FALCON

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ALAN FALCON, Case No. 25–cv–07240–ESK–EAP

Plaintiff,

v. OPINION AND ORDER

COMMISSIONER VICTORIA

KUHN ESQ., et al.,

Defendants.

THIS MATTER is before the Court on pro se plaintiff Alan Falcon’s civil

rights complaint filed pursuant to 42 U.S.C. § 1983 (Complaint). (ECF No. 1.)

He has also filed a motion for a temporary restraining order (Motion). (ECF

No. 2.) Because plaintiff is a prisoner seeking damages from government

employees, I must review the Complaint to determine whether it should be

dismissed as frivolous or malicious, for failure to state a claim upon which relief

may be granted, or because it seeks monetary relief from a defendant immune

from such relief. 28 U.S.C. § 1915A(a)–(b). For the following reasons, I will

allow the Complaint to proceed in part.

BACKGROUND & PROCEDURAL HISTORY

1. Plaintiff is a convicted and sentenced state prisoner presently

detained in East Jersey State Prison (East Jersey). On or about January 25,

2023, plaintiff was detained in Garden State Youth Facility (Garden State) in

cell 208 of the East 2A Wing housing unit. (ECF No. 1 ¶¶ 16, 17.)

2. He frequently saw Garden State officer Hebrew failing to complete

his security checks, security cell checks, or walk throughs. (Id. ¶ 18.)

Plaintiff alleges Hebrew’s inaction led to thefts in the unit by prisoners going

into other prisoners’ cells. (Id. ¶ 19.) Plaintiff asserts the thefts continued

from January 2023 to December 2023. (Id. ¶ 20.)

3. According to plaintiff, Hebrew was aware that inmate McCall had

committed some of the thefts and “had out for plaintiff” because plaintiff had

made complaints about his cell door being open and items going missing. (Id.

¶ 21.)

4. On December 30, 2023, plaintiff encountered McCall and three other

prisoners around 9:00a.m. (Id. ¶ 22.) McCall and the other prisoners

attacked plaintiff in the East 2A day room. (Id. ¶ 23.) Plaintiff was kicked in

the head and knocked unconscious by the four prisoners. (Id. ¶¶ 24, 25.)

Hebrew witnessed the assault but did not call a code or alert his supervisor.

(Id. ¶ 26.)

5. Unidentified prisoners carried plaintiff to his cell where he was

unconscious on the floor for approximately 30 minutes to an hour. (Id. ¶¶ 25,

27.) Hebrew failed to conduct security checks or walkthroughs during this

time. (Id. ¶ 28.)

6. Hebrew arrived at plaintiff’s cell around 10:00 a.m. on December 30.

(Id. ¶ 29.) Plaintiff was still unconscious and failed to respond to Hebrew’s

call. (Id. ¶ 30.) Hebrew called a medical code at that time. (Id. ¶ 31.)

7. Plaintiff woke up around noon in Capital Health Hospital in Trenton.

(Id. ¶ 32.) He was told that he had a concussion and bleeding in his brain.

(Id. ¶ 33.) Nobody notified plaintiff’s mother about the assault. (Id. ¶ 34.)

8. Plaintiff remained in the hospital until January 2, 2024 when he was

transferred back to Garden State. (Id. ¶ 35.) He was placed into the

infirmary. (Id. ¶ 36.) No prison official came to speak to plaintiff about the

incident. (Id. ¶ 37.)

9. Plaintiff was transferred to East Jersey on January 8, 2024. (Id.

¶ 38.) A neurologist specialist has been treating the bleeding in plaintiff’s

brain. (Id. ¶ 40.) He has been experiencing head pain since the assault. (Id.

¶ 42.)

10. No one from Garden State has ever contacted plaintiff to investigate

the assault. (Id. ¶ 41.)

11. Plaintiff filed the Complaint on June 4, 2025 against defendants

Hebrew, New Jersey Department of Corrections (Department) Commissioner

Victoria Kuhn, former Department Commissioner Willie Bonds, Garden State

Administrator Doe, Garden State Supervisor Doe, Garden State Major Doe,

Garden State Lieutenant Doe, and Garden State Sergeant Doe (collectively

Garden State supervisors). (Id. p. 1.) He raises claims of failing to protect,

failure to intervene, failure to train, failure to investigate, and conspiracy to

coverup and destroy evidence of the assault. (Id. ¶ 45.)

DISCUSSION

12. The Prison Litigation Reform Act requires a district court to sua

sponte screen a civil complaint filed by a prisoner seeking damages from a

government entity or employee and to dismiss any claim that is frivolous,

malicious, fails to state a claim upon which relief may be granted, or seeks

monetary relief from a defendant immune from suit. 28 U.S.C. § 1915A(a)–(b).

13. To survive a sua sponte screening for failure to state a claim, a

complaint must allege “sufficient factual matter” to show that the plaintiff’s

claims are facially plausible. Fowler v. UPMC Shadyside, 578 F.3d 203, 210

(3d Cir. 2009). “‘A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.’” Fair Wind Sailing, Inc. v.

Dempster, 764 F.3d 303, 308 n. 3 (3d Cir. 2014) (quoting Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)). “[A] pleading that offers ‘labels or conclusions’ or ‘a

formulaic recitation of the elements of a cause of action will not do.’” Iqbal,

556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

14. “The Court must accept all facts in the complaint as true, draw all

reasonable inferences in the prisoner’s favor, and ask only whether the

complaint contains facts sufficient to state a plausible claim.” Durham v.

Kelley, 82 F.4th 217, 223 (3d Cir. 2023). Moreover, “[c]omplaints filed pro se

should be construed liberally and held to ‘less stringent standards than formal

pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89,

94 (2007) (per curiam)).

15. I will dismiss plaintiff’s claims that defendants failed to train Hebrew

and conspired to coverup and destroy evidence of the assault. “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.” Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 293–94 (3d Cir. 2018).

“After a plaintiff establishes that the object of the conspiracy was the

deprivation of a federally protected right, the rule is clear that the plaintiff must

provide some factual basis to support the existence of the elements of a

conspiracy: agreement and concerted action.” Id. at 295 (internal quotation

marks omitted). Plaintiff has not submitted any facts from which I could

reasonably draw such conclusions against defendants.

16. To state a claim based on a supervisory defendant’s failure to train a

subordinate, plaintiff must provide sufficient facts that, if true, would show: “(1)

the policy or procedures in effect at the time of the alleged injury created an

unreasonable risk of a constitutional violation; (2) the defendant-official was

aware that the policy created an unreasonable risk; (3) the defendant was

indifferent to that risk; and (4) the constitutional injury was caused by the

failure to implement the supervisory practice or procedure.” Womack v.

Moleins, No. 10–cv–02932, 2015 WL 420161, at *3 (D.N.J. Jan. 30, 2015)

(quoting Barkes v. First Corr. Med., Inc., 766 F.3d 307, 317 (3d Cir. 2014)).

“[F]ailure to adequately train or supervise can only constitute deliberate

indifference if the failure has caused a pattern of violations.” Id.; Connick v.

Thompson, 563 U.S. 51, 62 (2011) (holding that “[a] pattern of similar

constitutional violations by untrained employees” is necessary “to demonstrate

deliberate indifference for purposes of failure to train”).

17. Plaintiff has not provided any facts that would suggest there was a

history of prisoner assaults tied to Hebrew’s alleged failure to conduct regular

security checks. According to plaintiff there was a history of thefts in the

housing unit, (ECF No. 1 ¶ 19), but that is different than a history of prisoners

assaulting each other. There are no facts from which I can reasonably infer

that Kuhn, Bonds, or any of the Garden State supervisors were aware of an

unreasonable risk that prisoners could be assaulted but failed to act.

Therefore, I will dismiss the failure to train claims without prejudice.

18. Plaintiff further alleges that defendants failed to investigate after

the assault. (ECF No. 1 ¶ 37.) This claim is analogous to a claim of failing to

respond to a grievance, and “because a prisoner has no free-standing

constitutional right to an effective grievance process, plaintiff cannot maintain

a constitutional claim against defendant based upon his perception that he

ignored and/or failed to properly investigate plaintiff's grievances.” Darby v.

Hughes, No. 25–cv–12104, 2025 WL 2610277, at *3 (D.N.J. Sept. 10, 2025)

(cleaned up). I will dismiss this claim as well.

19. According to plaintiff, Hebrew was aware that McCall “had out” for

plaintiff because he made complaints about McCall stealing but did not take

action to protect plaintiff. (ECF No. 1 ¶ 21.) Plaintiff also asserts that

Hebrew was also present during McCall’s assault on plaintiff but did not

intervene. (Id. ¶ 26.) He also claims Hebrew did not call a medical code for

at least 30 minutes after the assault. (Id. ¶¶ 29, 30, 31.) Assuming the truth

of these allegations for screening purposes only, plaintiff has stated failure to

protect, failure to intervene, and deliberate indifference to medical needs claims

against Hebrew.1

20. Plaintiff’s request for injunctive relief will also be dismissed. He

seeks an order requiring defendants to continue to provide him access to the

neurologist. (ECF No. 1 ¶ 49.) Federal Rule of Civil Procedure 65(b)(1)

“limits the Court’s ability to issue a [temporary restraining order] to instances

1 These claims may only proceed against Hebrew in his individual capacity as he

is immune from suit in his official capacity. Additionally, my preliminary review

under 28 U.S.C. § 1915A does not determine whether the allegations in the Complaint

would survive a properly supported motion to dismiss filed by a defendant after service.

See Richardson v. Cascade Skating Rink, No. 19–cv–08935, 2020 WL 7383188, at *2

(D.N.J. Dec. 16, 2020) (“[T]his Court recognizes [a] § 1915[A] screening determination

is a preliminary and interlocutory holding, subject to revision at any time prior to entry

of final judgment.” (internal quotation marks omitted)).

when (i) the ‘specific facts in an affidavit or a verified complaint clearly show

that immediate and irreparable injury, loss, or damage will result to the’ party

seeking the [temporary restraining order] and (ii) the party seeking the

[temporary restraining order] ‘certifies in writing any efforts made to give

notice and the reasons why it should not be required.’” Kenny v. Toms River

Twp. Bd. of Adjustment, No. 18–cv–11461, 2018 WL 4442231, at *1 (D.N.J.

Sept. 17, 2018) (quoting Fed. R. Civ. P. 65(b)(1)).

21. I find that plaintiff fails to make the specific factual showing required

to establish immediate and irreparable injury, loss, or damage. There are no

facts in the Complaint that suggests defendants are withholding medical

treatment from plaintiff.

Accordingly,

IT IS on this 4th day of November 2025 ORDERED that:

1. Defendants Victoria Kuhn, Willie Bonds, Garden State

Administrator Doe, Garden State Supervisor Doe, Garden State Major Doe,

Garden State Lieutenant Doe, and Garden State Sergeant Doe are dismissed

from this action without prejudice. 28 U.S.C. § 1915A(b)(1).

2. Plaintiff’s request for injunctive relief is denied.

3. The failure to protect, failure to intervene, and deliberate

indifference to medical needs claims may proceed against Garden State officer

Hebrew in his individual capacity only. The official capacity claim, failure to

investigate claim, and conspiracy claim against defendant Hebrew are

dismissed.

4. Pursuant to the Memorandum of Understanding2 between the Court

and the New Jersey Department of Corrections, the Court shall forward a copy

of the Complaint to the Department and seek a waiver of service for defendants.

A separate order detailing this process will follow.

2 The Memorandum of Understanding between all vicinages of the United States

District Court for the District of New Jersey and the New Jersey Department of

Corrections governs the process for obtaining waiver of service, where possible, for the

Departments’ current and former employees.

5. The Clerk shall send a copy of this opinion and order to plaintiff by

regular mail.

/s/ Edward S. Kiel

EDWARD S. KIEL

UNITED STATES DISTRICT JUDGE