United States District Court, D. New Jersey
L. Wolfson U.S. Chief District Judge
se Plaintiff, Jason Pascale (“Plaintiff”), a
convicted state prisoner presently incarcerated at Southern
State Correctional Facility, in Delmont, New Jersey, has
filed a pro se Complaint alleging violations of his
civil rights under 42 U.S.C. § 1983. (See ECF
No. 1.) At this time, the Court will grant Plaintiff's
application to proceed in forma pauperis. (ECF No.
law requires this Court to screen Plaintiff's Complaint
for sua sponte dismissal prior to service, and to
dismiss any claim if that claim fails to state a claim upon
which relief may be granted under Fed.R.Civ.P. 12(b)(6)
and/or to dismiss any defendant who is immune from suit.
See 28 U.S.C. § 1915(e)(2)(B).
legal standard for dismissing a complaint for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
is the same as the standard for dismissing a complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6).
Schreane v. Seana, 506 Fed.Appx. 120, 122 (3d Cir.
2012). That standard is set forth in Ashcroft v.
Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007). To survive the
Court's screening for failure to state a claim, the
complaint must allege “sufficient factual matter to
show that the claim is facially plausible.” Fowler
v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(internal quotation marks 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.”
Iqbal, 556 U.S. at 678; see also Fair Wind
Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d
Cir. 2014). “A pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555).
instant Complaint purports to raise civil rights claims
pursuant to 42 U.S.C. § 1983 arising from a prison
counselor's denial of Plaintiff's request to visit
his dying father in February 2019 while Plaintiff was housed
at Columbus House. At that time, Plaintiff's father was
hospitalized with double pneumonia and was placed in the ICU
on life support at Ocean County Medical Center in Brick, New
Jersey. According to the Complaint, Ms. Ickles, a counselor
at the Columbus House, denied Plaintiff's visit request
because Ocean Medical Center would not say that
Plaintiff's father was “terminal[.]”
(See ECF No. 1 at 4.) Plaintiff's father passed
away a week later, id. at 6, and personnel at
Columbus House did not notify him about his father's
passing until four days later. Id. at 7. Plaintiff
has sued Columbus House, GEO Reentry Services, which operates
Columbus House, Ocean County Medical Center, and the
“Social Services Department in Charge of Prisoner
Visits[.]” See ECF No. 1. Based on the facts
pleaded in the Complaint, the Court also construes Plaintiff
to sue Ms. Ickles, the counselor at Columbus House who denied
the family visit.
1983 imposes civil liability upon any person who, acting
under the color of state law, deprives another individual of
any rights, privileges, or immunities secured by the
Constitution or laws of the United States.” Shuman
v. Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir.
2005). “It is well settled that § 1983 does not
confer any substantive rights, but merely ‘provides a
method for vindicating federal rights elsewhere
conferred.'” Williams v. Pennsylvania Human
Relations Comm'n, 870 F.3d 294, 297 (3d Cir. 2017)
(quoting Hildebrand v. Allegheny Cty., 757 F.3d 99,
104 (3d Cir. 2014)). To establish a claim under § 1983,
Plaintiff must establish a deprivation of a federally
protected right and that this deprivation was committed by a
person acting under color of state law. Woloszyn v.
County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
exact contours of Plaintiff's civil rights claims are not
clear. In light of his pro se status, the Court
liberally construes Plaintiff to assert that Defendants
denied Plaintiff's procedural Due Process right to visit
his dying father and/or his first Amendment right to intimate
Due Process claim fails irrespective of whether the Court
construes it as the denial of a family visit or the denial of
a furlough. The Due Process Clause applies when government
action deprives a person of liberty or property.”
Greenholtz v. Inmates of Neb. Penal and Corr.
Complex, 442 U.S. 1, 7 (1979). Liberty interests
protected by the clause may arise from the Due Process Clause
itself, or arise from state-created rights. See Sandin v.
Conner, 515 U.S. 483-84 (1995). The liberty interests
created by the state in the prison context, however,
“will be generally limited to freedom from restraint
which ... imposes atypical and significant hardships on the
inmate in relation to the ordinary incidents of prison
life.” Id. at 484. It is well established that
the denial of a family visit is not an atypical and
significant hardship and does not give rise to a protected
liberty interest. See Kentucky Dep't of Corr. v.
Thompson, 490 U.S. 454, 461 (1989) (“The denial of
prison access to a particular visitor is ‘well within
the terms of confinement ordinarily contemplated by a prison
sentence,' and therefore is not independently protected
by the Due Process Clause.”) (internal quotation marks
and citation omitted); Gerber v. Hickman, 291 F.3d
617, 621 (9th Cir. 2001) (“[I]t is well-settled that
prisoners have no constitutional right while incarcerated to
contact visits or conjugal visits.”) (collecting
cases). The Third Circuit has also held that a prisoner does
not have a constitutional right to receive a furlough to
visit his ailing child. See Groppi v. Bosco, 208 F.
App'x. 113, 115 (3d Cir. (2006); see also Spuck v.
Ridge, 347 F. App'x. 727, 730 (3d Cir. 2009)(quoting
Bowser v. Vose, 968 F.2d 105, 106-07 (1st Cir.1992)
(“It is clear that the denial of a furlough implicates
no inherent liberty interest”). Other courts have
similarly found that the Due Process Clause does not provide
prisoners with a “liberty interest in attending a
family member's funeral, and denial of such an
opportunity does not impose an atypical or significant
hardship on the inmate in relation to the normal incidents of
prison life.” Ramziddin v. Plousis, No.
07-5868, 2008 WL 906341, at * 4 (D.N.J. Apr.1, 2008); see
also Mills v. Walker, No. 05-1744, 2005 WL 2807171, at
*5 (D.N.J. Oct. 25, 2005); Griggs v. New Jersey, No.
11-2673, 2011 WL 3739375, at * 4 (D.N.J. Aug. 24, 2011);
Baker v. Department of Corrections, 2015 WL 5227458,
at *3 (D.N.J. 2015).
the relevant New Jersey statute, prisoners, in the discretion
of the correctional institution, may be permitted to be at
the bedside of a dying relative. See N.J.S.A.
30:4-8.1; N.J.A.C. 10A:18-7.2. Although New Jersey does
permit furloughs to visit a dying relative in limited
circumstances, the decision to grant a furlough is entirely
within the discretion of the chief executive officer of the
prison in which an inmate is housed; as such, neither New
Jersey law nor administrative regulations have created a
liberty interest protected by the Due Process clause. See
Mills, 2005 WL 280717 at *5; see also N.J.
Stat. Ann. § 30:4-8.1 (“the chief executive of any
penal or correctional facility ... may in his discretion, and
in conformity with the rules and regulations of the State ...
authorize and permit the attendance of a prisoner or inmate
at the bedside or funeral of a dying or deceased
relative”); N.J. Admin Code § 10A:18-7.2 (pursuant
to the statute, “the correctional facility
Administrator may, at his or her own discretion, authorize
and permit the attendance of an inmate at the bedside of a
dying relative, or at a private viewing, when no relatives or
friends are present, of a deceased relative”).
Plaintiff lacks a protected liberty interest in his request
to visit his dying father, the procedural protections of the
Due Process Clause do not apply, and the Court will dismiss
without prejudice Plaintiff's procedural Due Process
claims against all Defendants.
Court also construes Plaintiff to assert that he was denied
his constitutional right to intimate association. Prisoners
retain a limited constitutional right to intimate
association, established by the Supreme Court in Turner
v. Safley, 482 U.S. 78, 95-96 (1987), and confirmed in
Overton v. Bazzetta, 539 U.S. 126, 131-32 (2003).
Nevertheless, “freedom of association is among the
rights least compatible with incarceration, ” and some
curtailment must be expected in the prison context.
Overton, 539 U.S. at 131. In Overton, the
Supreme Court found that the challenged prison regulations
that, among other things, severely restricted noncontact
visitation by prisoners' minor relatives, withstood
constitutional scrutiny under the four-part test of
Turner v. Safley, 482 U.S. at 89. Overton
suggests that limits on family visits with a prisoner may
violate that rule if “permanent or for a [long]
period” or if “applied in an arbitrary
manner.” 539 U.S. at 137.
the extent that a ‘right' to visitation exists via
the right to association, this entitlement is limited by
prison officials' judgment in furthering penological
goals.” Rivera v. Fed. Bureau of Prisons, 197
F. App'x. 169, 170 (3d Cir. 2006) (citing Overton v.
Bazzetta, 539 U.S. at 131-32). Affording substantial
deference to the professional judgment of prison
administrators, Overton, 539 U.S. at 132, courts
will uphold a prison official's action alleged to have
impinged on an inmate's constitutional rights if
“it is reasonably related to legitimate penological
interests, ” Turner, 482 U.S. at 89.
Plaintiff does not provide facts suggesting that the prison
regulations regarding visits with dying relatives, as
detailed above, are arbitrary, unrelated to legitimate
penological interests, or otherwise so restrictive that they
violate Plaintiff's right to intimate association. As
such, Plaintiff's right to intimate association claim is
dismissed without prejudice as to all Defendants.
Court also notes that entities like Columbus House and GEO
Reentry Services, which appear to provide prison services on
behalf of the state, cannot be found liable simply because
they employ wrongdoers. See Monell v. Dept. of Social
Services of City of New York, 436 U.S. 658, 691-92
(1978); Natale v. Camden County Correctional
Facility, 318 F.3d 575, 583 (3d Cir. 2003). For such an
entity to be found liable under § 1983, Plaintiff must
assert in the Complaint facts showing that the entity had a
relevant policy or custom, and that this policy or custom
caused a violation of Plaintiff's constitutional rights.
See Natale, 318 F.3d at 583-84; accord Jiminez
v. All American Rathskeller, Inc., 503 F.3d 247, 249 (3d
Cir. 2007) (stating that a plaintiff must show a
“direct causal link between a . . . policy or custom
and the alleged constitutional deprivation.”) (quoting
City of Canton v. Harris, 489 U.S. 378, 385 (1989)).