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Rafieek Graham v. Dr. Merril Main

June 9, 2011


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



Plaintiff, Rafieek Graham, 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 many 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 with prejudice for failure to state a claim upon which relief may be granted.


Plaintiff, Rafieek Graham ("Graham"), brings this civil rights action, pursuant to 42 U.S.C. § 1983, against the following defendants: Mrs. Shantay Brame Adams, Assistant Director of the Special Treatment Unit ("STU") at the East Jersey State Prison ("EJSP"); Dr. Merril Main, Director of the EJSP STU; Ms. Roxanne Vega, Psychologist at the EJSP STU; Mrs. Jackie Ottino, Program Coordinator at the EJSP STU; Michael Vanpelt, Program Coordinator at the STU Annex; John Main, Chief Executive Officer of mental Health at the Ann Klein Forensic Center; and Dr. Kevin Enright, Psychiatrist at the EJSP STU. (Complaint, Caption and ¶¶ 4b-4h). 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 Graham with regard to his civil confinement at the STU in EJSP. His first action, Graham v. Christie, et al., Civil No. 10-2010 (KSH), was dismissed without prejudice by Opinion and Order issued by the Honorable Katharine S. Hayden on or about October 18, 2010. Graham filed this instant Complaint on or about September 25, 2010, before his first action was dismissed.*fn1

Additionally, Graham filed yet a third action on or about October 26, 2010, shortly after his first action was dismissed. See Graham v. Sharp, et al., Civil No. 10-5563 (SRC).

In this second action, Graham 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. He generally complains that he has suffered mental abuse and harassment by the treatment team staff at the EJSP STU since he was transferred there in May 2010, mainly because they are treating him like a prisoner and not a civilly committed person.

For instance, Graham first alleges that, on September 24, 2010, defendant Dr. Enright "caused [plaintiff] to be separated from [his] support group, leaving [Graham] mentally alone. By telling the treatment team staff to place [Graham] on a unit where [he is] not liked to greatly satisfy his own personal issues, disregarding the fact that this facility 'suppose' to be a therapeutic institution not a prison system for problem prisoners." (Compl., ¶ 6 Statement of Claims).

Graham seeks to be transferred to a "federally funded facility" and to be compensated for his mental anguish and deliberate indifference by the named defendants. He seeks an unspecified amount in punitive damages. (Compl., ¶ 7).

On October 14, 2010, Graham filed his first of many notices of addendum to his Complaint. (Docket entry no. 2). In this first addendum, Graham alleges that there are three different addresses used for the residents at the EJSP STU, and that mail and packages are sent to a different location than where the residents are confined.*fn2 When Graham questioned the use of different addresses, he complains that, on May 14, 2010, he was "indirectly threatened" by the New Jersey Department of Human Services ("NJDHS") Administrator and the New Jersey Department of Corrections ("NJDOC") Administrator that plaintiff would be placed on Modified Activities Program ("MAP") status. Graham states that he continued to file complaints and grievances. (See October 14, 2010 Addendum at Docket entry no. 2).

Graham further alleges that, on May 12, 2010, he was placed on the South Unit because of his treatment refusal, although he states that he never refused treatment. On September 23, 2010, Lieutenant Jones moved Graham's support group on the South Unit, but the next day, defendant Adams moved the support off the unit for "personal reasons." (See id.).

Graham also complains that, since May 2010, he has been placed in a cell that leaks water from the ceiling when it rains and is infested with gnats. Although he files grievances about these conditions, he alleges that nothing is done. (Id.).

On October 1, 2010, Lt. Jones informed plaintiff that the NJDHS staff told Jones to separate Graham and the support group Graham had been with for ten years. On October 25, 2010, Graham went to the yard and was verbally harassed by corrections officers and staff. Graham alleges that on September 28, 2010, defendants Adams and Ottino told officers to harass plaintiff about his "gender of life" by calling plaintiff a "homo" and "fag." (Id.).

On September 24, 2010, Graham alleges that he was threatened with "treatment probation." Graham states that on October 1, 2010 he was still housed on South Unit labeled as a segregated unit, for treatment refusals, and as a result, he has not been able to go to groups or participate in any therapeutic programs. Graham contends that he has not been in any trouble for over seven years. (Id.).

On October 4, 2010, Graham attended "group 7" run by group therapist Roxanne Vega. Graham alleges that Vega became "aggressive" and yelled at plaintiff not to tell another NJDHS staff member that Graham's family is his own business. Graham states that Vega threatened to put Graham on MAP status. He claims that psychiatric treatments are being used for disciplinary purposes. (Id.)

On October 7, 2010, Director Main and Superintendent Johnson ordered that no kitchen worker on "A" unit can go to the kitchen. On October 8, 2010, an exterminator came to spray the unit for an outbreak of bed bug infestation. The exterminators come four days each week to fumigate the unit. (Id.)

On October 9 and 10, 2010, Graham attended yard movement to be with his support group, but they were harassed by officers because of their gender and lifestyle. Graham complains that he has been humiliated and mentally tortured. Graham alleges that Officer Ware stated to him that she did not understand why plaintiff and his support group were being harassed. (Id.).

On October 14, 2010, the Court received a motion filed by Graham seeking a temporary restraining order directing defendants not to retaliate against plaintiff by confiscating his court papers or placing plaintiff on MAP status. (See Docket entry no. 3). Graham 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." He also complains that he has been separated from his "mental support." (Id.).

On October 19, 2010, the Court received a second addendum to plaintiff's Complaint. (Docket entry no. 4). Graham alleges that on October 14, 2010, defendant Vega dropped plaintiff's treatment from Phase 3 to Phase 2 with the possibility of taking plaintiff's job. Graham states that he has had above average attendance in group and passed two polygraph tests. Graham was told that he had missed four group sessions although Graham contends that he missed only two because of family problems. He alleges that the drop in his treatment phase was retaliatory because of the lawsuit he filed. (Id.).

Graham further alleges that Vega told him that Graham manipulated Lt. Jones to put plaintiff on the South Unit to be with his support group. Graham was then moved to the West Unit where he does not get along with the other residents on the theory that a conflict would occur and Graham could be placed on MAP status. (Id.).

On or about October 28, 2010, Graham wrote another addendum to his Complaint. (Docket entry no. 5). Graham continues to recite perceived grievances in his treatment at the EJSP STU. On October 22, 2010, he states that he was locked in his cell while it was searched and electronic equipment was taken. He states that he remained locked in his cell for seven hours before being allowed to leave his cell. Graham attaches the contraband seizure receipt he received on October 22, 2010, which shows that three remotes, one X-box controller, one portable DVD player, a three-plug adapter and a Kinyo surge protector box were confiscated because these items pose " a threat to the security or orderly operation of the correctional facility." He complains that a civilly committed person should not be subjected to the same rules as prisoners, more particularly, he should not be subjected to cell searches and pat searches. (Id.).

Graham also alleges that the confiscation of his electronic equipment was part of a campaign of harassment by correctional officers against him. His cell was searched on October 19, 2010, when no other residents' cells were searched. Graham does not identify the other forms of harassment but states that it happens continuously and that he has filed grievances about it to no avail. He states that the harassment causes him mental anguish and makes him feel like a prisoner, disrupting his treatment. (Id.).

Graham next alleges that, on October 27, 2010, his group therapist, Vega, gave him a memo, which he attaches to the addendum, stating that Graham was on treatment refusal status. Graham alleges that Vega did this because he refuses to write down what she wants him to write. (Id.).

On November 8, 2010, Graham wrote to the Court seeking leave to amend his Complaint to add defendants. (Docket entry no. 7). He again wrote to the Court on November 13, 2010, to complain that the defendants are limiting his therapy/treatment movements by placing him on treatment refusal status. (Docket entry no. 8). He states that he has never refused treatment. Graham further complains that he believes that his mail is being monitored. He states that, on November 13, 2010, he received an Order dated November 9, 2010 in his earlier action, Civil No. 10-2010 (KSH), which was dismissed without prejudice for failure to state a claim. He states that he re-submitted that case in October but it was filed under a new case number, Civil No. 10-5563 (PGS).*fn3 It is not clear from the letter as to the relief, if any, he seeks in this regard. However, he does state that he has been denied access to the law library. (Id.).

On November 22, 2010, this Court received plaintiff's amended Complaint. (Docket entry no. 9). Graham names the following new defendants: Sgt. Susan Smith, SCO J. Maloney, SCO L. Rodriguez, SCO T. Walker, SCO M. Kimball, Sgt. J. Smith, Chief Cathy Buchanan, and Administrator M.W. Yatauro. (Am. Compl., Caption and ¶¶ 4b-4i). He complains that these defendants have either condoned, allowed or participated in the constant verbal harassment he has had to endure since he has been at the EJSP STU. The verbal harassment consists of sexual "gay" jokes and being called a "fag" or "homo." (Id., ¶¶ 4b-4i, 6). He names two specific instances of alleged harassment. First, on November 12, 2010, defendant Kimball came to the South Unit during open recreation period and "took [plaintiff's] mental support out of session." The next incident occurred on November 18, 2010, when Sgt. Maloney went to the East Unit to tell the officers on duty to "watch and monitor" Graham because defendant Adams allegedly told them to harass plaintiff. (Id., ¶ 6). Graham asks to be transferred to another facility. (Id., ¶ 7).

On November 8, 2010, Graham wrote yet another letter to the Court, asking that it be considered an addendum to his Complaint. (Docket entry no. 10). Graham complains that, on November 9, 2010, he was told that South Unit is segregated from open recreation with other units by order of Clinical Director merril Main. Graham states that his support group is housed there. On November 10, 2010, he was subjected to a strip search after coming from the yard and before entry to the North Unit. He claims the strip search was not performed in a private area and that the officers were verbally degrading him because of his "life gender." (Id.).

On November 4, 2010, Graham alleges that the West Unit, where he is housed, was locked down and could not go to yard, which is where plaintiff meets and confides in his "mental support group." (Id.). He alleges that he was told on November 10, 2010, that defendants Main and Adams are "mentally punishing" plaintiff for incidents that occurred over eight years ago when he was housed at the Kearny facility. Graham further alleges that he has been complaining about NJDHS harassment and punishment for more than ten years but nothing is done to remedy or prevent it. (Id.).

Graham further alleges that, on November 1, 2010, a memo was passed around stating that all electronic equipment would be confiscated, basically placing Graham under prison policy and guidelines even though he is a civilly committed person. On November 12, 2010, while attending a therapy/treatment session, defendant Kimball told Graham that Director Main and Assistant Director Adams don't want Graham and his "mental support" to participate in therapy/treatment sessions together, thus causing Graham and his support to "constantly go to the yard to sleep, relax, and talk together." (Id.).

On November 29, 2010, Graham submitted an amended Complaint adding the following defendants: Deputy Attorney General Mark Singer; Brian Friedman, Psychology Director at the EJSP STU; and Jennifer Velez, Commissioner of the NJDHS. (Docket entry no. 11). Graham complains that defendant Singer has "overlook[ed] and disregard[ed] the fact of civilly committed 'residents' being housed in a prison system." (Id., at ¶ 4(b)). Defendant Friedman allegedly has overlooked plaintiff's "untherapeutic" environment when the NJDOC terminated groups and placed civilly committed persons at EJSP under prison policy and rules. (Id., at ¶ 4(c)). Finally, Graham alleges that defendant Velez has disregarded the unsanitary conditions of EJSP and the NJDOC's placement of civilly committed persons under the "10A code", causing electronic property to be confiscated, cell searches and strip searches after visitation. (Id., at ¶ 4(d)).

On December 6, 2010, Graham wrote another letter to the Court seeking to add another addendum to his Complaint. He complains that in June 2010, a staff psychologist stated to plaintiff "off the record" that plaintiff "does not belong here." But, on August 9, 2010, Graham's public advocacy attorney stopped the psychologist from testifying in court, preventing plaintiff from being released to an outpatient program. (Docket entry no. 12-1). Graham filed an attorney ethics grievance on October 7, 2010, which is attached to his addendum. He also attaches a Treatment Refusal notice, dated October 8, 2010, which indicates that Graham had been placed on Treatment Probation Status, and that Graham had not complied with the recommendations at that time, prompting a Treatment Refusal Status. (Docket entry no. 12-2).

On February 8, 2011, Graham wrote to the Court yet again, asking to add SCO K. Miller, as a defendant in this matter. Graham alleges that Miller is retaliating against plaintiff for filing a lawsuit against other workers. In particular, Graham states that, on January 9, 2011, while plaintiff was in the yard, defendant Miller told two other residents that Graham was responsible for Miller taking the workout benches out of the yard. Miller allegedly told the two residents to let the whole population know that the "yard is getting messed up" because of Graham and another resident. (Docket entry no. 14).

On or about March 16, 2011, plaintiff filed an application for appointment of pro bono counsel. (Docket entry no. 15).


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 Boss 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).*fn4 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 ...

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