United States District Court, D. New Jersey
MEMORANDUM AND ORDER
Michael A. Shipp United States District Judge.
is proceeding, in forma pauperis, with a civil
rights complaint filed pursuant to 42 U.S.C. § 1983. 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 suit.
Complaint primarily asserts that defendants
unconstitutionally retaliated against Plaintiff due to his
filing of lawsuits and grievances against state defendants in
the past. Specifically, Plaintiff alleges that he was
retaliated against through trumped-up disciplinary charges
after defendants planted false evidence of contraband in his
cell. It is clear from the Complaint that Plaintiff was in
fact found guilty of the charges in a prison disciplinary
hearing. Plaintiff also asserts that his personal property
was confiscated for a period of a month while he was in
administrative segregation and that he was denied legal
supplies while in segregation.
to the extent Plaintiff asserts property claims against
Defendants for the alleged unjustified confiscation of his
personal property, "[intentional and negligent
deprivations of property do not violate due process if
meaningful post-deprivation remedies for the loss are
available." Pressley v. Ruber, 562 Fed.Appx.
67, 69-70 (3d Cir. 2014). The Third Circuit has already held
that such meaningful post-deprivation remedies exist in New
Jersey. Revell v. Port Autk of NX, N.J., 598 F.3d
128, 139 (3d Cir. 2010) ("Revell cannot prevail on his
due process claim if the state's post-deprivation
procedures, including state tort remedies, are adequate. He
has failed to explain why New Jersey's state procedures
to recover wrongfully seized property, such as the ability to
move in the criminal action for return of his property or the
ability to file a separate action for a writ of replevin, are
insufficient."). As such, any property claims in the
Complaint are dismissed.
to the extent the Complaint alleges that Plaintiff was
falsely disciplined through fabricated charges, Plaintiff
fails to state a claim because it does not appear that he
suffered any legally cognizable injury. In one of his
allegations, Plaintiff asserts that the disciplinary officer
failed to credit him with time served in administrative
segregation while the proceeding was ongoing. This suggests
that the punishment Plaintiff ultimately received was time in
administrative segregation. Prisoners do not have a
constitutional right to avoid solitary confinement.
Sandin v. Conner, 515 U.S. 472, 485 (1995).
Likewise, Plaintiffs procedural due process claim regarding
the disciplinary proceeding also fads, because procedural due
process claims require the violation of a substantive right
in the first instance. Fanti v. Weimtock, 629
Fed.Appx. 325, 330 (3d Cir. 2015); Huertas v.
Sec> Pa. Dep't oj Corr., 553 Fed.Appx.
64, 66 (3d Cir. 2013) ("Procedural due process rights
are triggered by deprivation of a legally cognizable
the denial of legal supplies, the Court construes the
Complaint as raising a denial of access to the courts claim.
To assert such a claim, however, Plaintiff must allege that
he suffered an actual injury, i.e., that he lost an
opportunity to pursue a nonfrivolous claim. Schreane v.
Holt, 482 Fed.Appx. 674, 676 (3d Cir. 2012) (citing
Monroe v. Beard. 536 F.3d 198, 205 (3d Cir. 2008)).
There is no allegation in the Complaint that Plaintiff lost a
legal claim. As such, the Court dismisses the denial of
access to the courts claim.
the Court will allow the retaliation claim to proceed.
Because the factual allegations for the retaliation claim
involve only Defendants Kevin Fanning, Marcus Sherrod, and
Sean Patterson, all other defendants are dismissed from the
IS therefore on this 25th day of July, 2018,
ORDERED that all claims, other than
Plaintiffs retaliation and related state-law claims, if any,
are hereby DISMISSED WITHOUT PREJUDICE;
that all named defendants other than Defendants Kevin
Fanning, Marcus Sherrod, and Sean Patterson are hereby
that, pursuant to 28 U.S.C. § 1915(d), the Clerk shall
issue summons and the United States Marshal shall serve
summons, the Complaint and this Order upon Defendants, with
all costs of service advanced by the United
that, pursuant to 42 U.S.C. § 1997e(g)(2), Defendants
shall file and serve an answer, see Fed. R. Civ. P.
that, pursuant to 28 U.S.C. § 1915(e)(1) and § 4(a)
of Appendix H of the Local Civil Rules, the Clerk shall
notify Plaintiff of the opportunity to apply in writing to
the assigned judge for the appointment of pro bono counsel;
and it is further
that, if at any time prior to the filing of a notice of
appearance by Defendants, Plaintiff seeks the appointment of
pro bono counsel or other relief, pursuant to Fed.R.Civ.P.
5(a) and (d), Plaintiff shall (1) serve a copy of the
application by regular mail ...