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Michael A. Romero v. George Hayman

April 8, 2011

MICHAEL A. ROMERO, PLAINTIFF,
v.
GEORGE HAYMAN, ET AL., DEFENDANTS.



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

NOT FOR PUBLICATION

OPINION

Plaintiff Michael A. Romero, a prisoner confined at New Jersey State Prison in Trenton, New Jersey, seeks to bring this action in forma pauperis pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. Based on his affidavit of indigence and the absence of three qualifying dismissals within 28 U.S.C. §1915(g), the Court will grant Plaintiff's application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) and order the Clerk of the Court to file the Complaint.

At this time, the Court must review the Complaint to determine whether it 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.

I. BACKGROUND

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

While confined at New Jersey State Prison, Plaintiff was in possession of certain undescribed literature related to the Latin Kings gang. Plaintiff alleges that he was in possession of this literature because it is part of his criminal case.*fn1 Apparently, at some point, some unnamed corrections officers took possession of some of Plaintiff's documents and charged him with some type of offense related to possession of this literature or with being a member of the Latin Kings gang.*fn2

In addition, Plaintiff alleges that the fact that corrections officers went through the legal documents taken from him is evidenced by the fact that several pages of his trial transcript were missing from the documents returned to him. On a date not specified, Plaintiff submitted an Inmate Request Form complaining about his missing legal documents; however, he never received a response.

Plaintiff alleges that he was placed in some combination of protective custody, pre-hearing detention and/or temporary close custody from approximately July 17, 2007, until approximately July 26, 2007. Plaintiff alleges that after a hearing on July 17, 2007, he was found "guilty" and returned to pre-hearing detention. Plaintiff alleges that he made several inquiries about his status during the ensuing days, but that he did not receive any meaningful response until July 23, 2007, when Defendant Sergeant Poretti came to his cell with some "bogus" reports and told him he would have a hearing on July 26, 2007. Plaintiff does not specifically describe the July 26, 2007, hearing or its outcome. Instead, he alleges that:

After I began asking for copies of incidents reports and information in general surrounding my placement into PC, I was shortly thereafter transferred to the [Security Threat Group Management Unit] at NSP where I have been since. Once I arrived at NSP, it became clear that SID was fabricating reports on me because I refused to speak to them. (Complaint, ¶ 24.)

Plaintiff asserts: (1) that he was deprived of fair hearings, in violation of the Due Process Clause of the Fourteenth Amendment, (2) that his Sixth Amendment rights were violated by the confiscation of his legal documents and by confining him to segregation and to the Security Threat Group Management Unit without cause, (3) that his First Amendment rights were violated when he was placed in segregation and the STGMU for complaining about defendants' actions and inactions.

Plaintiff names as defendants: New Jersey Department of Corrections Commissioner George Hayman, Administrator Larry Glover, Chief Director of Operations Paul Marks, Sergeant Poretti, Sergeant Tyson, Senior Investigations Division Investigator Dolce, and Disciplinary Hearing Officer John Doe. Plaintiff seeks declaratory and injunctive relief, in the form of an order for his release from STGMU, and all other just and proper 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).

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).

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, 550 U.S. 544, 555 (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, 550 U.S. at 556-57 (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 ...


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