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October 20, 2005.

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 Cannon.

Background Facts

  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 rights.*fn4

  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 improperly authorized.

  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 Plaintiff.

  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 ...

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