The opinion of the court was delivered by: Stanley R. Chesler United States District Judge
Plaintiff, Chaka Kwanzaa, a convicted state inmate presently confined at the Northern State Prison in Newark, New Jersey, seeks to bring this action in forma pauperis. Based on his affidavit of indigence, and absence of three strikes under 28 U.S.C. § 1915(g), the Court will grant plaintiff's application to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) and (b), and order the Clerk of the Court to file the Complaint.
At this time, the Court must review the Complaint and amended Complaint, pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, to determine whether this 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 may proceed in part at this time.
Plaintiff, Chaka Kwanzaa ("Kwanzaa"), brings this civil action against the following defendants: Donald Mee, Jr., Administrator at East Jersey State Prison ("EJSP"); Mr. Paul, Superintendent at EJSP; R. LaForgig, Associate Administrator at EJSP; S. Pinchak, former Administrator at EJSP; T. Moore, former Administrator at EJSP; R. Swatij, former Superintendent at EJSP;
G. Sheppard, Supervisor of Adjudicators for the New Jersey Department of Corrections ("NJDOC"); L. Meehan, NJDOC Adjudicator; Captain McWherter, EJSP; State Corrections Officer ("SCO") Gervasi, EJSP; Captain R. Hampe, EJSP; Sgt. W. Vessell, EJSP; Sgt. Jensen, EJSP; SCO Wilkerson, EJSP; SCO Delarossa, EJSP; SCO Shrenke, EJSP; SCO Randolph, EJSP; SCO Estcato, EJSP; Margret Lebak, State Ombudsman at EJSP; Doctor John Does and Nurse Jane Does, employees of the University of Medicine and Dentistry of New Jersey ("UMDNJ") at EJSP; John Does, Special Investigation Division ("SID"); and John Doe supervisory defendants with the NJDOC and the UMDNJ. (Complaint, Caption and ¶¶ 9-17). 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.
Kwanzaa alleges that, from July 21, 2003 to the present, defendants, Mee, Paul, LaForgig, Pinchak, Moore, and Swatij, refused to correct allegedly "false, inaccurate records" in Kwanzaa's prison classification files, which affected his eligibility for parole, his maximum term date, and his status and classification determinations. Kwanzaa alleges that he received retaliatory charges on August 16, 1999, from defendants Sheppard and Meehan for filing a grievance in July 1999. Kwanzaa states that the Superior Court of New Jersey, Appellate Division reversed the NJDOC's determinations of Kwanzaa's guilt, with respect to this earlier disciplinary action, in an unpublished opinion in Kwanzaa v. DOC, A-5087-01 (App. Div. July 21, 2003). However, the 390 days of commutation credits have not been restored, and his classification files do not show that his credit has been restored. (Compl., ¶¶ 18, 19).
Kwanzaa first filed a civil complaint in federal court regarding the 1999 disciplinary action, Kwanzaa v. Morton, et al., Civil Action 98-2709 (AET), which was dismissed, pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). Kwanzaa filed another federal action in December 2005, against defendants Pinchak, Moore, Swatij, McWherter, Sheppard, Meehan, and Gervasi, but his case against these defendants was dismissed. Kwanzaa claims the case was dismissed unlawfully. (Compl., ¶ 19).
Kwanzaa now alleges that defendants Mee, LaForgig, and Paul have violated his constitutional right by subjecting plaintiff to denial of heat, proper ventilation, showers, unsafe drinking water with high levels of arsenic, and denial of food trays, from February 2, 2009 until October 2009 (when plaintiff filed this Complaint), in retaliation against Kwanzaa for filing grievances*fn1 and threatening to file this lawsuit. Kwanzaa alleges that defendants failed to respond or provide a remedy with respect to his grievances. (Compl., ¶¶ 20, 21).
Kwanzaa also complains that defendants, Mee, LaForgig and Paul, were on notice of plaintiff not receiving a timely administrative segregation ("ad seg")review within 60 days as per regulation. He states that his ad seg started on January 20, 2009 and his review for a level change should have been held on March 20, 2009, but was not conducted until April 17, 2009. Kwanzaa further states that, on August 21, 2009, LaForgig reduced plaintiff's classification level from 3 to 2 in retaliation for filing a lawsuit in July 2009 on behalf of another inmate, which included the defendant Wilkerson, who also had been named in plaintiff's grievances filed in July and August 2009. (Compl., ¶ 22).
Kwanzaa next alleges that defendants, Mee, LaForgig and Paul, violated his First Amendment right to freedom of religious exercise (and the Religious Land Use and Institutionalized Persons Act ("RLUIPA") of 2000), 42 U.S.C. § 2000cc-1, and his right to equal protection under the law by discriminating against him and other Muslims in the ad seg unit. Specifically, Kwanzaa states that during Ramadan, he did not receive the same meals as non-Muslims three times a day for a total of 2200 calories, which resulted in weight loss. He also states that he did not receive his "Eid-ul-Fitr" meal after Ramadan, that his food was issued two hours before it was time so it became cold, and that the milk used for the "Sahur" morning meal was issued 13 hours in advance causing the milk to become spoiled by the time it was used. (Compl., ¶ 23).
The same defendants allegedly denied plaintiff clean sheets and pillow cases once a week and a clean blanket once every six months, as provided for prisoners in general population. His cell also had bugs, ants, bad plumbing with water running down the walls, limited hot water, and bad drinking water. (Compl., ¶¶ 24, 25).
Defendants Mee, LaForgig and Paul also allegedly placed Kwanzaa in tight handcuffs with a black box that twisted his right wrist despite the fact that plaintiff is a disabled person with medical orders that restricts leg shackles and allows plaintiff to ambulate with a cane, which he could not do with his hands cuffed. (Compl., ¶ 26).
Kwanzaa states that he also was denied access to the courts by untrained paralegals, denial of postage stamps and pens at the canteen for a month, which allegedly cause him to miss court deadlines. He further states that legal and regular mail is not processed the next day as per regulation, and that his canteen was altered (he was given 20 bags of peanuts and sun tan lotion) in retaliation for filing an access to courts grievance. (Compl., ¶ 27).
Kwanzaa next alleges that he was denied razors so that he could shave daily and haircuts once a month. He also was limited to one phone call per week on Thursday, which allegedly restricts access to attorneys or family members. Plaintiff states that inmates may not add a new attorney to their phone list for 90 days. He does not allege that this prison rule affected him in any way. He further states that visitation was restricted at the EJSP ad seg unit to only parents, siblings, spouses and children. (Compl., ¶¶ 28-30).
Kwanzaa states that defendants are violating a court order that purportedly requires cameras to be installed in the blind spots in the ad seg unit, not just in the yard, in addition to the cameras already in place. He claims that the ad seg unit does not have cable antennas or movies. The canteen no longer provides cheaper televisions, but instead only offers televisions that cost $300 instead of $157.00. Plaintiff also alleges that defendants are subjecting him to potential diabetes by supplying the canteen with sugar food products (with the exception of canned tuna). (Compl., ¶¶ 31-34).
Kwanzaa further alleges that defendants Jensen and Shrenke retaliated against him for filing grievances. On July 16, 2009, Shrenke and Wilkerson denied plaintiff medical care while he was suffering an asthma attack, by refusing to call a nurse. Shrenke also violated plaintiff's rights by inquiring as to the medications that plaintiff takes. On June 13, 2009, Shrenke confiscated plaintiff's legal materials without reason. (Compl., ¶ 35).
On June 13, 2009, defendant DeLarossa denied plaintiff a food tray because plaintiff would not do his job by opening up the locked food port. The same day, DeLarossa refused to call a nurse when plaintiff experienced chest pains and an acute asthma attack. On July 31, 2009, DeLarossa drew a picture of a penis on plaintiff's cell name tag. Delarossa and Wilkerson also lit fire to toilet paper in plaintiff's cell, causing the cell to become smoke-filled and plaintiff to suffer an asthma attack. Defendants refused to call medical for plaintiff, and he did not receive medical attention until five minutes before the second shift started. (Compl., ¶¶ 36, 37).
On August 15, 2009, defendant Vessell came to investigate one of the two grievances plaintiff filed against DeLarossa, but refused to fully investigate the incident concerning the smoke. Kwanzaa had told Vessell that he had the cigarette DeLarossa used, which could be tested for his DNA, but Vessell replied that the cigarette could have come from anyone and declined to test the cigarette butt. Kwanzaa filed a criminal complaint with regard to this matter with the New Jersey Attorney General Anne Milgram, who has not responded to the complaint. Kwanzaa further asks the District Court to have the cigarette butt tested before defendants see the Complaint and take retaliatory action by transferring plaintiff or confiscating the cigarette. He also asks the Court to have federal criminal charges be issued against Delarossa and Wilkerson for their actions, and against Mee, LaForgig, Paul and Vessell for conspiring to cover up the incident. (Compl., ¶¶ 38-40).
On August 15, 2009, defendant Estcato allegedly refused to comply with medical orders for plaintiff by not allowing plaintiff to ambulate with his cane by hand cuffing plaintiff behind his back. Kwanzaa alleges that Estcato also tripped plaintiff and kicked him in the mouth when he could not get up. He also states that Estcato violated plaintiff's right to free exercise of religion by referring to plaintiff by his birth name, not Kwanzaa. (Compl., ¶¶ 41-42).
On March 25, 2009, defendant Oliminawiez retaliated against plaintiff for filing a grievance against a co-worker who had confiscated plaintiff's legal materials. Oliminawiez also violated plaintiff's religious rights on March 25, 2009 and August 17, 2009, by hindering plaintiff from calling the Islamic call to prayer after plaintiff threatened to file grievances and a complaint against defendant. On September 16, 2009, defendant Oliminawiez and SCO Boyer tampered with plaintiff's mail by refusing to take Kwanzaa's mail addressed to the U.S. District Court. (Compl., ¶ 43).
Kwanzaa alleges that defendant Lebak refused to address plaintiff's many complaints, and will not come back to interview plaintiff, after Kwanzaa threatened to file a civil action against her. (Compl., ¶ 44).
On February 10, 2009, a property inventory sheet, listing an ice chest, radio, Walkman with headphones, television, fan, watch, Quran, five packs of cigarettes, sweatshirt and pants, sneakers and gym socks, was sent from Bayside State Prison to EJSP, but the items were never issued to plaintiff. Instead, defendant Randolph signed the inventory sheet as received but did not issue same to Kwanzaa. Consequently, Kwanzaa filed a lost property claim with the EJSP administration, which was acknowledged by assignment of a claim number. On March 13, 2009, an inmate was being released from prison and he gave his RCA television to Kwanzaa. On March 19, 2009, defendant Hampe responded to plaintiff's grievance about the missing inventory items and inquired about the television given to plaintiff by the released inmate. Hampe told Kwanzaa that records indicate that plaintiff has a T.V. and once he receives a level 2 classification, the T.V. will be restored to plaintiff. However, after level 2 was granted, Kwanzaa never received his property. He continued to file claims for damages against the State of New Jersey but has not received a response. (Compl., ¶¶ 45-47).
On August 26, 2009, Randolph allegedly violated Kwanzaa's religious rights by referring to plaintiff by his birth name, not Kwanzaa. (Compl., ¶ 48).
Next, Kwanzaa alleges that, on April 21, 2009, defendants Dr. John Doe and Nurse Jane Doe showed deliberate indifference to plaintiff's serious medical needs by modifying medical restrictions of no prolonged standing to 15 minutes, no leg shackles, and reducing pain medications. (Compl., ¶ 49).
On unspecified dates, Kwanzaa alleges that defendants John and Jane Does violated his rights to be free from "CUP."*fn2
In addition to his federal claims under § 1983 for violation of his constitutional rights, the RLUIPA, and the American with Disabilities Act, Kwanzaa also brings a common law claim of negligence against the defendants for breach of their duty of care owed plaintiff.
Plaintiff seeks a temporary restraining order to prevent defendants from further retaliation or transfer to another "ad seg" unit. He also seeks $580,000.00 in compensatory and punitive damages, and injunctive relief directing defendants to install cameras in the blind spots in the "ad seg" unit at EJSP.
II. STANDARDS FOR A SUA SPONTE DISMISSAL The Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996), requires a district court to review a complaint in a civil action in which a prisoner is proceeding in forma pauperis or seeks redress against a governmental employee or entity. 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. 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. This action is subject to sua sponte screening for dismissal under both 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, as plaintiff is proceeding in forma pauperis and is a convicted prisoner seeking redress against governmental officials.
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).
Recently, the Supreme Court revised the 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).*fn3 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),*fn4
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 ...