United States District Court, D. New Jersey
G. SHERIDAN UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants Steven Johnson
and Sgt. Doran's motion to dismiss Plaintiff Juan Ibn-Don
Mumit Turner's complaint, (ECF No. 28), and Plaintiffs
cross-motion to amend his complaint, (ECF No. 31). For the
following reasons, Defendants' motion to dismiss is
denied and Plaintiffs motion to amend is granted in part.
Plaintiffs amended complaint shall be permitted to proceed
only on his access to the courts claims against defendants
Johnson and Doran.
is currently incarcerated in New Jersey State Prison
("NJSP") Trenton, New Jersey. On January 26, 2017,
he filed a complaint alleging NJSP Warden Stephen Johnson,
Third Circuit Clerk Marcia Waldron, and Mailroom Sgt. Doran
had interfered with his access to the courts by failing to
give him Judge Jerome B. Simandle's, U.S.D.J., opinion
dismissing his habeas corpus petition under 28 U.S.C. §
2254 in a timely manner. (ECF No. 1).
to the original complaint, Judge Simandle denied Plaintiffs
habeas corpus petition on August 31, 2015. See Turner v.
Chiesa, No. 12-5224, 2015 WL 5116764 (D.N.J. Aug. 31,
2015). Plaintiff alleges he did not receive Judge
Simandle's opinion and order until November 3, 2015.
See Compl. at 3A. Under the federal rules, Plaintiff
had 30 days to appeal the habeas denial, or until September
30, 2015. See Fed. R. App. P. 4(a)(1)(A). Plaintiff
states he did not receive the opinion and order until
November 3, 2015.
filed a motion for leave to file an appeal as within time on
November 19, 2015. Judge Simandle denied the motion:
"The principal issue presented is whether this Court may
enlarge the time for appeal in this civil case where the
prisoner petitioner did not receive the Court's Order
until 63 days after it was entered through no fault of his
own, and where he filed this motion to permit the appeal 17
days after receiving the Order. Unfortunately, such relief is
precluded by 28 U.S.C. 2107(c) and Fed. R. App. P. 4()(a)(6),
and this Court must deny the motion." Turner v.
Chiesa, No. 12-5224, 2016 WL 356029 (D.N.J. Jan. 29,
2016), certificate of appealability denied, No.
16-1604 (3d Cir. May 25, 2016). Plaintiffs appeal of the
§ 2254 denial was dismissed by the Third Circuit as
untimely. Turner v. Att'y General of N.J., No.
15-3932 (3d Cir.), cert, denied sub nom Turner v.
Porrino, 137 S.Ct. 507 (2016).
Simandle did not opine as to the definitive reason for the
delay: "[a] photocopy of this Court's original
mailing envelope .. . bears the postage meter date of mailing
as August 31, 2015, the same date as when the Opinion and
Order were entered on the docket. The cause for the two month
delay in delivery to Petitioner, from August 31, 2015 to
November 3, 2015, cannot be determined with certainty-----it
may be due to the misaddressed zip code, or to delay within
the [N]SP], or both." Turner, 2016 WL 356029,
at *1. Plaintiff alleges the prison intentionally held up his
mail for over two months, causing him to lose his ability to
appeal the denial of his habeas petition. This Court
dismissed Marcia Waldron from the case in its screening
opinion, but permitted the claims to proceed against Warden
Johnson and Sgt. Doran. Screening Opinion and Order of March
30, 2017. (ECF No. 3).
filed a motion to expand the record to include documents
allegedly showing a pattern of NJSP's interference with
his legal mail, including an incident in which Special
Investigation Division ("SID") officers confiscated
affidavits Plaintiff intended on asserting in a motion for a
new trial. (ECF No. 5). Magistrate Judge Bongiovanni granted
this motion. (ECF No. 15).
filed a motion to dismiss on December 31, 2017. (ECF No. 28).
The Court originally tried to hold oral argument on this
motion on January 24, 2018, but Plaintiff was not prepared to
proceed. The Court permitted Plaintiff addition time to file
opposition, which he used to file his cross-motion to amend
on February 2, 2018. (ECF No. 31). The Court conducted oral
argument on April 30, 2018, at which time Plaintiff appeared
by telephone. Plaintiffs response to Defendants'
opposition was received after argument on May 8, 2018. (ECF
considering a motion to dismiss a complaint for failure to
state a claim, Fed.R.Civ.P. 12(b)(6), the Court must accept
all well-pleaded allegations in the complaint as true and
view them in the light most favorable to the non-moving
party. A motion to dismiss may be granted only if the
plaintiff has failed to set forth fair notice of what the
claim is and the grounds upon which it rests that make such a
claim plausible on its face. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007). Although Rule 8 does not
require "detailed factual allegations, " it
requires "more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555).
reviewing the sufficiency of a complaint, the Court must
"tak[e] note of the elements [the] plaintiff must plead
to state a claim. Second, it should identify allegations
that, because they are no more than conclusions, are not
entitled to the assumption of truth. Finally, [w]hen there
are well-pleaded factual allegations, [the] court should
assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief."
Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d
Cir. 2016) (alterations in original) (internal citations and
quotation marks omitted). "[A] complaint's
allegations of historical fact continue to enjoy a highly
favorable standard of review at the motion-to-dismiss stage
of proceedings." Id. at 790.
15(a) of the Federal Rules of Civil Procedure permits a party
to amend a pleading once as a matter of course twenty-one
(21) days after serving the pleading or twenty-one (21) days
"after a responsive pleading or service of a motion
under Rule 12(b), (e), or (f), whichever is earlier."
Fed.R.Civ.P. l5(a)(1)(A)-(B). "In all other cases, a
party may amend its pleading only with the opposing
party's written consent or the court's leave. The
court should freely give leave when justice so
requires." Fed.R.Civ.P. 15(a)(2). As Plaintiffs time ...