United States District Court, D. New Jersey
October 20, 2005.
MICHAEL KOUNELIS, Plaintiff,
LYNDELL B. SHERRER, et al., Defendants.
The opinion of the court was delivered by: SUSAN WIGENTON, Magistrate Judge
This matter comes before the Court on Plaintiff Michael
Kounelis' ("Plaintiff") motion to amend his Complaint filed on
September 27, 2004 (the "Motion"). Plaintiff, a prisoner,
commenced this action pursuant to 42 U.S.C. § 1983 alleging that
various prison officers violated his Fourth, Fifth, Eighth, and
Fourteenth Amendment rights. Plaintiff now seeks to incorporate
new claims against previously unnamed defendants Captain Sagebiel
("Sagebiel") and Lieutenant Cannon ("Cannon"). Both are officers
of Northern State Prison where Plaintiff is incarcerated.
Specifically, Plaintiff alleges that Sagebiel and Cannon violated
the New Jersey Conscientious Employee Protection Act N.J.S.A.
34:19-1("CEPA") and violated his First Amendment right by taking
retaliatory actions against him for initiating this
action.*fn1 The Court decides the Motion upon the parties'
written submissions pursuant to Fed.R.Civ.P. 78. For the
reasons set forth below, the Motion is GRANTED in part and DENIED in part. The Motion is
granted with respect to asserting First Amendment claims against
Sagebiel and Cannon in the Amended Complaint. The Motion is
denied with respect to asserting CEPA claims against Sagebiel and
This case arises out of an alleged assault on Plaintiff, an
inmate at Northern State Prison ("NSP"). In Plaintiff's original
Complaint,*fn2 he alleged that on November 14, 2003,
Defendants Sgt. James, Sgt. Forte, Sgt. Perez, Officer Atuncar,
Officer Schwenk and Officer Bush (collectively "Defendants")
assaulted him. Plaintiff contended that the assault was
retaliation for complaints he had filed against Officer Atuncar
on September 4, 2003 and September 11, 2003. Specifically,
Plaintiff complained that Officer Atuncar denied him access to
the law library in NSP, and that he was subjected to verbal
harassment by the NSP staff.*fn3 Subsequently, Plaintiff
initiated this action alleging that Defendants violated his
Fourth, Fifth, Eighth, and Fourteenth Amendment Constitutional
Plaintiff now alleges in his Proposed Amended Complaint that
after the commencement of this case, on October 22, 2004, Sagebiel and Cannon ordered a
search of A-Unit, where he resides, using K-9 unit dogs. They
also ordered Plaintiff to submit urine samples to be tested for
illegal substances. After the search, Cannon authorized and
ordered false disciplinary charges to be brought against
Plaintiff for having illegal substances in the urine sample.
Cannon further authorized and ordered Plaintiff to be placed in
segregated confinement. However, the charges were dismissed by
the designated hearing officer because the urine test was deemed
Plaintiff further alleges that on March 17, 2005, Sagebiel and
Cannon once again authorized and ordered NSP officials and K-9
units to conduct a search of Plaintiff's A-Unit. Plaintiff was
subjected to another urine test for illegal substances.
Subsequently, Plaintiff was placed in confinement for the second
time. After twelve days in confinement, a designated hearing
officer dismissed the charges and ordered the release of
On May 20, 2005, Sagebiel and Cannon subjected Plaintiff to a
third search of his unit and urine test. However, this time,
Plaintiff was charged with NSP rule infraction .204, possession
of prohibited illegal substances. Plaintiff then sought for a
specific investigation to be conducted in lieu of the charges but
the request was denied.
Thereafter, on May 23, 2005, Plaintiff complained that Cannon
harassed him by having subordinate staff collect urine samples,
falsely reporting that he was violating NSP rules, and placing
him in confinement for long periods of time without any just
cause. Plaintiff alleges that Cannon investigated the complaint
himself and his answer was validated by Sagebiel. On June 15,
2005, Plaintiff was found guilty by the designated hearing
officer and the officer ordered the forfeiture of Plaintiff's
good-time, segregated confinement of Plaintiff, and extended the
length of Plaintiff's stay in prison. Consequently, Plaintiff now filed the within Motion seeking to
include Sagebiel and Cannon as defendants. Plaintiff also seeks
to include First Amendment claims against Sagebiel and Cannon
contending that they took retaliatory actions against him for
filing this action. In addition, Plaintiff contends that because
he is an employee of NSP as a tier sanitation worker, he is also
entitled to the protection of CEPA.
Federal Rule of Civil Procedure 15(a) provides that leave to
amend a pleading "shall be freely given when justice so
requires." Fed.R.Civ.P. 15(a). The decision to grant or deny
leave to amend a pleading is within the discretion of the court.
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222
(1962). Rule 15(d) governs when a Plaintiff seeks to incorporate
claims that occurred after the initial filing of the complaint.
Rule 15(d) states, "[u]pon motion of a party the court may, upon
reasonable notice and upon such terms as are just, permit the
party to serve a supplemental pleading setting forth transactions
or occurrences or events which have happened since the date of
the pleading sought to be supplemented. Permission may be granted
even though the original pleading is defective in its statement
of a claim for relief or defense." Fed.R.Civ.P. 15(d). Thus,
under Rule 15(d), "a party may supplement the original pleading
to include subsequent occurrences which are related to the claim
presented in the original complaint, absent prejudice to the
nonmoving party." Albrecht v. The Long Island Railroad,
134 F.R.D. 40, 41 (E.D.N.Y. 1991).
Rules 15(a) and (d) require that "[i]n the absence of any
apparent or declared reason such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc. the leave sought should,
as the rules require, be freely given." Foman, 371 U.S. at 182 (citation
omitted); See Grayson v. Mayview State Hospital, 293 F.3d 103,
108 (3d Cir. 2002) ("amendment must be permitted . . . unless it
would be inequitable or futile").
Futility means that the complaint, as amended, would fail to
state a claim upon which relief could be granted. In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d
Cir. 1997). In assessing futility, the court applies the same
standard of legal sufficiency as it applies under
Fed.R.Civ.P. 12(b)(6). See Shane v. Fauver, 213 F.3d 113, 115 (3d Cir.
2000). Accordingly, if a claim is vulnerable to dismissal under
Rule 12(b)(6), but the plaintiff moves to amend, leave to amend
generally must be granted unless the amendment would not cure the
deficiency. See id.
On a motion to dismiss pursuant to Rule 12(b)(6), the court is
required to accept as true all allegations in the complaint and
all reasonable inferences that can be drawn therefrom, and to
view them in the light most favorable to the non-moving party.
See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380,
1384 (3d Cir. 1994). The question is whether the claimant can
prove any set of facts consistent with his or her allegations
that will entitle him or her to relief, not whether that person
will ultimately prevail. Hishon v. King & Spalding,
467 U.S. 69, 73 (1984). While a court will accept well-plead allegations
as true for the purposes of the motion, it will not accept
unsupported conclusions, unwarranted inferences, or sweeping
legal conclusions cast in the form of factual allegations. See
Miree v. DeKalb County, Ga., 433 U.S. 25, 27 n. 2 (1977).
Moreover, the claimant must set forth sufficient information to
outline the elements of his claims or to permit inferences to be
drawn that these elements exist. See Fed.R.Civ.P. 8(a)(2);
Conley v. Gibson, 355 U.S. 41, 45-46 (1957). A. First Amendment Retaliation Claims
The government may not retaliate against an individual for
exercising his constitutionally protected right to file
grievances. See Rauser v. Horn, 241 F.3d 330 (3d. Cir. 2001).
In order for a prisoner-plaintiff to defeat a Rule 12(b)(6)
motion when asserting a retaliation claim, that plaintiff must
plead sufficiently to satisfy a three part test. See Id. First,
as a threshold matter, "a prisoner-plaintiff in a retaliation
case must prove that the conduct which led to the alleged
retaliation was constitutionally protected." Id. at 333
(citation omitted). Next, the prisoner-plaintiff must show that
"he suffered some adverse action at the hands of prison
officials." Id. (citation omitted). The prisoner-plaintiff
satisfies this requirement by demonstrating that the action "`was
sufficient to deter a person of ordinary firmness from exercising
his [constitutional] rights.'" Id. (citing Allah v.
Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)). Finally, the
prisoner-plaintiff must demonstrate that "his constitutionally
protected conduct was `a substantial or motivating factor' in the
decision to discipline him." Id. (citation omitted).
In this case, Sagebiel and Cannon argue that Plaintiff's
Proposed Amended Complaint does not state a claim upon which
relief may be granted.*fn5 Specifically, Defendants argue
that Plaintiff cannot merely allege, without factual support,
that the events that occurred on October 22, 2004, March 17,
2005, and May 23, 2005 constitute calculated retaliation. Nor can
Plaintiff merely allege that he has been the subject of a
campaign of harassment conducted by Sagebiel and Cannon.
Accepting as true all allegations in the Proposed Amended
Complaint and all reasonable inferences that can be drawn
therefrom, the Court finds that Plaintiff's retaliation claims
against Sagebiel and Cannon would entitle him to relief if the
allegations are proven at trial. It is well-established that
Plaintiff has a First Amendment right to file grievances with the
Court. Thus, Plaintiff satisfies the first element by alleging
that Sagebiel and Cannon interfered with his constitutional right
by taking retaliatory actions against him for filing this suit.
Next, Plaintiff alleges that he was falsely charged with
possessing illegal substances after several failed retaliation
attempts from Sagebiel and Cannon against him. Because of the
charges, NSP ordered the forfeiture of Plaintiff's good-time,
segregated confinement of Plaintiff, and extended the length of
Plaintiff's stay in prison. In addition, Plaintiff alleges that
he has also been subjected to threats. As such, the Court finds
that under the particular circumstance, a reasonable person of
ordinary firmness may be intimidated to exercise his right to
file grievances with the Court.
Finally, Plaintiff has demonstrated a suggestive temporal
proximity between the filing of his original Compliant, which was
filed on September 27, 2004, and the first instance on October
22, 2004 when Sagebiel and Cannon subjected Plaintiff to false
accusations. See Farrell v. Planters Lifesavers Co.,
206 F.3d 271, 280 (3d Cir. 2000) (held that suggestive timing is relevant
to causation in retaliation cases). The Court finds that the
closeness in time of the alleged instances to the filing of the
original Complaint is sufficient to suggest that Sagebiel and
Cannon were not merely conducting routine prison searches.
Plaintiff has alleged sufficient facts to indicate that Sagebiel
and Cannon's motivation in conducting those searches was suspect.
This is particularly evident because on two occasions the charges
brought against Plaintiff were dismissed. Therefore, Plaintiff
has satisfied the last element by demonstrating that his
constitutionally protected right was "a substantial or motivating
factor" in the decision to discipline him.
Furthermore, Defendants would not be prejudiced by the
amendments proposed by Plaintiff as no new claims are asserted against Defendants, and the Court
does not find any dilatory tactics or bad faith on the part of
Plaintiff. Clearly, as newly asserted defendants, Sagebiel and
Cannon also would not suffer any prejudice. Accordingly,
Plaintiff is appropriately, under Rule 15(d), supplementing his
pleadings with new events that took place after the initiation of
B. The CEPA Claims
Plaintiff seeks to assert CEPA claims against Sagebiel and
Cannon for taking retaliatory actions against him for initiating
this action. In order for Plaintiff to sustain his CEPA claims,
Plaintiff would have to show that he is the type of employee
protected under CEPA. N.J.S.A 34:19-3 states,
[a]n employer shall not take any retaliatory action
against an employee because the employee does any of
a. Discloses, or threatens to disclose to a
supervisor or to a public body an activity, policy or
practice of the employer or another employer, with
whom there is a business relationship, that the
employee reasonably believes is in violation of a
law, or a rule or regulation promulgated pursuant to
b. Provides information to, or testifies before, any
public body conducting an investigation, hearing or
inquiry into any violation of law, or a rule or
regulation promulgated pursuant to law by the
employer or another employer, with whom there is a
business relationship . . .
N.J.S.A. 34:19-3(a) and (b).
Section 34:19-2 defines "employee" as "any individual who
performs services for and under the control and direction of an
employer for wages or other remuneration." N.J.S.A. 34:19-2(b).
The New Jersey Supreme Court in Abbamont v. Piscataway
Township Bd of Ed., 138 N.J. 405 (1994) articulated that CEPA's
intended purpose is "to overcome the victimization of employees
and to protect those who are especially vulnerable in the
workplace from the improper and unlawful exercise of authority by employers." Id. at 418. Further,
"CEPA's enactment is `important to all New Jersey workers who are
concerned about working in a safe environment with honest
employers.'" Id. at 417(citation omitted). Therefore, CEPA is
only applicable when there is a legitimate employee-employer
relationship between the parties.
The term "employee" is not adequately defined within the
statute to determine whether Plaintiff is afforded relief under
CEPA. There is no persuasive authority in the state Courts
opinions to conclude that an inmate is in fact covered under
CEPA. In fact, according to the New Jersey Supreme Court, the
frame work for a CEPA claim follows that of a New Jersey Law
Against Discrimination ("LAD") claim. See Abbamont,
138 N.J. at 418. Thus, New Jersey State Courts have applied a twelve-factor
test in the context of a LAD claim to determine whether an
employment relationship exists between the parties. This test was
set forth by federal courts interpreting analogous federal
statutes that do not adequately define the term "employee."
Chrisanthis v. County of Atlantic, 361 N.J. Super. 448, 454
(App.Div. 2003).*fn6 This test examines and considers the
(1) the employer's right to control the means and
manner of the worker's performance; (2) the kind of
occupation supervised or unsupervised; (3) skill;
(4) who furnishes the equipment and workplace; (5)
the length of time in which the individual has
worked; (6) the method of payment; (7) the manner of
termination of the work relationship; (8) whether
there is annual leave; (9) whether the work is an
integral part of the business of the "employer;" (10)
whether the worker accrues retirement benefits; (11)
whether the "employer" pays social security taxes;
and (12) the intention of the parties. Id. at 455 (citation omitted).
This test requires "[a] `principled application' of the factors
and a consideration of which factors are more important under the
peculiar circumstances of each case . . ." Id. at 456. The test
also requires a reasoned balancing of the factors to determine
the existence of an employment relationship. Id.
Although this issue is one of first impression in this circuit,
federal courts have routinely held that inmates are not employees
in the context of minimum wages for the purpose of the Federal
Fair Labor Standards Act ("FLSA"). See Tourscher v. McCullough,
184 F.3d 236, 243 (3d Cir. 1999) (held that inmates performing
intra-prison work are not employees under FLSA). Based on public
policy, the Second Circuit Court of Appeals in Danneskjold v.
Hausrath, 82 F.3d 37 (2d Cir. 1996) reasoned that:
[t]he relationship is not one of employment;
prisoners are taken out of the national economy;
prison work is often designed to train and
rehabilitate; prisoners' living standards are
determined by what the prison provides; and most such
labor does not compete with private employers . . .
As a result, no Court of Appeals has ever questioned
the power of a correctional institution to compel
inmates to perform services for the institution . . .
Such work occupies prisoners' time that might
otherwise be filled by mischief; it trains prisoners
in the discipline and skills of work; and it is a
method of seeing that prisoners bear a cost of their
Id. at 42-43.
Each circuit that has addressed the question has concluded that
prisoners producing goods and services used by the prison should
not be considered employees under the FLSA. See Gambetta v.
Prison Rehabilitative Indus., 112 F.3d 1119, 1124-25 (11th
Cir. 1997); Reimonenq v. Foti, 72 F.3d 472, 475 n. 3 (5th
Cir. 1996); Henthorn v. Department of Navy, 29 F.3d 682, 684-87
(D.C. Cir. 1994); McMaster v. Minnesota, 30 F.3d 976, 980
(8th Cir. 1994); Hale v. Arizona, 993 F.2d 1387, 1392-98 (9th Cir. 1993) (en banc); Franks v. Oklahoma State
Indus., 7 F.3d 971, 972 (10th Cir. 1993); Harker v. State
Use Indus., 990 F.2d 131, 133 (4th Cir. 1993); Miller v.
Dukakis, 961 F.2d 7, 8-9 (1st Cir. 1992); Vanskike v.
Peters, 974 F.2d 806, 809-10 (7th Cir. 1992).
Federal courts have also applied the reasoning set forth in the
FLSA cases to hold that inmates are not employees for the
purposes of other federal statutes that provide employment
protections. See Coupar v. United States Department of Labor,
105 F.3d 1263, 1264-65 (9th Cir. 1997) (holding that inmates
are not employees for purposes of the "whistleblower" provisions
of the Clean Air Act, 42 U.S.C. § 7622, and the Toxic Substance
Control Act, 15 U.S.C. § 2622).
This Court will adopt the twelve-part test, as set forth in
Chrisanthis, supra, to determine whether Plaintiff in this case
qualifies as an employee under CEPA.
Plaintiff claims that he is protected under CEPA because he is
an employee of NSP. Plaintiff was interviewed for his assignment
as a tier sanitation worker. The assignment requires Plaintiff to
clean daily the housing unit where he and seventy-nine other men
live. Plaintiff receives a daily stipend as wages for his tasks,
and he is entitled to irrevocable work credits that reduce his
sentence. Thus, Plaintiff argues that Sagebiel and Cannon's
retaliatory conduct against him violates N.J.S.A. 34:19-3 as he
has been subjected to threats, false charges, disciplinary
sanctions, including the loss of good-time credits, physical and
mental pressure intended to discourage, dissuade and prevent him
from proceeding with the current action.
In light of CEPA's intended purpose and Plaintiff's
circumstances, the Court holds that Plaintiff's CEPA claims
against Sagebiel and Cannon are futile, as factors weigh against
classifying Plaintiff as an "employee" under CEPA. Plaintiff's
assignment does not provide him with annual leave, he does not
accrue retirement benefits and neither NSP nor the state pay
social security taxes on his behalf. Although, as Plaintiff argues, his position is not
meaningless, Plaintiff's tasks are clearly not an integral part
of the business of NSP. In fact, as suggested by the Second
Circuit, these assignments help rehabilitate inmates rather than
qualify as employment. In other words, Plaintiff's assignment
arises from the custodial relationship with NSP which earns him a
stipend and credits that may reduce his sentence.
The manner in which Plaintiff receives and controls his stipend
also suggests that he is not employed by NSP. Plaintiff's stipend
is deposited into a trust account, and he never receives a
paycheck. Plaintiff can then use that fund to buy items from the
prison commissary. The termination of his assignment is
controlled by the term of incarceration, and only with good
behavior is he even eligible for the assignment.
Under the particular circumstances of this case, the most
demonstrative factor is the intent of the parties. Objectively,
it would be preposterous for the Court to suggest that NSP
interviewed Plaintiff with the intent of recruiting an inmate as
an employee. It is also unlikely that Plaintiff ever intended NSP
to be his employer when he was assigned to his position.
Therefore, a reasoned balancing of the factors concludes that
Plaintiff is not an employee within the purview of CEPA.
For the reasons set forth above, the Motion is granted in part
and denied in part. Plaintiff is permitted to include First
Amendment retaliation claims against Sagebiel and Cannon.
However, Plaintiff is precluded from incorporating CEPA claims
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