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Rafieek Graham v. Kenneth Sharp

June 20, 2011

RAFIEEK GRAHAM, PLAINTIFF,
v.
KENNETH SHARP, ET AL., DEFENDANTS.



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

NOT FOR PUBLICATION

OPINION

APPEARANCES:

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 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 as duplicative, and for failure to state a claim.

I. BACKGROUND

Plaintiff, Rafieek Graham ("Graham"), 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; Jennifer Velez, Commissioner of the New Jersey Department of Human Services ("NJDHS"); John Main, Chief Executive Officer of Mental Health at the Ann Klein Forensic Center; Dr. Merril Main, Clinical Director of the East Jersey State Prison, Special Treatment Unit ("EJSP-STU"); Steven Johnson, Assistant Superintendent at the EJSP-STU; Shantay Brame Adams, Assistant Director at the EJSP-STU; and Jackie Ottino, Program Coordinator 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 third 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. In that action, he raised similar claims against three of the same defendants named in this present matter, namely, NJDHS Commissioner Velez, Steven Johnson, and Merril Main.

The instant Complaint also alleges the same or similar claims against many of the same defendants in a second, earlier-filed action submitted on or about September 25, 2010, in Graham v. Main, et al., Civil No. 10-5027 (SRC). In particular, defendants, Velez, John Main, Merril Main, Shantay Brame Adams and Jackie Ottino are named defendants in both actions. The second action recently has been dismissed by this Court for failure to state a claim upon which relief may be granted.

Only defendant Kenneth Sharp is named in this action and not in the earlier matters. In this third 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.

In this Complaint, Graham alleges that defendants Kenneth Sharpe, John Main, and Steve Johnson, have disregarded that plaintiff is a civilly committed resident and not a prisoner. Graham 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, 4d and 4f).

Graham also contends that Commissioner Velez failed to oversee the conditions at EJSP-STU, which had gated tiers and boarded therapy rooms. He complains that Velez and defendant Merril Main allowed plaintiff to be placed under prison guidelines and to be treated as a problem prisoner. Velez further allowed the NJDOC to "force" the therapy staff off the EJSP-STU premises after 4 p.m. (Compl, ¶ 4c, 4e).

Next, Graham alleges that defendant Adams had plaintiff placed on a unit that is segregated from the therapy groups, causing plaintiff to be labeled as a threat, and sexually harassed by correctional officers because Graham had expressed concern about being placed back in a prison. (Compl., ¶ 4g). Graham alleges that defendant Ottino has authorized the correctional officers to harass plaintiff and try to get plaintiff placed on "MAP" status because Graham writes grievances.(Compl., ¶ 4h).

In particular, Graham alleges that, on May 12, 2010, when he arrived at EJSP-STU, he was placed on the South Unit, which is segregated from the general resident population. Graham admits that he was told he was on the South Unit because he had refused treatment, but denies that he had refused treatment. He complains that his segregation keeps him from attending groups and other treatment programs. (Compl., ¶ 6).

On May 27, 2010, there were no therapists or other NJDHS staff on EJSP-STU grounds after 4 p.m., because the NJDOC had the staff move their office supplies off the grounds to a building in Edison, New Jersey. Thus, there is no on-site psychiatrist to talk to after 4 p.m. (Id.). On July 16, 2010, Graham states that he almost was placed on treatment probation for not attending groups because the NJDOC officers dictated how therapy groups were to be run. The treatment probation was threatened by his group therapist Ms. Vega and by defendant Adams. On July 26, 2010, Graham was told that he had to "move to groups on [the NJDOC's] call." (Id.).

Graham next complains that his mail and packages are sent to two different facilities in Avenel, New Jersey, not at EJSP-STU, where plaintiff resides. Graham also alleges that he has filed grievances with defendants, Main, Adams and Johnson and with NJDOC Chief Cathy Buchannan, about the correctional officers treating Graham like a problem prisoner. (Id.).

On August 25, 2010, plaintiff was verbally harassed by correctional officers while he was in the yard. Graham complains that he was humiliated and mentally degraded. On September 28, 2010, Graham states that he was called a "fag," "homo," and was sexually harassed verbally about his "gender of life" by correctional officers who were authorized to do so by defendants Ottino and Adams. (Id.).

On September 24, 2010, Graham states that defendants Adams and Ottino had his "only mental support moved off the unit" because plaintiff was filing too many grievances. Graham complains that his mental support, apparently another resident, was his support for the last ten years. (Id.).

Graham further alleges that therapy groups are conducted by NJDOC movements, causing plaintiff to be taken out of groups. He says that groups are held in a caged area boarded up by a fence. There is limited participation in open recreation areas. (Id.).

Graham 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, discrimination, and having to start all over with treatment after being in for ten years. (Compl., ¶ 7).

On or about November 29, 2010, Graham submitted an amended Complaint to the Court seeking to add additional defendants to this action. (Docket entry no. 3). He seeks to add Mark Singer, Deputy Attorney General (for overlooking and disregarding the fact that plaintiff is a civilly committed resident to be placed in a treatment facility and not a prisoner in a prison facility); David L. DaCosta (for failing to oversee and correct conditions at EJSP-STU where plaintiff is humiliated by NJDOC officers and subjected to 10:A prison policy); and Brian Friedman, Psychology Director at EJSP-STU (for having knowledge about the "untherapeutic" system at EJSP-STU and overlooking the NJDOC's termination of groups, dictating group movements and placing residents under prison policy). (Id., at ¶ 4b, 4c and 4d). Graham repeats his general allegations against defendant Velez. (Id., at ¶ 4e).

In particular, Graham states that, on November 27, 2010, he was strip searched. On November 1, 2010, he was presented with a memo stating that certain electronic equipment would not be permitted subject to a policy change. The memo was attached to the amended Complaint at Docket entry no. 3-1. Plaintiff also was told that he and other civilly committed residents would be placed under prison policy. (Id., at ¶ 6). These claims and allegations were raised in Graham's second and earlier filed action, Graham v. Main, et al., Civil No. 10-5027 (SRC), and are thus, duplicative.*fn1

Graham also submitted a letter on December 6, 2010 (Docket entry no. 6), in which 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. (Id.). Graham states that he filed an attorney ethics grievance in October 2010. He claims that since he filed his Complaints, he was placed on treatment refusal and his job was taken by the treatment team, allegedly for no other reason than his filing complaints. (Id.).

II. STANDARDS FOR A SUA SPONTE DISMISSAL

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).*fn2 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),*fn3 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 legal conclusions. [Iqbal, 129 S.Ct. at 1949-50]. 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." [Id.] 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.'" Iqbal, [129 S.Ct. at 1949-50]. This "plausibility" determination will be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. Fowler, 578 F.3d at 210-211.

This Court is mindful, however, that the sufficiency of this pro se pleading must be construed liberally in favor of Plaintiff, even after Iqbal. See Erickson v. Pardus, 551 U.S. 89 (2007). Moreover, a court should not dismiss a complaint with prejudice for failure to state a claim without granting leave to amend, unless it finds bad faith, undue delay, prejudice or futility. See Grayson v. Mayview ...


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