United States District Court, D. New Jersey
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.”)).
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.
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.
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).
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).
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).
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).
is seeking injunctive and monetary relief. (Id. at
Standards for a Sua Sponte Dismissal
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.
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