FISHER v. COUNTY OF MERCER

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

GREGORY L. FISHER,

Plaintiff,

v. Civil Action No. 23-20947 (GC) (JBD)

COUNTY OF MERCER, et al., OPINION

Defendants.

CASTNER, District Judge

THIS MATTER comes before the Court on Defendants Warden Charles Ellis’s (“Ellis”)

and the County of Mercer’s (“Mercer County”) Motion to Dismiss Plaintiff Gregory L. Fisher’s

Second Amended Complaint under Federal Rule of Civil Procedure (Rule) 12(b)(6). (ECF No. 31

(“Motion”).) Plaintiff filed a brief in opposition to the Motion (ECF No. 33), and Defendants

submitted a reply brief in further support of their Motion (ECF No. 34). The Court has carefully

reviewed the parties’ submissions and decides the matter without oral argument pursuant to

Federal Rule off Civil Procedure (Rule) 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

Plaintiff’s Second Amended Complaint arises from alleged violations of his federal and

state constitutional and statutory rights that occurred at Mercer County Correctional Center

(“MCCC”) in 2022, after Plaintiff was transferred to MCCC from Camden County Correctional

Facility (“CCCF”).

Specifically, Plaintiff alleges that, on July 8, 2022, he was transferred from CCCF to

MCCC. (ECF No. 28 ¶ 7.) On July 12, 2022, Plaintiff was examined by Nancy Gordon, a nurse

practitioner at MCCC. (Id. ¶ 10.) Gordon reviewed the chart created by CCCF’s Medical

Department. (Id. ¶ 11.) The nurse practitioner wrote on the chart that Plaintiff had chronic back

pain, consisting of a herniated nucleus pulposus confirmed by an MRI. (Id. ¶ 12.) Gordon also

read on the chart that a physician at CCCF had prescribed a double mattress for Plaintiff, and she

told Plaintiff that he would be getting a double mattress. (Id. ¶ 13.) She additionally authorized

back and knee braces for Plaintiff to wear. (Id. ¶ 15.)

Plaintiff was subsequently provided with a double mattress, and on July 14, 2022, he was

given his back and knee braces. (Id. ¶ 16.) Plaintiff was allowed to lie on two mattresses to get

relief from his back pain so he could sleep. (Id. ¶ 18.)

On July 31, 2022, one of the two mattresses was taken away by officers on the order of

Lieutenant Fioranti. (Id. ¶ 19.)

At some point prior to August 10, 2022, Plaintiff filed a civil action against the County of

Camden (“Camden County”) and C.F.G. Health Systems (“C.F.G.”) in the United States District

Court for the District of New Jersey. (Id. ¶ 24.) Ellis, the Warden of MCCC, “came to know” that

Plaintiff had filed this lawsuit. (Id. ¶ 25.)

On August 10, 2022, Plaintiff was examined by Gordon. (Id. ¶ 21.) Gordon documented

Plaintiff’s complaints of dizziness, pain, and “overall not feeling well” and noted that Plaintiff

asked for information concerning the status of his treatment. (Id. ¶¶ 22-23.) The nurse admitted

to Plaintiff the following details regarding his treatment: Plaintiff’s second mattress was taken

away by officers, and Plaintiff would not be receiving any further treatment from the MCCC

Medical Department, in retaliation for him filing the lawsuit against C.F.G. and CCCF; this denial

of further treatment for his serious medical needs and the taking away of his second mattress were

the results of orders from Ellis to deny him any further treatment for his serious medical needs and

serious back condition as retaliation for the filing of the lawsuit; “her hands were tied,” and there

was nothing she could do to get him adequate medical treatment for his serious medical needs or

to order him a second mattress so he get relief from his serious back condition. (Id. ¶¶ 26-31.)

The deprivation of further medical treatment/relief for his serious back condition continued

until Plaintiff’s last day at MCCC. (Id. ¶ 31.) On August 18, 2022, Plaintiff was transferred from

MCCC to CCCF and, finally, to Burlington County Detention Center (“BCDC”). (Id. ¶ 33.) Ellis

withheld “Plaintiff’s legal work, legal documents and other property” to deliberately deprive

Plaintiff of their use. (Id. ¶ 34.) Accordingly, “[o]n the aforesaid date [August 18, 2022] and until

December 16, 2022, MCCC did not transfer Plaintiff’s legal work, legal documents, holy book

and other property to either [CCCF] or [BCDC].” (Id. ¶ 35.) BCDC officials, Plaintiff’s family

members, and his criminal attorney reached out to MCCC and/or Ellis “numerous times” about

sending Plaintiff’s work, legal documents, and other property to BCDC; however, they were

unsuccessful. (Id. ¶ 37.) Plaintiff’s “intact” legal work, legal documents, holy book, and other

property arrived at BCDC from MCCC and provided to Plaintiff on December 16, 2022. (Id. ¶

43.)

On May 23, 2022, Petitioner had signed a court document evidencing an intent to enter

into a plea bargain with respect to pending state criminal charges. (Id. ¶ 38.) Subsequently,

Plaintiff “formed an intent to renege” on “his formerly evidenced intent to plea bargain” and

“needed to assist his criminal attorney in preparing an adequate defense to the criminal charge(s)

against him between August 18-Deccember 16, 2022, so as to renege.” (Id. ¶¶ 39-40.) However,

as a result of not possessing his legal work, legal documents, and other property, Plaintiff was not

able to assist his attorney in preparing an adequate defense “in the time between August 18-

December 16, 2022, so as to renege” on his intent to plea bargain. (Id. ¶¶ 41-42.) On October 6,

2023, as a result off his failure to assist counsel in preparing a defense, Plaintiff had to plead guilty

to a reduced charge and was sentenced to a prison sentence. (Id.)

In his Second Amended Complaint, Plaintiff alleges twelve counts against Mercer County

and/or Ellis: (1) a claim under Title II of the Americans for Disabilities Act (“ADA”) against

Mercer County; (2) a claim under 42 U.S.C. § 1983 for denial of due process for interfering with

Plaintiff’s prescribed medical treatment for a serious medical need against Ellis; (3) a § 1983 claim

for retaliating against Plaintiff’s exercise of protected activity by causing the denial of any further

treatment of Plaintiff’s serious medical needs against Ellis; (4) a § 1983 claim for denial of access

to courts and interfering with Plaintiff’s ability to assist legal counsel and participate in his own

defense against Ellis; (5) a § 1983 claim for interference with the right to worship in the religion

of one’s choice under the First Amendment against Ellis; (6) a § 1983 claim for retaliating against

Plaintiff’s exercise of protected activity by causing the withholding of Plaintiff’s legal work, legal

documents, holy book, and other property against Ellis; (7) a public accommodation claim under

the New Jersey Law Against Discrimination (“NJLAD”) against Mercer County; (8) a claim under

the New Jersey Civil Rights Act (“NJCRA”) for denial of due process by interfering with

Plaintiff’s prescribed medical treatment for a serious medical need against Ellis; (9) a NJCRA

claim for retaliating against Plaintiff’s exercise of protected activity by causing the denial of further

treatment for Plaintiff’s serious medical needs against Ellis; (10) a NJCRA claim for denial of

access to the courts and interference with Plaintiff’s right to assist legal counsel and participate in

his own defense against Ellis; (11) a NJCRA claim for interference with a right to worship in the

religion of one’s choice against Ellis; and (12) a NJCRA claim for retaliating against Plaintiff’s

exercise of protected activity by causing the withholding of Plaintiff’s legal work, legal documents,

holy book, and other property against Ellis. (Id. at ¶¶ 45-73.)

Ellis is named only in his individual capacity. (Id.) Alleging that he suffered physical pain

and suffering, lack of sleep, and emotional distress/mental anguish as a result of Ellis’s actions (id.

¶ 44), Plaintiff requests compensatory and punitive damages as well as reasonable attorney’s fees

(id. at 12).

Plaintiff’s counsel originally filed a Complaint in the Superior Court of New Jersey, Mercer

County, on August 16, 2023. (ECF No. 1 (“Complaint”).) The original Complaint included eight

counts under § 1983 and the NJCRA against Mercer County (under Monell) or (in his official

capacity) Ellis: (1) a claim for denial of due process related to the denial of further treatment for

his serious medical needs and a second mattress for his serious back condition against Ellis; (2) a

claim for promulgation of a policy by a high-ranking public official denying him further treatment

and a second mattress against Mercer County; (3) a First Amendment claim for retaliating against

Plaintiff’s exercise of protected activity by causing the denial of any further treatment for

Plaintiff’s serious medical needs and a second mattress for his serious back condition and for

violating his constitutional rights to free exercise, petition, and access to the courts against Ellis;

(4) a claim for retaliating against Plaintiff’s exercise of protected activity by causing the denial of

any further treatment for Plaintiff’s serious medical needs and a second mattress for his serious

back condition and for violating his rights to free expression, petition, and access to the courts

against Mercer County; (5) a claim for denial of access to the courts and interference with his

ability to assist his attorney in preparing an adequate defense to criminal charges against Ellis; (6)

a claim for denial of access to the courts, to assist legal counsel, and to participate in his own

defense against Mercer County; (7) a claim for retaliating against Plaintiff’s exercise of protected

activity by causing the withholding of Plaintiff’s legal work, legal documents, and other property

against Ellis; and (8) a claim for retaliating against Plaintiff’s exercise of protected activity by

causing the withholding of Plaintiff’s legal work, legal documents, and other property against

Ellis.1 (ECF No. 1-1 ¶¶ 1-99.) Defendants removed this action on or about October 6, 2023. (See

ECF No. 1.) On November 29, 2023, Defendants moved to dismiss the Complaint. (ECF No. 9.)

After the matter was fully briefed (see ECF Nos. 9-13), on July 31, 2024, the Court granted

the motion and provided Plaintiff with leave to submit an amended complaint within 45 days. See

Fisher v. Cnty. of Mercer, No. 23-20947, 2024 WL 3594423 (D.N.J. Jul. 31, 2024); (ECF No. 15).

Specifically, the Court construed Plaintiff’s initial Complaint as suing Ellis in his official capacity

only. Fisher, 2024 WL 3594423, at *4. The Court explained that official-capacity suits ‘generally

represent only another way of pleading an action against an entity of which an officer is an agent.’”

Id. (quoting Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)). Construing Counts One through

Eight as arising under Monell, the Court refrained from addressing “Defendants’ arguments that

Plaintiff fails to state a claim for relief against Warden Ellis in his individual capacity or that Ellis

is entitled to qualified immunity, which is only available to officers in individual capacity suits.”

Id. (footnote and citations omitted). The Court noted that “[i]f, however, Plaintiff intended to sue

Ellis in his individual or personal capacity as a supervisor, he is free to submit an amended

complaint that sets forth those facts and claims.” Id. at *4 n.7. The Court then concluded that

Plaintiff failed to state a Monell claim against Mercer County and (by extension) Ellis acting in his

official capacity because Plaintiff did not allege sufficient facts showing that Ellis had final

1 The original Complaint also included Count Nine alleging a claim under § 1983 and the

NJCRA against fictitious individual Defendants acting in their individual or official capacities.

(ECF No. 1-1 ¶¶ 100-03.)

policymaking authority in the relevant areas of medical care and the handling of Plaintiff’s legal

papers, legal documents, and other property. Id. at *5-6. “Because the Court grants the motion to

dismiss the Complaint against the County of Mercer and Warden Ellis in his official capacity for

failure to plead the elements of a Monell claim, it need not address County Defendants’ other

arguments.” Id. at *6 n.9. “If Plaintiff elects to submit an amended complaint, he should include

sufficient facts to meet the federal pleading standards . . . for each claim for relief.” Id.

On October 28, 2024, Plaintiff filed his Second Amended Complaint.2 (ECF No. 28.)

Defendants filed their pending Motion (ECF No. 31), Plaintiff filed an opposition brief (ECF No.

33), and Defendants filed a reply brief (ECF No. 34).

II. STANDARD OF REVIEW

On a motion to dismiss for failure to state a claim, 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 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

2 On August 7, 2024, Plaintiff filed an Amended Complaint (ECF No. 16), and, on

September 27, 2024, Defendants moved to dismiss the Amended Complaint (ECF No. 23). On

October 28, 2024, the Court entered a consent order withdrawing the dismissal motion and

ordering Plaintiff to file an amended pleading. (ECF No. 27.)

892, 904 (3d Cir. 2021)). A 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) (citing Davis v. Wells Fargo, 824 F.3d 333, 349

(3d Cir. 2016)).

III. DISCUSSION

A. The Interference with Medical Treatment Claims Against Ellis

Defendants move to dismiss Count Two (the § 1983 claim3 against Ellis for interference

with prescribed medical treatment for a serious medical need) and Count Eight (a NJCRA claim4

against Ellis for interference with prescribed medical treatment for a serious medical need). (ECF

No. 28 ¶¶ 47-49, 64-65.)

According to Defendants, Plaintiff does not identify a serious medical need. (ECF No. 31-

4 at 19; ECF No. 34 at 4-7.) With respect to Plaintiff’s alleged medical needs and treatment,

Defendants specifically contend that: (1) Plaintiff arguably received more medical attention at

MCCC than he had at CCCF because Plaintiff admitted that he was prescribed and received both

a back and knee brace; (2) “[a]side from indicating that Plaintiff was permitted to sleep on a second

mattress,” he fails to sufficiently plead any serious medical condition or need; (3) Plaintiff does

not allege that Plaintiff had a particular vulnerability to single mattresses, the lack of a second

mattress constituted punishment under the Fourteenth Amendment, he asked for a second mattress

3 “To establish a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate a violation of a

right protected by the Constitution or the laws of the United States committed by a person acting

under the color of state law.” Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 580-81 (3d

Cir. 2003) (citations omitted).

4 The NJCRA protects federal rights and substantive rights under New Jersey's Constitution.

See Gormley v. Wood-El, 218 N.J. 72, 97 (2014) (“Section 1983 applies only to deprivations of

federal rights, whereas N.J.S.A. 10:6-1 to -2 applies not only to federal rights but also to

substantive rights guaranteed by New Jersey's Constitution and laws.”). The NJCRA is typically

treated as the state court analog to § 1983, and the Court considers the claims together.

after it was removed, requested any other medical treatment, or had any serious medical need

manifesting after the mattress’s removal; (4) general allegations of dizziness, pain, and overall ill

feelings do not establish a serious medical need and are not related to any medical diagnosis; and

(5) a lay person cannot tell from Plaintiff being provided with a back brace, knee brace, and

mattress that he still needed immediate medical attention or was at risk of permanent injury. (ECF

No. 31-4 at 20; ECF No. 34 at 5-7.) Defendants further assert that the Second Amended Complaint

fails to allege that Ellis knew that Plaintiff had a particular vulnerability to single mattresses and

ignored the risk of serious harm and that the mere disagreement with medical judgments is

insufficient to state a constitutional claim. (ECF No. 31-4 at 20; ECF No. 34 at 6.)

According to Plaintiff, “[u]nder the Pearson framework, [Plaintiff’s] well-pleaded

allegations of interference with a prescribed medical treatment by Warden Ellis, for a non-medical

reason, do plausibly state a claim for deliberate indifference to a serious medical need.” (ECF No.

33 at 3 (discussing Pearson v. Prison Health Serv., 850 F.3d 526 (3d Cir. 2017)) ) In their reply

brief, Defendants contend that the allegations in this case are completely different from the facts

in Pearson, where the inmate complained of severe abdominal pain and constant bleeding and

required an appendectomy and a urethral incision and was, at one point, forced by medical staff to

crawl across the floor to the wheelchair before he was taken to the infirmary. (ECF No. 34 at 5-

7.)

The Court agrees with Plaintiff that he alleges sufficient factual content to state a

cognizable claim for interference with his medical treatment.

The Eighth Amendment's prohibition on cruel and unusual punishment requires prison

officials to provide basic medical treatment to inmates.5 See Perotti v. United States, 664 F. App’x

141, 144 (3d Cir. 2016) (citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)); see also Duran v.

Merline, 923 F. Supp. 2d 702, 719 (D.N.J. 2013) (explaining that the Constitution mandates that

prison officials satisfy inmates’ “basic human needs—e.g., food, clothing, shelter, medical care,

and reasonable safety” (quoting Helling v. McKinney, 509 U.S. 25, 32 (1993))). To plead

deliberate indifference to serious medical needs, an inmate must allege that “(1) he had a serious

medical need, (2) the defendants were deliberately indifferent to that need; and (3) the deliberate

indifference caused harm to the plaintiff.” Durham v. Kelley, 82 F.4th 217, 229 (3d Cir. 2023)

(citing Atkinson v. Taylor, 316 F.3d 257, 266 (3d Cir. 2003)).

“A medical need is serious if it ‘has been diagnosed by a physician as requiring treatment,’

or if it ‘is so obvious that a lay person would easily recognize the necessity for a doctor's

attention.’” Mitchell v. Beard, 492 F. App’x 230, 236 (3d Cir. 2012) (per curiam) (quoting

Atkinson, 316 F.3d at 272-73).

The Third Circuit has found “‘deliberate indifference’ in a variety of circumstances,

including where the prison official (1) knows of a prisoner's need for medical treatment but

intentionally refuses to provide it; (2) delays necessary medical treatment based on a non-medical

reason; or (3) prevents a prisoner from receiving needed or recommended medical treatment.”

Parkell v. Danberg, 833 F.3d 313, 337 (3d Cir. 2016) (quoting Rouse v. Plantier, 182 F.3d 192,

197 (3d Cir. 1999)).

Drawing all reasonable inferences in Plaintiff’s favor, and accepting the factual allegations

in the Second Amended Complaint as true, the Court concludes that Plaintiff plausibly alleges that

5 As a pretrial detainee, Plaintiff’s right to adequate medical care arose under the Due

Process Clause of the Fourteenth Amendment. See Natale, 318 F.3d at 581. But courts analyze

such claims using the same deliberate indifference standard that applies under the Eighth

Amendment. See id. at 581-82.

Ellis ordered the denial of Plaintiff’s “necessary medical treatment based on a non-medical

reason,” id.; see also Wilson, 57 F.4th at 140. First, Plaintiff’s Second Amended Complaint

provides sufficient factual matter to allow the Court to draw a reasonable inference that Plaintiff

had a serious medical need, i.e., he was diagnosed by a physician with a medical condition and

prescribed treatment for this condition. See Mitchell, 492 F. App’x at 236. Plaintiff specifically

alleges that a nurse practitioner (Gordon) reviewed Plaintiff’s CCCF “chart” and “wrote on the

chart that Plaintiff had chronic back pain consisting of a herniated nucleus pulposus confirmed by

MRI.” (ECF No. 28 ¶¶ 11-13). The nurse practitioner also “read on the chart that a physician at

CCCF had prescribed a double mattress for Plaintiff.” (Id. ¶ 13.) Furthermore, Plaintiff was

allegedly given back and knee braces and allowed to lie on two mattresses to get relief from his

back pain so he could sleep. (Id. ¶¶ 16-19.)

Second, Plaintiff adequately alleges that Ellis delayed or denied this prescribed medical

treatment for non-medical reasons. According to the Second Amended Complaint, Ellis learned

that Plaintiff had filed a civil suit against Camden County and C.F.G. (Id. ¶ 25.) On July 31, 2022,

the second mattress was taken away. (Id. ¶ 19.) Gordon admitted to Plaintiff that Ellis ordered

officers to take away Plaintiff’s second mattress in retaliation for him filing the lawsuit. (Id. ¶¶

29-30.) “Moreover, on August 10, 2022, the nurse practitioner Nancy Gordon admitted to Plaintiff

that her hands were tied and there was nothing she could do to order him a second mattress so he

would get further relief for his serious back condition.” Id.

Given the facts alleged in the Second Amended Complaint, Defendants do not meet their

burden of “showing that” Counts Two and Eight of the Second Amended Complaint “fail to state

a claim,” Plavix Mktg., Sales Pracs. & Prod. Liab. Litig., 974 F.3d at 231 (citation omitted). For

instance, Defendants indicate that Plaintiff fails to show a serious medical need because it was not

obvious to a lay person from Plaintiff being equipped with a back brace, knee brace, and mattress

that he needed immediate attention from a doctor or was at risk of permanent injury. (ECF No.

31-4 at 20.) However, Plaintiff’s pleading satisfies the “serious medical need” requirement at this

preliminary stage of the proceeding by alleging that a medical professional documented in

Plaintiff’s medical records that Plaintiff had chronic back pain consisting of a herniated nucleus

pulposus confirmed by an MRI and that a physician had prescribed a double mattress for Plaintiff.

(ECF No. 28 ¶¶ 12-13); see also Mitchell, 492 F. App’x at 236.6 The fact that the alleged medical

conditions and lack of treatment were not as severe as the circumstances present in Pearson also

does not justify dismissal of Plaintiff’s medical care claims. (See ECF No. 34 at 5-7.) In fact,

Pearson was decided on a motion for summary judgment, and not a motion to dismiss. See

Pearson, 850 F.3d at 530.

Accordingly, the Court denies Defendants’ Motion as to Counts Two and Eight.7

B. Access to the Courts and Sixth Amendment Interference Claims Against Ellis

In Count Four, Plaintiff alleges a § 1983 claim for denial of his rights of access to the

courts, to assist legal counsel, and participate in his own defense against Ellis. (ECF No. 28 ¶¶

54-55.) Count Ten asserts an equivalent claim against Ellis under the NJCRA. (Id. ¶ 69.)

According to Defendants, “[t]he [Second Amended Complaint] fails to allege a cognizable

access to the courts claim because Plaintiff has not pled that he suffered actual harm.” (ECF No.

6 In contrast, the medical records in Mitchell “did not indicate a wheelchair was necessary,”

and a nurse informed the defendants that the inmate could not have a wheelchair for transport.

Mitchell, 492 F. App’x at 236.

7 Plaintiff further relies on medical records attached to his brief. (See ECF No. 33 at 2 (citing

ECF Nos. 33-1, 33-2).) Defendants request that the Court ignore all arguments related to the new

exhibits because it is well established that a plaintiff may not amend a complaint in a brief filed in

opposition to a motion to dismiss. (ECF No. 34 at 3-4.) The Court need not (and does not) rule

on Defendants’ objections because it concludes that, without the exhibits, the Complaint states a

plausible claim of interference with Plaintiff’s medical treatment.

31-4 at 23.) The Court agrees with Defendants that Plaintiff’s access to the courts claims must be

dismissed. However, Plaintiff also asserts in Counts Four and Ten claims for interference with his

Sixth Amendment rights. To the extent that Defendants move to dismiss his Sixth Amendment

claims, the Motion is denied because actual injury is not a requirement for such claims 8

1. Access to the Courts

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)). The Third Circuit has held that pretrial detainees

have a right of access to the courts with respect to legal assistance and participation in preparing a

defense against pending criminal charges. See, e.g., Prater v. City of Philadelphia, 542 F. App’x.

135, 137-38 (3d Cir. 2013); see also May v. Sheahan, 226 F.3d 876, 883-84 (7th Cir. 2000). A

pretrial detainee may also raise claims alleging interference with his Sixth Amendment rights. See

Prater, 542 F. App’x at 137. In contrast, convicted prisoners may only proceed on access-to-

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

of confinement.” Id. (citing Lewis, 518 U.S. at 354-55). Because Plaintiff was a pretrial detainee,

this restriction does not apply to him.

There are two general types of access to the courts claims. Forward-looking claims involve

official action that “frustrates a plaintiff . . . in preparing and filing suits at the present time.”

Christopher v. Harbury, 536 U.S. 403, 413 (2002). In such a claim, “[t]he opportunity has not

8 Defendants argue that Plaintiff’s allegation that he pled guilty on October 6, 2023 is false

because the Judgement of Conviction “shows that Plaintiff’s criminal matter was adjudicated by a

guilty plea on May 23, 2022” (and he was then sentenced on October 6, 2023 pursuant to the May

23, 2022 plea arrangement). (ECF No. 31-4 at 23-24 (citing ECF No. 31-2).) Plaintiff responds

that the document does not show that he appeared in open court on May 23, 2022 and entered a

guilty plea. (ECF No. 33 at 5.) This dispute need not (and is not) resolved because of its

irrelevance to the Court’s resolution of Defendants’ Motion.

been lost for all time, however, but only in the short term; the object of the denial-of-access suit,

and the justification for recognizing that claim, is to place the plaintiff in a position to pursue a

separate claim for relief once the frustrating condition has been removed.” Id. 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 (citation omitted).

Plaintiff asserts a backward-looking claim, claiming that Ellis’s actions withholding his

legal work and documents prevented him from assisting his criminal attorney in preparing an

adequate defense to criminal charges so he could “renege” on his “formerly evidenced intent to

plea bargain,” and, because of this failure to assist defense counsel, he had to plead guilty to a

reduced charge (for which he was sentenced to a prison term). (ECF No. 28 ¶¶ 38-42.)

In both forward-looking and backward-looking types of cases, however, the plaintiff must

identify a “nonfrivolous” or “arguable” underlying claim. Christopher, 536 U.S. at 415 (citing

Lewis, 518 U.S. at 353 & n.3). Indeed, “the underlying cause of action, whether anticipated or

lost, is an element 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 access 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 the Second Amended Complaint, Plaintiff fails to allege an actual injury traceable to

Ellis’s conduct. According to the pleading, Plaintiff was transferred from MCCF to BCDC, on

August 18, 2022, and from that date until December 16, 2022, Ellis withheld his legal work and

documents despite several requests for the documentation from BCDC officials, family members,

and Plaintiff’s criminal attorney. (ECF No. 28 ¶¶ 33-37.) To the extent that Plaintiff baldly claims

that the withholding of these documents in August to December 2022 resulted in him being unable

to assist his counsel in preparing a defense to the charges and take back his intent to plea bargain,

which then forced him to proceed with a guilty plea in October 2023, such conclusory assertions

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 provide sufficient

facts allowing the Court to draw the reasonable inference that the alleged lack of access to the legal

work and documents caused this extenuated chain of events. In fact, Plaintiff admits in his Second

Amended Complaint that he received his legal work and documents on December 16, 2022, he

was represented by counsel in the criminal proceeding, and he did not plead guilty to the charges

until October 6, 2023, approximately ten months after the requisite documents were sent to him at

BCDC. (ECF No. 28 ¶¶ 35, 42.)

Plaintiff argues that “how the withholding of his legal documents caused plaintiff to be

unable to assist his attorney in the preparation for the court proceeding on October 6, 2023, is

factual matter [sic] which cannot be resolved on a motion to dismiss.” (ECF No. 33 at 5.)

According to Plaintiff, he must be given “the benefit of the doubt that the withholding of his legal

documents caused him to be unable to assist his attorney in the preparation for the court proceeding

on October 6, 2023.” (Id.) But it is well established that the complaint must “contain enough facts

to state a claim to relief that is plausible on its face.” Wilson, 131 F.4th at 140 (emphasis added)

(citation omitted). In this context, this means that Plaintiff must allege factual content—i.e.,

factual matter—sufficient for the Court to infer that a causal link exists between the withholding

of the documents and an actual injury, Clark, 55 F.4th at 178; Diaz, 532 F. App’x at 63. For the

foregoing reasons, Plaintiff fails to satisfy this requirement,

Accordingly, the Court grants the Motion as to Plaintiff’s access to the courts claims in

Counts Four and Ten.

2. Sixth Amendment Interference

“Under the Sixth Amendment, a pretrial detainee has a right to utilize counsel to defend

against a criminal case that the state has brought against him.” Prater v. City of Philadelphia, No.

11-1618, 2015 WL 3456659, at *4 (E.D. Pa. June 1, 2015) (citing Benjamin v. Fraser, 264 F.3d

175, 186 (2d Cir. 2001)). Addressing restrictions on attorney contact, the Supreme Court has “held

that inmates must have a reasonable opportunity to seek and receive the assistance of attorneys’

and that [prison] [r]egulations and practices that unjustifiably obstruct the availability of

professional representation . . . . are invalid.” Id. (cleaned up) (alterations in original) (quoting

Benjamin, 264 F.3d at 184). “Thus, where an institutional restriction impedes a pretrial detainee's

access to criminal counsel, ‘the practice must be evaluated in the light of the central objective of

prison administration, safeguarding institutional security.’” Id. (cleaned up) (quoting Benjamin,

264 F.3d at 187). A prison regulation restricting a pretrial detainee's contact with counsel will be

unconstitutional where it unreasonably burdens the inmate’s opportunity to consult with his

counsel and prepare his defense. See id.

Notably, unlike a First Amendment access to the courts claim, case law indicates that a

claim of unreasonable interference with a Sixth Amendment right to counsel does not require a

showing of actual injury. See Benjamin, 264 F.3d at 185 (pretrial detainee has standing to assert

unreasonable interference with Sixth Amendment right even if the interference did not result in

“actual injury”). Although the Third Circuit has not ruled on this issue in a published opinion, the

court, in a non-precedential opinion, observed that the district court failed to address the prisoner's

Sixth Amendment interference with right to counsel claim and disagreed with the district court's

implicit conclusion that the claim required a showing of actual injury. Prater, 542 F. App’x at 139

n.5 (affirming in part on alternate basis).

Because Plaintiff is not required to allege actual injury to state a cognizable claim of

unreasonable interference with his Sixth Amendment right to counsel, the Court denies the Motion

as to Plaintiff’s Sixth Amendment interference claims in Count Four and Count Ten.

C. Retaliation Claims Against Ellis

In the Second Amended Complaint, Plaintiff asserts § 1983 and NJCRA retaliation claims

against Ellis for “Plaintiff’s exercise of protected activity causing denial of any further treatment

for Plaintiff’s serious medical needs” (Count Three and Nine, respectively). (ECF No. 28 ¶¶ 50-

53, 66-68 (emphasis omitted).) Plaintiff also alleges retaliation claims against Ellis under § 1983

and the NJCRA for “Plaintiff’s exercise of protected activity causing withholding of Plaintiff’s

legal work, legal documents, holy book and other property” (Counts Six and Twelve). (Id. ¶¶ 58-

60, 71-73 (emphasis omitted).)

“To state a claim for retaliation, a prisoner must allege that: (1) he was engaged in

constitutionally protected conduct, (2) ‘he suffered some “adverse action” at the hands of prison

officials,’ and (3) ‘his constitutionally protected conduct was “a substantial or motivating factor”

in the decision’ to take that action.” Wisniewski v. Fisher, 857 F.3d 152, 156 (3d Cir. 2017)

(quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)).

According to Defendants, because “Plaintiff has failed to plead a proper claim of deliberate

indifference to serious medical needs claim, or articulate the need for additional medical services,

and denial of access to courts claim, he cannot demonstrate an adverse action brought against him

by prison officials nor can he establish a causal link.” (ECF No. 31-4 at 26.) However, to state a

retaliation claim, Plaintiff need not allege that the adverse action violated his constitutional rights.

Regarding the second element, an action is adverse if it “would deter a reasonably firm prisoner

from exercising his First Amendment rights.” Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)

(quoting Rauser, 241 F.3d at 333). “An adverse consequence need not be great in order to be

actionable; rather, it need only be more than de minimis.” Watson v. Rozum, 834 F.3d 417, 423

(3d Cir. 2016) (cleaned up). Defendants do not address whether the denial of a second mattress or

the withholding of legal materials would deter a reasonably firm prisoner from exercising his First

Amendment rights. Indeed, the Court has denied Defendants’ Motion to dismiss Plaintiff’s

constitutional claims for interference with his medical treatment and interference under the Sixth

Amendment.

Defendants’ Motion to dismiss is denied as to Counts Three, Six, Nine, and Twelve.

D. Qualified Immunity

Finally, Defendants argue that Ellis is entitled to qualified immunity because he did not

violate Plaintiff’s clearly established rights.

“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.”9 Karkalas v.

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

“The defendant official has the burden to establish they are entitled to qualified immunity.”

Bethlehem Manor Vill., LLC v. City of Bethlehem, No. 22-5215, 2024 WL 4367922, at *10 (E.D.

Pa. Sept. 30, 2024) (citing E. 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 231-32 (stating that the moving defendant has the burden of showing that a complaint fails to

state a claim under Rule 12(b)(6)); Scotti v. 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 v. Toledo, 446 U.S. 635, 639

(1980))). “[I]t is generally unwise to venture into a qualified immunity analysis at the pleading

stage as it is necessary to develop the factual record in the vast majority of cases.” Seidle v.

Neptune Twp., No. 17-4428, 2021 WL 1720867, at *7 (D.N.J. May 1, 2021) (alteration in original)

(quoting Newland v. Reehorst, 328 F. App’x 788, 791 n.3 (3d Cir. 2009)).

Defendants merely contend that Plaintiff does not plead that Ellis violated a clearly

established right because he failed “to properly plead his § 1983 [or NJCRA] claim[s].” (ECF No.

31-4 at 27.) Given the conclusory nature of Defendants’ qualified immunity defense, the Court

concludes that, with respect to Plaintiff’s medical care and retaliation claims, Defendants fail to

meet their burden at this early stage of this litigation.10

9 Defenses and immunities available under § 1983 (such as qualified immunity) apply to

claims under the NJCRA. See Kelley v. Reyes, No. 19-17911, 2025 WL 618207, at *8 n.7 (D.N.J.

Feb. 26, 2025).

10 Because the Court concludes that Plaintiff does not plausibly allege access to the courts

claims, the Court need not (and does not) consider whether the asserted constitutional rights were

clearly established.

IV. CONCLUSION

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

part. An appropriate Order follows."

Dated: June 25, 2025 Grate Chatter

GEORGETTE CASTNER

UNITED STATES DISTRICT JUDGE

Defendants also request that discovery be stayed pending the outcome of the Motion. (ECF

No. 31-4 at 28-29.) The request to stay is denied as moot.

20