-MCA SMITH v. NEW JERSEY DEPARTMENT OF CORRECTIONS et al, No. 2:2009cv02146 - Document 3 (D.N.J. 2009)
Court Description: OPINION fld. Signed by Susan D. Wigenton on 11/30/09. (sr, )
Download PDF
<![CDATA[
NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ROBERT A. SMITH, Plaintiff, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, et al., Defendants. : : : : : : : : : : : Civil Action No. 09-2146 (SDW) OPINION APPEARANCES: ROBERT A. SMITH, Plaintiff pro se #488869/387006-C South Woods State Prison 215 Burlington Road South Bridgeton, New Jersey 08302 WIGENTON, District Judge Plaintiff, Robert A. Smith, a convicted state prisoner currently confined at the South Woods State Prison in Bridgeton, New Jersey, seeks to bring this action in forma pauperis. Based on plaintiff s affidavit of indigency, and the absence of three qualifying dismissals within 28 U.S.C. § 1915(g), the Court will grant both plaintiff s application to proceed in forma pauperis ( IFP ) pursuant to 28 U.S.C. § 1915(a) (1998) and order the Clerk of the Court to file the Complaint. At this time, the Court must review the Complaint, pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A, 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 such relief. For the reasons set forth below, the Court concludes that the Complaint should be dismissed in its entirety. I. BACKGROUND Plaintiff, Robert A. Smith ( Smith ), brings this civil action against the following defendants: the New Jersey Department of Corrections ( NJDOC ); and Northern State Prison correctional officers, Bruce Davis, William Anderson, E. Mendez, X. Velez, Edward Perez, John Doe Donofrio, Lt. John Doe Perdue, S. Jones, J. Gutierrez, C. Davis, R. Wasik, and John Oszvart. (Complaint, Caption and ¶¶ 4b-4c). The following factual allegations are taken from the Complaint and are accepted for purposes of this screening only. The Court has made no findings as to the veracity of plaintiff s allegations. Smith alleges that, on May 19, 2006, after he was transferred from the Garden State Youth Correctional Facility to Northern State Prison ( NSP ), he was brutally assaulted by the named correctional officers at NSP for allegedly refusing to dock in his cell. Smith contends that he was falsely accused. Smith alleges that the officers kicked, stomped and punched plaintiff while he was handcuffed. The officers also used billy clubs to hit him and dragged plaintiff. Smith was taken to the hospital for stitches and medical treatment for his injuries. 2 Smith claims that he filed administrative remedies for a Special Investigation Department ( SID ) investigation of the assault, but he has never received any reply. Smith also alleges that after he was transferred to the New Jersey State Prison in Trenton, New Jersey, his cell was destroyed on a daily basis and he was constantly harassed because he was filing administrative remedies against the NSP officers for the assault. He does not name any defendants involved in this allegation of wrongdoing. Smith seeks compensatory and punitive damages in excess of $1.5 million. II. STANDARDS FOR A SUA SPONTE DISMISSAL The Prison Litigation Reform Act ( PLRA ), Pub. L. No. 104134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996), requires a district court to review a complaint in a civil action in which a prisoner is proceeding in forma pauperis or seeks redress against a governmental employee or entity. The Court is required to identify cognizable claims and to sua sponte dismiss any claim that is frivolous, 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. 1915(e)(2)(B) and 1915A. 28 U.S.C. §§ This action is subject to sua sponte screening for dismissal under both 28 U.S.C. §§ 1915(e)(2)(B) and 3 1915A, because Smith is a prisoner and is proceeding as an indigent. In determining the sufficiency of a pro se complaint, the Court must be mindful to construe it liberally in favor of the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)(following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). See also United The Court must accept as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff. Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). The Court need not, however, credit a pro se plaintiff s bald assertions or legal conclusions. Id. A complaint is frivolous if it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (interpreting the predecessor of § 1915(e)(2), the former § 1915(d)). The standard for evaluating whether a complaint is frivolous is an objective one. Deutsch v. United States, 67 F.3d 1080, 1086-87 (3d Cir. 1995). A pro se complaint may be dismissed for failure to state a claim only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines, 404 U.S. at 521 (quoting Conley v. 4 Gibson, 355 U.S. 41, 45-46 (1957)). See also Erickson, 551 U.S. at 93-94 (In a pro se prisoner civil rights complaint, the Court reviewed whether the complaint complied with the pleading requirements of Rule 8(a)(2). However, recently, the Supreme Court refined this standard for summary dismissal of a Complaint that fails to state a claim in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). The issue before the Supreme Court was whether Iqbal s civil rights complaint adequately alleged defendants personal involvement in discriminatory decisions regarding Iqbal s treatment during detention at the Metropolitan Detention Center which, if true, violated his constitutional rights. Id. The Court examined Rule 8(a)(2) of the Federal Rules of Civil Procedure which provides that a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2).1 Citing its recent opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), for the proposition that [a] pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do, Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555), the Supreme Court identified two 1 Rule 8(d)(1) provides that [e]ach allegation must be simple, concise, and direct. No technical form is required. Fed.R.Civ.P. 8(d). 5 working principles underlying the failure to state a claim standard: First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice ... . Rule 8 ... does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n] - that the pleader is entitled to relief. Fed. Rule Civ. Proc. 8(a)(2). Iqbal, 129 S.Ct. at 1949-1950 (citations omitted). The Court further explained that a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausible give rise to an entitlement to relief. Iqbal, 129 S.Ct. at 1950. Thus, to prevent a summary dismissal, civil complaints must now allege sufficient factual matter to show that a claim is facially plausible. This then allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 1948. The Supreme Court s ruling in Iqbal emphasizes that a plaintiff must demonstrate that the allegations of his complaint is plausible. 6 Id. at 1949-50; see also Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC Shadyside, ___ F.3d ___, 2009 WL 2501662, *4 (3d Cir., Aug. 18, 2009). Consequently, the Third Circuit observed that Iqbal provides the final nail-in-the-coffin for the no set of facts standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),2 that applied to federal complaints before Twombly. 2501662, *5. Fowler, 2009 WL The Third Circuit now requires that a district court must conduct the two-part analysis set forth in Iqbal when presented with a motion to dismiss: First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint s well-pleaded facts as true, but may disregard any legal conclusions. [Iqbal, 129 S.Ct. at 1949-50]. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief. [Id.] In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to show such an entitlement with its facts. See Phillips, 515 F.3d at 234-35. As the Supreme Court instructed in Iqbal, [w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show [n] - that the pleader is entitled to relief. Iqbal, [129 S.Ct. at 1949-50]. This plausibility determination will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Id. Fowler, 2009 WL 2501662, *5. 2 In Conley, as stated above, a district court was permitted to summarily dismiss a complaint for failure to state a claim only if it appear[ed] beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Id., 355 U.S. at 45-46. Under this no set of facts standard, a complaint could effectively survive a motion to dismiss so long as it contained a bare recitation of the claim s legal elements. 7 This Court is mindful, however, that the sufficiency of this pro se pleading must be construed liberally in favor of Plaintiff, even after Iqbal. (2007). See Erickson v. Pardus, 551 U.S. 89 Moreover, a court should not dismiss a complaint with prejudice for failure to state a claim without granting leave to amend, unless it finds bad faith, undue delay, prejudice or futility. See Grayson v. Mayview State Hosp., 293 F.3d 103, 110111 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 117 (3d Cir. 2000). III. SECTION 1983 ACTIONS Smith brings this action pursuant to 42 U.S.C. § 1983. Section 1983 provides in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ... . Thus, to state a claim for relief under § 1983, a plaintiff must allege, first, the violation of a right secured by the Constitution or laws of the United States and, second, that the alleged deprivation was committed or caused by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). 8 Smith names the NJDOC as a defendant in this matter. However, the Complaint must be dismissed against the NJDOC because the NJDOC is not a person subject to liability under § 1983. See Grabow v. Southern State Correctional Facility, 726 F. Supp. 537, 538-39 (D.N.J. 1989)(the New Jersey Department of Corrections is not a person under § 1983).; Mitchell v. Chester County Farms Prison, 426 F. Supp. 271, 274 (D.C. Pa. 1976). Moreover, neither states, nor governmental entities, such as the NJDOC, that are considered arms of the state for Eleventh Amendment purposes, nor state officers sued in their official capacities for money damages are persons within the meaning of § 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 64, 70-71 and n.10 (1989); Grabow, supra. The Eleventh Amendment to the United States Constitution provides that, The 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. As a general proposition, a suit by private parties seeking to impose a liability which must be paid from public funds in a state treasury is barred from federal court by the Eleventh Amendment, unless Eleventh Amendment immunity is waived by the state itself or by federal statute. See, e.g., Edelman v. Jordan, 415 U.S. 651, 663 (1974). The Eleventh Amendment protects states and their agencies and departments from suit in federal court regardless of the type of 9 relief sought. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100 (1984). Similarly, absent consent by a state, the Eleventh Amendment bars federal court suits for money damages against state officers in their official capacities. Kentucky v. Graham, 473 U.S. 159, 169 (1985). See Section 1983 does not override a state s Eleventh Amendment immunity. Quern v. Jordan, 440 U.S. 332 (1979). Accordingly, the Complaint will be dismissed in its entirety as against the defendant NJDOC. IV. A. ANALYSIS Excessive Force Claim Smith s allegations suggest that he is asserting a claim that defendants used excessive force against him in violation of the Eighth Amendment because he is a convicted prisoner. See Graham v. Connor, 490 U.S. 386, 392-394 (1989)(cases involving the use of force against convicted individuals are examined under the Eighth Amendment s proscription against cruel and unusual punishment). The Eighth Amendment, in only three words, imposes the constitutional limitation upon punishments: cruel and unusual. (1981). they cannot be Rhodes v. Chapman, 452 U.S. 337, 345 The Eighth Amendment prohibits conditions which involve the unnecessary and wanton infliction of pain or are grossly disproportionate to the severity of the crime warranting imprisonment. Id. at 347. The cruel and unusual punishment 10 standard is not static, but is measured by the evolving standards of decency that mark the progress of a maturing society. Id. at 346 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1956)). To state a claim under the Eighth Amendment, an inmate must satisfy an objective element and a subjective element. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective element questions whether the deprivation of a basic human need is sufficiently serious; the subjective component asks whether the officials acted with a sufficiently culpable state of mind. (1991). Wilson v. Seiter, 501 U.S. 294, 298 The objective component is contextual and responsive to contemporary standards of decency. U.S. 1, 8 (1992). Hudson v. McMillian, 503 The subjective component follows from the principle that only the unnecessary and wanton infliction of pain implicates the Eighth Amendment. See Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S. at 297 (internal quotation marks, emphasis, and citations omitted)); Rhodes, 452 U.S. at 345. What is necessary to establish an unnecessary and wanton infliction of pain varies also according to the nature of the alleged constitutional violation. Hudson, 503 U.S. at 5. Where the claim is one of excessive use of force, the core inquiry as to the subjective component is that set out in Whitley v. Albers, 475 U.S. 312, 320-21 (1986)(citation omitted): whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very 11 purpose of causing harm. Quoted in Hudson, 503 U.S. at 6. When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. Id. at 9. In such cases, a prisoner may prevail on an Eighth Amendment claim even in the absence of a serious injury, the objective component, so long as there is some pain or injury and something more than de minimis force is used. Id. at 9-10 (finding that blows which caused bruises, swelling, loosened teeth, and a cracked dental plate were not de minimis for Eighth Amendment purposes). To determine whether force was used in good faith or maliciously and sadistically, courts have identified several factors, including: (1) the need of the application of force ; (2) the relationship between the need and the amount of force that was used ; (3) the extent of injury inflicted ; (4) the extent of the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on the basis of the facts known to them ; and (5) any efforts made to temper the severity of a forceful response. Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (quoting Whitley v. Albers, 475 U.S. at 321). Thus, not all use of force is excessive and will give rise to the level of a constitutional violation. See Hudson, 503 U.S. at 9 (it is clear that not every malevolent touch by a prison guard gives rise to a federal cause of action ). Therefore, [n]ot every push or shove, even if it may later seem unnecessary in the peace of a 12 judge s chambers, violates a prisoner s constitutional rights. Id. at 9-10. Here, the allegations of the Complaint suggest that defendants brutal assault against Smith was malicious and excessive in relation to the false charge against Smith for allegedly refusing to dock in his cell. Further, Smith asserts that he sustained serious injuries that required hospital treatment, thus suggesting that his injuries were not de minimis.3 Therefore, based on the allegations in the Complaint, if true, it would appear that Smith has asserted facts sufficient to suggest that defendants exhibited malicious and sadistic conduct intended to cause plaintiff pain. Such conduct, if true, is repugnant to the conscience of mankind absent extraordinary circumstances necessary to justify that kind of force. Hudson, 503 U.S. at 10. However, Smith states that the assault occurred on May 19, 2006, almost three years before he filed this action on or about May 6, 2009. Consequently, it appears that this claim is now time-barred. 3 [T]he Eighth Amendment analysis must be driven by the extent of the force and the circumstances in which it is applied; not by the resulting injuries. Smith v. Mensinger, 293 F.3d 641, 648 (3d Cir. 2002). Thus, the pivotal inquiry in reviewing an excessive force claim is whether the force was applied maliciously and sadistically to cause harm. Id. at 649; Brooks, 204 F.3d at 106. Otherwise, an inmate could constitutionally be attacked for the sole purpose of causing pain as long as the blows were inflicted in a manner that resulted in injuries that were de minimis. Id. 13 A court may dismiss a complaint for failure to state a claim, based on a time-bar, where the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations. Bethel v. Jendoco Construction Corp., 570 F.2d 1168, 1174 (3d Cir. 1978) (citation omitted). Although the statute of limitations is an affirmative defense which may be waived by the defendant, it is appropriate to dismiss sua sponte under 28 U.S.C. § 1915(e)(2) a pro se civil rights claim whose untimeliness is apparent from the face of the Complaint. See, e.g., Jones v. Bock, 549 U.S. 199, 214-15 (2007)(if the allegations of a complaint, for example, show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim ); see also Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (holding, under former § 1915(d) in forma pauperis provisions, that sua sponte dismissal prior to service of an untimely claim is appropriate since such a claim is based on an indisputably meritless legal theory ); Hunterson v. DiSabato, 2007 WL 1771315 (3d Cir.2007)( district court may sua sponte dismiss a claim as time-barred under 28 U.S.C. § 1915(A)(b)(1) where it is apparent from the complaint that the applicable limitations period has run )(citing Jones v. Bock, Pino v. Ryan)(not precedential); Hall v. Geary County Bd. of County Comm rs, 2001 WL 694082 (10th Cir. June 12, 2001) (unpub.) (applying Pino to current § 1915(e)); Rounds v. Baker, 141 F.3d 1170 (8th Cir. 1998)(unpub.); 14 Johnstone v. United States, 980 F. Supp. 148 (E.D. Pa. 1997) (applying Pino to current § 1915(e)). Federal courts look to state law to determine the limitations period for § 1983 actions. U.S. 384, 387-88 (2007). See Wallace v. Kato, 549 Civil rights or constitutional tort claims, such as that presented here, are best characterized as personal injury actions and are governed by the applicable state s statute of limitations for personal injury actions. See Wallace, supra; Jones v. R.R. Donnelley & Sons, 541 U.S. 369, 382 (2004)(federal civil rights claims under §§ 1981, 1982, 1983 and 1985 are subject to the state statute of limitations for personal injury actions); Wilson v. Garcia, 471 U.S. 261, 280 (1985). Accordingly, New Jersey s two-year limitations period on personal injury actions, N.J. Stat. Ann. § 2A:14-2, governs plaintiffs claims under §§ 1983 and 1985. See Montgomery v. DeSimone, 159 F.3d 120, 126 & n.4 (3d Cir. 1998); Cito v. Bridgewater Township Police Dept., 892 F.2d 23, 25 (3d Cir. 1989). Under N.J. Stat. Ann. § 2A:14-2, an action for an injury to the person caused by a wrongful act, neglect, or default must be commenced within two years of accrual of the cause of action. Cito, 892 F.2d at 25; accord Brown v. Foley, 810 F.2d 55, 56 (3d Cir. 1987). Unless their full application would defeat the goals of the federal statute at issue, courts should not unravel states interrelated limitations provisions regarding tolling, revival, and questions of application. Wilson v. Garcia, 471 U.S. at 269. 15 Moreover, the accrual date of a § 1983 cause of action is a question of federal law that is not resolved by reference to state law. original). Wallace v. Kato, 549 U.S. at 388 (emphasis in A claim accrues as soon as the injured party knew or had reason to know of the injury that constitutes the basis of his action. 1982). Sandutch v. Muroski, 684 F.2d 252, 254 (3d Cir. See also Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 (3d Cir. 1994). Plaintiff s actual knowledge is irrelevant. Rather, the question is whether the knowledge was known, or through reasonable diligence, knowable. Moreover, the claim accrues upon knowledge of the actual injury, not that the injury constitutes a legal wrong. Fassnacht v. United States, 1996 WL 41621 (E.D. Pa. Feb. 2, 1996)(citing Oshiver, 38 F.3d at 1386). Here, the assault admittedly occurred on May 19, 2006. Smith also states that he filed administrative remedies at that time against the defendants. Thus, it is plain from the face of the Complaint that Smith knew, or had reason to know, on May 19, 2006, that he may have an Eighth Amendment excessive force claim against the defendant officers who assaulted him. However, Smith did not file this federal action until May 6, 2009, almost three (3) years later.4 4 It also appears that Smith did not file any state action against the defendants until May 5, 2009. Smith submitted a copy of papers he sent to be filed with the Newark Municipal Court in an attempt to file a claim against the same defendant officers for the assault that occurred in May 2006. 16 Moreover, upon careful review of the Complaint and the exhibits attached thereto, there is nothing alleged to support an argument that Smith would be entitled to equitable tolling of the statute of limitations. Any claim that Smith now alleges concerning an Eighth Amendment excessive force violation accrued when the assault occurred on May 19, 2006. Smith alleges no facts or extraordinary circumstances that would permit statutory or equitable tolling under either New Jersey or federal law.5 Nor does Smith plead ignorance of the law or the fact of his 5 New Jersey statutes set forth certain bases for statutory tolling. See, e.g., N.J.S.A. § 2A:14-21 (detailing tolling because of minority or insanity); N.J.S.A. § 2A 14-22 (detailing tolling because of nonresidency of persons liable). New Jersey law permits equitable tolling where the complainant has been induced or tricked by his adversary s misconduct into allowing the filing deadline to pass, or where a plaintiff has in some extraordinary way been prevented from asserting his rights, or where a plaintiff has timely asserted his rights mistakenly by either defective pleading or in the wrong forum. See Freeman v. State, 347 N.J. Super. 11, 31 (citations omitted), certif. denied, 172 N.J. 178 (2002). However, absent a showing of intentional inducement or trickery by a defendant, the doctrine of equitable tolling should be applied sparingly and only in the rare situation where it is demanded by sound legal principles as well as the interests of justice. Id. When state tolling rules contradict federal law or policy, in certain limited circumstances, federal courts can turn to federal tolling doctrine. See Lake v. Arnold, 232 F.3d 360, 370 (3d Cir. 2000). Under federal law, equitable tolling is appropriate in three general scenarios: (1) where a defendant actively misleads a plaintiff with respect to her cause of action; (2) where the plaintiff has been prevented from asserting her claim as a result of other extraordinary circumstances; or (3) where the plaintiff asserts her claims in a timely manner but has done so in the wrong forum. Id. n.9. 17 confinements (neither excuse being sufficient to relax the statute of limitations bar in this instance) as the basis for delay in bringing suit. Smith has not offered any explanation for his lack of diligence in pursuing this claim long after it had expired. This omission strongly militates against equitable tolling of the statute of limitations. Therefore, the Court finds that the § 1983 claim alleging excessive force by defendants in violation of plaintiff s constitutional rights under the Eighth Amendment, are time-barred and must be dismissed with prejudice. B. Retaliation Claim It is not clear from the allegations in the Complaint, but it appears that Smith also may be asserting a claim of retaliation in violation of his First and Fourteenth Amendment rights. "Retaliation for the exercise of constitutionally protected rights is itself a violation of rights secured by the Constitution ... ." Cir. 1990). White v. Napoleon, 897 F.2d 103, 111-12 (3d To prevail on a retaliation claim, plaintiff must demonstrate that (1) he engaged in constitutionally-protected activity; (2) he suffered, at the hands of a state actor, adverse action sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights; and (3) the protected activity was a substantial or motivating factor in the state actor s decision to take adverse action. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (quoting Allah v. Seiverling, 229 18 F.3d 220, 225 (3d Cir. 2000)). See also Anderson v. Davila, 125 F.3d 148, 160 (3d Cir. 1997) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)); Thaddeus-X v. Blatter, 175 F.3d 378, 386-99 (6th Cir. 1999), cited with approval in Allah, 229 F.3d at 225. Here, it appears that Smith may be asserting a claim of retaliation with respect to his allegations that his cell was destroyed on a daily basis and he was harassed because he had filed an administrative remedy against the NSP officers. If these acts were taken or allowed to occur in retaliation against plaintiff for filing grievances, a constitutionally-protected activity, then Smith may have a cognizable claim, if the allegations are true as asserted. The problem with this claim, however, is that Smith does not name any defendants who committed these alleged wrongful acts while he was at New Jersey State Prison. He names only the defendant officers at NSP who participated in the May 2006 assault, but were not involved in the alleged retaliatory actions taken at New Jersey State Prison. when the incidents took place. Smith also fails to allege Therefore, having failed to name any defendants responsible for the alleged wrongful conduct, this retaliation claim will be dismissed for failure to state a claim upon which relief may be granted. However, the Court will allow Smith the opportunity to re-open this action to amend his 19 Complaint to cure the deficiencies noted, pursuant to Fed.R.Civ.P. 15(a).6 V. CONCLUSION Therefore, for the reasons set forth above, the Complaint will be dismissed with prejudice, in its entirety, as against the defendant NJDOC, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), (iii) and 1915A(b)(1) and (2). Plaintiff s claim alleging excessive force in violation of the Eighth Amendment will be dismissed with prejudice, with respect to all remaining defendants, because it is now time-barred. Finally, plaintiff s retaliation claim will be dismissed without prejudice for failure to state a claim at this time. Plaintiff will be allowed to amend his Complaint to cure the deficiencies as noted in this Opinion, supra. An appropriate order follows. S/Susan D. Wigenton SUSAN D. WIGENTON United States District Judge Dated: November 30, 2009 6 Plaintiff should note that when an amended complaint is filed, the original complaint no longer performs any function in the case and cannot be utilized to cure defects in the amended [complaint], unless the relevant portion is specifically incorporated in the new [complaint]. 6 Wright, Miller & Kane, Federal Practice and Procedure § 1476 (2d ed. 1990) (footnotes omitted). An amended complaint may adopt some or all of the allegations in the original complaint, but the identification of the particular allegations to be adopted must be clear and explicit. Id. To avoid confusion, the safer course is to file an amended complaint that is complete in itself. Id. 20
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
