismiss is GRANTED in part and DENIED

in part.

Samosuk, Smalls, Bundy, Adams, Patoe, and Mandap are referred to as the “Individual

Moving Defendants.”

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Amended Complaint’s Allegations

In his Amended Complaint, Plaintiff, a prisoner incarcerated at NJSP in Trenton, New

Jersey, alleges several incidents of unlawful conduct from 2017 through 2019,

Initially, Plaintiff claims that, on June 16, 2017, Defendant SCO Collins treated him

differently from other similarly situated inmates by refusing to process his job change form and

instructing Defendants Lt. Kennedy, SCO Rodriguez, Sgt. Mendoza, and Samosuk not to process

the form. (Am. Compl. [25.) Citing to the Equal Protection Clause of the Fourteenth Amendment,

Plaintiff asserts that Kennedy, Rodriguez, Mendoza, Samosuk, Collins, and Defendants Gary

Lanigan and Steve Johnson entered into a conspiracy to intentionally discriminate against Plaintiff

on the basis of race; Kennedy, Rodriguez, Mendoza, Samosuk, and Collins lacked a rational basis

for the disparate treatment of his job change form; and Lanigan, Johnson, Rodriguez, Mendoza,

and Samosuk failed to enforce policies to prevent Collins from retaliating against him for

exercising his First Amendment right to file a grievance regarding the equal protection violations.

Ud. 26-29, 33-34.) Specifically, Plaintiff told Kennedy, Samosuk, and Mendoza that Collins

“calied [him] a [n*****r] and threaten|ed] to have [him] transferred off the unit if [he] filed another

grievance when [he] spoke to them in person.” Cd. ¥ 41.) He further told Kennedy, Samosuk,

Mendoza, Collins, and Rodriguez that, although being allowed to work is a privilege, the right to

fill out a job change request is protected by the Fourteenth Amendment’s guarantee that similarly

situated persons be treated alike. (/d. 43.) On July 19, 2017, Samosuk claimed to deny Plaintiffs

job request due to his recent disciplinary infractions. Ud. 445.) Plaintiff responded on the same

2 In its summary of Plaintiff's factual allegations, the Court focuses on the allegations

specifically naming the Moving Defendants. Allegations regarding other Defendants, who have

not yet been served and have not moved to dismiss, are included when necessary to provide the

appropriate context. —

day by stating that he was not permitted to put in a job change request and had been “charge free

6 months and been on [his] current job for at least 60 days.” (/d.) He mailed correspondence to

the ombudsman regarding the actions of Collins, Rodriguez, Samosuk, Mendoza, and Kennedy,

“who desired to punish him for exercise of constitutional right protected [ujnder [the] Equal

Protection Clause.” Ud. 452.)

On or about October 16, 2017, between 11:30 a.m. and noon, Smalls and Defendant Set.

Goble ordered Plaintiff to submit to a strip search, which he did, and, once the search was

completed, he was ordered to leave his cell and housing unit under escort. (/d. {{] 53-54.) Plaintiff

began dressing and attempted to put on his medically prescribed knee braces, telling Goble, Smalls,

and Defendant SCO Hampton that the knee braces were needed to assist him in walking because

his knees were swollen and he was in pain. (id 455.) Goble, who was in charge of the search,

ignored Plaintiff's pleas, despite Smalls informing Goble that Plaintiff had a pass for the knee

braces and that he patted and frisked Plaintiff every day because the braces set off the metal

detector. Ud. 956.) Plaintiff was then escorted to, and provided, urine samples fora drug.

57-62.) Adams, “the sister of the victim in the criminal case which the Plaintiffis currently serving

a sentence of 55 years with an 85 percent parole disqualifier,” was the correctional officer who

ordered him to provide the sample: Cd.)

After the urine samples were taken, Kennedy and Bundy, “through Defendant Adams,”

ordered Plaintiff to report to a new housing unit (Unit 4-Left), Ud 463.) “Plaintiff then informed

Defendant Adams that he had a medical pass requiring that he be given a lower bunk only and that

he can only be housed on the flats (bottom floor of the housing unit}.” Ud. 4/65.) Adams threatened

Plaintiff that he would be placed in prehearing detention (“PHD”) and given an institutional charge

for refusing to report to his new assigned housing unit. (/d.) Plaintiff reported to his new unit and

proceeded to climb the “steep staircase” to reach the cell area. Ud. 66.) “When Plaintiff reached

the top of the stairs, his knees locked up causing him to fall down the flight of stairs.” Cd.)

Plaintiff allegedly sustained significant injuries, and a Code 53 medical emergency was

calied, Ud. { 67.) Lying on the floor when medical personnel arrived, he was taken in a wheelchair

to the clinic and was treated with Band-Aids and Bacitracin for abrasions on the lower left leg and

ankle. Ud. | 67-68.) Plaintiff also had pain in the back of his head, lower back, and both knees.

| 68.) “The clinic nurse informed prison personnel that Plaintiff has a lower bunk order and

flats only and that he should be moved to a cell that conforms to the medical order.” Cd. J 69.)

Once medically cleared, he was relocated to a different unit (Unit 4-Right). Ud. 470.)

Between 7:30 a.m. and 8:00 a.m., on or about October 17, 2017, Collins informed Plaintiff

that Kennedy had ordered his transfer to another unit in a different compound (Unit 3-FF in the

South Compound). Ud. | 71.) Plaintiff responded that his property was already packed but that

he needed help to move the property and the wheelchair because he was in extreme pain from his

fall down the stairs and was unable to stand or walk on his own. (Ud. 4] 72.) He did not refuse

Collins’s orders. Ud.) Samosuk then ordered Plaintiff to step out of his cell or he would be

extracted, Ud | 73.) Plaintiff, with the assistance of another inmate (Samuel James) complied

with the order. (/d.) Plaintiff was taken to the clinic and then to 7-Left Administrative Segregation

unit and was ordered to submit a urine sample within two hours by Mandap, which Plaintiff

provided. (éd. §§ 74-75.) “Mandap stated to Defendant Patoe that Plaintiff submitted the urine

sample and Mandap told Patoe [sic] that Patoe wanted to be present.” Ud. 975.) Plaintiff said he

was ready to submit the sample, and Patoe came into the cell, “at which time Plaintiff feared for

his safety after hearing Defendants exchange of words and knowing that in a close custody unit he

must be handcuffed at all times.” (Ud. | 77.) “He feared further retaliation by being set up or

assaulted and informed the Defendants he did not have to urinate out of fear to get them out of the

cell.” Ud.)

On or about January 21, 2018, at approximately 10:40 a.m., Plaintiff took a shower in the

shower area of the 7-Wing Administrative Segregation housing unit. Ud. 9 78.) Defendant Lt.

Clermont, Patoe, and Defendant SCO Jovanovich forced him to use a milk crate as a medical

shower chair, Ud. §79.) The milk crate collapsed, causing Plaintiff to fall face first into the shower

floor and knocking him unconscious. (Ud. § 80.) Darrell Crone, who saw the milk crate that the

officers placed in the shower every day was “near-by-bent,” alerted Defendant SCO Vaclavicek.

Vaclavicek called a Code 53, and Plaintiff was taken to the clinic. Ud. J 80-81.) He hada

major head contusion, concussion, back pain, neck pain, and knee pain. Ud. ¥ 82.)

Plaintiff indicates that he submitted a Notice of Tort Claim under the New Jersey Tort

Claims Act ('NJCTA”) in April 2018, Cd. 9 83.) On June 24, 2018, Bundy responded to

Plaintiff's inquiry regarding the number of barbers allowed on 2-Left (his housing unit at the time).

(id. 86-87.) Bundy wrote that four barbers were allowed on 2-Left as well as four barbers on

2-Right, there were currently four barbers assigned on 2-Left, and there were two barbers on 2-

Right. Ud. § 87.) Plaintiff responded that 2-Left only had two assigned barbers, he had submitted

a job change form for the 2-Left barber position, but that he had no problem relocating to 2-Right

if there was an opening there. (Ud. 4] 88.) According to Plaintiff, Bundy and Mendoza conspired

to provide him with fraudulent information to relax his vigilance or mislead him with the intent to

frustrate his attempt to seek employment as a barber and to punish him for pursuing an

administrative grievance regarding Collins and filing a Notice of Tort Claim. Gd. 491.) Bundy

had Plaintiff transferred on July 16, 2018 to punish him for filing a grievance “in connection to

this Civil Action that is ripe before the Court.” Ud. 97.) “[T]ransferring me would take my job

and intimidate me from going forward with the lawsuit.” Cd. (citations omitted)).

The Amended Complaint alleges eleven counts: (1) “New Jersey Civil Rights [Act] □□

NJCRA”)| NULS.A. 10:6-2(d) And/Or Title 42 Section 1983;” (2) “Deliberate Indifference;” (3)

“TUnited] States Rehabilitation Act [(RA”)] And/Or Americans with Disabilities Act

[(“ADA”)];” (4) “Negligence;” (5) “Conspiracy;” (6) “State Infliction of Emotional Distress,” (7)

“State Constitutional Claims;” (8) “Federal Constitutional Tort;” (9) “State Constitutional Tort

And/Or New Jersey Tort Claims Act;” (10) “Cruel and Unusual Punishment;” and (11) “Punitive

Damages.” .(U/d, at 21-37.) Plaintiff requests judgment against each Defendant, in their individual

and official capacities, jointly and severally, including punitive damages, and the cost of the action,

including reasonable counsel fees. (/d. at 37-38.)

B. The Procedural History

Plaintiff filed his original complaint on October 18, 2018, in the Superior Court of New

Jersey, Mercer County. (See ECF No. 1-1.) On or about December 18, 2020, NISP, NIDOC,

Bundy, Adams, Patoe, and Mandap filed a notice of removal, (ECF No. 1.)

After receiving two extensions of time to answer, NJSP, NJDOC, Bundy, Adams, Patoe,

and Mandap filed a motion to dismiss on March 6, 2019. (ECF Nos. 2-5.) Plaintiff subsequently

obtained multiple extensions of time to submit his response. (ECF Nos. 9-20.) On November 20,

2019, Plaintiff’s motion for leave to file an amended complaint and his response to the motion to

dismiss were docketed. (ECF Nos. 21-22.) On June 23, 2020, the Honorable Freda L. Wolfson

□ 6

granted the unopposed motion for leave to amend and denied the motion to dismiss as moot. (ECF

No, 23.)

“The Amended Complaint reasserts claims against Defendants Lt, Bundy, Sgt. Adams, Set.

Patoe, and SCO Mandap but deletes NJDOC and NJSP from the caption.” Patrick v. N.J. State

Prison, No. 18-17324, 2023 WL 8878101, at *1 n.2 (D.N.J. Dec. 22, 2023) (citing Am. Compl. at

1). As to the unserved Defendants, Plaintiff has named Lanigan, Johnson, Kennedy, and Collins

in both the original complaint and his Amended Complaint. /d. ‘Plaintiffadds Lt. Clermont, Sgt.

Mendoza, Sgt. Besley, Sgt, Goble, Sgt. Samosuk, SCO Smalls, SCO Hampton, SCO Rodriguez,

SCO Vaclavicek, SCO Esquiltin, SCO Goodwin, and SCO Jovanovich in his Amended Complaint.

The individual Defendants are sued in their official and individual capacities.” Jd. (citing Am.

Compl. at 1, {| 4-23). Samosuk and Smalls were subsequently served.

In July 2020, the Deputy Attorney General informed then-Chief Judge Wolfson that the

Office of the Attorney General was engaged in the process of determining representation for the

various individual Defendants and how to move forward in this matter. (ECF No. 26.) On August

24, 2020, the Attorney General provided the work addresses for ten unserved Defendants. (ECF

No. 28.) On January 31, 2023, Chief Judge Wolfson granted Plaintiffs application to proceed in

forma pauperis to permit him to obtain service and directed the Attorney General to notify the

Magistrate Judge in writing as to whether it intended to waive service and represent any unserved

Defendants. See Patrick v. NJ. State Prison, No, 18-17324, 2023 WL 1420444 (D.N.J. Jan. 31,

2023). On the same day, the matter was assigned to the undersigned.

On May 10, 2023, the Deputy Attorney General sought an extension of time to file another

motion to dismiss, which was granted. (ECF Nos. 34-35.) A motion to dismiss the Amended

Complaint was filed by NISP, NIDOC, Bundy, Adams, Patoe, and Mandap on May 24, 2023.

(ECF No. 36.) On December 22, 2023, the Court administratively terminated this second motion

to dismiss and directed the Attorney General to respond to the Court’s January 31, 2023 Order and

clarify whether it intended to waive service and represent some or all of the sixteen unserved

Defendants. Patrick, 2023 WL 8878101, at *3. In turn, the Court ordered that any new motion to

dismiss shall address whether Plaintiff states a claim for relief under the Americans with

Disabilities Act (“ADA”), the Rehabilitation Act (“RA”), and /or the Eighth Amendment against

any of the relevant Defendants in light of Durham y. Kelley, 82 F.4th 217 3d Cir. 2023). Patrick,

2023 WL 8878101, at *3. The Attorney General was also ordered to serve copies of its new motion

to dismiss or supplemental briefing on Plaintiff at the address on file. Jd. Upon receipt of the new

motion to dismiss or supplemental briefing, Plaintiff was permitted to submit an opposition brief

within 30 days and was advised that his failure to do so may result in the Court considering the

motion to dismiss as unopposed.’ Jd.

After obtaining two extensions of time to file the status update, the Attorney General

submitted a letter on February 23, 2024. (ECF Nos. 39-43.) On April 19, 2024, the Court entered

a text order noting that the Office of the Attorney General has advised that it will accept service of

process on behalf of one Defendant but cannot waive service as to the remaining Defendants. (ECF

No. 44.) The Office of the Attorney General was provided 30 days to either file a new motion to

dismiss addressing the applicability of Durham or to answer or otherwise respond to the Amended

Complaint, (Jd) On May 22, 2024, based on a letter received from the Attorney General dated

May 20, 2024 (ECF No. 45), the Court directed the Moving Defendants to file a new motion to

dismiss with the modifications outlined in the letter (i.c., Samosuk and Smalls joining the motion

to dismiss and changes to reflect the Third Circuit’s decision in Durham) on or before May 31,

2024. (ECF No. 46.) The Court stated that subsequent deadlines shall be in accordance with the

Federal Rules of Civil Procedure and Local Civil Rules. (/d.)

On June 3, 2024, the Moving Defendants filed their Third Motion to Dismiss together with

a letter secking its acceptance as within time. (ECF Nos. 49-50.) On June 5, 2024, the Court

granted the Moving Defendants’ letter request and stated that Plaintiff's opposition papers were

due on or before June 17, 2024, and the Moving Defendants’ reply was due on or before June 24,

2024. (ECF No. 51,) Plaintiff has not responded to the Third Motion to Dismiss.

IL. STANDARD OF REVIEW

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 Waiters 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 (d Cir. 2022) (quoting Mammmana y. 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, 904 (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.” Jn re Plavix Mktg., Sales Pracs. & Prod. Liab. Litig. (No. ID,

974 F.3d 228, 231 (Gd Cir. 2020) (citing Davis v. Wells Fargo, 824 F.3d 333, 349 (3d Cir. 2016)).

“In deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits attached

to the complaint, matters of public record, as well as undisputedly authentic documents if the

complainant’s claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230

(3d Cir, 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192,

1196 (3d Cir. 1993)), Because Plaintiff is proceeding pro se, the Court construes his allegations

liberally, See Vogt v. Werzel, 8 F.4th 182, 185 Gd Cir, 2021) (noting that courts must remain

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

must allege sufficient facts in their complaints to support a claim.” Jd. (quoting Mala v, Crown

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

In its decision administratively terminating the second motion to dismiss, the Court noted

that Plaintiff had not filed an opposition brief to the prior motion, the Attorney General filed a

certificate of service, and there was no indication that Plaintiff did not receive a copy of the second

motion. Patrick, 2023 WL 8878101, at *3. The Court ordered Plaintiff to submit an opposition

brief within 30 days of receipt of a new motion to dismiss and provided notice that his failure to

do so may result in the Court considering the motion to dismiss as unopposed. Jd. Plaintiff has

not filed an opposition brief to the Third Motion to Dismiss. The Moving Defendants have

provided a certificate of service (ECF No. 49-4), and there is no indication that Plaintiff did not

receive a copy of the Moving Defendants’ Third Motion to Dismiss. Under the circumstances, the

Court treats the Third Motion to Dismiss as unopposed, However, given Plaintiff's pro se status,

the Court will undertake its own independent analysis of the merits of the Moving Defendants’

arguments and the sufficiency of Plaintiffs allegations. See Est. of Messina v. Bank of N.Y.

Mellon, No. 23-104, 2024 WL 4444560, at *4 (D.N.I. Oct. 8, 2024).

10

DISCUSSION

The Moving Defendants seek the dismissal of the following claims: (1) the Section 1983

and NJCRA claims in Counts One, Two, Three, Five, Seven, Eight, Nine, and Ten against NJDOC,

NJSP, and the Moving Individual Defendants named in their official capacity; (2) the ADA and

RA claims in Count Three against the Moving Individual Defendants in their individual capacities;

(3) the Section 1983, NJTCA and NJCRA conspiracy claims in Count Five; (4) the intentional

infliction of emotional distress claim in Count Six; (5) the state and federal constitutional claims

in Counts Seven, Eight, and Nine; and (6) the claims in Counts One, Two, Three, Five, Seven,

Hight, Nine, and Ten against the Moving Individual Defendants. (ECF No. 49-1 at 9-32.)

A. Persons Amendable te Suit under Section 1983 and the NJCRA

The Moving Defendants argue that any Section 1983 and NJCRA claims brought against

NJDOC, NJSP, and the Individual Moving Defendants in their official capacity should be

dismissed because they are not “persons” who may be held liable under Section 1983 or the

NJCRA. (ECF No. 49-1 at 9-13.) The Court concludes that NJDOC and NJSP and, to the extent

that Plaintiff brings official-capacity claims for damages, the Individual Moving Defendants are

not amendable to suit under either the federal or state statute. However, the Individual Moving

Defendants are “persons” under Section 1983 and the NJCRA for purposes of any official-capacity

claims for prospective relief.

Section 1983 states in relevant part:

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, except

that in any action brought against a judicial officer for an act or

11

omission taken in such officer's judicial capacity, injunctive relief

shall not be granted unless a declaratory decree was violated or

declaratory relief was unavailable.

Accordingly, a plaintiff must establish: (1) that one of his rights secured by the Constitution or

laws of the United States was violated; and (2) that this violation was caused or committed by a

“person” acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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

held that “{njeither a state nor its officials acting in their official capacities are ‘persons’ under §

1983.” id. at 71. “[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 than a suit

against the State itself.” (citations omitted). However, “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.”” Jd. at 71 □□□□

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

60 (1908)). Thus, a cause of action under Section 1983 cannot be asserted against the state, its

agencies, such as NJDOC and NJSP, or, to the extent that the plaintiff seeks damages, its officials

acting in their official capacities. See id at 71 & n.10; Winters vy. Valleau, No. 19-19817, 2024 WL

3159319, at *3 (D.N.J. June 25, 2024); Landi y. Borough of Seaside Park, No. 07-5319, 2009 WL

606141, at *6 (D.N.J. Mar. 9, 2009).

“Furthermore, the NJCRA is modeled after § 1983, and the same “person” restriction

applies. Didiano v. Balicki, 488 F. App’x 634, 638-39 (3d Cir, 2012).” Scott vy. Kuhn, No. 23-

3361, 2024 WL 22207, at *2 (D.N.J. Jan. 2, 2024); see also Est. of Lagano v. Bergen Cnty.

Prosecutor's Off,, 769 F.3d 850, 856 (3d Cir. 2014) (“Likewise, the NJCRA “premise[s] liability

12

on the conduct of a ‘person,’” (quoting Lopez-Siguenza v, Roddy, No. 13-2005, 2014 WL 1298300,

at *7 (D.N.J. Mar. 31, 2014))).

Accordingly, the Court dismisses with prejudice Plaintiffs Section 1983 and NJCRA

claims in Counts One, Two, Three, Five, Seven, Eight, Nine, and Ten against NIDOC and NISP?

It further dismisses with prejudice Plaintiff's Section 1983 and NJCRA official-capacity claims

for damages against the Individual Moving Defendants. However, the Moving Defendants do not

acknowledge that “a state official in his or her official capacity, when sued for injunctive relief,

would be a person under § 1983,” Will, 491 U.S, at 71 n.10 (citations omitted). They likewise do

not address whether Plaintiff asserts any claim for prospective relief in his Amended Complaint.

In his prayer for relief, Plaintiff demands judgment against each Defendant, “in their individual

and official capacities, as may be appropriate, jointly and severally and in the alternative, or such

of them as may be determined to be liable under the premises [sic], including, but not limited to,

punitive damages.” (Am. Compl. at 37.) The Court denies the Second Motion to Dismiss to the

extent that the Moving Defendants ask this Court to dismiss any Section 1983 and NICRA official-

capacity claim for prospective relief against the Individual Moving Defendants in Counts One,

Two, Three, Five, Seven, Eight, Nine, and Ten on the grounds that the Individual Moving

Defendants are not amendable to suit.

3 “The Amended Complaint... deletes NIDOC and NJSP from the caption,” Parrick, 2023

WL 8878101, at *1 n.2 (citing Am, Compl. at 1), and the two entities are not identified as

Defendants in the body of the Amended Complaint. See Garrett v, Wexford Health, 938 F.3d 69,

82 (3d Cir. 2019) (stating that amended pleading generally supersedes original pleading and

renders ita nullity). Because they are listed on the docket, have been served, and seek the dismissal

of the claims against them, the Court dismisses the Section 1983 and NJCRA claims against

NJDOC and NISP with prejudice,

13

B. The ADA and RA Claims

The Moving Defendants ask the Court to dismiss Plaintiff's ADA and RA claims against

the Individual Moving Defendants on the grounds that neither statute provides for individual

liability. CECF No. 49-1 at 15.) “Claims brought under the ADA and RA may only proceed

against specific officials and entities. State officials sued in their individual capacities cannot be

sued under Title II of the ADA or the RA.” Gray v. Kuhn, No. 23-846, 2024 WL 4719568, at *6

(D.N.J. Nov. 8, 2024) (citing Emerson v, Thiel Coll., 296 F.3d 184, 189 Gd Cir, 2002); Matthews

v. Dep’t of Corr., 613 F. App’x 163, 170 (3d Cir, 2015)). Accordingly, the Plaintiffs ADA and

RA individual-capacity claims in Count Three against the Individual Moving Defendants are

dismissed with prejudice.

C. Conspiracy Claims under Section 1983 and New Jersey Law

The Moving Defendants note that, in Count Five, Plaintiff alleges that “the individual State

Defendants conspired to ‘deny proper health care, deprive Plaintiff of his health, deprive Plaintiff

of his dignity and to embarrass him, and/or harm Plaintiff in violation of 42 U.S.C. § 1983, the

NICRA, and NJTCA.” (ECF No. 49-1 at 16-17 (quoting Am. Compl. 155).) They argue that

Plaintiff fails to state a claim under either $1983 or state law because he does not allege facts to

support his conclusory assertions of a conspiracy. (/d. at 16-21.) The Court agrees.

“To prevail on a conspiracy claim under § 1983, a plaintiff must prove that persons acting

under color of state law ‘reached an understanding” to deprive him of his constitutional rights.”

4 In contrast, “state officers [and state entities] can be sued for damages in their official

capacities for purposes of the ADA and RA, unless barred by the Eleventh Amendment.” Durham,

82 F.4th at 224 (citing Garcia y. S.U.N.Y, Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir.

2001)); see also Gray, 2024 WL 4719568, at *6, In Durham, the Third Circuit explained that

sovereign immunity did not bar a claim for money damages under the RA. Durham, 82 F.4th at

227. In turn, because “[the Third Circuit] held .. . that [the prisoner] has properly pleaded his

Eighth Amendment deliberate indifference claims, his parallel [ADA] claims for money damages”

may proceed,” /d. at 229.

14

Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 293-94 (3d Cir. 2018) (quoting Adickes v. S.H. Kress

& Co,, 398 US. 144, 150-52 (1970)). The elements of a §1983 conspiracy are: (1) two or more

person conspire to deprive a person of constitutional rights; (2) one or more of the conspirators

perform any overt act in furtherance of the conspiracy; and (3) that overt act injures the plaintiff is

his person or property or deprives the plaintiff of any right or privilege of a citizen of the United

States. Jd. at 294 n.15 (further noting that conspirators must act under the color of state law).

Plaintiff must allege a “factual basis to support the existence of a conspiracy, including agreement

and concerted action,” and “[t]o establish agreement, a plaintiff must show that the defendants

reached an understanding to deny Plaintiff of his rights, which can be shown by circumstantial

evidence.” Cuff'v. Zee, No. 23-22823, 2024 WL 5074728, at *7 (D.N.J. Dec. 10, 2024) (citing

Jutroswski, 904 F.3d at 293-95). A factually unsupported allegation of conspiracy constitutes a

legal conclusion that is insufficient to state a plausible claim. See Ross v. Graf, No. 19-20534,

2021 WL 4452651, at *3 (D.N.J. Sept. 28, 2021), “[Ojnly allegations which are particularized,

such as those addressing the period of the conspiracy, the object of the conspiracy, and actions

taken in furtherance of the conspiracy will be deemed sufficient.” Jd (alteration in original)

(quoting Grigsby v. Kane, F. Supp. 2d 453, 458 (M.D. Pa. 2003)).

The elements of a claim of conspiracy to violate civil rights under New Jersey law are

essentially the same as the elements of a conspiracy to violate federal civil rights. Jutrowski, 904

F.3d at 294 n.15. “In New Jersey ... the principal clement of [civil conspiracy] is agreement

between the parties to inflict 4 wrong against or injury upon another, and an overt act that results

in damages.” Banco Popular N.A. v. Gandi, 876 A.2d 253, 263 (N.J. 2005) (alteration added)

(quoting Morgan v. Union Cnty. Bd. of Chosen Irrecholders, 633 A.2d 985 (N.J. Super. Ct, App.

15

Div. 1993)). Thus, the resolution of Plaintiff's federal conspiracy claims “dictates our disposition

of his state conspiracy claims.” Jutrowski, 904 F.3d at 294 n.15.

Plaintiff fails to plead adequate factual content allowing the Court to draw the reasonable

inference that the Moving Defendants entered into an agreement to violate his constitutional rights.

See Clark, 55 ¥.4th at 178, Instead, Count Five merely consists of conclusory assertions. See

Wilson, 57 F 4th at 140 (stating that courts must disregard legal conclusions and recitals of the

elements of the cause of action that are supported merely by conclusory statements). For instance,

Plaintiff alleges that the twenty-one individual Defendants he named in his Amended Complaint

conspited to deprive Plaintiff of his health, peace of mind, and proper care, and/or conspired to

retaliate against Plaintiff. (Am. Compl. J 155; see a/so id. 1 156 (similarly alleging that Defendants

conspired to knowingly deny proper care and to deprive Plaintiff of his health, dignity, and to

embarrass him).) In the “Factual Allegations” section of his Amended Complaint, Plaintiff claims

that Kennedy, Rodriguez, Mendoza, and Samosuk entered into a conspiracy with Collins to

intentionally discriminate against Plaintiff on the basis of race, (/d § 26.) Bundy and Mendoza

also allegedly conspired to provide him with fraudulent information to relax his vigilance or

mislead him with the intent to frustrate his attempt to seek employment as a barber and to punish

him for pursuing an administrative grievance regarding Collins and filing a Notice of Tort Claim.

(id. § 91.) However, Plaintiff fails to provide “particularized factual support” for his bald

“conspiracy” allegations. Ross, 2021 WL 4452651, at *3 (citation omitted). Specifically, Plaintiff

does not “articulate how, where, or when the Defendants entered into the conspiracy [and] does

not allege the period of the conspiracy.” Jd. (citation omitted),

Accordingly, the Court dismisses the conspiracy claims against the Moving Defendants in

Count Five without prejudice.

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D, Intentional Infliction of Emotional Distress

The Moving Defendants assert that Count Six should be dismissed because Plaintiff fails

to state a claim for intentional infliction of emotional distress. (ECF No. 49-1 at 21.) A claim of

intentional infliction of emotional distress under New Jersey law requires the plaintiff to show

that: (1) the defendant acted intentionally; (2) the defendant's conduct was “so outrageous in

character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized community,” (3) the defendant's actions

proximately caused the plaintiff emotional distress; and (4) the emotional distress was “so severe

that no reasonable [person] could be expected to endure it.” Segal v. Iynch, 993 A.2d 1229, 1241-

42 (NJ. Super. Ct. App. Div. 2010) (alteration in original) (quoting Buckley v. Trenton Sav. Fund

Soc’y, 544 A.2d 857 (N.J. 1988).

The Moving Defendants state in passing that Plaintiff fails to allege facts to establish that

they acted intentionally or recklessly. (ECF No. 49-1 at 22.) But they recognize that, like an

Eighth Amendment claim, a claim for intentional infliction of emotional distress may proceed

where the defendant acts “recklessly in deliberate disregard of a high degree of probability that

emotional! distress will follow.’ (/d. (quoting Buckley, 544 A.2d at 863).) Plaintiff adequately

alieges specific facts of such deliberate disregard. For example, Adams, after Plaintiff informed

the sergeant that “he had a medical pass requiring that he be given a lower bunk only and that he

can only be housed on the flats (bottom floor of the housing unit),” told Plaintiff he would be

placed in prehearing detention and given an institutional charge if he did not immediately proceed

to his newly assigned housing unit. (Am, Compl. J] 64-65.) He then proceeded to climb the steep

staircase to reach his cell, his knees locked up, which caused him to fall down the flight of stairs,

The Moving Defendants do not move for dismissal of Plaintiff's Eighth Amendment

claims, (See ECF No. 49-1 at 32 n.6.)

17

and, as a result, he was taken to the prison clinic in a wheelchair, suffered pain in the back ~

head, lower back and knees, and was treated for abrasions in the lower left leg and ankle. Ud. 7

66-69.) Under the circumstances, the Court cannot conclude that the Moving Defendants satisfy

their burden of showing that the Amended Complaint fails to satisfy the recklessness element. See

Plavix Mktg., Sales Pracs. & Prod Liab. Litig,, 974 F.3d at 231 (stating that defendant moving to

dismiss under Rule 12(b)(6) has the burden to show that the complaint fails to state a claim).

However, the Court agrees with the Moving Defendants that Plaintiff “fails to allege any

facts to demonstrate that he suffered the requisite degree of emotional distress to state a claim

under Buckley.” (ECF No. 49-1 at 22.) Plaintiffs allegations that the Individual Moving

Defendants “intentionally inflicted emotional distress upon Plaintiff by engaging in a calculated

extreme course of conduct intending to cause extreme emotional distress,” that their actions were

designed to inflict severe emotional distress, and that Plaintiff has been damaged and will continue

to be damaged as a result must be disregarded as, at best, merely conclusory recitals of the elements

of his claim (Am. Compl. {{] 164-66). See Wilson, 57 F.4th at 140. While Plaintiff alleges that he

suffered various physical injuries (such as loss of consciousness and a concussion as a result of the

milk crate collapsing in the shower) and pain because of the alleged misconduct (Am. Compl. Jf

68, 80-82), he does not allege facts plausibly indicating that his emotional distress was

“sufficiently substantial to result in physical illness or serious psychological sequelae.” Aly v.

Garcia, 754 A.2d 1232, 1236-37 (N.J. Super, Ct. App. Div. 2000) (citations omitted); see also

Moreau y, Walgreen Co., 387 F. App’x 202, 204 (3d Cir. 2010) (per curiam) (Here, the District

Court noted that Moreau merely complained of embarrassment, humiliation, anger, anxiety, and

lack of sleep, which are not sufficiently severe to support a cause of action under New Jersey

law.”).

18

Accordingly, the Court dismisses the intentional infliction of emotional distress claim in

Count Six against the Moving Defendants without prejudice.

I. Plaintiff's State and Federal Constitutional Claims in Counts Seven, Eight, and

Nine

The Moving Defendants argue that the Court should dismiss the state and federal

constitutional claims alleged in Counts Seven, Eight, and Nine, except for the claims based on the

Eighth Amendment. (ECF No. 49-1 at 23.)

In Count Eight, Plaintiff alleges, infer alia, that the Individual Moving Defendants

infringed his rights guaranteed by the Fifth, Sixth, and Fourteenth Amendments. (Am. Compl. □

177-78.) It is well established that the Fifth Amendment “only applies to federal officials.”

Bergdoll y. City of Yerk 515 F. App’x 165, 170 (3d Cir. 2013) (citing Neuyer vy. US. Cath.

Conference, 719 F.2d 52, 54 (3d Cir.1983)). Because none of the Individual Moving Defendants

are federal officials, they may not be held liable for violating the Fifth Amendment. The Sixth

Amendment identifies basic rights that the accused shall enjoy in “all criminal prosecutions,” but

there are no allegations in the Amended Complaint regarding a criminal prosecution. U.S. Const.

amend, VI,

With respect to his Fourteenth Amendment claim, “the Supreme Court has held that when

government behavior is governed by a specific constitutional amendment, due process analysis is

inappropriate.” Berg v. Cnty. of Allegheny, 219 F.3d 261, 268-69 (3d Cir, 2000) (citing Cnty. of

Sacramento v. Lewis, 523 U.S, 833, 842-43 (1998)). To the extent that Plaintiff's substantive due

process claim is based on the same alleged facts that serve as the basis for his Eighth Amendment

claims, the Court concludes that the Fourteenth Amendment claim should be dismissed. See Beffs

v. New Castle Youth Dev. Ctr., 621 F.3d 249, 260 (3d Cir, 2010) (stating that, under “more-specific

provision rule,” constitutional claim covered by specific provision such as Eighth Amendment

19

must be analyzed “under the standard appropriate to that specific provision, not under the rubric

of substantive due process” (quoting United States v. Lanier, 520 U.S, 259, 272 n. 2 (1997))).

Furthermore, in Count Seven, Plaintiff claims that the illegal and unconstitutional acts,

customs, and policies of the Individual Moving Defendants “violate the constitutional rights of

Plaintiff as enumerated in the Constitution of the State of New Jersey.” (Am. Compl. 171.)

Similarly, he alleges under Count Nine that such actions “violate the constitutional rights of

Plaintiff as enumerated in the Constitution of the State of New Jersey, giving rise to a common

law tort action and/or violated the New Jersey Tort Claims act.” (Ud. 183.) According to the

Moving Defendants, “Plaintiff fails to explain what state or federal constitutional rights he believes

Defendants violated” and has “therefore failed to state a plausible claim for relief in either of these

Counts.” (ECF No. 49-1 at 25) (citing Am, Compl. ff 171, 183; Iqbal, 566 U.S. at 678).

Plaintiff does not identify the specific state constitutional provisions allegedly violated by

the Individual Moving Defendants. “Nonetheless, the Third Circuit instructs district courts to

liberally construe pro se complaints. See, e.g., Holley vy. Dep't of Veterans Affairs, 165 F.3d 244,

247-48 (3d Cir.1999) (liberally reading pro se plaintiff's pleadings and applying ‘the applicable

law, irrespective of whether [the litigant] mentioned it by name’).” Pinet vy. United States, No. 07-

5678, 2010 WL 503022, at *1 (D.N.J. Feb. 8, 2010), At the very least, Plaintiff pleads a claim of

unconstitutional conditions of confinement under Article I, Section 12 of the New Jersey

Constitution relying on “the same facts that serve [as] the basis for his [analogous conditions of

confinement] claims under the Eighth Amendment” (ECF No. 49-1 at 24 (citing Am. Compl. 44

124-30)), (See also Am. Compl. §{] 63-70 (alleging circumstances leading to his fall down the

stairs and resulting injuries), 79-82 (describing milk crate incident), 112-19 (alleging inter alia

failure to provide adequate care violating Plaintiffs civil rights under the color of State law in

20

violation of the NICRA)); Conte v. Goodwin, No. 19-8333, 2021 WL 141337, at *7 (D.N.J. Jan.

15, 2021) (‘Article I Section 12 prohibits cruel and unusual punishment and is interpreted

analogously to the Eighth Amendment. See Szemple v. Corr. Med. Servs., Inc,, 493 F, App’x 238,

241 (3d Cir. 2012).”), Given Plaintiffs allegations and his pro se status, the Moving Defendants

do not meet their burden to establish that Plaintiff fails to state a plausible claim for relief in Counts

Seven and Nine.

Accordingly, the Court dismisses without prejudice Plaintiff’s Fifth, Sixth, and, to the

extent they are based on the same conduct implicated in his Eighth Amendment claims, the

Fourteenth Amendment substantive due process claims in Count Eight against the Individual

Moving Defendants in their official capacities for prospective relief and in their individual

capacities, The Moving Defendants’ Third Motion to Dismiss is denied as to Counts Seven and

Nine.

FE. Qualified Immunity

The Moving Defendants argue that the individual-capacity claims in Counts One, Two,

Three, Five, Seven, Eight, Nine, and Ten should be dismissed because the Individual Moving

Defendants are entitled to qualified immunity. (ECF No. 49-1 at 26-31.) Specifically, they claim

that “Plaintiff fails fo allege facts to show that the individual State Defendants engaged in any

conduct that violated clearly established law.” (Ud. at 26.) Purportedly, “[b]ecause the Amended

Complaint does not set forth a prima facie violation of Plaintiff's constitutional rights at the hands

of individual State Defendants, and because no violation of clearly established iaw is alleged,” the

individual-capacity claims in the aforementioned counts should be dismissed. (id. at 31.)

However, the Moving Defendants emphasize that they are nof “seeking Qualified Immunity for

the claims brought pursuant to the Eighth Amendment.” (id. at 26.)

21

“At the motion-to-dismiss stage, courts evaluate qualified immunity for a constitutional

claim by examining (i) whether the complaint contains plausible allegations of a constitutional

violation and (ii) whether the asserted constitutional right is clearly established.” Karkalas vy.

Marks, 845 F. App’x 114, 118 (3d Cir. 2021) (citing Wood v. Moss, 572 U.S. 744, 757 (2014)).

The questions may be answered in either order. Pearson vy. Callahan, 555 U.S, 223, 242 (2009).

Qualified immunity aims to resolve “insubstantial claims” against government officials prior to

discovery. Anderson v, Creighton, 483 U.S, 635, 640 n.2 (1987) (quoting Harlow v, Fitzgerald,

457 U.S, 800, 818-19 (1982)). “The defendant official has the burden to establish they are entitled

to qualified immunity.” Bethlehem Manor Vill., LLC y. City af Bethlehem, No. 22-5215, 2024 WL

4367922, at *10 (E.D. Pa. Sept. 30, 2024) (citing F. D. v. Sharkey, 928 F.3d 299, 306 (3d Cir.

2019)), appeal filed, No. 24-2925 (3d Cir. Oct. 17, 2024); see also Plavix Mktg., Sales Pracs. &

Prod. Liab. Litig., 974 F.3d at 231 (stating that the moving defendant has the burden of showing

that a complaint fails to state a claim under Rule 12(b)(6)); Scotti vy. Univ. Corr. Health Care, No.

19-13981, 2022 WL 4217766, at *11 (D.N.J. Sept. 13, 2022) (stating that qualified immunity is

an affirmative defense and the burden of pleading rests with the defendant (citing Gomez vy. Toledo,

446 U.S. 635, 639 (1980)),

The Moving Defendants fail to meet their burden. Specifically, they do not identify the

non-Eighth Amendment claims for which they seek qualified immunity. The Moving Defendants

also do not provide any support for their conclusory assertions that the Amended Complaint does

not set forth either a prima facie constitutional violation or a violation of clearly established law.

For instance, Plaintiff asserts in Count Eight that the Individual Moving Defendants denied his

right to be free from retaliation under the First Amendment. (Am. Compl. □□ 177-78.) To state a

plausible First Amendment retaliation claim, a prisoner must allege that: (1) he engaged in

: 22

constitutionally protected conduct; (2) he suffered an adverse action sufficient to deter a person of

ordinary firmness from exercising his constitutional rights; and (3) the constitutionally protected

conduct was a substantial or motivating factor for the adverse action. See Coif v, Garman, 812 F.

App’x 83, 86 Gd Cir, 2020) (per curiam). Plaintiff asserts, inter alia, that Bundy had Plaintiff

transferred on July 16, 2018, to punish him for filing a grievance and intimidate him from going

forward with a lawsuit. (Am. Compl. 4 97.) The Moving Defendants do not mention these

allegations, whether they adequately state a retaliation claim, or whether the asserted constitutional

right was clearly established.

The only specific factual allegations mentioned in the Moving Defendants’ qualified

immunity discussion evidently implicate Plaintiff's Eighth Amendment claims, despite their

“[njote” that the Moving Defendants are not seeking qualified immunity for such claims. (ECF

No. 49-1 at 26.) According to the Moving Defendants, “no facts were alleged to establish how

each of the individual State Defendants knew or were made aware that Plaintiff was required to

wear his knee braces at all times such that he would fall after climbing stairs, or were on notice

that the milk crate in the shower would collapse if Plaintiff sat on it.” Ud. at 31.) The Moving

Defendants do not indicate how this argument relates to retaliation or other putative non-Eighth

Amendment theories of liability.® Accordingly, the Court concludes that Individual Moving

Defendants fail to show their entitlement to qualified immunity.

In fact, in their brief in support of their terminated second motion to dismiss, the Moving

Defendants relied on these same assertions as to the Individual Moving Defendants’ purported

subjective awareness regarding Plaintiff’s leg braces and the milk crate as the basis for their

argument that they did not violate clearly established law under the Eighth Amendment. (ECF

No. 36-1 at 35.)

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IV. CONCLUSION

For the reason set forth above, and other good cause shown, the Moving Defendants’ Third

Motion to Dismiss is GRANTED in part and DENIED in part, The Court DISMISSES with

prejudice Plaintiffs §1983 and NJCRA claims in Counts One, Two, Three, Five, Seven, Eight,

Nine, and Ten against NJDOC and NJSP. The Court further DISMISSES with prejudice

Plaintiff's §1983 and NJCRA official-capacity claims for damages in Counts One, Two, Three,

Five, Seven, Eight, Nine, and Ten against the Individual Moving Defendants. Plaintiff's ADA and

RA individual-capacity claims in Count Three against the Individual Moving Defendants are

DISMISSED with prejudice. The Court DISMISSES without prejudice the conspiracy claims in

Count Five and the intentional infliction of emotional distress claims in Count Six. The Court also

DISMISSES without prejudice Plaintiffs Fifth Amendment, Sixth Amendment, and, to the extent

they are based on the same conduct implicated in his Eighth Amendment claims, the Fourteenth

Amendment substantive due process claims in Count Eight against the Individual Moving

Defendants in their official capacities for prospective relief and in their individual capacities. The

Third Motion to Dismiss is DENIED in ail other respects, and the remaining claims in the

Amended Complaint shall proceed.’ An appropriate Order follows,

Dri GET@E CASTNER

United States District Judge

Dated: January RQ , 2025 Nea

7 The Court further invites Plaintiff file an application for appointment of pro bono counsel

under 28 U.S.C, § 1915(e)(1).

24