The opinion of the court was delivered by: Kugler, District Judge
THIS MATTER comes before the Court on the motion (Docket entry no. 58) of defendants, Charles Albino, Brian Labonne, Edward Ott and Bruce Sapp, for an Order partially dismissing Plaintiff's supplemental Complaint for failure to state a claim upon which relief may be granted, pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff filed an opposition brief to defendants' motion on or about May 25, 2010. (Docket entry no. 64). Defendant's filed a reply letter brief in support of their motion on May 28, 2010. (Docket entry no. 65). This matter is being considered on the papers pursuant to Fed.R.Civ.P. 78. For the reasons set forth below, defendants' motion is granted.
On or about January 30, 2009, plaintiff, Stanley L. Niblack ("Niblack"), filed a civil rights Complaint, pursuant to 42 U.S.C. § 1983, against the following defendants: Charles Albino, Administrator of the Southern State Correctional Facility ("SSCF"); George Hayman, Commissioner of the New Jersey Department of Corrections ("NJDOC"); Governor Jon Corzine; Sgt. Lewis; Officer R. Smith; Officer Weinstein; Officer Ott; Officer Labonne; Officer J. Camp; Officer Henry; Nurse Michelle; and Sgt./Lt. John Doe, all employed at the SSCF. (Complaint, Caption, ¶¶ 1-12). On or about March 20, 2009, Niblack filed an amended Complaint naming additional defendants as follows: Grace Rogers, Administrator at Central Reception and Assignment Facility ("CRAF"); Dunlap Pryor, Administrator at CRAF; Larry Glover, Administrator at Northern State Prison ("NSP"); and Robert Paterson, Director, NJDOC Division of Operations.
Niblack essentially brought this action to correct his prison classification score. He alleged that the incorrect classification score had caused him to lose parole status. This claim was dismissed in an Opinion and Order issued by this Court on August 10, 2009. (Docket entry nos. 4 and 5). The Complaint also alleged claims of harassment by defendants Nurse Michelle, Officers Henry, Weinstein, Smith and Camp, and Sgt./Lt. John Doe. The Court found that Niblack's allegations amounted to mere verbal harassment that was insufficient to state a cognizable claim under the Eighth Amendment. Accordingly, the Complaint was dismissed in its entirety as against these defendants, by this Court's August 10, 2009 Opinion and Order. The Complaint also was dismissed as against defendants Governor Corzine and New Jersey Department of Corrections ("NJDOC") Commissioner Hayman, in the same August 10, 2009 Opinion and Order, because there were no allegations to show that these supervisory officials had any personal involvement or knowledge of the alleged wrongful conduct by the other defendants. However, the Court did allow the Complaint to proceed against defendants, Charles Albino, Officer Labonne and Officer Ott with respect to a claim of retaliation. (See August 10, 2009 Opinion, at pp. 14-18, Docket entry no. 4).*fn1
On December 22, 2009, the remaining defendants, Albino, Labonne and Ott, filed a motion to partially dismiss the Complaint against them in their official capacities, pursuant to Fed.R.Civ.P. 12(b)(6). (Docket entry no. 16). This Court granted defendants' motion by Opinion and Order entered on September 28, 2010. (Docket entry nos. 83 and 84).
On January 11, 2010, Niblack filed a supplemental Complaint (docket entry no. 21), adding defendants, NJDOC Commissioner George Hayman, Northern State Prison Administrator Larry Glover, Associate Administrator Bruce Sapp, Business Office Manager Bruce Brooks, and Business Office Assistant, Rosella Smith, at Northern State Prison. Niblack alleges that these defendants wrongfully deprived him of his protected interest in the money in plaintiff's prison account by taking more than 20% of the balance in his prison account to pay his filing fees, as directed by Court Order, while Niblack was confined at Northern State Prison. (See Supplemental Complaint, at ¶¶ 13-36, Docket entry no. 21).*fn2
The supplemental Complaint incorporated all then existing retaliation claims previously asserted against defendants Albino, Labonne and Ott.
On May 11, 2010, defendants filed a motion to partially dismiss the supplemental Complaint for failure to state a claim. (Docket entry no. 58). Specifically, defendants seek to dismiss with prejudice plaintiff's official capacity claims against defendants Albino, Ott and Labonne. The motion also seeks to dismiss the supplemental Complaint as against defendant Sapp because it is impermissibly based on a theory of respondeat superior. Finally, the motion asserts that the Eighth Amendment claims asserting cruel and unusual punishment must be dismissed for failure to state a claim.
Niblack filed an opposition brief on May 25, 2010. (Docket entry no. 64). He claims that defendant Sapp exhibited personal involvement by signing plaintiff's grievance forms, and that defendants Albino, Ott and Labonne waived their Eleventh Amendment immunity under the New Jersey Tort Claims Act.
On May 28, 2010, defendants filed a letter reply, stating that the New Jersey Tort Claims Act is not applicable here as all of Niblack's claims are based on alleged federal constitutional violations. (Docket entry no. 65).
A. Standard of Dismissal Under ...