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Dorsainvil v. Peim

United States District Court, D. New Jersey

January 5, 2018

STUART L. PEIM, et al., Defendants.


          ESTHER SALAS, U.S.D.J.

         Plaintiff Wedpens Dorsainvil (“Plaintiff”), a prisoner currently incarcerated at East Jersey State Prison in Rahway, New Jersey, sought to bring this civil rights action in forma pauperis. Based on his affidavit of indigence, the Court previously granted Plaintiff's application to proceed in forma pauperis and ordered the Clerk of the Court to file the Complaint. (D.E. No. 2). The Court subsequently dismissed Plaintiff's Complaint. (See D.E. Nos. 4 & 5). Plaintiff then filed an Amended Complaint, which is presently before the Court. (D.E. No. 9 (“Am. Compl.”)).

         At this time, the Court must review Plaintiff's Amended Complaint, pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A 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 Amended Complaint will be permitted to proceed in part.

         I. BACKGROUND

         Plaintiff names the following defendants in his Amended Complaint: Union County; City of Elizabeth; Elizabeth Police Department; Union County Prosecutor's Office; Khalid Walker; Honorable Stuart L. Peim, J.S.C.; James Donnelly, Assistant Prosecutor; Theodore J. Romankow, Assistant Prosecutor; Dean Marcantonio, Prosecutorial Investigator; Jorge Jimenez, Prosecutorial Investigator; Paul Pasternak, Police Officer; Thomas Dubeau, Police Officer; Richard Gregory, Prosecutorial Investigator; Dr. Ali, health practitioner at East Jersey State Prison; Ms. Lang, Medical Director at East Jersey State Prison; Patrick Nogan, Warden-Administrator at East Jersey State Prison; Ms. Gallagher, Medical Practitioner at Northern State Prison; and John Does 1-100. (See, e.g., Am. Compl. at 3-9a). The following factual allegations are taken from the Amended Complaint and are accepted for purposes of this screening only. The Court has made no findings as to the veracity of Plaintiff's allegations.

         In 2005, Plaintiff was acquitted in a murder trial. (Am. Compl. at 10). In response to this acquittal, Plaintiff alleges that Defendants Walker, Peim, Donnelly, Romankow, Marcantonio, Jimenez, Pasternak, Dubeau and Gregory conspired to maliciously prosecute him from June 2005 through May 2015. (See Id. at 10-16). Specifically, Plaintiff alleges that in 2006, Defendant Pasternak became involved in the investigation of an incident where Defendant Walker was shot in the leg. (Id. at 10-12). Plaintiff alleges that Defendant Pasternak, “with the assistance of his co-conspirators, ” coerced Defendant Walker into make incriminating statements against Plaintiff so Defendants could “trump up” the charges to attempted murder. (Id.). Defendant Walker allegedly later admitted under oath that the only reason he made these “false statements” was because he was in jail at the time and he was told he would be released if he “went along with the program.” (Id. at 11-12).

         According to the Amended Complaint, Defendant Dubeau was involved with the conspiracy because he assisted Defendant Pasternak with the initial investigation and falsified police reports. (Id. at 12). Defendant Jimenez, Marcantonio and Gregory allegedly brought Defendant Walker to the prosecutor's office and told him they wanted him to identify Plaintiff as the shooter. (Id.). Plaintiff alleges that Defendant Donnelly “conspired with his co-conspirator defendants” to coerce the victim Defendant Walker to lie. (Id. at 13). Plaintiff alleges that Defendant Romankow was Defendant Donnelly's supervisor and “on several occasions, Plaintiff witnessed Defendant Romankow advise Defendant Donnelly on how best to proceed to keep this conspiracy going.” (Id. at 14). Plaintiff further alleges that Defendant Peim conspired with Defendant Donnelly to deprive Plaintiff of a fair trial by refusing to read a jury note into the record; by having ex parte communications with the jury; by ordering the jury to continue deliberating even after there was an altercation between jurors; and refusing to dismiss a juror who had a vacation scheduled. (Id. at 14-16).

         Plaintiff alleges that due to the stress of Defendants' “unlawful conduct, ” he suffered a stroke. (Id. at 17). On December 19, 2012, Plaintiff states that he woke up with the left side of his face, neck and upper chest paralyzed. (Id.). He received an emergency medical pass, and Nurse Carver examined him and concluded that he had Bell's Palsy. (Id.). Nurse Carver was supposed to schedule him for a follow up with a doctor, but three days later, she had failed to do so and consequently, Plaintiff again complained of stroke symptoms and received an emergency medical pass. (Id.). Plaintiff was examined by Ms. Gallagher on December 22nd and she also determined that he had Bell's Palsy. (Id.). She prescribed medication, an eye patch and eye drops, which Plaintiff claimed did not help his pain. (Id.). He saw Ms. Gallagher a few weeks later for a follow-up, when she informed him that the condition usually corrects itself in two weeks to six months, but also prescribed him another round of Prednisone. (Id. at 18). In late February 2013, Plaintiff “demanded” he be given Acyclovir and within two days, he regained partial movement in his face and neck. (Id.). In June 2013, Plaintiff had another follow up at which he requested physical therapy, but his request was denied because there was nothing more to be done and Plaintiff had to wait for self-recovery. (Id.). Between August 2013 and June 2014, Plaintiff made several more requests for physical therapy, which were all denied. (Id. at 19). In June 2014, Plaintiff was transferred to Union County Jail where he asked for treatment and was given eye drops and Motrin for the pain. (Id.). On June 14, 2015, Plaintiff was transferred to East Jersey State Prison where he sought treatment from Defendant Ali who prescribed eye drops but denied physical therapy. (Id. at 20).

         Finally, Plaintiff alleges that Defendant Nogan has implemented a new system for submitting grievances at East Jersey State Prison, which eliminated the paper grievance form and requires grievances to be submitted electronically through kiosks. (Id. at 21-22). However, when Plaintiff utilized the kiosk to submit a grievance about a sergeant, he was warned in writing not to use the kiosk to complain about staff members. (Id. at 22).

         Plaintiff is seeking injunctive and monetary relief. (Id. at 26).


         A. Legal Standard

         1. Standards for a Sua Sponte Dismissal

         Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996) (“PLRA”), district courts must review complaints in those civil actions in which a prisoner is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B), seeks redress against a governmental employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim with respect to prison conditions, see 28 U.S.C. § 1997e. The PLRA directs district courts to sua sponte dismiss any claim that is frivolous, is 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. This action is subject to sua sponte screening for dismissal under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A because Plaintiff is a prisoner proceeding as an indigent.

         According to the Supreme Court's decision in Ashcroft v. Iqbal, “a pleading that offers ‘labels or conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive sua sponte screening for failure to state a claim, the complaint must allege “sufficient factual matter” to show that the claim is facially plausible. Fowler v. UPMS Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 483 n.17 (3d Cir. 2012) (quoting Iqbal, 556 U.S. at 678). Moreover, while ...

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