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Walter Tormasi v. George W. Hayman

August 22, 2011

WALTER TORMASI, PLAINTIFF,
v.
GEORGE W. HAYMAN, ET AL., DEFENDANTS.



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

NOT FOR PUBLICATION

OPINION

This matter was opened to the Court by Plaintiff Walter Tormasi filing a Complaint alleging certain violations of his constitutional rights. Thereafter, Plaintiff filed a Second Amended Complaint [51] which Defendants have moved to dismiss or for summary judgment. Briefing on the Motion [91] is complete and this matter is now ready for decision.

I. BACKGROUND

Plaintiff is confined pursuant to his March 27, 1998, conviction in the Superior Court of New Jersey, Law Division, Somerset County for the murder of his mother and related offenses. Plaintiff is serving a life sentence with a thirty- year period of parole ineligibility. On July 20, 2001, the Superior Court of New Jersey, Appellate Division, affirmed Plaintiff's conviction and sentence in an unpublished opinion. On January 10, 2002, the Supreme Court of New Jersey denied Plaintiff's petition for certification; on May 13, 2002, the Supreme Court of New Jersey denied Plaintiff's motion for reconsideration.

On or about July 8, 2002, Plaintiff filed his first state petition for post-conviction relief. On December 8, 2005, he filed a supplemental PCR petition, including an appendix of exhibits totaling 520 pages. On December 29, 2006, he filed a second supplemental PCR petition, including an appendix of exhibits totaling 1209 pages. These petitions for post-conviction relief were based primarily upon alleged ineffective assistance of counsel, specifically, the failure to present evidence that Plaintiff's father, Attila Tormasi, Sr., and/or a private detective he had hired, committed the murder for which Plaintiff was convicted.*fn1 The state PCR court denied relief and on May 26, 2009, the Superior Court of New Jersey, Appellate Division, affirmed the denial of relief.

In early January, 2006, while his state PCR petition was pending, Plaintiff sent out for storage, to his father, four storage containers filled with legal material. The property room officer inventoried the property*fn2 and found twelve or fourteen hollowed-out legal briefs. In addition, an appendix contained a copy of "The Anarchist Cookbook," allegedly referenced in Petitioner's state PCR briefs. These materials were sent to SID Officer Butler.*fn3 Thereafter, Plaintiff was charged with Prohibited Act No. *210, possession of anything unauthorized ("The Anarchist Cookbook"), and conduct which disrupts the orderly running of the prison, Prohibited Acts *.803/*.306 (based upon the hollowed-out briefs that could be used to smuggle contraband). Following a hearing, Plaintiff was found guilty of all charges. With respect to the "conduct which disrupts" charge, he was sanctioned with 15 days detention, 365 days in administrative segregation and 365 days loss of commutation time. With respect to the charge for possession of contraband, "The Anarchist Cookbook," Plaintiff was sanctioned to 10 days detention. His administrative appeals of these sanctions were denied at all levels. He then appealed to the Superior Court of New Jersey, Appellate Division, which also upheld the sanctions. Tormasi v. New Jersey Dept. of Corrections, 2007 WL 845921 (N.J.Super. App.Div. March 22, 2007).*fn4 Plaintiff did not further appeal. (Motion [51], Decl. of Thomas E. Kemble, Ex. B.)

Plaintiff's administrative grievances to obtain a return of the confiscated documents (allegedly directed to Defendants Ricci, Trent, and Kandell) were denied at every level of review.*fn5

In March 2007, Plaintiff was identified in an internal investigation as possibly being involved in a tax fraud scheme and an escape plot with other inmates. In connection with this investigation, prison officials came to believe that Plaintiff was in possession of a secured data card purportedly containing information regarding the escape plot. Accordingly, Plaintiff's cell was searched and a 1-gigabyte secured data card was found in a hollowed out section of a legal pad. Plaintiff was charged with Prohibited Act No. *.009, misuse of electrical equipment, and Prohibited Act No. *.306, conduct which disrupts. Following a hearing, the charges were merged by the hearing officer and Plaintiff was found guilty. Plaintiff was sanctioned with 15 days detention, 365 days in administrative segregation, 365 days loss of commutation time, and permanent loss of contact visits. Tormasi filed an administrative appeal of the sanction; the sanction was upheld.

Plaintiff's administrative grievances to obtain a return of the confiscated materials (allegedly directed to Defendants Barbo, Wojciechowica, Hayman, Ricci, and Mee) were denied at every level of review.*fn6

In his initial Complaint in this Court, Plaintiff alleged that the events described above deprived him of his constitutional right of access to the courts and that the policies of the prison, not fully articulated in the Complaint, were selectively enforced against him in violation of his right to equal protection, because of prison officials' objections to the content of his court filings. Certain claims were dismissed and Plaintiff was granted leave to submit an amended complaint.

Presently before the Court is Plaintiff's Second Amended Complaint [51]. Plaintiff alleges that all of his state petitions for post-conviction relief were denied by the state courts. He asserts that he desires to file in this Court a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, but that he is afraid to file such a motion for fear of discipline for possession of contraband and that he is unable to file such a motion without all of the relevant legal documents contained in his appendices. Plaintiff also alleges that he is fearful of submitting any further state challenges to his conviction, for fear of disciplinary proceedings related to possession of contraband. Plaintiff alleges that he is fearful of future disciplinary proceedings based upon the contents of legal briefs and appendices because of the past disciplinary proceedings and because interviews with SID officers regarding those events have left him with the impression that his briefs and appendices will be reviewed for content and he will be subjected to disciplinary proceedings if corrections officials object to the content of such briefs and appendices.

Plaintiff alleges that the policies and practices of the defendants, detailed above, deprive him of his First Amendment right to freedom of speech, of his right of access to the courts, and of his right to Equal Protection. In addition, Plaintiff asserts that Department of Corrections and New Jersey State Prison defendants have failed to adequately train and supervise their subordinate investigators, leading to the afore-mentioned violations of Plaintiff's constitutional rights.*fn7

The named defendants include Department of Corrections Commissioner George W. Hayman, DOC Director of Division of Operations James Barbo, New Jersey State Prison Administrator Ronald H. Cathel, JSP Associate Administrator Al Kandell, NJSP Associate Administrator Michelle Ricci, NJSP Associate Administrator Pamela Trent, Special Investigations Division Investigator Derek Butler, SID Investigator Ralph Dolce, SID Investigator William Maginnis, SID Investigator Victor Sierra, and SID Investigator Vincent Wojciechowicz. Plaintiff seeks declaratory and injunctive relief, compensatory and punitive damages, and all further appropriate relief.

Defendants have joined in a Motion [91] to dismiss or for summary judgment. Plaintiff has filed his opposition and this matter is now ready for decision.

II. DISMISSAL FOR FAILURE TO STATE A CLAIM

This Court must dismiss, at any 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). See also Fed.R.Civ.P. 12(b)(6), permitting a party to move to dismiss a claim in a civil action for "failure to state a claim upon which relief can be granted."

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).

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).

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, 551 U.S. 89, 93 (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 relief. We caution that without some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only "fair notice," but also the "grounds" on which the claim rests.

Phillips, 515 F.3d at 232 (citations omitted).

More recently, the Supreme Court has emphasized that, when assessing the sufficiency of any civil complaint, a court must distinguish factual contentions -- which allege behavior on the part of the defendant that, if true, would satisfy one or more elements of the claim asserted -- and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Although the Court must assume the veracity of the facts asserted in the complaint, it is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. at 1950. Thus, "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." Id.

Therefore, after Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. 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. 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." 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.'" ...


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