The opinion of the court was delivered by: WILLIAM BASSLER, District Judge
Plaintiff Miguel Marquez ("Marquez"), confined at the Adult
Diagnostic and Treatment Center in Avenel, New Jersey ("ADTC"),
seeks to bring this action in forma pauperis pursuant to
28 U.S.C. § 1915 (1998), and moves for certification of this matter
as a class action and appointment of counsel. The Court will
grant Plaintiff's application to proceed in forma pauperis
and direct the Clerk to file the Complaint without prepayment of
fees. See 28 U.S.C. § 1915(a). Having thoroughly reviewed Plaintiff's allegations, the Court will dismiss the Complaint as
against the New Jersey Division of Youth and Family Services, the
Governor of New Jersey, and Correctional Medical Services, Inc.,
for failure to state a claim upon which relief may be granted
(pursuant to 28 U.S.C. §§ 1915(e)(2)and 1915A(b)(1)) and permit
the Complaint to proceed at this time as against the remaining
Plaintiff brings this action pursuant to
42 U.S.C. § 1983*fn1 for alleged violations of his rights secured by the
Constitution and laws of the United States. Defendants are Devon
Brown, Commissioner of the New Jersey Department of Corrections
("NJDOC"); the Governor of New Jersey (listed as James
McGreevey); Grace Rogers, Administrator of the Adult Diagnostic
and Treatment Center ("ADTC") in Avenel, New Jersey; T.E. Diller
and John Dale, an internal affairs investigation team; Correctional Medical Services, Inc. ("CMS"), a provider of
medical services for the NJDOC; Nancy Graffin, head of the Health
Sevice Unit and Psychological Services for the ADTC; and John Doe
Defendants. (Compl., Caption and ¶¶ 3-13.)
Plaintiff asserts the following facts: On December 12, 2001, he
arrived at the ADTC for specialized treatment after serving a
part of a state criminal sentence imposed on September 30, 1994.
(Compl., ¶ 14.) He began a treatment program, participating in
psychotherapy and educational process groups and completing "such
additional modules as: Victim Empathy, Personal Victimization,
Anger Management, Social Skills, Relationship Group, Relapse
Prevention One and Arousal Reconditioning." (Id., ¶ 15.)
Plaintiff allegedly also participated in a number of ancillary
groups such as Alcoholics Anonymous and Narcotics Anonymous.
(Id., ¶ 16.) He was given a job as a wing worker on December
19, 2001. (Id., ¶ 17.) Plaintiff became a wing representative
for the 7R wing in February, 2003. (Id., ¶ 18.) According to
Plaintiff, his reviews concluded that he showed continuing
"strength and developmental growth." (Id., ¶ 20.) According to
Plaintiff, he "would be amenable for parole without the
stipulation of minimum sentencing that is indicated within his
prison sentence." (Id., ¶ 21.)
In light of the aforesaid factual background, Plaintiff appears
to assert the following claims: (1) a liberty interest existed upon his referral to the ADTC, and he had no opportunity
to challenge that referral in view of the threat to his life
posed by transfer to the ADTC; (2) absence of guidelines and
regulations respecting transfer in light of the danger to
Plaintiff's life; (3) use of unqualified personnel in making
release, transfer, and therapeutic decisions; (4) violations with
regard to discharge plans, and other violations of state law;
(5)impermissibly differential treatment of similarly situated
inmates with respect to transfer; (6) arbitrary and capricious
actions with regard to the release process, evaluations, and
reports; (7) unconstitutional policies, practices, and/or customs
of state entities. (Compl., Counts 1-4); and (8) failure to
protect him from harm; and (9) constitutionally inadequate
The Prison Litigation Reform Act, Pub.L. No. 104-134, §§
801-810, 110 Stat. 1321-66, 1321-77 (1996), requires the Court to
review a complaint in a civil action in which a plaintiff is
proceeding in forma pauperis 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 who is
immune from such relief. 28 U.S.C. § 19159(e)(2)(B). A. Standard for Dismissal
Rule 8(a)(2) requires a complaint to include "a short and plain
statement of the claim showing that the pleader is entitled to
relief." Fed.R.Civ.P. 8(a)(2); accord Leatherman v. Tarrant
County Narcotics Intelligence and Coordination Unit,
507 U.S. 163, 168 (1993). Plaintiff is "required to `set forth sufficient
information to outline the elements of his claim or to permit
inferences to be drawn that these elements exist.'" Kost v.
Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (quoting 5A Charles
A. Wright & Arthur R. Miller, Federal Practice and Procedure §
1357, at 340 (2d ed. 1990)). The Court "must determine whether,
under any reasonable reading of the pleadings, the plaintiff?
may be entitled to relief, and . . . must accept as true the
factual allegations in the complaint and all reasonable
inferences that can be drawn therefrom." Nami v. Fauver,
82 F.3d 63, 65 (3d Cir. 1996) (citing Holder v. Allentown,
987 F.2d 188, 194 (3d Cir. 1993)); Eli Lily & Co. v. Roussel Corp.,
23 F. Supp.2d 460, 474 (D.N.J. 1998) (citing Nami and
A pro se complaint is held to less stringent standards than
formal pleadings drafted by lawyers. Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972); Then v. I.N.S., 58 F. Supp.2d 422, 429 (D.N.J. 1999),
aff'd sub nom. Then v. Quarantino, 208 F.3d 206 (3d Cir. 2000).
"Under our liberal pleading rules, during the initial stage of litigation, a
district court should construe all allegations in a complaint in
favor of the complainant" and give "credit to the allegations of
the complaint as they appear? in the complaint." Gibbs v.
Roman, 116 F.3d 83, 86 (3d Cir. 1997); see also Kulwicki v.
Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992). But a court need not
credit a complaint's "bald assertions" or "legal conclusions"
when deciding whether dismissal is appropriate. Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997); see also
Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th
Cir. 1993) ("[C]onclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to prevent a
motion to dismiss."). "When it appears beyond doubt that no
relief could be granted under any set of facts which could be
proved consistent with the allegations of the complaint, a
dismissal pursuant to Rule 12(b)(6) is proper." Robinson v.
Fauver, 932 F. Supp. 639, 642 (D.N.J. 1996) (citing Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)).
Section 1983 of Title 42 does not confer substantive rights,
but provides a remedy for the deprivation of rights protected by
federal law. Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985);
see also Sameric Corp. of Delaware, Inc. v. City of
Philadelphia, 142 F.3d 582, 590 (3d Cir. 1998). To establish a
violation of 42 U.S.C. § 1983, a plaintiff must demonstrate that
the challenged conduct was committed by a person acting under color of state law
and that the conduct deprived him of rights, privileges, or
immunities secured by the Constitution or laws of the United
States. See West v. Atkins, 487 U.S. 42, 48-49 (1988);
Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part
on other grounds by Daniels v. Williams, 474 U.S. 327 (1986);
Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970);
Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.
1994); Shaw v. Stackhouse, 920 F.2d 1135, 1141-42 (3d Cir.
Plaintiff also must assert and prove some causal connection
between a Defendant and the alleged wrongdoing in order to
recover against that Defendant. See Mt. Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977);
Lee-Patterson v. New Jersey Transit Bus Operations, Inc.,
957 F. Supp. 1391, 1401-02 (D.N.J. 1997). "A defendant in a civil
rights action must have personal involvement in the alleged
wrongs; liability cannot be predicated solely on the operation of
respondeat superior." Rode v. Dellarciprete, 845 F.2d 1195,
1207 (3d Cir. 1988) (citing Parratt, 451 U.S. at 537 n. 3).
Causal connection is shown where a Defendant (1) participated in
violating Plaintiff's rights; (2) directed others to violate
them; (3) as the person in charge, had knowledge of and
acquiesced in his subordinates' violations; or (4) tolerated past
or ongoing misbehavior. Friedland v. Fauver, 6 F. Supp.2d. 292,
302-03 (D.N.J. 1998) (citing Baker v. Monroe Tp., 50 F.3d 1186, 1190-91 & n. 3 (3d Cir. 1995)). The Court
will now determine whether dismissal pursuant to
28 U.S.C. § 1915(e)(2)(B) is warranted.
In order to recover damages and obtain other relief, Plaintiff
must show that Defendants demonstrated "deliberate indifference
to [his] serious medical needs." See Durmer v. O'Carroll,
991 F.2d 64, 67 (3d Cir. 1993); Boring v. Kozakiewicz,
833 F.2d 468, 471 (3d Cir. 1987), cert. denied, 485 U.S. 991 (1988).
He must show (1) that the Defendants were deliberately
indifferent to his medical needs and (2) that ...