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Donnell Wolfe v. Jennifer Velez

April 4, 2011


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



Plaintiff, Donnell Wolfe, an involuntarily committed person pursuant to the Sexually Violent Predator Act ("SVPA"), N.J.S.A. 30:4-27.24, et seq., filed this amended Complaint (Docket entry no. 5), on or about August 24, 2010, after his initial Complaint had been dismissed without prejudice by Opinion dated July 19, 2010 (Docket entry no. 2) and Order filed August 25, 2010 (Docket entry no. 3). At this time, the Court must review the amended Complaint, 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.

Additionally, on or about September 30, 2010, plaintiff filed a motion for a temporary restraining order ("TRO"). (Docket entry no. 8). Because the amended Complaint will be dismissed for failure to state a claim, the motion for a TRO is denied as moot.


Plaintiff, Donnell Wolfe ("Wolfe"), brings this amended civil rights action, pursuant to 42 U.S.C. § 1983, against the following defendants: Jennifer Velez, Commissioner of the New Jersey Department of Human Services ("NJDHS"); Steve Johnson, Assistant Superintendent at the East Jersey State Prison, Special Treatment Unit ("EJSP-STU"); Dr. Merril Main, Clinical Director at EJSP-STU; Kenneth Sharpe, Assistant Attorney General for the State of New Jersey; John Main, Chief Director of the NJDHS at the Ann Klein Forensic Center in Trenton, New Jersey; and Debbie Hasting, New Jersey Department of Corrections ("NJDOC") Superintendent at the Adult Diagnostic and Treatment Center ("ADTC") in Avenel, New Jersey. (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.

In his Complaint, Wolfe alleges generally that defendants have either authorized or condoned the New Jersey Department of Corrections to place plaintiff, a civilly committed resident, on prison grounds and under prison policy and guidelines in violation of his constitutional rights. (Compl., ¶¶ 4b-4g). In addition, Wolfe complains that defendant John Main has allowed plaintiff to be housed on prison grounds where the roof leaks, the water is not drinkable, there are loose wires, no air conditioning and some toilets don't work. (Compl., ¶ 4g).

More specifically, Wolfe alleges that, on May 14, 2010, NJDOC Commissioner Gary Lanigan visited the EJSP-STU and stated that he would like to privatize the STU. On May 15, 2010, correctional officers advised plaintiff and other residents that family and friends visiting the residents would not be permitted to bring cell phones, house keys, and purses with them in the EJSP-STU. (Compl., ¶ 6).

Wolfe also complains that, for ten days after arriving at the EJSP-STU in May 2010, the residents were subjected to poor living conditions, including, cold showers, exposed wires, no air conditioning, some inoperable toilets, and contaminated water. Wolfe alleges that defendant Johnson told him that the residents would be given a case of water every month because the water at the EJSP is contaminated, but the water is given to the officers instead. (Id.).

On June 1, 2010, Johnson told the residents that they would not have access to the EJSP law library. On June 10, 2010, plaintiff was informed that the residents on the South Unit at the EJSP-STU, where plaintiff is confined, is designated for those residents who have refused therapy and will never be released. Wolfe also alleges that, on August 12, 2010 he was told that no matter how much therapy he and the other residents on the South Unit receive, they will never be released. (Id.).

On August 12, 2010, residents on the South Unit were informed that they would receive $60.00 a month, instead of $150.00, because of their treatment refusal status. Wolfe complains that this constitutes punishment. (Id.).

Wolfe complains that, as of August 17, 2010, the living conditions are still bad, including cold showers, poor ventilation, contaminated water, and bug infestation. He also complains that therapy is conducted in "cages" and there is no privacy. (Id.).

Wolfe asks to be transferred to a federally funded facility and for compensatory and punitive damages. (Compl., ¶ 7).

On September 30, 2010, the Court received a motion filed by Wolfe seeking a temporary restraining order directing defendants not to retaliate against plaintiff by placing plaintiff on "MAP" (modified activities program) or treatment refusal status. (See Docket entry no. 8). Wolfe alleges that he has been banned from law library materials and has been placed under prison policy guidelines and procedures even though he is not a prisoner. He also alleges that he has been threatened with MAP status if he does not follow the NJDHS "way" and that he has been separated from his "mental support." He further alleges that he has been denied his recommended treatment because of his placement in a segregated unit with little or no access to a psychiatrist. (Id.).


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 Wolfe 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 ...

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