United States District Court, D. New Jersey
L. Wolfson, U.S.D.J.
matter has been opened to the Court by a Motion for Judgment
on the Pleadings pursuant to Fed.R.Civ.P. 12(c), brought by
Deputy Attorney General Adam Robert Gibbons on behalf of
Defendants SCO J. DiStefano and SCO D. Shaw (“Moving
Defendants”). As explained below, there is no dispute
that Plaintiff's Complaint does not seek to raise claims
under 28 U.S.C. § 1028, N.J.S.A. 2C:21-17.6, N.J.S.A.
56:11-44, et seq., N.J.A.C. 10A:22-1.5, and N.J.A.C.
10A:22-2.3, which are the claims Moving Defendants seek to
dismiss in the instant motion. For completeness, however, the
Court will grant the Motion for Judgment on the Pleadings
with respect to those claims. The Court declines to address
Moving Defendants arguments for dismissal of Plaintiff's
§ 1983 claims, which they have raised for the first time
in their Reply Brief. If appropriate, Moving Defendant may
file a new motion for dismissal of Plaintiff's §
1983 claims within 30 days of the date of the Order
accompanying this Memorandum Opinion.
case was previously assigned to the Honorable Peter G.
Sheridan, who granted Plaintiff's in forma
pauperis application and proceeded the Complaint past
screening. (ECF Nos. 8, 9.) The case was subsequently
transferred to the undersigned. (ECF No. 28.)
Plaintiff's Complaint includes many extraneous facts, the
gravamen of the Complaint is that Moving Defendants, along
with other served and unserved Defendants, violated
Plaintiff's civil rights by placing his first and last
name and full birthdate on the outside door of his cell at
New Jersey State Prison (NJSP). (ECF No. 1, Compl. at
¶¶ 16-21.) Plaintiff contends that the posting of
this information violates his constitutional right to
informational privacy and leaves him and other inmates
vulnerable to identity theft. (See, e.g., Id. at
¶¶ 124-127.) The Complaint cites to a number of
federal and state statutes and provisions of the
administrative code, which criminalize identity theft and/or
protect victims of identity theft. (Id. at
¶¶ 93-94.) Plaintiff has sued Defendants in their
official capacities and seeks declaratory and injunctive
relief but does not seek damages. (Id., Compl. at 1,
Defendants appear to acknowledge in their Moving Brief that
Plaintiff alleges constitutional claims under § 1983
(ECF No. 46, Moving Br. at 2); nevertheless, the Moving Brief
does not address whether Plaintiff's Complaint states any
claims for relief under § 1983. (See id.)
Instead, Moving Defendants argue that Plaintiff's
Complaint fails to state claims for relief under 18 U.S.C.
§ 1028, N.J.S.A. 2C:21-17.6, N.J.S.A. 56:11-44, et seq.,
and various provisions of the New Jersey Administrative Code,
to which Plaintiff cites in his Complaint.
states in his Opposition Brief that Moving Defendants have
mischaracterized his claims for relief. (ECF No. 56,
Plaintiff's Opposition Br. at 21.) Plaintiff explains
that he “never alleged a statutory claim based on a
completed taking of his identity by Defendants pursuant to
the Federal identity theft statute[.]” (Id.)
Plaintiff further clarifies that his “claims are not
statutory claims of a completed identity theft or state law
claims, but claims of an extremely unwise prison policy
violating the 14th and 8th Amendments.” (Id.
at 23.) Although Plaintiff has clarified that he does not
seek to raise state or federal statutory claims, apart from
constitutional claims arising under 42 U.S.C. § 1983,
the Court, for the sake of clarity, will grant the Motion for
Judgment on the Pleadings with respect to the federal and
state claims arising under 28 U.S.C. § 1028, N.J.S.A.
2C:21-17.6, N.J.S.A. 56:11-44, et seq., N.J.A.C. 10A:22-1.5,
and N.J.A.C. 10A:22-2.3.
arguments raised for the first time in their Reply Brief,
Moving Defendants also belatedly seek dismissal of
Plaintiff's § 1983 claims. Moving Defendants argue
that even if Plaintiff allegations were to state claims under
the Eighth and/or Fourteenth Amendments, they would be
entitled to qualified immunity because any such right is not
clearly established. (ECF No. 60, Reply Br. at 2-5.) The
Court declines to address whether Plaintiff's Complaint
states any claims for relief under the Eighth and/or
Fourteenth Amendments or whether such claims would be subject
to dismissal on qualified immunity grounds because Moving
Defendants, who bear the burden on a motion to dismiss, have
raised these issues for the first time in their Reply Brief
and have not adequately briefed the relevant
issues. See Money v. Bristol-Myers Squibb
Co., No. CIVA 307CV-1100 FLW, 2009 WL 5216987, at
*10 (D.N.J. Dec. 30, 2009) (citing Merling v. Horizon
Blue Cross Blue Shield of New Jersey, No. 04-4026, 2009
WL 2382319, *10, n. 5 (D.N.J. Jul.31, 2009) (declining to
address issue raised for first time in reply brief). The
Court will therefore deny without prejudice the Motion for
Judgment on the Pleadings with respect to Plaintiff's
§ 1983 claims. If appropriate, Moving Defendant may file
a new motion seeking dismissal of Plaintiff's § 1983
claims within 30 days of the date of the Order accompanying
this Memorandum Opinion. An appropriate Order follows.
 The United States Constitution
provides some protection of an individual's privacy.
See Whalen v. Roe, 429 U.S. 589, 599-600 (1977);
United States v. Westinghouse Electric Corp., 638
F.2d 570, 577 (3d Cir. 1980). This constitutional right of
privacy extends to two types of interests: “One is the
individual interest in avoiding disclosure of personal
matters, and another is the interest in independence in
making certain kinds of important decisions.”
Plaintiff's claims relate to the first type,
i.e., informational privacy.
 Plaintiff in this action states that
he seeks “Declaratory, Injunctive Relief & costs
(No Damages).” (ECF No. 1, Compl. at 7.) Qualified
immunity protects government officials from civil liability
for any action that “does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). “It is well
established that qualified immunity does not bar actions for
prospective relief, such as an injunction or declaratory
judgment.” Salerno v. Corzine, 449 F.App'x
118, 123 (3d Cir. 2011) (citing Hill v. Borough of
Kutztown, 455 F.3d 225, 244 (3d Cir. 2006) (“[T]he
defense of qualified immunity is available only for damages
claims-not for claims ...