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Love v. Does

United States District Court, D. New Jersey

January 31, 2019

JOHN DOES, et al., Defendant.



         Before this Court is a Motion to Dismiss (ECF No. 54) filed by Defendants George Hanuschik and Mrs. Zimmerman, seeking to dismiss Plaintiff Kelvin Ray Love's (“Plaintiff”) Third Amended Complaint (ECF No. 45). Having reviewed the filings submitted in connection with the Motion and having declined to hold oral argument pursuant to Federal Rule of Civil Procedure 78(b), for the reasons sets forth below, and for good cause appearing, Defendants' Motion to Dismiss is GRANTED and the Motion to Strike is DENIED.

         I. Background

         A. Factual Background

         This action arises out of a series of incidents that occurred on or about December 2011 through May 2015, while Plaintiff was an inmate at the New Jersey State Prison in Trenton, New Jersey. (ECF No. 45.) In December 2011, Plaintiff “submitted a request pursuant to ACA 10A: 17-5.9(d) to Imam Suluki . . ., the then New Jersey State Prison Chaplaincy Supervisor, asking that I be provided a weekly Sabbath day diet, having any choice of items to the discretion of the prison.” (ECF No. 45 at 6.)

         Approximately one month later, on January 10, 2012, Imam Suluki informed Plaintiff that his request has been denied because his request “was not according to Jewish law.” (Id.) Imam Suluki also informed Plaintiff that his request had been forwarded to the Religious Issues Committee (“RIC”). (Id.) Plaintiff followed up with Imam Suluki about the status of the RIC review three times in the months following the initial denial. (Id. at 6-7.) On May 15, 2012, Imam Suluki indicated that he did not have any information about the RIC's review of Plaintiff's request. (Id. at 7.)

         Plaintiff subsequently sent correspondence to Director Hicks requesting follow up information regarding his dietary accommodation request to the RIC. (Id.) Shortly thereafter Plaintiff received a response from Cindy Ford, Coordinator Inmate Correspondence Unit advising Plaintiff that his correspondence had been forwarded to New Jersey State Prison Administrator, Charles Warren. (Id.)

         Although Plaintiff does not specify the start date of the alleged conduct that resulted in the aforementioned grievances, he alleges the prison's failure to provide him an adequate kosher diet resulted in his suffering from nutritional deficiencies. (Id. at 8-9.) He contends that, between March 2013 through February 2014, he suffered a twenty-pound weight loss as a result of the inadequate dietary provisions. (Id. at 9.) He alleges Defendants George Hanuschik and Christine Vaughan, “Cook House ITI's, ”[1] provided kosher meals that were smaller portions because “there is no set standard menu for the Kosher diet as there is with all the other common fare diets served to the regular non-kosher prisoners.” (Id. at 10.) Moreover, he alleges Defendant Hanuschik, as supervisor, “is aware of the ITI's practice of arbitrary and capricious selection but turns a blind eye to this practice.” (Id.)

         Plaintiff's dietary grievance stems not only from the quantity and quality of the food but also from the Defendants' alleged refusal to comply with his request that he be provided non-perishable foods before the start of the Sabbath, which he can consume once Sabbath ends. (ECF No. 45 at 7.)

I sincerely believe that I should and must observe the seventh day Sabbath (day of rest) on which, to the best of my circumstances, I refrain from all work and observe a prohibition of not eating, on the Sabbath, foods prepared, cooked and or served to be on the Sabbath. Which my interpretation of the Holy Scriptures dictates I must observe from Saturday evening til [sic] Sunday evening, as I have consistently observed from before the year 2000. On or around what time the 8th Circuit Court of Appeals affirmed the decision /findings of the U.S. District Court of Arkansas directing the Arkansas Dept. of Corrections to provide me bread and peanut butter on Saturdays, before evening, to be consumed by me on Sundays during my seventh-day Sabbath.

(Id. at 5-6.)

         Additionally, Plaintiff provides that he asked that he not receive meals on Sundays. (Id. at 7-8.)

         Plaintiff also alleges he suffered retaliation in the form of disciplinary sanctions[2] as a result of lawsuits he filed in New Jersey Superior Court. (Id. at 15.) Plaintiff does not elaborate on what the specific subject of those court filings were other than that they were “civil law suits against NJSP employees (Docket Nos. L 558-15; L 559-15) for civil rights violations suffered while in Ad-Seg.” (Id.) Plaintiff alleges that the disciplinary sanctions were in response to his court filings despite the defendants' pretext. In his complaint, he states, in pertinent part:

On or around the years of 2013; 2014, because of two fights I had while in general population (gp) (Unit 2-A; Unit 2-R (Mess Hall)), I feared for my life and or safety, to return to gp from Administrative Segregation (Ad-Seg). Before my Ad-Seg sentence was completed I asked the Ad-Seg Unit Offices and sergeants to be put on Protective Custody (PC). I submitted numerous Grievances requesting PC and I appealed directly to SID and the New Jersey State Prison (NJSP) Administration for PC status. They all refused me PC status, so upon my release from Ad-Seg I refused to move to 1-Right Unit because I feared for my safety in gp. For refusing to move I was charged with an infraction and placed into detention, where I continued to request PC. Finally I was placed on temp. PC status and moved to a Management Control Unit (MCU) for several days, where I was given a hearing, asked to sign documents acknowledging my request for voluntary PC and told that I would not be recommended for PC status. At this point I had to choose between continuing to refuse to return to gp (which meant indefinite Ad-Seg time) or take my changed in gp. Because I had an Arkansas Habeas Corpus Petition to perfect I chose gp where I could research etc. in the law library, which I could not do in Ad-Seg. A change at possible freedom was worth risking my life.
In gp, for over a year or more straight I was housed on Unit 4C North in cell #28 (single-lock[3]). While in cell #28 I filed (submitted for filing two (2) civil law suits against NJSP employees (Docket Nos. L 558-15; L 559-15) for civil rights violations suffered while in Ad-Seg. On the morning of 5-20-15 I was moved to unit 1-Right (1-R). While on 1-R I overheard the Unit Offices saying that “it doesn't matter because he will be in detention soon anyhow.” On the morning of 5-22-15 I was told that the lieutenant had called and told me to pack up to be moved to 4-C or 4A. I elected 4-C and when I got to 4-C I was ordered to lock in Cell # 5 (double-lock[4]). I refused and was placed in detention. I went to disciplinary court 5-29-15 and Hearing Officer (H/O) Mrs. Zimmerman gave me a 90 days suspended sentence (max. amount for violation). Upon my release from detention I again refused to double-lock, went to court and received 180 days. The previous 90 days which were suspended plus the 90 days just received, to run consecutive.
While in detention, the first time 5-26-15 I received legal mail from the Mercer County Superior Court, postdated 5-19-15 (the day before I was moved to 1-R). In this correspondence were two (2) ORDERS from the Superior Court ruling that I had 45 days from 5-8-15 to pay a $22.62 partial filing fee on each of the two separate complaints (L 558-15; L 559-15) or they would be dismissed without prejudice. Someone in the NJSP mailroom the morning of 5-20-15, or previous to same; upon receipt of my legal mail from the court either opened my legal mail or accessed the public records of the Court's filing of its then pending ORDER of DISMISSAL, and then notified pertinent custody and or other NJSP stay on or before the morning of 5-20-15 who then contrived to and in fact did retaliate against me by moving me to 1-R with intent of locking me up in Ad-Seg wherein I receive no State Pay, my sole source of income. Thereby inhibiting/preventing me from meeting the courts deadline to pay the partial filing fee.

(Id. at 15-16.)

         Plaintiff further alleges that, at his hearings, he presented Defendant Zimmerman with the letters from the state court and he expressed his concern that his current housing assignment was in retaliation for the pending court cases:

She ruled on my first hearing that I submitted no evidence showing that custody was retaliating, and at my second hearing she discounted the evidence of the then pending lawsuits entirely, again. When I tried to show them to her, she emphatically stated to me that “the lawsuits don't matter.”

(Id. at 18.)

         The record is silent as to whether Plaintiff appealed the disciplinary hearing findings or the sanctions.

         B. Procedural Background

         In the wake of the aforementioned incidents, Plaintiff filed a complaint, amended complaint and a second amended complaint against multiple John Does, George T. Hanuschik, Steven Johnson, Rev. W. Wilcox, Mrs. Ryan, Christine Vaughan and Zimmerman in New Jersey state court. (ECF No. 1.) Those state court filings were brought to this Court's attention by Defendants' Steven Johnson, George Hanuschik, Warren Wilcox and Mrs. Zimmerman's filing of a Notice of Removal. (Id.) According to Defendants' notice of removal, Defendant Ryan, although served with the second amended complaint in state court, filed a motion to dismiss that was granted by the state court. (ECF No. 1 at 2.) Defendants Steven Johnson, George Hanuschik, Warren Wilcox and Mrs. Zimmerman were served with the second amended complaint on January 17, 2017. (Id.) Those defendants subsequently filed the notice for removal pursuant to 28 U.S.C. §§§ 1441(a), 1443 and 1146(b), arguing that Plaintiff's federal claims should be brought pursuant to 42 U.S.C. § 1983. (Id.)

         Plaintiff filed a motion to remand opposing Defendants' notice of removal, arguing that the removal was “invalid” because Defendants waived removal by failing to file the motion to remove within the “30-day time frame” as provided in 28 U.S.C. § 1441(c), and that Defendants conspired with the New Jersey Superior Court clerk to “summarily, arbitrarily, prematurely” have Plaintiff's action dismissed. (ECF No. 6 at 4-5.) This Court denied Plaintiff's motion to remand on November 28, 2017. (ECF Nos. 26-27).

         Plaintiff's third amended complaint was filed on March 27, 2018. That complaint omitted defendants Johnson and Wilson and added Charles E. Warren, Jr. and Imam Rasul Suluki. (ECF No. 45.) The Court granted Plaintiff's motion for leave to file a third amended complaint and also ordered that the Clerk of the Court issue summonses for Defendants Charles Warren, Jr. and Imam Suluki. (ECF No. 44.) The summons for Charles Warren, Jr. and Imam Suluki were returned unexecuted. (ECF No. 55.) In his third amended complaint, where Plaintiff alleges First, Fifth, Sixth, Eighth and Fourteenth Amendment violations as well as a conspiracy claim, Plaintiff requests injunctive relief as well as monetary and punitive damages. (ECF No. 45.) Plaintiff lists several John Doe defendants as well as Christine Vaughn, Charles E. Warren, Jr., Imam Rasul Suluki as well as moving defendants George T. Hanuschik and Mrs. Zimmerman. (Id. at 1.)

         Plaintiff raises First Amendment Free Exercise Clause and Eighth Amendment violations against Defendant Hanuschik.[5] (ECF No. 45 at 8-11.) Additionally, he raises retaliation and conspiracy claims against Defendant Zimmerman. (Id. at 14-19.)

         Defendants Hanuschik and Zimmerman now move to dismiss for failure to state a claim.[6] (ECF No. 54.) On May 22, 2018, Plaintiff filed a response in opposition to the motion to dismiss. (ECF No. 59). On June 11, 2018, Defendants Hanuschik and Zimmerman filed a reply brief. (ECF No. 63.) On July 18, 2018, Plaintiff filed a “request for default” against Steven Johnson and W. Wilcox. (ECF No. 67.) Steven Johnson and Warren Wilcox filed a response to that request arguing that they were no longer parties to the suit as Plaintiff's third amended complaint did not include them as defendants. (ECF No. 68.) Plaintiff filed a “motion to amend response in opposition” on August 15, 2018, (ECF No. 70), which was denied by the Court on August 17, 2018. (ECF No. 71.) On November 8, 2018, Plaintiff filed a “suggestion to substitute Bruce Davis and Imam J. Eichabi” as well as a request for default against Bruce Davis and Imam J. Elchabi. (ECF Nos. 72-73.) The Clerk of the Court advised Plaintiff that his request for default against Davis and Eichabi could not be granted because the persons are not named parties in the case. Additionally, Plaintiff has two “motion[s] to substitute party” currently pending before Magistrate Judge Arpert. This opinion does not address those motions to substitute. (ECF Nos. 74-75.)

         II. ...

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