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Jimmy G. Nixon, Sr., et al v. Donna Zickefoose

January 7, 2011


The opinion of the court was delivered by: Simandle, District Judge:


Plaintiffs Jimmy G. Nixon, Sr., and Luis Rodriguez, prisoners confined at the Federal Correctional Institution at Fort Dix, New Jersey, seek to bring this civil action as representative of a class of prisoners confined in Building 5703 from January 7, 2010 to January 27, 2010.

By Opinion and Order [6, 7] entered February 22, 2010, this Court administratively terminated this action for failure to pay the filing fee or submit complete applications for leave to proceed in forma pauperis. In addition, the Court denied Plaintiff Jimmy Nixon's application for leave to proceed as a class representative. Because Plaintiff Jimmy Nixon also had three dismissals counting as "strikes" under 28 U.S.C. § 1915(g), this Court held that Plaintiff Jimmy Nixon would not be permitted to proceed without prepaying the $350 filing fee. Plaintiff Luis Rodriguez was granted leave to move to re-open within 30 days by submitting either the $350 filing fee or a proper application for leave to proceed in forma pauperis.

Thereafter, this Court received multiple applications. This matter has been re-opened to consider the Plaintiffs' various applications and, if appropriate, to screen the Complaint.

After this Court administratively terminated this action, it received the following submissions. Plaintiff Luis Rodriguez submitted a complete application for leave to proceed in forma pauperis [9] and a letter request that this action proceed [10]. Plaintiff Jimmy Nixon, Jr., submitted a letter request [11, 12] that he be permitted to rejoin this action on the grounds that he is being retaliated against for filing the Complaint in this matter. In the letter, Plaintiff asserts a number of individual claims regarding the alleged retaliation, including that he has been put in the Special Housing Unit, his religious meal is being delivered with the food all piled together, that he is being denied exercise, that he has been told he must accept a third person in his cell, etc. Plaintiff alleges that he should be permitted to proceed in forma pauperis because he is now in imminent danger of serious physical injury as a result of the alleged retaliation. As evidence of this danger, Plaintiff alleges that certain guards are verbally harassing him and threatening to put a knife or shank in his property so that he will be moved to a higher security institution. Inmate Timothy Prunick has moved for leave to join this class action. Timothy Prunick has not prepaid the filing fee nor submitted an application for leave to proceed in forma pauperis. Plaintiff does not appear to be asking to act as a class representative.*fn1


The following factual allegations are taken from PlaintiffS' Complaint and are accepted as true for purposes of this review.

Plaintiffs allege that on or about January 7, 2010, a fire alarm sounded, in response to which Defendant S. Okungbowa ordered the inmates of Building 5703 outside. Plaintiffs allege that the inmates of building 5703 were outside in the snow and cold weather for a period of two and one-half hours without appropriate winter clothing. Plaintiffs allege that, without having a suspect for who pulled the fire alarm, the defendants imposed punishment on the entire building including: no recreation, no microwaves, no television, no telephone, no visits, and no commissary "for several days" and the unit was locked down and escorted to and from chow. Plaintiffs also allege that there was a denial of access to the law library and religious services, for an unspecified period of time. The Complaint, however, is dated January 27, 2010, twenty days after the fire alarm was pulled, so these sanctions are alleged to have lasted no more than 20 days, as of the date the Complaint was submitted. On April 2, 2010, Plaintiff Luis Rodriguez submitted a letter indicating that "punishment," otherwise undescribed, was still going on.

Plaintiffs also allege that the defendants found several cell phones and chargers in the common area of Building 5703 and used that event to sanction the unit of 378 inmates. Seventeen more cell phones were found in Building 5703 while it was on lockdown, a period of no more than 20 days, as of the date the Complaint was submitted. Plaintiffs allege that Defendants contend that the cell phones came into the prison over the fence. In contrast, Plaintiffs allege that the cell phones must have been brought in and sold by prison guards, to supplement their pay, because more cell phones were found while the unit was on lockdown.

Plaintiffs allege generally that the defendants tried to manipulate and coerce inmates into providing information about the cell phones and the fire alarm.

Plaintiffs allege that as a result of these events they are suffering physical and mental pain and suffering. Plaintiffs allege that these actions were taken to deprive the inmates, described as African-Americans, Hispanic-Americans, and White-Americans, of the equal protection of the laws, and that they violated 42 U.S.C. § 1985.

The named defendants include Warden Donna Zickefoose, Captain Fitzgerald, Unit Manager Jennifer Knox, Associate Warden Hefron, Associate Warden Nichols, Associate Warden Nichols, Associate Warden Southland, Lieutenant Hall, Lieutenant Kenner, Counselor Battiste, Counselor R. Wiget, W. Beiderbeck, Prison Guard S. Okungbowa, Lieutenant Joyce Tucker, and John Does 1 through 650. Apart from the allegation that Defendant S. Okungbowa ordered the inmates outside when the fire alarm rang,*fn2 the only "factual" allegations against these defendants are that they "conspired" to deprive the Plaintiffs of their constitutional rights as described above. Plaintiffs seek compensatory and punitive damages and injunctive relief.

II. STANDARDS FOR A SUA SPONTE DISMISSAL This Court must dismiss, at the earliest practicable time, certain in forma pauperis and prisoner actions that are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C. § 1915A (actions in which prisoner seeks redress from a governmental defendant); 42 U.S.C. § 1997e (prisoner actions brought with respect to prison conditions).

Moreover, no action may be brought by a prisoner with respect to prison conditions unless the prisoner has exhausted available administrative remedies. 42 U.S.C. § 1997e(a). Specifically, 42 U.S.C. § 1997e(a) provides:

No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. "[T]he ... exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002) (citation omitted). Although failure to exhaust is an affirmative defense which must be pled by the defendant, a district court has inherent power to dismiss a complaint which facially violates this bar to suit. See Ray v. Kertes, 285 F.3d 287, 293 n.5 (3d Cir. 2002); Nyhuis v. Reno, 204 F.3d 65 (3d Cir. 2000).

The Third Circuit observed in Nyhuis, however, that an inmate may satisfy § 1997e(a) through substantial compliance. "Without embellishing - for the case law in the area will have to develop - we note our understanding that compliance with the administrative remedy scheme will be satisfactory if it is substantial." Nyhuis, 204 F.3d at 77-8. See also Veteto v. Miller, 794 F.2d 98, 99-100 (3d Cir. 1986) (vacating sua sponte dismissal based upon failure to exhaust BOP's Administrative Remedy Program where prisoner alleged that he had "repeatedly requested administrative remedies" from the defendants with no response or success, and remanding to enable plaintiff "to amend his complaint so as to supply more specific facts on this subject and to enable the court to hold a preliminary hearing, if needed").

In determining the sufficiency of a pro se complaint, the Court must be mindful to construe it liberally in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court must "accept as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997).

A complaint is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989) (interpreting the predecessor of § 1915(e)(2), the former § 1915(d)). The standard for evaluating whether a complaint is "frivolous" is an objective one. Deutsch v. United States, 67 F.3d 1080, 1086-87 (3d Cir. 1995).

In addition, any complaint must comply with the pleading requirements of the Federal Rules of Civil Procedure.

Rule 8(a)(2) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." A complaint must plead facts sufficient at least to "suggest" a basis for liability. Spruill v. Gillis, 372 F.3d 218, 236 n.12 (3d Cir. 2004). "Specific facts are not necessary; the statement need only 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (citations omitted). While a complaint ... does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation"). Factual allegations must be enough to raise a right to relief above the speculative level ... .

Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (citations omitted).

The Supreme Court has demonstrated the application of these general standards to a Sherman Act conspiracy claim.

In applying these general standards to a § 1 [conspiracy] claim, we hold that stating such a claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made. Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement. And, of course, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and "that a recovery is very remote and unlikely." ... It makes sense to say, therefore, that an allegation of parallel conduct and a bare assertion of conspiracy will not suffice. Without more, parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality. Hence, when allegations of parallel conduct are set out in order to make a § 1 claim, they must be placed in a context that raises a suggestion of a preceding agreement, not merely parallel conduct that could just as well be independent action.

The need at the pleading stage for allegations plausibly suggesting (not merely consistent with) agreement reflects the threshold requirement of Rule 8(a)(2) that the "plain statement" possess enough heft to "sho[w] that the pleader is entitled to relief." A statement of parallel conduct, even conduct consciously undertaken, needs some setting suggesting the agreement necessary to make out a § 1 claim; without that further circumstance pointing toward a meeting of the minds, an account of a defendant's commercial efforts stays in neutral territory. ...

Twombly, 127 S.Ct. at 1965-66 (citations and footnotes omitted).

The Court of Appeals for the Third Circuit has held, in the context of a § 1983 civil rights action, that the Twombly pleading standard applies outside the § 1 antitrust context in which it was decided. See Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) ("we decline at this point to read Twombly so narrowly as to limit its holding on plausibility to the antitrust context").

Context matters in notice pleading. Fair notice under Rule 8(a)(2) depends on the type of case -- some complaints will require at least some factual allegations to make out a "showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Indeed, taking Twombly and the Court's contemporaneous opinion in Erickson v. Pardus, 127 S.Ct. 2197 (2007), together, we understand the Court to instruct that a situation may arise where, at some point, the factual detail in a complaint is so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8. Put another way, in light of Twombly, Rule 8(a)(2) requires a "showing" rather than a blanket assertion of an entitlement to relief. We caution that without some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only "fair notice," but also the "grounds" on which the claim rests.

Phillips, 515 F.3d at 232 (citations omitted).

More recently, the Supreme Court has emphasized that, when assessing the sufficiency of any civil complaint, a court must distinguish factual contentions -- which allege behavior on the part of the defendant that, if true, would satisfy one or more elements of the claim asserted -- and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Although the Court must assume the veracity of the facts asserted in the complaint, it is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. at 1950. Thus, "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id.

Therefore, after Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis.

First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts. See Phillips, 515 F.3d at 234-35. As the Supreme Court instructed in Iqbal, "[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" This "plausibility" ...

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