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King v. Corzine

May 5, 2009

MARTE KING, PLAINTIFF,
v.
JON S. CORZINE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Katharine S. Hayden United States District Judge

MEMORANDUM ORDER

IT APPEARING THAT:

1. On April 3, 2009, the Clerk docketed the plaintiff's civil complaint, together with a duly executed application to prosecute this matter in forma pauperis and a motion to appoint pro bono counsel. See Docket Entry No. 1. The complaint named the following persons as defendants in this matter: (a) "Governor Jon S. Corzine" ("Corzine"); (b) "Commissioner George Hayman" ("Hayman"); (c) "Mr. Sapp, Assistant Administrator of the Northern State Prison" ("Sapp"); (d) "Capt. Hernandez" ("Hernandez"); (e) "Lt. Ghibah" ("Ghibah"); (f) "Sgt. Kearner" ("Kearner"); (g) "Sgt. Szuba" ("Szuba"); (h) "Sgt. Wallace" ("Wallace"); (i) "Officer Tisdale" ("Tisdale"); (j) "Hearing Officer McGovern" ("McGovern"); (k) "1-50 Unknown Officers" ("Unknown Officers"); and (l) "1-50 Unknown Employees of the Department of Corrections" ("Unknown Employees"). See id. at 1-2.

2. In addition, in the body of his complaint, the plaintiff stated allegations against "Administrator Sherrer" ("Sherrer"), which suggests the plaintiff's intent to name Sherrer as defendant in this action. See id. at 3.

3. The complaint states no allegations against defendants Corzine, Szuba, Unknown Officers and Unknown Employees. See generally, Compl. Moreover, the allegations against defendants Sherrer and Hayman are limited to statements asserting that these defendants are liable to the plaintiff because of their supervisory positions. See id. at 3, 5.

4. The plaintiff seems to assert the following facts: (a) prior to September 3, 2008, the plaintiff filed a legal action, of unspecified nature, in an unspecified federal court; (b) on September 3, 2008, the plaintiff was present at the prison yard, when a riot arose; (c) the plaintiff was initially removed to segregated confinement, then to a dry cell, and then to an observation cell; (d) thereafter, the plaintiff was charged with encouraging the riot; (e) on the basis of these charges, the plaintiff had an administrative hearing, with respect to which he was denied a polygraph test and informed that the witnesses he requested were not located; (f) as a result of the hearing, the plaintiff was sanctioned to 90-day loss of recreational privileges, 180 days of segregated confinement and loss of good time credit; (g) prior to his entry in segregated confinement, the plaintiff spent one week in a flooded cell with no lights or running water; (h) shortly thereafter, the plaintiff was charged with a cell-phone related violation; (i) in connection with these charges, the plaintiff had another administrative hearing, during which he pled guilty to the charges; (j) the plaintiff's cell was searched on numerous occasions during the period of the cell-phone related proceedings; (k) when the plaintiff was interviewed about his administrative grievances, one of the interviewers was equipped with a large container of mace; (l) the plaintiff wrote more administrative grievances asserting that he was experiencing fears of potential injury, which resulted in another rounds of plaintiff's interviews, during which the plaintiff was assured that he had no reason to fear for his safety; and (m) the plaintiff incurred no physical injuries during his stay in the facility where the above-stated events took place and was eventually transferred to another correctional facility. See id. at 7-9. The plaintiff asserts that his riot-related and cell-phone-related administrative proceedings were retaliatory, that his conditions of confinement amounted to cruel and unusual punishment, and that he suffered injury in the form of emotional distress and fear. See id. 3-9.

5. With regard to particular defendants, the plaintiff's statements against defendants Hernandez and Ghibah are limited to the assertion that these defendants interviewed the plaintiff about his administrative grievances and/or offered him assurances as to his safety. See id. at 9. The plaintiff's allegations against defendant Wallace are limited to the statement that Wallace testified during the plaintiff's administrative hearing. See id. at 8. The plaintiff's allegations against defendant Tisdale are limited to the assertion that Tisdale exercised excessive force with regard to inmates other than the plaintiff and also testified during the plaintiff's administrative hearing. See id. at 7-9. Finally, the plaintiff's allegations include the assertion that defendant McGovern denied the plaintiff's request for polygraph test, and that defendant Kearner was equipped with a large container of mace. See id. at 8-9. However, the plaintiff's allegations against defendants McGovern and Kearner can also be construed as asserting that these defendants initiated the plaintiff's riot-related and/or cell-phone-related administrative proceedings in retaliation for the plaintiff's ongoing litigation. Moreover, these allegations could also be construed as suggesting that the plaintiff was: (a) denied an opportunity to call witnesses for the purposes of his riot-related administrative hearing; (b) found him guilty on administrative charges without any credible evidence; and (c) subjected to conditions of confinement violating the plaintiff's Eighth Amendment rights. Finally, while the plaintiff's allegations against defendant Sapp assert that Sapp: (a) holds a supervisory position; (b) denied the plaintiff's administrative appeal as to the outcome of the riot-related charges; and (c) was the addressee of the plaintiff's later investigated grievance that the plaintiff was experiencing fear about future injury, these statements also can be construed as asserting that Sapp subjected the plaintiff to conditions of confinement violating the plaintiff's Eighth Amendment rights. See id. at 5, 8-9.

6. The plaintiff's allegations against defendants Corzine, Szuba, Unknown Officers and Unknown Employees will be dismissed for failure to state a claim. Personal involvement by a defendant is an indispensable element of a valid legal claim; such personal involvement may exist only where the named defendant violated the plaintiff's rights. See Baker v. Monroe Township, 50 F.3d 1186, 1190-91 (3d Cir. 1995); Sample, 885 F.2d at 1110; Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Conversely, where no personal involvement by the defendant is asserted, the plaintiff's claim against that defendant is subject to dismissal. Rode, 845 F.2d at 1207. Rule 8 "requires a 'showing,' rather than a blanket assertion, of entitlement to relief." Id. at 1965 n.3. . . . "[T]he threshold requirement of Rule 8(a)(2) [is] that the 'plain statement [must] possess enough heft to 'sho[w] that the pleader is entitled to relief.'" Bell Atlantic v. Twombly, 127 S.Ct. 1955, 1966 (2007). "[Hence,] factual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965 & n.3. Since the plaintiff's complaint contains no allegations against defendants CORZINE, Szuba, Unknown Officers and Unknown Employees, these claims will be dismissed, without prejudice.

7. The plaintiff's allegations against defendants Sherrer and Hayman will similarly be dismissed without prejudice. It is well settled that liability under § 1983 may not be based on the doctrine of respondeat superior. See Durmer v. O'Carroll, 991 F.2d 64, 69 n. 14 (3d Cir. 1993). Instead, the plaintiff must show that the official's conduct caused the deprivation of a federally protected right. See Kentucky v. Graham, 473 U.S. 159, 166 (1985). More particularly, the plaintiff must allege that the defendant was personally involved in the deprivation. See West v. Atkins, 487 U.S. 42, 48 (1988). Personal involvement can be shown if the supervisor directed the actions of supervisees that caused the alleged wrong or actually knew of the actions and acquiesced in them, or actually coined the policies that resulted in the alleged wrong. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Since the plaintiff makes no such allegations, his claims against defendants Sherrer and Hayman will be dismissed.

8. The plaintiff's allegations against defendant Tisdale based on alleged excessive force exercised by Tisdale against inmates other than the plaintiff will be dismissed, with prejudice, for lack of standing to sue. Under the "next friend" doctrine, standing is allowed to a third person so this third person could file and pursue a claim in court only on behalf of someone who is unable to do so on his or her own. The doctrine dates back to the English Habeas Corpus Act of 1679 and provides a narrow exception to the "case in controversy" requirement set forth in the Article III of Constitution. See Whitmore v. Arkansas, 495 U.S. 149, 154-55 (1990). The Whitmore Court set out two requirements that should be met by the one seeking to qualify for "next friend" standing: (1) "the 'next friend' must be truly dedicated to the best interests of the person on whose behalf [(s)he] seeks to litigate" (and it has been further suggested that a "'next friend' must have some significant relationship with the real party in interest"; and (2) "the 'next friend' must provide an adequate explanation--such as inaccessibility, mental incompetence, or other disability--why the real party in interest cannot appear on his own behalf to prosecute the action." Id. at 163-64. The burden is on the "next friend" to justify his/her status and, thereby, to obtain the jurisdiction of the federal courts. See id. at 164. In view of these requirements, the plaintiff cannot be recognized as "next friend" of any inmate allegedly assaulted by Tisdale, since the complaint has no information as to whether the plaintiff is "truly dedicated to the best interests" of such other inmates, nor does it indicate that any other inmate is unable to pursue his own claim(s). Accord Coalition of Clergy v. Bush, 310 F.3d 1153, 157-59 (9th Cir. 2002) (providing a thorough discussion of the "next fiend" case law). Since the plaintiff expressly asserts that Tisdale's exercise of force was used against inmates other than the plaintiff, his allegations to that effect will be dismissed, with prejudice, for lack of standing.

9. The plaintiff's allegations against defendants Tisdale and Wallace based on these defendants' testimony during the plaintiff's administrative hearing will also be dismissed, without prejudice, since the plaintiff asserts no wrongdoing by these defendants but only the fact that these defendants submitted their testimonies and that, in the plaintiff's opinion, the testimonies were "conflicting," see Docket Entry Bo. 1, at 8, since there is no constitutional right to non-conflicting testimony of witnesses.

10. The plaintiff's allegations that he was denied a polygraph test with respect to his administrative hearings will be dismissed with prejudice. Due process protects against arbitrary action in prison disciplinary proceedings but provides less protection than in criminal prosecutions. See Ponte v. Real, 471 U.S. 491, 495 (1985). Due process ensures inmates have a right to call and present witnesses and documentary evidence before a prison disciplinary board, but even this right may be denied when consistent with institutional safety and correctional goals. See id., see also Superintendent, Massachusetts Correctional Institute v. Hill, 472 U.S. 445, 454 (1985). The limited right afforded prisoners to call and present witnesses and documentary evidence does not encompass a right to take a polygraph examination. See Ponte, 471 U.S. at 495. Accordingly, prison officials did not deprive the plaintiff of due process in denying his request to take a polygraph test. See id.; see also Counterman v. Fauver, 1989 U.S. Dist. LEXIS 16576 (D.N.J. Nov. 24, 1989). Therefore, the plaintiff's polygraph-test-related claims will be dismissed with prejudice.

11. Similarly, the plaintiff's allegations asserting that his cell was searched a number of times during his cell-phone-related administrative proceedings will be dismissed. The Fourth Amendment protects "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures." U.S. Const. amend. IV. Reasonableness under the Fourth Amendment "depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself." Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 618 (1988) (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985)). "Thus, the permissibility of a particular practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Id. at 619 (quotation marks and internal citation omitted). In Hudson v. Palmer, 468 U.S. 517, 530 (1984), a prisoner argued that a cell search conducted to harass him was unreasonable because a prisoner has a reasonable expectation of privacy not to have his cell, locker, personal effects, person invaded for such a purpose. Id. at 529. The Supreme Court rejected the claim because "prisoners have no legitimate expectation of privacy." Id. at 530. The Court observed that:

A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order. . . . [S]ociety would insist that the prisoner's expectation of privacy always yield to what must be considered the paramount interest in institutional security. . . . [I]t is ...


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