noting that courts must remain flexible, especially when dealing with imprisoned pro se litigants
How later courts described this case
- noting that courts must remain flexible, especially when dealing with imprisoned pro se litigants
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
YUSUE IBRAHIM,
Plaintiff,
v. Civil Action No, 24-01780 (GC) (JBD)
AMY EMRICH, ef a/., OPINION
Defendants.
CASTNER, District Judge
THIS MATTER comes before the Court on Defendant Amy Emrich’s and Derrick
Bodtmann’s Motion to Dismiss (Motion) (ECF No. 19) the Second Amended Complaint (SAC)
(ECF No. 17) for failure to state a claim under Federal Rule of Civil Procedure (Rule) 12(b)(6).
Pro se Plaintiff Yusuf Ibrahim opposed the Motion. (ECF No. 20.) Defendants filed a reply (ECF
No. 22), and Plaintiff submitted a sur-reply (ECF No. 23). 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 Second Amended Complaint
Plaintiff is incarcerated at the New Jersey State Prison (“NJSP”) located in Trenton, New
Jersey. (See ECF No. 17 at 1.) According to Plaintiff, “the prison is in violation of the 1
Amendment’s Access to the Courts provision,” and “[s]temming from this violation is a 14"
Amendment Due Process violation impeding plaintiff from presenting a complete defense, and 6"
Amendment violation of the right to self-representation.” (/d. at 2.) Plaintiff acknowledges that
he does not have a right to an attorney on a second or subsequent petition for post-conviction relief
(“PCR”) in the state courts or a federal habeas proceeding, and a prisoner without resources to hire
an attorney must proceed pro se. Ud.) Plaintiff allegedly is actively involved in his own defense,
has developed a strategy to prove his innocence and challenge his conviction and life sentence,
and cannot implement this strategy due the obstructions that the prison has placed on his access to
attorneys, and “non-attorney legal professionals,” ¢.g., private investigators and forensic experts,
which impedes his access to the courts. (/d.)
Plaintiff asserts two claims, In Claim 1, he alleges that “Mr. Ibrahim is being denied the
right to confidentially strategize with an attorney, investigator, expert, or legal professional in
violation of the 15, 6", and 14" Amendments’ Access to the Courts, Due Process, and right to self-
representation.” (Ud. at 3 (emphasis omitted).) Allegedly, a prisoner, who has drawn up a strategy
with an attorney or legal professional on a piece of white paper, is prohibited by Defendants from
handing the paper to the lawyer or professional (and, if caught doing so, the attorney or
professional would be “treated like a criminal,” surrounded by custody staff, and forced to turn
over the piece of paper). (Ud) Plaintiff cites to a letter from a Rutgers attorney named Nyssa
Taylor, Esq., to the Commissioner of the New Jersey Department of Corrections (“NJDOC”)
describing her alleged experience with this unconstitutional policy while meeting with another
prisoner. Cd. (citing ECF No. 17-3, Ex. E).) This policy allegedly denies meaningful and
confidential communications with attorneys and legal professionals. Ud.)
In Claim 2, Plaintiff alleges that he “is being denied the right to add non-attorney legal
professionals to his confidential visit/call list.” Gd. at 4 (emphasis omitted).) He allegedly
submitted institutional forms to add a private investigator to his “confidential visit” and
“confidential calls” lists; however, Acting NJSP Administrator Emrich denied the requested
confidential visit. Cd. (citing ECF No. 17-3, Ex. A at Al-A2).) Plaintiff used the Jpay remedy
system noting his need for a confidential visit with an investigator based on his pro se status, but
his submissions were denied by Emrich and Assistant NJISP Administrator Bodtmann, (7d. (citing
ECF No. 17-3, Ex. B at B1-B4).) Instead, Plaintiff's licensed investigator, “former Law
Enforcement Official Jeffrey A. Oster,” was allegedly instructed te contact the prison to set up a
confidential visit, and, after consulting with Administrative Assistant Charice Hampton, a
confidential visit with Plaintiff was permitted. (/d. (citing ECF No 17-3, Ex. E.).)
Plaintiff alleges that the investigator’s name could not be added to the confidential visit
list, the visits were to be approved on a case-by-case basis, and for each visit Plaintiff has to submit
a speciai request and e-mail confirmation is required. Ud.) According to Plaintiff, this burdensome
process “squanders” the limited time and funds he has available to him, instead of using his time
and money for investigative purposes. (/d. at 4-5.) After the first visit was approved, believing
that the issue was resolved, Plaintiff allegedly requested that Oster’s name be added to the
confidential visit list using the standard prison form, and Emrich denied the request (and asked
Plaintiff to stop making this request). (éd. at 5.) Plaintiff contacted Emrich via Jpay, and she
clarified that each visit request would be decided on a case-by-case basis. (/d. (citing ECF No. 17-
3, Ex. B at B4).) Emrich likewise rejected Plaintiff's attempt to add Oster to the confidential call
list. Ud. (citing ECF No, 17-3, Ex. C at C1).)
According to Plaintiff, as a direct result of the prison administration’s abridgement of his
right to access to the courts, he was unable to support a claim of newly discovered evidence, and
the trial court denied his motion for a new trial. (fd. (citing ECF No. 17-3, Ex. G).) Plaintiff states
that he “posseses[s] 1) irrefutable scientific evidence in the form of two conflicting ballistic reports
both conducted by the State; one of which was purposely withheld from the jury; and 2)
Exculpatory Statement without from trial.” (Ud. at 6 (citing “May 1, 2013 Trace Fiber Analysis
Repost authored by Sate Forensic Paul M. Verdino, and each page peer reviewed and initiated by
Chief Forensic Scientist ‘ERH’; withheld from jury” and “April 20, 2016 Ballistic Report authored
by State Police Lieutenant John Garkowski; presented to fury”).) “For Mr. Ibrahim to substantiate
his claim of actual innocence, an investigation into the integrity of the conviction depends on the
reliability of the scientific and witness statements, among other things. This cannot be
substantiated without confidential strategizing via telephone/visit.” (/d.)
Plaintiff names Emrich and Bodtmann as Defendants and claims that they are personally
(and jointly and severally) responsible in their individual and supervisory capacities for creating,
implementing, or upholding a policy denying equal protection and confidential communications
with attorneys and “non-attorney legal professionals.” (/d. at 6-7.) He brings individual-capacity
claims for compensatory and punitive damages and official-capacity claims for injunctive and
declaratory relief (/.e., an injunction ordering Defendants to permit Plaintiff to give to his attorney
or legal professional confidential and privileged strategies during their confidential visits, to
provide “Equai Protection to legal professionals as those given to attorneys,” to stop intimidating
or treating attorneys or legal professionals like criminals for performing their duties, and to permit
non-attorney legal professional to be added to the confidential call and visit lists utilizing the same
method for adding attorneys). (id. at 7-8.)
B. Procedural History
On or about October 18, 2023, Plaintiff filed a pro se complaint in the Mercer County
Superior Court, Docket Number MER-L-002075-23, naming Emrich and Bodtmann as
Defendants. (ECF No, 1-3, Ex. A.} The Complaint alleged that Plaintiff was denied access to the
courts without citing any federal statutory or constitutional provision. (/d4.) On February 2, 2024,
Plaintiff filed a motion to amend the complaint, which was granted on February 20, 2024. (ECF
No. 1-4; ECF No. 1-5 at 6.) The amended complaint (“FAC”) alleged “access-to-the-courts”
claims under the First and Fourteenth Amendments to the United States Constitution. (See ECF
No, 1-4.) 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 August 8, 2024, the Court denied Plaintiff's motion to remand. Jbrahim v. Emrich, No.
24-1780, 2024 WL 3728071, at *1-2 (D.N.I. Aug. 8, 2024).
On March 28, 2024, Defendants moved to dismiss Plaintiff's FAC. (ECF No. 7.) Plaintiff
filed his opposition on or about May 2, 2024. CECF No. 8.) Plaintiff attached the following
documents to his opposition: (1) copies of disapproved requests to have a contact visit with Oster
(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 Haley’s letter to the Commissioner of the NJDOC complaining that, during
her visit with another prisoner, legal documents were confiscated (ECF No. 8-2, Ex. D (“Haley
Letter”) at 14); and (5) a letter from Plaintiffs 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-repiy without leave of Court. CECF No. 10.)
On October 17, 2024, the Court granted the motion to dismiss in part and denied it in part
“October 17, 2024 Opinion”). See fbrahim v. Emrich, No. 24-1780, 2024 WL 4511982 (D.N.J.
Oct, 17, 2024). The Court dismissed with prejudice the official-capacity claims for damages on
the grounds that Defendants are not “persons” liable to suit under 42 U.S.C. § 1983. Jd. at *4,
Furthermore, Plaintiff's request for injunctive relief was dismissed because the FAC did not allege
an ongoing constitutional violation. Jd at *4-5, The Court additionally dismissed Plaintiff's
individual-capacity claims for damages against Defendants for violating his rights to access to the
courts because he failed to allege sufficient facts in his FAC plausibly indicating their participation
in the allegedly unconstitutional conduct and, even if he had satisfied the participation requirement,
Plaintiff did not plausibly allege that the alleged conduct caused actual injury. Jd, at *5-8.
However, the Court dismissed the individual-capacity claims for damages and the official-capacity
claims for injunctive relief without prejudice, granting Plaintiff 45 days to file a second amended
complaint curing the deficiencies in the FAC identified by this Court. Jd. at *8-9 (concluding that
Defendants fail to meet their burden under the second prong of the qualified immunity defense).
Plaintiff requested an extension of time to file an amended complaint, which was granted,
(ECF No. 16.) The SAC was filed on or about January 8, 2025. (ECF No. 17.) Plaintiff attached
to the SAC a “Table of Exhibits” (ECF No. 17-2) and the following exhibits: (1) the Contact Visit
Requests (ECF No. 17-3, Ex. A); (2) the Grievances (ECF No. 17-3, Ex. B); (3) the Telephone
Form (ECF No. 17-3, Ex. C); (4) a complete copy of the Haley Letter (ECF No. 17-3, Ex. D); (4)
the Private Investigator Letter (ECF No. 17-3, Ex. E); (5) two forensic repots (“Forensic Reports”
(ECF No. 17-3, Ex. F); and (6) the state trial court’s order denying his motion for a new trial in
Hudson County Ind. No. 14-04-00044-S (“New Trial Denial”) (ECF No. 17-3, Ex. G).
After being granted an extension of time to answer the SAC (ECF No. 18), Defendants
moved to dismiss the SAC on February 3, 2025. (ECF No. 19.) On April 10, 2025, the Court
granted Plaintiff's motion to accept his attached brief opposing the Motion as timely. (ECF No.
21.) Defendants filled a reply brief on April 22, 2025 (ECF No, 22), and, on or about May 5, 2025,
Plaintiff submitted a sur-reply (ECF No. 23). As the Court noted in its October 17, 2024 Opinion,
see Ibrahim, 2024 WL 4511982, at *2, Local Civil Rule 7.1(d)(6) states that “[n]Jo sur-replies are
permitted without permission of the Judge to whom the case is assigned,” The Court nevertheless
considers 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. Ait’y Gen., 655 F.3d 333, 339 (3d Cir, 2011))). Plaintiff, however, is
reminded that, “at the end of the day, [pro se litigants] cannot flout procedural rules—they must
abide by the same rules that apply to all other litigants.” Mala v. Crown Bay Marina, Inc., 704
F.3d 239, 245 (3d Cir. 2013) (citing AdcNeil v. United States, 508 U.S. 106, 113 (1993); Kay v.
Bemis, 500 F.3d 1214, 128 (10th Cir. 2007),
Il. LEGAL STANDARD
On a Rule 12(b)(6) 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 fo relief that is plausible on its face.’” Wilson vy. UST Ins.
LLC, 57 F.4th 131, 140 Gd 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.Ath 167, 178 (3d Cir. 2022) (quoting
Mamimana vy. 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.” Jn re Plavix Mktg., Sales Pracs. & Prod. Liab. Litig. (No. ID,
974 F.3d 228, 231 (3d Cir. 2020) (citing Davis vy, Wells Fargo, 824 F.3d 333, 349 (3d Cir. 2016)).
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 still must allege sufficient
facts in their complaints to support a claim.” Jd. (quoting Mala, 704 F.3d at 244-45).
Uk «DISCUSSION
Defendants argue that “Plaintiff once again fails to state viable access to the courts claims
because he fails to allege that he suffered an actual injury, i.c., the ability to pursue an arguable or
non-frivolous claim in his state court criminal proceedings.” (ECF No. 19-1 at 1.) Defendants
further argue that, even if Plaintiff had stated viable access to courts claims, those claims should
be dismissed because Defendants are entitled to qualified immunity, Plaintiff fails to allege
Bodtmann’s personal involvement in any constitutional violations, and Plaintiff's request for
injunctive relief should be dismissed because there are no alleged facts showing an ongoing
constitutional harm. (/d. at 9-21.) According to Defendants, the claims should be dismissed with
prejudice. (See id. at 21.)
The Court agrees with Defendants that the SAC fails to remedy the deficiencies identified
in the October 17, 2024 Opinion, However, the Court does not agree that the claims should be
dismissed with prejudice.
A. Plaintiff's Request for Injunctive Relief
In its October 17, 2024 Opinion, the Court concluded that the FAC did not allege an
ongoing constitutional violation for purposes of Plaintiff's request for injunctive relief. Ibrahim,
2024 WL 4511982, at *4-5, “[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.” Jd (quoting Will y. Mich. Dep’t of State Pol., 491
58, 71 0.10 (1989).
In his SAC, Plaintiff does not plead any facts indicating a continuing denial of his right to
access to the courts. See 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”). He baldly alleges that he “cannot
implement [his] strategy [to prove his innocence] due to the obstructions the prison has placed on
his access to attorneys, and non-attorney legal professionals, thereby impeding his Access to the
Courts.” (ECF No. 17 at 2 (footnote omitted.) However, mere conclusory allegations must be
disregarded. See Wilson, 57 F.4th at 150 (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)). Furthermore, Plaintiff does not refer to any
ongoing or future legal proceeding which is (or could be) obstructed by the Defendants’ ongoing
actions. On the contrary, Plaintiff alleges that “[t]he trial Court in which [his claim of newly
discovered evidence] was pending denied a motion for a new trial,” (/d, at 5.) The state trial court
denied this motion for a new trial on October 4, 2023. (ECF No. 17-3, Ex. Gat G1.) Finally, to
the extent that Plaintiff purports to assert new allegations of possible ongoing unconstitutional
violations in his opposition brief and sur-reply (see ECF No, 20-2 at 3 (stating that the prison “will
not” allow him to obtain help from non-confidential legal professionals)), “he cannot amend his
pleading in a brief,” Jbrahim, 2024 WL 4511982, at *5 (citing Ziemba vy. Inicipio Techs., Inc., No.
13-3590, 2014 WL 4637006, at *3 (D.N.J. Sept. 16, 2014)), and, in any event, his new assertions
must be set aside as mere conclusions.
Accordingly, the Court dismisses Plaintiff's official-capacity request for infunctive relief.
B. Defendants’ Personal Involvement
In its prior ruling, the Court summarized the well-established principles governing
jndividual-capacity claims for damages under § 1983:
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 Gd Cir. 2016); Chavarriaga y. □□□
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 Parkeil, 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.
JMK. Luzerne Cty, Juvenile Det. Ct., 372 F.3d 572, 586 3d Cr.
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.’ ” Jd.
(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 Gd Cir. 1995),
Allegations of personal involvement “must be made with
10
appropriate particularity.” Rode v. Dellarciprete, 845 F.2d 1195,
1207 (3d Cir. 1988) (citations omitted).
Td. at *5.
The Court previously concluded that Plaintiff's FAC “does not allege ‘with appropriate
particularity’ facts plausibly suggesting that Defendants are liable under either theory.” Jd.
According to Defendants, the SAC does not cure this deficiency as to Bodtmann. (ECF No. 19-1
at 18.) This Court agrees. In the SAC, Plaintiff claims that he used the Jpay remedy system to
assert his pro se status and his need for a confidential visit with an investigator, “but was denied
by [Bodtmann].” (ECF No. 17 at 4 (citing ECF No. 17, Ex. B at B1-B4).) This Court indicated
in its October 17, 2024 Opinion that Plaintiff cannot establish Bodtmann’s personal involvement
based on allegations that the Assistant NJSP Administrator “simply advised [Plaintiff] of the
[INJJDOC’s policies and procedures’ and administratively closed one of Plaintiff's grievances as
duplicative to another pending inquiry.” Jbrahim, 2024 WL 4511982, at *6 (alterations in original)
(citing ECF No. 9 at 3, 7)). “[T]he filing of grievances, alone, is insufficient to show the actual
knowledge necessary for personal involvement.” Miller v. Tromeftter, No. 11-811, 2012 WL
5933015, at *12 (M.D. Pa. Nov. 27, 2012) (citing Rode, 845 F.2d at 1208), Accordingly, the Court
dismisses Plaintiff's individual-capacity claims for damages against Bodtmann based on Plaintiff's
failure to allege in the operative pleading sufficient facts indicating Bodtmann’s participation in
the allegedly unconstitutional conduct.
Cc. Actual Injury
Defendants also move to dismiss on the grounds that Plaintiff again fails to plausibly allege
the requisite actual injury to establish a viable claim for denial of his rights of access to the courts.
(ECF No. 19-1 at 6-8.)
As this Court explained:
Prisoners maintain a “fundamental constitutional right of
access to the courts,” embodied in the First and Fourteenth
Amendments. Lewis y. 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 Gd
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.” /d. 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. /d. 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.” /d. 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 Gd
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,
Ibrahim, 2024 WL 4511982, at *6-7.
12
Plaintiff asserts that the actual injury standard established in Bounds and Lewis is not
applicable to the facts of this case because the two cases involved the adequacy of prison law
libraries and legal research materials. (ECF No. 20-2 at 2, 4.) According to Plaintiff, even if the
two cases are applicable, they are “superseded by the supremacy clause of the First, Sixth, and 14"
Amendments as it concerns access and opportunity to confidentially strategize with attorneys and
non-attorney legal professionals without scrutinizing the evidential value of the ever-evolving
strategy” and that “[c]ontemplating potential success on the merits or actual injury cannot have
any bearing on access to the courts with respect to this very specific Constitutional claim.” (id. at
4-5; see also id, at 2 (sating that Sixth Amendment grants a pro se defendant the right to present
his own defense), 5 (arguing that he cannot imagine that his First, Sixth and Fourteenth
Amendment rights to access to the courts, self-representation, and due process of the law were to
be abridged where there is no issue of institutional safety or security), 6 (further referring to justice
and fundamental fairness, equal protection of the laws, and both procedural and substantive due
process)),)
However, as the Court indicated in its prior opinion, Lewis and Bounds provide the
applicable framework for evaluating whether Plaintiff has alleged a plausible claim that his
constitutional rights were violated. Specifically, although Plaintiff repeatedly refers to the right to
counsel under the Sixth Amendment, there is no indication that Plaintiff had legal representation
in his underlying state court proceeding. On the contrary, Plaintiff's unsuccessful motion for a
new trial was filed pro se. (ECF No, 17 at 2; ECF No. 17-3, Ex. G at G1-G2.) Plaintiff also
acknowledges that he has “no right to an attorney on a second or subsequent petition for Post-
Conviction Relief; or at the Federal Appeals process when submitting a petition for a Writ of
Habeas Corpus.” (ECF No. 17 at 2); see also Richardson vy. Superintendent Coal Tawnship SCI,
13
505 F.3d 750, 760 (3d Cir. 2018) (stating that there is no Sixth Amendment right to counsel in
state post-conviction review proceedings).
It is well established that pretrial detainees have a right of access to the courts as to legal
assistance and participation in preparing a defense against pending criminal charges and may raise
claims alleging interference with their Sixth Amendment rights. See Prater, 542 F. App’x at 137-
38. In contrast, “[b]ecause [Plaintiff] is a convicted prisoner, his claim is properly analyzed under
the First and Fourteenth Amendment as a denial of access to the courts claim rather than a Sixth
Amendment denial of counsel claim.” Jones v. Harry, No. 24-5692, 2024 WL 4940547, at *7
(E.D. Pa. Dec, 2, 2024) (citing Prater v. City of Philadelphia, No. 11-1618, 2015 WL 3456659, at
*4 (E.D. Pa. June 1, 2015)). To state a claim for denial of access to the courts, the plaintiff must
allege an actual injury under Lewis, See id.
Plaintiff also refers to the Equal Protection Clause of the Fourteenth Amendment,
challenging the disparate treatment of attorneys, who are eligible for the confidential call/visit lists,
and “non-attorney legal professionals” who are not eligible to be added to the lists, (See ECF No.
17 at 8.) In reviewing an equal protection claim, a court must first determine “whether the alleged
state action burdens a fundamental constitutional right or targets a suspect class.” State Troopers
Non-Cominissioned Officers Ass’n of New Jersey v. New Jersey, 399 F. App’x 752, 754 Gd Cir.
2010) (citing Doe v. Pa. Bd. of Prob. & Parole, 5123 F.3d 95, 107 (3d Cir. 2008)). “If a
‘classification neither burdens a fundamental right nor targets a suspect class, we will uphold it so
long as it bears a rational relation to some legitimate end.’” Connelly v. Steel Valley Sch. Dist.,
706 F.3d 209, 213 (3d Cir. 2013) (quoting Maldonado v. Houstoun, 157 F.3d 179, 184 Gd Cir.
1998)). However, “a classification [that] trammels fundamental personal rights or is drawn upon
inherently suspect distinctions such as race, religion, or alienage . . . must meet the strict scrutiny
14
standard, under which a law must be narrowly tailored to further a compelling government
interest.” Schumacher y. Nix, 965 F.2d 1262, 1266 (3d Cir. 1992) (citation and internal quotation
marks omitted), Access to the courts is a fundamental right for purposes of the equal protection
analysis. See Doyle v. Arete Financial Group LEC, No. 21-19935, 2022 WL 17253587, at *2
(D.N.J. Nov. 28, 2022). Accordingly, the equal protection analysis implicates whether Plaintiff
has stated a cognizable claim for denial of his right to access to the courts under Bounds and Lewis.'
td.
The Court again concludes that Plaintiff has not satisfied the “actual injury” requirement,
Plaintiff baidly claims that, as a result of the abridgement of his rights, he was unable to support
his claim of newly discovered evidence, which was denied by the state trial court; he possesses
“irrefutable scientific evidence in the form of two conflicting ballistic reports both conducted by
the State; one of which was purposely withheld form the jury” and “Exculpatory Statement
withheld from trial;” and Plaintiff cannot substantiate his claim without conducting an
investigation into the conviction’s integrity based on the reliability of the scientific evidence and
witness statements, and such substantiation cannot be done without “confidential strategizing via
telephone/visit.”. (ECF No. 17 at 5-6 (footnote omitted).) However, Plaintiffs conclusory
allegations do not “identify a ‘nonfrivolous’ or arguable claim,’” Jbrahim, 2024 WL 4511982, at
*7 (quoting Christopher, 536 U.S. at 415); see also Wilson, 57 F 4th at 140 (sating that
unsupported legal conclusions must be disregarded). In fact, the New Trial Denial attached to the
If the alleged classification does not burden a fundamental right like the right of access to
the courts (or a suspect classification), “a court may uphold state action on any conceivably valid
purpose, even when the court itself supplies the hypothetical basis.” Harris v. Williams, No. 25-
3373, 2025 WL 2027649, at *3 (D.N.J. Jub. 21, 2025) (citing Little v. Terhune, 200 F. Supp. 2d
445, 452 (D.N.J. 2002)). It is reasonable to distinguish between attorneys, who are officers of the
court, and other individuals, such as private investigators, for the limited administrative purpose
of assessing whether such attorneys/individuals should be eligible for inclusion on the confidential
visit and call lists.
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SAC stated that “the interview of Nora Meshal and the forensic report of Paul Verdino, which
serve as the factual predicate for the relief sought in this petition are not newly discovered” and
that “[t]hese issues were reviewed in [Plaintiff's] Petition for Post-Conviction relief.’ (ECF No,
17-3, Ex. Gat Gi.) The SAC does not address (or mention) the reasons why the state trial court
denied Plaintiff's motion.
In addition, Plaintiff does not allege facts allowing the Court to “trace” or “tie” the result
in the state court proceeding to the conditions of which he complained, Jbrahim, 2024 WL
4511982, at *7 (quoting Diaz, 532 F. App’x at 67). Plaintiff admits that he was allowed to have a
confidential visit with his investigator and that future visits could be approved on a case-by-case
basis. (ECF No. 17 at 4-5.) Plaintiff does not explain how the inclusion of the investigator on his
visit and call lists, or being permitted to exchange paperwork with the investigator during a contact
visit, would have saved his motion to dismiss.
In his opposition brief, Plaintiff argues that the prison cannot be the “gatekeeper” deciding
the evidentiary value of his confidential strategic decisions, and there are “extensive points to be
drawn out — but the prison forbids the passing of these notes.” (ECF No. 20-2 at 2-3.) Plaintiff
also contends that he can prove that Meshal’s statement was newly discovered (7.e., it was
discovered in June 2022 after the trial transcripts and witnesses statements were reviewed and was
never produced in discovery) and was exculpatory in nature (Meshal stated that she was
approached by hitmen looking for her brother “after the two hitmen initially sent after Mr. Ibrahim
failed to complete the task of killing him.” Cd. (noting that Meshai’s interview could be obtained
from Plaintiff's sister, Mariam Ibrahim, and providing her email address).) According to Plaintiff,
Meshal also provided information in exchange for immunity for her brother, but “[njone of this
came into the defense’s possession during trial.” Ud. at 3-4.) Plaintiff further refers to the value
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of having access to an investigator to interview the witness and obtain an affidavit from her, the
importance of confidentiality, the necessity of conducting a thorough examination of the records
with professional help to prepare a proper motion for a new trial based on newly discovered
evidence, and the fact that a pro se motion does not carry the same weight a motion supported by
professional help. (id. at 4.)
However, as this Court has noted in both the prior October 17, 2024 Opinion, see Ibrahim,
2024 WL 4511982, at *8, and in Section IILA., supra, the Court is prohibited from considering
any new allegations. See Ziemba, 2014 WL 4637006, at *3. Even if the Court could consider
them, the allegations do not cure the deficiencies in Plaintiff's SAC. Specifically, Plaintiff fails to
identify a nonfrivolous or arguable underlying claim because he does not address the state trial
court’s conclusion that “|t]hese issues were reviewed in your Petition for Post-Conviction relief.”
(ECF No. 17-3, Ex. G at G1.) Furthermore, Plaintiff does not allege actual facts plausibly tying
the denial of the motion for a new trial to either the alleged exclusion of non-legal professionals
from the visit and call lists, or an alleged policy prohibiting the passing or use of notes. Finally,
Plaintiff's brief “does not present any facts plausibly indicating that he has no other remedy
available to him in the state courts.” Ibrahim, 2024 WL 4511982, at *8 (citing State v. Szemple,
252 A.3d 1029, 1035 (N.J. 2021)),?
Accordingly, Plaintiff's claims are dismissed because he has failed to allege actual injury.
2 In his sur-reply, Plaintiff contends that the Meshal interview is not the focus of his SAC.
(ECF No. 23 at 3.) However, Plaintiff specifically alleges in his SAC the existence of an
“Exculpatory Statement withheld from trial.” (ECF No, 17 at 6.) Plaintiff also contends that the
fact that, as a pro se defendant, he cannot meet or strategize with an investigator, a forensic expert,
or an attorney, “is unconstitutional” and “preposterous.” (ECF No. 23 at 3.) Plaintiff
acknowledges that he is proceeding pro se, and has no constitutional right to counsel, in his state
case, (See id). There is also no indication that Piaintiff has retained a forensic expert.
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D. Dismissal With or Without Prejudice and Leave te Amend
Defendants argue that Plaintiff's SAC should be dismissed with prejudice. (ECF No. 19-
1 at 21.) As the Court previously observed, Ibrahim, 2024 WL 4511982, at *8, 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,
Ine,, 482 F.3d 247, 251 Gd Cir, 2007). The Court cannot conclude at this juncture that it would
be futile for Plaintiff to file a third amended complaint curing the deficiencies identified by this
Court inhis SAC.’ Accordingly, the Court dismisses the SAC without prejudice and gives Plaintiff
one final opportunity to amend his complaint to the extent that he can cure the deficiencies set
forth in this Opinion.
3 Defendants contend that Plaintiff does not have a clearly established right to include a
private investigator on his confidential contact visit and call lists, (ACF No. 19-1 at 16); 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.” (citation
omitted)). This Court has already rejected a similar argument. brahim, 2024 WL 4511982, at *8
(“Defendants assert that it is not clearly established that the right to access to the courts includes
communications with a private investigator.” (citing ECF No, 7-1 at 15-17)).) The Court again
determines that Defendants fail to meet their burden under the second prong of the qualified
immunity defense. See Gomez v. Toledo, 446 U.S, 635, 640 (1980) (noting qualified immunity is
an affirmative defense, and the burden of pleading it rests with the defendant).
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IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion is GRANTED in part and DENIED in
part. The Court DISMISSES without prejudice Plaintiff's SAC. Plaintiff may submit a third
amended complaint within 45 days if he can cure the deficiencies identified in this Opinion, An
appropriate Order wili be entered,
DATED: September 29, 2025 (j . bf,
GEORG By TE CASTNER
United States District Judge
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