United States District Court, D. New Jersey
B. KUGLER UNITED STATES DISTRICT JUDGE
Darius Gittens, a prisoner confined at Northern State Prison,
in Newark, New Jersey, is proceeding pro se with a civil
rights complaint pursuant to 42 U.S.C. § 1983. For the
reasons stated in this Opinion, the Court will allow the
Complaint to proceed in part.
Court will construe the factual allegations in the Complaint
as true for the purpose of this Opinion. Plaintiff names
Mildred Scholtz, Matthew Leith, Captain McDonnell, J.
Larkins, T. Blango, P. Blango, Mary Anne O'Brien, Bruce
Garganio, Aimee Beigard, Joseph Donelly, Joanne Schwartz,
Gary M. Lanigan, Marcus Hicks, Darcella Sessomes, T. Case,
and John Doe.
case arises from Plaintiffs time at the Burlington County
Jail, as a pretrial detainee. On or about December 16, 2015,
Plaintiff entered the Burlington County Jail and notified a
nurse of his “destroyed knees and destroyed
shoulders” which cause him “extreme chronic
pain.” (ECF No. 1, at 11).
Plaintiff s chronic conditions, officials housed him in a
cell with two other inmates, and assigned him the floor
mattress, which caused Plaintiff a great deal of pain and
discomfort. Moreover, Plaintiffs mattress was nine inches
from the toilet bowl, which resulted in his cellmates
carelessly urinating on Plaintiff and his mattress on a
Plaintiff complained of a number of conditions, such as:
inadequate showering facilities; low cell temperatures;
unsanitary conditions, e.g., mice and roaches;
subpar food, and the lack of grievance forms. (ECF No. 1, at
13). Plaintiff complained about these conditions orally and
in writing, or both, to a large number of the Defendants.
Generally, Plaintiff alleges that Defendants ignored his
letters and grievances or explicitly refused to address their
particular, on February 1, 2016, Plaintiff finally received
some grievance forms, made over a hundred copies of the
grievance form, and distributed them to other detainees. Over
the next several days, Plaintiff filed six separate
grievances regarding the conditions above, as well as with
regard to the denial of access to the law library and a
general lack of reading material.
response to Plaintiffs actions, Defendant McDonnel issued a
“specious” disciplinary report on February 11,
2016, charging Plaintiff with obstructing a camera. Officials
then transferred Plaintiff out of general population and into
punitive segregation. At the hearing, officials did not
provide Plaintiff with an advocate, allow him to interview
witnesses, or otherwise collect or present evidence.
Additionally, the officer presiding over the hearing was
Defendant P. Blango, while the primary witness was Defendant
T. Blango, his twin brother. It appears that Defendant P.
Blango found Plaintiff guilty, and Plaintiff received a
fifteen day sentence in punitive segregation.
appealed that finding and on February 24, 2016, he received a
denial of that appeal from Defendant Leith, dated February
20, 2016. Plaintiff then attempted to appeal that decision to
the New Jersey Superior Court, Appellate Division, but
received no response.
in punitive segregation, officials did not allow Plaintiff to
exercise outside of his cell and did not provide him with any
clean clothes, sheets, law library access, or general reading
materials. Further, during that stay, an Officer
Wells ordered Plaintiff out of his cell and then
intentionally set off the sprinkler system to destroy
Plaintiff's legal papers. Although Officer Wells issued a
disciplinary report, a different officer dismissed those
about February 26, 2016, officials transferred Plaintiff back
to the general population unit, where Plaintiff lived under
the same or similar conditions discussed above. Plaintiff
continued to report and complain of these conditions,
including to the Burlington County Board of Chosen
Freeholders, who intentionally withheld funding and allowed
the “decay of the jail.” (ECF No. 1, at 21).
Plaintiff alleges, however, that the “jail was
monitoring and probably diverting complaints attempting to
expose the illegal conditions of confinement at the
jail.” (Id. at 22).
receiving his sentence, officials transferred Plaintiff on
November 16, 2016, to the Central Reception and Assignment
Facility, but did not allow him to take any of his legal
materials. At the time, Plaintiff was unaware that a state
court judge ordered the jail, on November 22, 2016, to
preserve Plaintiff's legal materials and forward them to
Plaintiff's new location. Despite Plaintiff's
complaints and grievances to a number of Defendants, it
appears that officials refused to deliver the legal materials
until June 6, 2017, when Plaintiff's attorneys retrieved
the materials from the jail.
February 23, 2018,  Plaintiff filed the instant Complaint,
alleging that Defendants violated his rights under the First,
Eighth, and Fourteenth Amendments, as well as related state
law claims. He also seeks to bring some of his claims as a
class action, naming other detainees who complain of the
conditions at the Burlington County Jail. (ECF No. 1, at 29).
STANDARD OF REVIEW
courts must review complaints in civil actions in which a
plaintiff is proceeding in forma pauperis. See 28
U.S.C. § 1915(e)(2)(B). District courts may 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. See Id. 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)).
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. See Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). “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 [alleged]
misconduct.” Iqbal, 556 U.S. at 678. Moreover,
while courts liberally construe pro se pleadings,
“pro se litigants still must allege sufficient
facts in their complaints to support a claim.” Mala
v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.
2013) (citation omitted).
brings this action pursuant to 42 U.S.C. § 1983 alleging
violations of his civil rights guaranteed under the United
States Constitution, and related claims. To succeed on a
§ 1983 claim, a plaintiff must allege two things: first,
a violation of a right under the Constitution, and second,
that a “person” acting under color of state law
committed the violation. West v. Atkins, 487 U.S.
42, 48 (1988); Piecknick v. Com. of Pa., 36 F.3d
1250, 1255-56 (3d. Cir. 1994)). Plaintiff sets forth
approximately fifteen different counts, some with subheadings
alleging state law claims.
Claims Against Defendant Lanigan
initial matter, to be liable within the meaning of 42 U.S.C.
§ 1983, a defendant must be a “person.” The
Supreme Court held in Will v. Michigan Dep 't. of
State Police, 491 U.S. 58 (1989), that a State or an
official thereof acting in his or her official capacity is
not a “person” within the meaning of § 1983.
under the Eleventh Amendment, “[t]he judicial power of
the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one of
the United States by citizens of another State, or by
Citizens or Subjects of any Foreign State.” U.S. Const.
amend. XI. This immunity is available to all States, as well
as any entity that is “an arm of the state.”
See Mt. Healthy City Bd. of Educ. v. Boyle, 429 U.S.
274, 280 (1977).
general, the Eleventh Amendment bars suits from private
parties seeking to impose liabilities on public funds in a
State's treasury, unless the State explicitly waives such
immunity. Bell v. Holmes, No. 13-6955, 2015 WL
851804, at *3 (D.N.J. Feb. 23, 2015). Thus, in order for a
State or one of its agencies to be subject to a suit for
money damages, it must consent to such a suit.
case, Plaintiff has filed suit against Defendant Lanigan,
then commissioner of the New Jersey Department of Corrections
(“NJDOC”). In the Third Circuit, courts have
consistently held that the NJDOC and its subsidiaries are not
“persons” subject to liability under § 1983
as they are immune from suit in federal court under the
Eleventh Amendment. See Wilson v. Haas, No. 11-7001,
2012 WL 6761819, at *5 (D.N.J. Dec. 28, 2012); Grabow v.
S. State Corr. Facility, 726 F.Supp. 537, 538-39 (D.N.J.
1989). Since Defendant Lanigan is an agent of such a state
entity, he is not a “person” within the meaning
of § 1983 when acting in his official capacity. See
Betts v. New Castle Youth Development Center, 621 F.3d
249, 254 (3d Cir. 2010) (finding that “[i]ndividual
state employees sued in their official capacity are also
entitled to Eleventh Amendment immunity”). Because
Defendant Lanigan, acting in his official capacity is not a
“person” within the meaning of 42 U.S.C. §
1983, the Court will dismiss with prejudice all claims
against Defendant Lanigan in his official capacity.
although Plaintiff may generally seek prospective
injunctive and declaratory relief against Defendant Lanigan
in his individual capacity, he may not seek
retroactive declaratory relief. Courts construe
lawsuits seeking retroactive relief, “usually in the
form of monetary damages and declaratory judgment for past
conduct against a state official . . . as suits against the
State because a judgment for damages against an official
would necessarily require payment from the government.”
Doe v. Div. of Youth & Family Servs., 148
F.Supp.2d 462, 483 (D.N.J. 2001). Accordingly, the Court will
dismiss with prejudice all claims against Defendant Lanigan
in his individual capacity, as they only seek retroactive
declaratory relief against Defendant Lanigan.
Claims Regarding Grievances
the Court construes Counts L and N to claim that Defendants
ignored or destroyed Plaintiffs letters and grievances, and
at times refused to provide him with grievance forms, in
violation of the First and Fourteenth Amendments. Plaintiff
also appears to pepper, at least in part, similar claims
throughout his Complaint.
the First Amendment confers a “right to petition the
Government for redress of grievances, ” which
traditionally involves access to the courts. Jutrowski v.
Twp. of Riverdale, 904 F.3d 280, 294 n.17 (3d Cir.
2018); Horsh v. Clark, No. 17-316, 2019 WL 1243009,
at *5 (W.D. Pa. Mar. 18, 2019). The First Amendment, does not
however, “impose any affirmative obligation on the
government to listen, to respond or . . . to recognize”
a grievance. E.g., Smith v. Arkansas State Highway Emp.,
Local 1315, 441 U.S. 463, 465 (1979); see also
Minnesota State Bd. Community Colleges v. Knight, 465
U.S. 271, 285 (1984) (“Nothing in the First Amendment
or in this Court's case law interpreting it suggests that
the rights to speak, associate, and petition require
government policymakers to listen or respond to
there is no constitutional right to an “administrative
grievance process or any particular relief . . . through such
process.” Horsh, No., 2019 WL 1243009, at *5
(citing Jones v. N. C Prisoners' Labor Union,
Inc., 433 U.S. 119, 137-38 (1977)); Bakhtiari v.
Spaulding, No. 17-16, 2017 WL 2778524, at *14 (M.D. Pa.
June 27, 2017) (“Even if the prison provides for a
grievance procedure . . . violations of those procedures do
not give rise to a civil rights cause of action.”).
claims are equally meritless as due process challenges under
the Fourteenth Amendment. “Prisoners are not
constitutionally entitled to a grievance procedure and the
state creation of such a procedure does not create any
federal constitutional rights.” Peterson v.
Holmes, No. 12-865, 2012 WL 5451435, at *7 (D.N.J. Nov.
7, 2012) (quoting Wilson v. Horn,971 F.Supp. 943,
947 (E.D. Pa. 1997)). Consequently, although the failure to
respond to Plaintiffs letters and grievances may implicate
other rights, it did “not ...