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Burney v. Kimball

United States District Court, D. New Jersey

January 15, 2015

JAMAR BURNEY, Plaintiff,
v.
SGT. M. KIMBALL, et al., Defendants.

JAMAR BURNEY, Plaintiff pro se, #000641 East Jersey State Prison - Special Treatment Unit, Avenel, New Jersey.

OPINION

CLAIRE C. CECCHI, District Judge.

Plaintiff, Jamar Burney, 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) and order the Clerk 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 Plaintiff's claims asserting the use of excessive force and denial of medical care should proceed at this time, but that his denial of freedom of association and state law defamation claims should be dismissed without prejudice.

I. BACKGROUND

Plaintiff, Jamar Burney ("Plaintiff"), brings this civil action, pursuant to 42 U.S.C. § 1983, against the following defendants: Sergeant M. Kimball, State Correctional Officer ("SCO") Brown; SCO Higgins; and SCO T. Nacca.[1] (Docket # 1, Complaint, Caption, and ¶¶ 4b, 4c.) 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.

Plaintiff alleges that, on May 9, 2013, Defendant Higgins came to the South Unit, at the East Jersey State Prison-Special Treatment Unit ("EJSP-STU"), and threatened Plaintiff with "severe bodily harm." ( Id., ¶ 6.) Another officer, SCO Aziz allegedly observed the incident but did not report it. ( Id. )

The next day, on May 10, 2013, Plaintiff was admitted to the "Annex Facility Hospital" for treatment of a blood clot in his leg. He was returned to D-Unit until a doctor could see him. On May 12, 2013, at about 2:15 p.m., Defendant Higgins came up to Plaintiff while he was on the telephone with his wife and proceeded to punch Plaintiff in the face. Defendant Brown had admitted Higgins in the Unit area and had observed Higgins' actions. She came out of the booth and stood between Plaintiff and Higgins and told Higgins to stop punching Plaintiff. Higgins hit Plaintiff a couple times more and left the unit. Plaintiff alleges that he sustained a fractured jaw from the incident. He also alleges that Higgins had been assigned to another unit that day, but came to D-Unit for the purpose of assaulting Plaintiff. ( Id. )

Plaintiff also alleges that Defendant Kimball, the supervising officer, "failed to allow a nurse or a doctor to examine [Plaintiff's] jaw, " and disregarded Plaintiff's "pleas" for medical attention. Plaintiff now cannot "talk properly" from pain. ( Id. )

Plaintiff further alleges that Kimball authorized Higgins to leave his post to assault Plaintiff, and that Kimball and Defendant Nacca laughed about the incident.[2] ( Id. ) Plaintiff contends that Kimball stated that, "the next time [Plaintiff] talks to the Star Ledger, he'll think twice." ( Id. )

In an addendum filed on May 24, 2013, Plaintiff admits that he was taken to the hospital on May 14, 2013 for treatment his injuries. He generally alleges that supervisory officials, Unit Director Shantay Brame Adams and Clinical Director Merrill Main ignore these "serious situations" with the Department Corrections ("DOC") officers. (Dkt. # 2, Addendum at 2.) Plaintiff further alleges that there are no investigations of these assaults on residents by DOC officers, but rather the residents are charged with disciplinary infractions. ( Id. at 2-4.)

Plaintiff next complains that, on May 15, 2013, residents of South Unit were brought to the yard while officers searched the residents' cells. Plaintiff alleges that this conduct has occurred for three weeks "in retaliation and harassment of some residents telling the truth" about correctional officers committing assault on residents. ( Id. at 4.) Plaintiff further alleges that the videotape Higgins assaulting Plaintiff was lost. He also alleges that Higgins broke his hand when he struck Plaintiff, but that is not mentioned in any reports of the incident. Plaintiff's jaw allegedly was broken in three places. ( Id. at 5-7.)

Plaintiff also alleges that he was returned to the same environment where he was assaulted and that Defendant Higgins has a post in that area. He alleges that he had an I.V. when Higgins assaulted him on May 12, 2013, and that his parents and girlfriend came to the EJSP-STU the day he was assaulted but were refused visitation. Plaintiff further alleges that his parents came to the Union Memorial Hospital before, during and after his surgery for his broken jaw, but were not permitted to see Plaintiff. ( Id. at 7-10.)

Plaintiff alleges that since May 20, 2013, he has been locked in cell #18 in D-Unit with no phone calls, visits, showers, etc. Plaintiff further complains that the administrators and Internal Affairs Department at EJSP-STU are ignoring his requests to speak to witnesses of the assault, and that Ombudsman Kenneth Rozon is "hiding statements that he received from [Plaintiff's] witnesses." ( Id. at 11, 12.) Plaintiff asserts violations of his freedom of association and defamation of character, in addition to claims of excessive force and denial of medical care. ( Id. at 13.)

Plaintiff seeks monetary compensation for his physical injuries. He also asks to be transferred to another facility and to have a "special master" oversee the ...


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