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Mark Creveling v. Steve Johnson

August 4, 2011

MARK CREVELING, PLAINTIFF,
v.
STEVE JOHNSON, ET AL., DEFENDANTS.



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

NOT FOR PUBLICATION

OPINION

Plaintiff, Mark Creveling ("Plaintiff"), an involuntarily committed person pursuant to the Sexually Violent Predator Act (an "SVP"), 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 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, pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 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. For the reasons set forth below, the Court concludes that the complaint should proceed in part.

I. BACKGROUND

Plaintiff brings this civil action, pursuant to 42 U.S.C. § 1983, against Steve Johnson, Assistant Superintendent of the Adult Diagnostic and Treatment Center; Brian Friedman, Director of Psychology of the Special Treatment Unit ("STU"); Merril Main, Clinical Director of the STU; and Layfette Davis, Food Services Supervisor of the STU. 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.

With regard to Defendant Steve Johnson, Plaintiff makes the following allegations. Plaintiff alleges that when his family visits, they are forced to go through metal detectors, be patted down and take off clothing, which makes his mother and sister feel "violated." His family would like to see him more than three days per week and would like something to eat and drink when they visit.

Plaintiff further alleges that a lot of the sinks and toilets in the STU do not work and the pipes leak when it rains. The toilet seat are cold when he sits on them and he is forced to get his food from a serving line that runs under a ledge where dirt and cigarette ash can fall into it.

Plaintiff further alleges that there is no exercise equipment on his wing and he has to go to the "yard" if he wants to use equipment. Further, the equipment in the yard is old and rusty. He is only permitted to go the yard three times per day.

Plaintiff further alleges that the medical department is "bad." When the SVP's have medical issues, the doctors and nurses minimize the problem. When SVP's are sent to the hospital, they are sent to a prison hospital. Plaintiff alleges that he has a bulging disk and "they can't seem to help it."

Plaintiff further alleges that the officers violate the SVPs' rights by not allowing them to go to the yard, the law library and the right of free movement. The officers bang on the cell four times per night, making it so the SVPs cannot get nine hours of sleep.

Plaintiff further alleges that he has been denied access to dietary health supplements such as whey protein and creatine and that there are not enough phones and they are always being used. Plaintiff further alleges that the Patient Bill of Rights is not being followed and the SVPs are not allowed to mingle with the opposite sex and he would like to "learn how to talk with women."

Plaintiff further alleges that he is only permitted to go to church once every two-three weeks when he is supposed to be permitted to go every Sunday.

Plaintiff further alleges that they are "locked in" for "counts" two to three times per day and they should not be locked in for counts even at night.

Finally, Plaintiff alleges that the laundry is "slow", sometimes taking a couple of days to get done.

With regard to Defendant Main and Freeman, Plaintiff alleges that he does not have any privacy to use the bathroom because the doors are open all day long. Plaintiff further alleges that the therapy is "bad" and the therapists do not care about them. Finally, Plaintiff alleges that he was supposed to be released "soon through the t.c." He states that his "Phase 4" was taken away and now he has "nothing."

With regard to Defendant Lafayette, Plaintiff alleges that "the food is bad [and] it don't taste good." Most of the time the food is undercooked and cold.

In relief, Plaintiff requests a declaration stating that Defendants violated his rights and an injunction for the following: requiring Plaintiff's visitors to be treated like those in other civilly committed centers; to fix all plumbing, create a dining room for food, reinstate the previous food distribution plan; requiring yard recreation both day and night; to investigate and repair the medical department and get him to a "cyropractor"; to remove all current officers and replace with new ones; allowing Plaintiff to buy vitamins and supplements; instituting a cell phone purchase program; requiring SVPs to be covered under the Patient Bill of Rights; to create a program to allow Plaintiff to interact with the opposite sex; telling Defendant Johnson to run a weekly catholic service; requiring laundry to be done seven days a week; to create a hearing for possible "map" status; to fix all doors and windows to create privacy; to provide Plaintiff with adequate treatment; to hire a dietician; to create a civilian oversight committee; to appoint a special master to oversee all the of requested injunctions; to allow personal computers; and to fix all 600 fire code violations.

II. DISCUSSION

A. Legal Standard

1. Standards for a Sua Sponte Dismissal

The Prison Litigation Reform Act, 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. See 28 U.S.C. §§ 1915(e)(2)(B). This action is subject to sua sponte screening for dismissal under 28 U.S.C. §§ 1915(e)(2) (B) because Plaintiff is proceeding as an indigent.

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 ...


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