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Mickey Lee Vanderpool v. Kenneth Sharp

March 15, 2011


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



Plaintiff, Mickey Lee Vanderpool, an involuntarily committed person pursuant to the Sexually Violent Predator Act ("SVPA"), N.J.S.A. 30:4-27.24, et seq., seeks to bring this action in forma pauperis. Based on his affidavit of indigence, the Court will grant plaintiff's application to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (1998) and order the Clerk of the Court to file the Complaint.

At this time, the Court must review the Complaint and plaintiff's several addendums, pursuant to 28 U.S.C. § 1915(e)(2), to determine whether the action should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from such relief. For the reasons set forth below, the Court concludes that this action should be dismissed for failure to state a claim at this time.


Plaintiff, Mickey Lee Vanderpool ("Vanderpool"), brings this civil rights action, pursuant to 42 U.S.C. § 1983, against the following defendants: Kenneth Sharp, Assistant Attorney General for the State of New Jersey; Debbie Hasting, Superintendent at the Adult Diagnostic and Treatment Center ("ADTC") in Avenel, New Jersey; Merril Main, Clinical Director of the East Jersey State Prison, Special Treatment Unit ("EJSP-STU"); Steven Johnson, Assistant Superintendent at the EJSP-STU; John Main, Chief Director of the New Jersey Department of Human Services ("NJDHS") at the Ann Klein Forensic Center in Trenton, New Jersey; and Jennifer Velez, NJDHS Commissioner. (Complaint, Caption and ¶¶ 4b-4g). The following factual allegations are taken from the Complaint, and are accepted for purposes of this screening only. The Court has made no findings as to the veracity of plaintiff's allegations.

The Court notes that this is the second action filed by Vanderpool with regard to his civil confinement at the STU in EJSP. His first action, Vanderpool v. Christie, et al., Civil No. 10-2030 (WJM), was dismissed without prejudice by Opinion and Order issued by this Court on or about July 12, 2010. In that action, he raised similar claims against several of the same defendants named in this present matter, namely, NJDHS Commissioner Velez, Steven Johnson, and Merril Main.

In this Complaint, Vanderpool continues to complain about his confinement at the EJSP-STU, and what he alleges are unconstitutional restrictions and conditions placed on him as a civilly committed person. In particular, Vanderpool alleges that defendants Kenneth Sharpe, Debbie Hasting, John Main, and Steve Johnson, have disregarded that plaintiff is a civilly committed resident and not a prisoner. Vanderpool states that these defendants have allowed the New Jersey Department of Corrections ("NJDOC") to house plaintiff on prison property in a unit designed for 23 hour lock down, which is a violation of his constitutional rights. Further, these defendants have placed plaintiff under prison policy and guidelines. (Compl., ¶¶ 4b, 4c, 4e and 4f).

Vanderpool also contends that Commissioner Velez failed to oversee the conditions at EJSP-STU, allowing the residents to be placed in a unit with leaking toilets. He further complains that Velez and defendant Merril Main allowed plaintiff to be placed under prison guidelines and to be treated as a problem prisoner, as well as permitting the NJDOC to "dictate therapy" and group movements under prison policy and standards. (Compl, ¶¶ 4d, 4g).

In particular, Vanderpool alleges that, on May 18, 2010, Steve Johnson was made aware that the residents at EJSP-STU were being treated like prisoners by the EJSP correctional officers. (Compl., ¶ 6). Also on that day, it had rained and water dripped from the ceiling leaving a white foam substance on the ceiling and water spots on the floor where it had puddled. (Id.).

On May 19, 2010, Vanderpool observed the NJDHS staff psychiatrists, psychologists and social workers moving their office supplies off grounds to a location in Edison, New Jersey, leaving plaintiff with no on-site psychiatrist after 4:00 p.m. (Id.). On May 21, 2010, Assistant Administrator Conway allegedly came on the South Unit at EJSP-STU and told the residents that they would be separated from population because they are "troublemakers." (Id.).

On May 27, 2010, as Vanderpool was returning from the yard, he was pat searched and finger scanned (Ion scan) by Internal Affairs for the STU. Vanderpool claims that he is humiliated by these searches because he feels like he is being treated like a prisoner and not as a civilly committed resident. (Id.).

On May 27, 2010, Vanderpool learned that defendant Merril Main had conducted a test called the "Hair Scope Psychopathy Test" and both Main and Johnson agreed to label plaintiff as a troublemaker, even though Vanderpool allegedly has not been in any trouble in the past eight years. Plaintiff complains that

this label is causing conflict with him attending group sessions. (Id.).

Vanderpool next alleges that residents are banned from going to the law library at the EJSP. He also complains that his vitamins he ordered were rejected at EJSP-STU. He filed a grievance about it and was distressed that the grievance form was the same as used for prisoners. (Id.). He attaches to his Complaint a memo dated June 18, 2010 regarding food package clarification, which sets limits on the amount of food and beverage packages permitted at the EJSP-STU facility.

Finally, Vanderpool states that mail and packages are sent and/or received at the Avenel facility and not at EJSP-STU in Rahway where he is confined. He provides a copy of a May 14, 2010 memo advising residents that First Class mail and packages from home will be mailed to STU CN 905 at Avenel, and that packages from UPS or Fed Ex will be mailed to STU 8 Production Way at Avenel, New Jersey.

Vanderpool asks to be placed in a federally funded treatment facility, He also seeks monetary compensation for being placed in a prison environment where he has suffered mental anguish, harassment, and discrimination. (Compl., ¶ 7).


A district court is required to review a complaint in a civil action where the litigant is proceeding in forma pauperis. Specifically, the court is required to identify cognizable claims and to sua sponte dismiss any claim that is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief, pursuant to 28 U.S.C. § 1915(e)(2)(B). Accordingly, because Vanderpool is proceeding in forma pauperis in this matter, this action is subject to sua sponte screening for dismissal under 28 U.S.C. § 1915(e)(2)(B).

In determining the sufficiency of a pro se complaint, the Court must be mindful to construe it liberally in favor of the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)(following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). See also 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). The Court need not, however, credit a pro se plaintiff's "bald assertions" or "legal conclusions." Id.

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).

A pro se complaint may be dismissed for failure to state a claim only if it appears "'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Haines, 404 U.S. at 521 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). See also Erickson, 551 U.S. at 93-94 (In a pro se prisoner civil rights complaint, the Court reviewed whether the complaint complied with the pleading requirements of Rule 8(a)(2)).

However, recently, the Supreme Court revised this standard for summary dismissal of a Complaint that fails to state a claim in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). The issue before the Supreme Court was whether Iqbal's civil rights complaint adequately alleged defendants' personal involvement in discriminatory decisions regarding Iqbal's treatment during detention at the Metropolitan Detention Center which, if true, violated his constitutional rights. Id. The Court examined Rule 8(a)(2) of the Federal Rules of Civil Procedure which provides that a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief."

Fed.R.Civ.P. 8(a)(2).*fn1 Citing its recent opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), for the proposition that "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do,' "Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555), the Supreme Court identified two working principles underlying the failure to state a claim standard:

First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice ... . Rule 8 ... does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where 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." Fed. Rule Civ. Proc. 8(a)(2).

Iqbal, 129 S.Ct. at 1949-1950 (citations omitted).

The Court further explained that 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. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Iqbal, 129 S.Ct. at 1950.

Thus, to prevent a summary dismissal, civil complaints must now allege "sufficient factual matter" to show that a claim is facially plausible. This then "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1948. The Supreme Court's ruling in Iqbal emphasizes that a plaintiff must demonstrate that the allegations of his complaint are plausible. Id. at 1949-50; see also Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC Shadyside, 578 F.3d 203, 210(3d Cir. 2009).

Consequently, the Third Circuit observed that Iqbal provides the "final nail-in-the-coffin for the 'no set of facts' standard" set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),*fn2 that applied to federal complaints before Twombly. Fowler, 578 F.3d at 210. The Third Circuit now requires that a district court must conduct the two-part analysis set forth in Iqbal when presented with a motion to dismiss:

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 ...

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