-MAS MERCADO v. SHARPE et al, No. 2:2010cv03118 - Document 33 (D.N.J. 2011)

Court Description: OPINION. Signed by Judge Stanley R. Chesler on 06/20/2011. (nr, )

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NQ UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY Plaintiff, Civil Action No, 10-3118 (SRC) OPINION KENNETH SHARPS, et al,, Defendants APPEARCES: DAN MERCAD0, Plaintiff pg se #087, SBI 7 53866A East Jersey State Prison, Special Treatment Unit ON 905, 8 Production Way Avenel, New Jersey 07001 CHESLER, District Judge Plaintiff, Dan Mercado, an involuntarily committed person pursuant to the Sexually Violent Predator Act 30:4-27.24, et ., ( SVPA ), N.J.5,A. brought this action asserting claims of constitutional violations with respect to his placement on prison grounds as a civilly committed person. This Court granted plaintiff s application to proce..ed n nauceris ( lFP ) pursuant to 28 U.S.C. § lPlS(a) (1998), and the Compla)nt was filed accordingly, However, at the t.ime ISP was granted, the Court did not review the Complaint, pursuant to 28 U.S.C. § l (2), to 15(e) 9 determine whether the action st.ould be di smissed 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. This statute allows the Court to dismiss a case at any time if the court determines that the Complaint is frivolous or malicious, if it fails to state a cognizable claim, or if it seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 19 For (e)(2)(B). 5 l the reasons set forth below, the Court concludes that this action should be dismissed for failure to state a claim at this time. The Court also finds that the motions to dismiss the Complaint and/or for surary Judgment (Docket entry nos. 12 and 16), filed on behalf of defendants, Steve Johnson and Merril Main, will be denied as moot. I. BACKGROUN,j Plaintiff, Dan Mercado ( Mercado ), brings this civil rights action, pursuant to 42 U.S.C. § 1983, against the following defendants: Kenneth Sharpe, Deputy Attorney General for the State of New Jersey; Ms. Debbie Hasting, Superintendent of the East Jersey State Prison-Special Treatment Unit ( EJSP STU ); Dr. Merril Main, Administrator of the New Jersey Department of Human Services ( NJDHS ); and Steve Johnson, Assistant Superintendent at the EJSP-STU. (Complaint, Caption and ¶1 4b-4e). The following factual allegations are taken from the Complaint, and 2 o H to a a 4 C C a CD H o o is) H Z to 4 o a o 4 CD 5 CD a it ¢ B o S CD 4 CD H 4 to Hi it CD H a to CD to H C) a CD a to it it 0 H a CD 4 to CD H a a C . to to E m H H to to to a CD a it a to CD to H C) it 0 a Cl) L 1 C. 0 0 I to it 0 Hi Hi F C) CD H to C) 0 H H CD C) it F 0 a to H a to C it a 0 H i- N CD a a H to a CD 0 it a C) it CD to it to a Hi to 0 H F C) to it CD 4 a H to H H CD a CD 0 to a Ci) C) 0 t CD Z to F H 5 it a CD CD a it 0 Hi o to H H CD a F a 4 0 H 4 CD it a CD E F it a 0 C it 3 CD to it 0 4 to H it H a CD CD a H CD to tot F it to a it to to it ¢ S 4 C 0 a a to 0 a Hi CD a a to a it a CD it 0 *i ¢ CD H C) to a 0 to H to 0 to < a 14 ¢ o B tot o H a a F to C 0 H CD t C it H a to CD to C F a to H 0 a it Ã to C it it 0 to 0 H it F CD 0 C) to H F to it to a a 0 4 to a 0 it C) t to a 0 it CD H CD F F C) to to 4 it ¢ it C) 0 0 H a -% a to C) CD it 0 4 to to a t it H 0 H ¢ H 4 a 0 C CD a F a H a CD F a C) Z CD H t to H it F C) c H to H H a a CD b CD to F a S ¢ t H 0 a H CD to to a CD B to a to a H CD to F a CD a it to it a CD E a CD H CD to F 0 a to to to CD H to t < CD it a a H 0 it a CD F H to it it CD a a F a a B Hi H 0 to CD a H CD a to it CD a 0 CD it 0 a it to a CD II CD to F a m it H 0 E CD a to -a C) 0 a a it Z to F a 5 CD H H F H to a CD Hi CD a ¢ a C) - ¢ to H 0 0 0 it a CD H a S F ¢ < n 0 B itt a H to ¢ it t H to F a to B C) 0 H it a CD H c Hi o to a Z CD H it a CD H to t a a H H CD C) it F 0 a to H o C) 0 a a C C) it it 0 0 Hi Hi F C) CD H to a C) 0 B -. ¢ a to a a H 0 o a t H i- to B H CD to F a CD a it 5 F it it CD a C) 0 C) F 4 F H H 4 0 a a it W F C) a a a fl- a CD Hi CD a ¢ CD a a 0 ia im a CD d N CD a to it a CD Hi CD a a to it a to it to H H CD a CD to a 0 Z CD H C) to Ci) itt a CD CD C) F S Hi H F to C) E to 0 H H F 4 a o S 0 4 CD H H 0 0 W CD t H to to it a to it to H H CD a CD to to H to 0 CD ¢ - a 4 ¢ at H CD N to C it a 0 H F - a to to a - a X to to it C) to it it CD a at H a F H to 0 0 C t 5 it a 0 a a to 4 F 0 4 CD a it to H CD to F to CD a H CD a to it CD o it a to a a CD to to CD to H a a z it 0 - 4 C 0 0 fl 0 ¢ 0 a a H S -% to a a as F it it CD a a at to H to C) to CD a H 0 C t H F to 0 a o a fl 0 H - H aCD CD C) a it it i. 0 H CD to C) at 0 H a C to to a F it a a F CD it it H F C Hi itt Hi F H 0 F a to to to 0 H a C) F H t 4 F 0 F a H H a F H it C) 4 to < ¢ C) to 0 a F to 0 Hi a F 0 i F 0 H to it i- - a CD H F a CD to a C F - iQ a a 0 Hi CD a it 0 CD t to H it < Z CD C C. CD H to CD it a CD 0 a CD a a a C) 0 0 H a N CD F to C it a 0 H CD H CD F it a to 4 CD it to a a CD Hi CD a a to a it a CD it 0 to to a to a it F Hi Hi ¢ to H H CD a to it F 0 a to to to C) C) to H CD a to to C) 0 C H it - a CD 0 a H 4 to C) H CD CD a F a a it a F to 0 Hi 0 to CD to 0 C Hi 0 H t t- it a CD a a F Z 0 4 CD H to to C) H F H it CD 4 a CD 0 to Hi it a H to to it F - H C) to a 0 z CD a it 0 H to F 0 C) a i- to H a a CD B to 2010, Mercado told defendants Main and Johnson that his constitutional rights were being violated by housing plaintiff and other residents on prison Property. Mercado further complains that the showers are cold in the EJSP-. SW, and that when it rains, water puddles on the floor from leaks in the ceiling. He also alleges that there is no air conditioning system in the EJSp-STU. When Mercado brought these issues to the attention of the administrators he was told that they are working on it. (Compl., 1 6). On May 27, 2010, Mercado was pat searched and ion searched when he went to different locations in EJSP. When Mercado complained to the correctional officer who worked the ion scan machine that plaintiff is not a prisoner, the officer replied that plaintiff is in a prison facility. On June 10, 2010, Mercado states that he witnessed a correctional officer perform a pat search of a public advocate attorney and a court clerk who had visited the EJSP-STU. (Compl., ¶ 6). Mercado also complains that, on June 9, 2010, he was told by a correctional officer not to take a shower over five minutes because some of the residents are breaking out in rashes from the water. (Compl., ¶ 6). Mercado does not allege that he has suffered from a rash. Mercado asks to be placed in a federally funded treatment facility. He also seeks monetary compensation for being placed 4 in a prison environment where he has suffered mental anguish, harassment, and discrimination On September 30, 2010, (CompL, ¶ 7). Mercado filed an application for a t.empo ¢rary rest.raining order. He asked the Court to issue an order enjoining defEndants from any type of retaliation. Order filed on October 15, 2010, By this Court denied plaintiff s ex parte restraining order because Merc ado failed to demonstrate immediate and irreparable injury, 2010 Order, Docket entry no. On November 10, 2010, loss, or damage. (October 15, 8) counsel for defendant Merril Main filed a motion to dismiss the Complaint pursuant to Fed.R, Civ.P. 12(b) (6). First, Main contends that plaintiff s claims against Main in his official capacity are barred by the doctrine of sovereign immunity, and that the claims against Main in his individual capacity must be dismissed for failure to state a cognizable claim for relief under § 1983. (See Docket entry no. 12-1) On December 12, 2010, counsel for defendant Steven Johnson filed a motion to dismiss the Complaint pursuant to FedR .Civp. 12(b) (6), and/or for summary judgment. that p.aintiff claims 5 capacity are against Joh..nson ..ikewise argues Johnson in his official barred by the doctrine of sovereign immunity, and that the claims against Main in his individual capacity must be dismissed for failure to state a cognizable claim for relief 0 U U N U U -H U H N N -H N U U N U U N 5 -H N U U H 0 ¢N H U 0 h - H N U U H H U ¢ U U U U U H N U H H ¢ U U U U U U U U U U 0 U U U 0 H U U U. U U tn U U. U U U U 0 U U U U U H U H N U N U U 0 U N U U U U -H H H 5 5 -H U N -H U -H U N H U N H -H -HI HI NI 04 HI N S N H N 0 N U N -H U 5 U N U 5 N U -H N U 0 U N U ¢N U N N -H N U U H H 0 U U -H U U N -H U N H S N U H N H U U U N N U -H N U H 0 0 U N H N NI HI DI 04 ¢UI NI N -H U 5 N N -H U H N -H N U U U N U ¢U N -H N H 0 U 0 H -H H U S U N -H N U 04 N U NI N 0 U H N U -H U U U -H N 5 H 0 U -H H U 0 U U H -H N U U 5 -H U H -H U N N U 0 H U N H -H H U N H N -H ¢U H H 0 U U U U N ¢U -H N U U -H U N U U U H 0 -H U U N N H N U ¢N U U U H N U -H U -H U N -H U 0 U N N -H H N H 0 U U N H -H H U ¢N H N -H U H H 0 U U U -H H U N -H U U U -H H ¢-H U U H N U N -H U N H U U H N 5 0 H U N H H 5 S -H N -H 0 U U H N U H N U N U N 5 0 H U U N -H U ¢N H U H N .U N H 0 5 N N H N U N U H U U U H -H U 0 U U ¢ U U N U U U U U ¢ U U ¢ U U U 0 U U H N H N H H U U U H N U H H N U U N N U -H H N N -H H 0 NI ¢ U U U U U N U N U U U H -H N U U 5 0 U N N 01 HI 04 N N U U U 0 H U U 0 H U -H U U ¢ ¢ U U U U U U N H H H N U U N U H -H U U U N H N U -H U U U U 0 U H U H H ¢ ¢ U H N U U U U U U U ¢ U U U U U N U U 5 N U H U U U (N 0 U U 0 U U H -H N U U N U N U H -H N U U U U U -H ¢ N N U H 0 N U U -H H U H U N 5 U H U U H -H U 0 N H 0 U H N U H N -H U -H U U H N N U U U H -H H -H 5 U U N H U U H N U N U 5 U U ¢ U 0 H 0 -H U U N N -H U H N U U N 0 U N H N NI 01 04 UI HI U N U H -H H N N H U 5 U U N 5 N -H U N -H U U H -H NI -HI HI NI 04 HI NI N 5 H Q U H -H U H -H U N N U 0 H U N -H 0 U N U H N U U N U -H U N S H U H 0 N U N ¢ U U N U H H 0 U N N U ¢ U U N U H N i H -H N U U 5 ¢Q U U U U U U U N U U U H -H U U U U U U H -H U U U U U U U U U U ¢ U N H N U U N U U N .U N N N H H U U U N U 0 N U U N H 0 -H U N U N U ¢U N U U ¢ U U U U H H N H H N U U U U N N U N U U ¢ N H -H N U S N U ¢p N -H H U H N 5 H 0 H U N H N U U ¢N H U H U H N U U ¢N U U N N U N H N U H -H N U H N H 0 N N N H H U 0 U. H N N H 0 U U U -H U H -H N U U N U U 0 U N U U N H 0 H N U 4J N 0 5 U U U -H U N U U H -H U H H 0 U N U U - U U U H -.H U N H 0 -H H N N N N U U N U N U U -H U H -H N U U U U U U U DI U N N H .U 0 H 0 U H ¢N H N U -H U N H U N Q4 HI N N U U U ¢ U U U U U U U N -H L) U 0 0 U U ) H 0 -H H N U A complaint is frivolous if it lacks an argua.ble basis either in law or in fact. 5zkev,Wifli 490 U.S. 319, 325 (1989) (interpreting the predecessor of § l (2), I5(e) 9 the former § 1915(d), The standard for evaluating whether a complaint is frivolous is an objective one Det ¢ sch. United .ates, 67 F.3d 1080, 1086-87 (3d Cir, 1995) . A 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. ines, 404 U.S. at 521 (quoting son, at 93-94 355 U.S. 41, 45-46 (1957)). See also Erickson, (In a pro se prisoner civil rights complaint, 551 U.S. the Court reviewed whether the complaint complied with the pleading requirements of Rule 8(a) (2)) However, recently, the Supreme Court revised this standard for summary dismissal of a Complaint that fails to state a claim in oftjL.Ibal, 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 dur...ing detention at the Metr000litan Detention Center which, if true, violated his c.onstitutional rights. d. 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. . . £ed.R.civL S(a)(2): Citing its recent Opinion inaq Atlantic CorD. v. Twpmb 550 U.s. 544 (2007), for the Propositiofl that [a] Pleading that offers labels and conclusionst or a formulaic recitation of the elements of a cause of action will not do, .Iabfl, 129 S.ct. at 1949 (quoting Iwoxnh1, 550 0.5. at 555), the Supreme Court identified two working Principles underlying the failure to state a claim standard: First, the tenet that a court must accept as true all of the 5 allegat contained in a complaint is inapplicable to legal conclusions Threadl,are itals of the elements of a cause of action, supported by rec e conclusory statements, mer do not suffice Rule 8 does not unlock the doors of covery for a Plaintiff armed dis 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 Pla ble claim for relief will be a context_specific task usi that requir the 5 reviewing court to draw on its judicial experience and on sense. But where the com we pleaded facts do not permit the court to infer more ll_n tha the mere PO55ibility of misconduct, the complaint has alleged_ it has not the pleader is entitled to relief. Rule Civ. PrgÃ§ 8 (a)(2). ... . ... ... 1, 4 I 129 S.Ct. at l949195o Ccitations omitted) The Court further explained that a court considering a motion to disujj can choose to s 5 by identifying Pleadings begin that, because they are no more than conclusions, are not entitled to the assumpti of truth. While legal conclusions can provide the framework of a complaint they must be supported by factual allegaj 5 When there are well_pleaded factual allegatn a court 5 should assume their veracity and then determine whether they Plausibly give rise to an ment to relief. entitle Rule 8(d) (1) provides that 0 [ejach allegaj must be simple, concise, and direct. No technical form is requirn 8(d). 8 .... .w.cb.., -a.aar gal, 129 S.Ct. Thus, at 1950. to prevent a 5umary 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 inferenc.e that the defendant is liable for the misconduct alleged. at 1948. The Supreme Court s ruling in label emphasizes that a plaintiff must demonstrate that the allegations of his complaint are plausible. Id. at 1949 50; see also 505 U.S. at 555, & n,3; Fowler v. UPMC ad ide 578 F.3d 203, 210(3d Cir. 2009>. , Consequently, the Third Circuit observed that the final nail in the_coffin for the set forth in Gibson no set of facts 355 U.S. applied to federal complaints before provides 41, 45 46 rnl. standard (1957),2 that 578 F.3d at 210. The Third Circuit now requires that a district court must conduct the two-part analysis set forth in Ibal 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 m..ay disregard any legal conclusions. 1.9 S.Ct. at 1949-501. In as stated above, a district court was permitted to summarily dismiss a complaint for fail.ure to state a claim only if it appear led] beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. 355 U.S. at 45-46. Under this no set of facts standard, a comp.. aint could effectively survive a motion to dismiss so long as it contained a bare recitation of the c].aim s legal elements, ., 9 Second, a Ditret Court must 0 he deterrnje whether the facts alleged in the coticuait are sufficient to show that tIe plaintjf has a plausible claim for reflef [Id. In other words, a ocmlat must do more than allege the iff! Cfltjteme claint to relief A como has to at 1 a ant v_ its facts See 7±5 F 3o a 23 s toe Supreme Crut lnstrcted in baj, W1herÃª the well_pleaded facts do not permit the cour to infer more than the mere P°SSibility of misconduct, the comolairt has allege_ it has not show Lnj ttat the Pleader is entItlCd to relief i l2g S.gt at This plausjbLllt,, determination will be a ext_secifi cont task that requir the reviewing court to draw on its 7 udicial experience and common sense Id. ler, 578 F.3d at 210-211 This Court is mindful nrc however, that the sufficiency of this Pleading must be construed liberally in favor of Plaintiff even after Igbal ¢ See ksoflvpd 551 U.S. 89 (2007) er, a court Moreov should not dismiss a complaint with judiCe for failure to pre state a claim Without granting leave to amend, unless it finds bad faith, undue delay, prejudi or tility fu See 293 F.3d 103, 110 ill (3d Cir. 2002); 213 F.3d 113, 117 (3d Cir. eFauve 2000) . I II. Percado br1rgs this action pursuant to 42 U.S.C. Section 1983 provides in re1eyat Part: § 1983. ivery person who, unde Color of any statute, ordinance, reguJat Custom, or usage, of any State or Terrto. 5 subjec or Causes to be subjected any Citjze of the United States or other person Withr the jurisdit thereof 0 to the deprivation of any rights, Privileges, or imnuniti Secured by the Constuto 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, allege, first, a plaintiff must the violation of a right secured by the 0 Const or laws of the United States and, second, that the alleged deprivation was coitted or caused by a person acting under color of state law. Atkins, 487 U.S. 42, 48 (1988); 36 F.3d 1250, 1255-56 (3d Cir. 1994) IV. The Pew Jersey SVgA, for the Custody, .A 30:4-2724 et seq., care and treatment of involuntarily comitted Persons who are deemed to be sexually violent predators J.SA 30:4 2726 I ( Svp ) The Pew Jersey Department of Corrections rLC 30: 4 27, 34 (a) provides 0 cusg ro. and the Ne Jerse.r Departm.en ol. Human Servq prorides for their treatment J.5A :4-27 0 334(b) The SVgA was amended in 2003 to require that reguJati 05 be j ; Oiriy by the DOD and the DHS, 11 ±OOflu±t10 with of the AttornE..y General, taking into consideration t1e rights of the patiEnts as set forth in section ten of P.L, 30:4-24,2) [to] c. 59 (C. specifically address the differing needs and specific characteristics of, sexually 1965, and violent predators, In passing the SVPA, treatment protocols related to, 3O:4-27,34 the New Jersey Legislature made specific findings regarding SVPs. N.J..A, 30:4-27,25. The Legislature noted that it was necessary to modify the previous civil commitment framework and additionally separate SVPs from other persons who have been civilly committed, Id. The SVPA defines a SVP as: a person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense, or has been charged with a sexually violent offense but found to be incompetent to stand trial, and suffers from a mental abnormality or Personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment, N,J,S,A, -27.26(b) 4 O: 3 Those persons committed under the SVPA shall receive annual review hearings. N,J,S,A, 30:4 27,35, A SVP may be released from involuntary civil commitment upon recommendation of the OHS or by th.e S VP s own petition f..or discharge, 30:4-27,36, V A. nsfer to Priso Mercado s main argument appears to claim that his transfer to a prison facility, as a civilly committed per son under the SVPA, is unconstitutional because he .is subject to the prison policies in place for the orderly operation and security of a prison facility. In sasv.Hendricks, 521 U.S. 346 (1997), the Supreme Court examined the conditions of confinement provided by Kansas Sexually Violent Predator Act. The Act called for the confinement of sexually violent predators in a secure facility because they were dangerous to the community. 521 U.S. at 363-64. Pertinent here, the Supreme Court was aware that the sexually violent predators in Kansas were to be held in a segregated unit within the prison system. However, the Court noted that the conditions within the unit were essentially the same as conditions for other involuntarily committed persons in mental hospitals. Moreover, confinement under the Act was not necessarily indefinite in duration, and the Act provided for treatment. Id., 521 U.S. at 363, 364, 365 368. Thus, the Supreme Court held that involuntary confinement under Kansas SVPA was not unconstitutional so long as such civil1y_confine ., persons are segregated from the general prison population and afforded the same status as others who have been civilly committed 531 U.S. Id., 250, 521 U.S. 261062 at 368 69, See eligj,you (2001) (holding same wit..h respect to the State of Washington s SVPA) Here, the Mew Jersey SVPA is essentially the same as the Kansas and Was.hi.ngton SVP statutes that were examined and upheld 13 as cOrstiutioi reseectve, SRC), by the Supreme Court See in hendricks and aarczVVGOOd± 2008 WL 4416455 7-3 (D.N.J Civil Sept. Action No. 23, C8468 2OQ8; C ¢ Therefore, this Court Ofli finds that Mercaco s placement confjreirer in a Specia Treatment Unit for SVP residents that is a segregated unit in the East Jersey State Prison, and of itself, and violate the U.S. does not, in Constitutions Cue Process Clause or the Eighth Amenents prohibition against cruel and unusual ent punishm Accordingly, Mercado s claim that his continued confinement in a segregates unit within a prison facility is unconstitutional must be dismissed for failure to state a cognizab claim of a constitutional deprivationi B. tionsofCf. Although plaintiff placement 5 in a segregated unit Within a prison facility is not, in and of itself, a constitutional Recently, the Supreme Court held constitutional under the Necessary and Proper Clause, a federal statute that allowed a district court to order the civil commitment of a sexually dangerous federal prisoner beyond the date the prisoner would otherwise be released No. 081224 130 S.Ct. 1949 (May 17, 2010) Although these vii c.ccni ci a 0 persons remained COflfre3 at a feder3il 53. ison, , 7 namel;. FOl Butn, the Court aid not add.re s their c of sla civil COO t 00 r as beinc . This Court notes that, despite Plaintiff Contiflual 5 ferr to the EJSP 5mv c 3 re as the EJSP administrative 0 segregati unit, defendant Johnson confirms that the facility is no longer used as an administrative searegati 0 unit for any individual, but instead is used sciey to house and provide treatcjen to Civi7ly Ccmtted residents pursuant to the Ot Stetr JCrpS r 0 aaa 4emjer d, 2(10, at , violation, Mercado cakes additional al.legations concerning the conditions of confinement at the EJSP facility. For instance, he complains that he is housed in a prison facility subject to restrictions. See 0 o7gfgv,Rrne 457 U.S. 307, 321 22 (1982) ( Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish. ). Generally, the Fourteenth Amendment requires that civilly committed persons not be subjected to conditions that amount to punishment, Bellv.Wolfi 441 U.S. 520, 536 (1979), within the bounds of professional discretion, Xer, 457 U.S. at 321 22. Specifically, in the Supreme Court held that civilly committed persons do have constitutionally protected interests, but that these rights must be balanced against the reasons put forth by the State for restricting their liberties. Id. at 307. The Constitution is not concerned with de imis restrictions on patients liberties, Id. at 320. Moreover, due process requires that the conditions and duration of confinement [for civilly confined persons) bear some reasonable relation to the purpose for wh.i.ch persons are commi..tted, .eling,. 531 U.S. at 26.5. While the nature of an SVP s confinement may factor in In .Wolfish, the Supreme Court held that whether a condition of confinement of pretrial detainees violated their constitutional rights turns on whether the disability is imposed for the purpose of punishment or whether it is but an incident of some. other legitimate government pu.rpose. 441 U.S. 520, 535 39, (1979) 15 t]..is balan.ce of what is reasonable, it is clearly established that the substantive due process protections of te Fourteenth Amendment apply to SVPs, pdiews yN ¬ei, 253 F.3d 1052, 1061 th 8 ( Ci.r, 2001) (applying the Fourteenth Amendment s objective reasonableness standard to excessive force claims b.rought by civilly committed SVPs) Mercado s main allegation with respect to the conditions of his confinement relates to his contention that he is flOW housed in a prison facility and has been treated like a prisoner and subjected to prison rules. For instance, Mercado complains that his movement is monitored, and that he was subjected to a pat search and finger scan when he traveled from one area of the facility to another. Mercado also alleges that the ceiling leaked when it rained all day, causing puddles on the floor, that showers are cold, and that some residents allegedly suffered a rash from taking a shower for more than five minutes. The Third Circuit has held that placement of a civilly committed sv in segregated confinement does not violate due process unless the deprivation of liberty is in some way extreme. See 243 Fed. Appx. 719, 721 (3d Cir, 2007) (applying an ¢nv,Co.pe. 515 U.S. 472 (1995.),6 to 6 In nij, the Supreme Court held that there was no cognizable liberty interest in freedom from additional in a prison setting. restraint See 515 U.S. at 486 ( We hold that [the prisoner s] discipline in se.gregated confinement did not the type of. atypical, significant present d..eprivation in which a State might conceivably crea.t..e. a liberty inter ¬.st. ) 16 CD CD CD 5 CD CD CD 5 CDI C) CD CD CD CD CD CD CD CD CD. 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C) CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD 0 CD C) CD CD CD C () CD CD C CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD DC CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD Z CD CD CD CD CD C CD CD CD CD H CD CD CD CD CD H CD ¢ CD CD CD CD CD CD 5 CD CD C CD CD CD CD CD CD CD CD CD CD CD CD 0 CD - CD CD CD CD CD CD CD HC CD CD H) CD CD CD CD 0 CD CD CD CD CD CD CD CD H CD CD CD CD CD 0 CD CD CD CD CD CD CD CD CD CD CD CD CD HCD CD CD CD DC CD CD CD CD C) CD CD CD CD C DC CD CD CD CD CD 0 CD CD CD CD CD - CD CD CD CD CD CD CD CD HCD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD Z CD CD CD CD CD 0 5 CD CD N- CD CD CD CD CD CD CD CD CD CD ¢ CD CD 0 CD CD CD CD CD CD CD CD CD CD CD 0 CD H- CD C CD CD 0 CD CD CD CD CD CD CD - CD CD CD 0 CD HCD CD CD CD S 5 CD 0 C) HCD CD CD CD H) CD CD CD CD CD CD S CD 0 CD CD HCD CD CD - CD CD CD HCD CD CD CD CD 0 CD HCD H0 CD CD CD CD 0 CD CD 5 CD CD CD CD CD 0 CD CD CD CD CD CD 0 DC CD CD CD CD CD CD 0 CD CD CD CD CD CD CD CD CD CD HCD CD HCD ¢CD CD CD CD CD CD CD CD CD HCD H0 CD CD CD CD CD 0 CD CD CD CD CD CD CD CD 0 CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD C CD CD CD CD CD CD 0 CD CD CD HCD CD CD 0 C CD CD CD CD CD HCD CD CD CD CD 0 CD CD CD CD CD CD 0 CD CD C CD CD CD CD CD CD CD CD CD CD CD H CD CD H0 CD CD CD CD CD CD CD CD H- DC CD CD 0 CD CD CD 0 CD CD CD CD CD HCD CD CD CD C CD CD 5 CD 0 CD CD CD CD CD CD 0 CD CD CD CD CD HCD CD CD CD CD CD CD S CD X CD CD CD CD CD CD CD CD CD CD CD CD CD CD HCD HCD LCD CD CD CD CD CD CD HCD CD HCD DC CD CD CD CD CD CD C CD 0 CD CD CD CD CD CD CD H) CD CD CD CD CD CD CD C CD CD HCD CD CD CD CD CD CD C CD CD CD CD CD CD CD CD CD CD CD 5 0 CD 0 CD CD HCD CD CD CD HCD CD CD CD 5 CD 0 CD CD CD CD CD CD CD CD C CD CD CD C CD 5 CD CD CD H- C) 0 CD CD CD N CD CD CD CD CD CD CD CD HC) CD CD CD CD CD CD 0 CD CD CD HCD CD - 5 0 CD CD DC HCD CD 0 CD CD CD CD CD CD CD CD CD CD CD CD CD CD C CD CD CD C CD CD CD 5 CD H- CD CD CD HCD CD CD < CD) CD HCD C) CD CD CD CD CD CD CD CD CD CD CD CD HCD CD CD CD HCD CD CD CD CD CD CD CD CD CD CD CD 5 5 0 CD CD CD CD CD CD C) H- CD CD CD CD CD CD CD CD) CD CD CD CD CD CD CD - 5 CD CD C) CD CD C H CD CD CD CD CD CD CD CD CD CD CD 5 CD CD CD 5 HCD CD C CD CD CD CD CD CD C) CD CD CD CD HCD CD >1 CD CD CD CD HCD CD) CD CD CD CD CD H- DC N) c ¢ CD CD CD CD CD CD) CD CD CO N) - CD CD CD CD CD CD CD CD 5 H CD HCD CD 5 <I CD CD .CD 0 CD CD CD CD CD CD CD 5 CD CD CD CD CD C CD CD CD CD CD H- CD Q CD CD CD C) 0 CD CD CD CD CD CD CD CD CD CD CD CD CD CD CD The Fourth Amendment protects [tjhe right of the people to be secure in their persons seizures. U.S. CONST, . against unreason.able searches ard . amend. IV. Reasonableness under the Fourth Amendment depends on all of the circumstances surrounding the search or seizure and the n.ature of the search or seizure itself. 618 U.S. Ski.nner v. Ry, Labor Executives (1988) (quoting United States v. 531, 537 (1985)). Thus, Ass n, 489 U.S. Montoya de Hernandez, 602, 473 the permissibility of a particular practice is judged by balancing its intrusion on the individual s Fourth Amendment interests against its promotion of legitimate governmental interests. jj. at 619 (quotation marks and internal citation omitted) In Hudson v. Palmer, 468 U.S. 517, 530 (1984), a prisoner argued that a cell search conducted to harass him was unreasonable because a prisoner has a reasonable expectation of privacy not to have his cell, invaded for such a purpose. locker, . personal effects, at 529. person The Supreme Court rejected the claim because prisoners have no legitimate expectation of privacy. . at 530. The Court observed that: A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillan.ce of inmates and thei.r cells required to ensure institutional security and internal order.,,, {S]ociety would insist... that the prison ¬.r s. ¬.xpectation of privacy always yield to what must be considered th..e paramount interest in i nstitutional security.... [IJt is accepted by our society that loss of freedom of choice and privacy are inherent incidents of confinement. 18 Id. at 527-25 omitted . pretra wolfish, (footnotes citations and internal quotao narks The same oonc was reached with resoect detainees other than convicted Prisoners. 441 U.s. 520, Searches of pretrial 558-565. See to v 11 (1979 finding that a body cavity detainees do not violate the Fourth Jtencjmert Consequently involuntarily comitted patients and SVPs, like pretrial detainees, the Fourth Amendment, are entitled to some protection under but they do not have an expectation of Privacy equal to an individual in society generally odno, 567 F.3d 944, 948 (8th Cir. See 2009) (noting that pretrial detainees are kept in custody because there is cause to believe they are dangerous; similarly, commitment under Minnesota law as a sexually dangerous person requires a finding of dangerou5fls ) 5 cert. ed, 1076 79 130 S.Ct. (7th Cir. 465 (2009); Allison V. Snyder 332 F.3d 2003) (SVP may be subjected to 5 conditions that advance goals such as Preventing escape and assuring the safety In WOlfish the United States Supreme Court, in determining the constitutionality of Post-visitation body cavity searches, held that a reasonableness test should be emoic when e,3 7 examining the of a Search that en.croashes uni personal Privacy of an inmate and the intecrit\/ oi the moo a a bc In other words, courts mus balarinc n ed for the Particular search against the invasion of personal rights tha the search entails Courts must consi:der the Scope of the parcicu ar intrusion the manner in which it is conducted, the 0 justificat for initiating it, and the place in which it is conducted 441 U.S. 520, 559 (1979); see also IrnrvSafle 482 U.S. 78 (1957) (a prison reguJ.at. which infringes unon an inmate s const)tutcma y recognzej right is vaji d only .if it is jy 3 reasc.ni re1tej to a legitimac penoiogicam interest) . of others, even thc.ugh they may not technically be punished ), ert. fnied, 211, 233 see F. 0, Supo, Cir. 540 U.S. (N.D,,y, 2002), flflin5v. 376, 382, 985 384 (2003); 236 F, aff d 80 Fed, Appx. 146 Supo.2d (2d Cir, 2003).; New York State Office o f Mental (S.D,N,y, 1992), aff d, alth 977 F.2d 731 786 (2d 1992), Similarly, the United States Court of Appeals for t.he Ninth Circuit has held that, because SVPs have been civilly committed subsequent to criminal convictions and have been adjudged to pose a danger to the health and safety of others, they are subject to [l]egitimate, non punitive government interests such as maintaining jail security, and effective management of [the] detention facility. Jones V Blanas, 393 F.3d 918, 932 ( Cir. th 9 2004) Thus, the reasonableness of a particular search or seizure is determined by reference to the detention context and is a fact intensive inquiry. . . Here, with respect to his Fourth Amendment claim, Mercado s primary argument appears to be that any prison actions that did not specifically take into account his classification as a SVP is per se a constitutional violation. Applying the balancing test employed by Wolfish, this Court finds that general pat searches conducted on residents a. fter movement from one part of the STU and other areas in th.e EJSP facility are plainly reasonable and do not violate plaintiff s Fourth Amendment rights, See Semler udemar.., 2010 WL 145275, *19, 0, Mnn, Jan, 8, 2010) (finding 0 CD it CD Hit CD 5 it H 0 H HCD Hit 0 H Co CD H CD CD CD CD it it C) it CD C) C) it HCD CD Co CC H) C) 0 it HC) Co C) CD CD H() CD I it C) CC CD CD it CD * it C) CD CD CD H it H CD it it CD it - CD it CD it LQ it CD H CD H CD CD Hit 0 it it CD H CD CD CD it it CD CD S. it H- CD CD Hit HC) CD it it H) CD C) Co C) CD Co CC it CD it it CD it CC CD CD CD it it CD C) CD HH CD C) CD CD H- H it 0 CD 0 it CD it H) C) 0 CD it CD C) it CD it CD CD C) 0 it CD it. it 0 CD it C) CD Co CD CD H H CD CD it CD CD H H- C) H CD it H0 CD C) it CD CD CD C) HCD it it CD it CD it 0 CC it 0 ¢ C) it H CD CD CD H- H CD CD C) CD H CD CD it CD H- H) CD it it 5 HCD H- 5 CU it it CD C) H 5 H C) it CD H it it CD CD CD ho) CD it it it CD C) it CD C) Cho CD H CD H ho) C) CD CD CD ho 0 CC Co it CD Co CD it it 0 H it CD CD Co H C) CD it 0 H) Co HC) CD it C) it Co CC CD CD H CD it it Co CD CD H C) CD it it it it it CD it it it 0 CD it it 0 Co CD 0 it it it CD C) CD - 0 it Z 5 H- H Co CD CD C) it Hit CD CO CD ¢ CD H CD CD CD 5 C) CD 5 CD CD it CD CD o it CD Co CD CD CD C) H- CD C) CD it H- CD it CD it it C) it CD it it CD it 0 0 it it CO CD H C) it * it 0 CD ¢ CO Co 0 C) it it it CD CD it 0 it 0 H C) CD CD CD H CD CD CD 5 C) HCD CD it it it CD C) 0 CD C) Co CD H it CD C) CD it it it CD it it CD Co it H0 CD C) 0 H C) H CD it Co CD 0 CD H CD CD H CD it it H CD CD 0 H H 0 CD it it CD CD C) H- C) CD CD CD 5 CD HCD it H C) CD CD Co CD it CD CD it 0 0 - C) it ¢ it 0 C) CO 0 it CD ¢ CO o CO it CD HCD it it C) CD H 0 CD CD Co C) it it it CD C) it 0 CD it H CD it CD CD C) CD C) H- H 0 it HCD H 5 0 it it CD CD Co H) it H CD it CD H H- C) it it CD C) HCD H) it CD it - Co CD CD CD C) it CD - CD it it 0 CD CD Co CC it C) CD CD it C) 0 CD it H CD it it CD H CD 0 CD Co H- C) Co CD it 0 CD C) CD it it C) CD Co it CD H H C) CD CD C) 0 CD H CD CC CD CD Co it Co CD CD H C) C) CD H it it CD H H- H CD Co CD H- CD it Hit CD CD CD it 0 CD C) H- C) it H CD CD CC CD Co it H) it CD C) Hit H- it it CD CD it it it H) CD CD H0 CD Co Co it 0 H CD CD it CD 0 H it it CD CD C) CD CD H Co it H- H CD C) CD it HC) it it CD CD H- CD CD it it Co 0 CD CD H C) HCD it it 0 it C) CD - CO o CO CO CO CD CD ¢ 0 HCD it Co C) it CD C) C) H) Hit H CD CD C) CD C) 0 H it H it - CD it Co 0 CD CD CD Co CD CD Co CD CD CD H CD it CD C) C) it 0 CD it it it it CO -J CO it C) it it CD 0 it CD 0 0 C) H CD CD H - HCD CD CD it H CO CD H- it H) H- C) Hit CD it CD it 0 it 0 it CD Co H C) it CD CD Co 0 it CD 0 C) Co C) it it CD CD CD it HC CD CD 0 it CD Co H Co C) CD N HC) H CD H- it it CC HCD C) it 0 Co - 0 CD it it Co S it it CD HH C) 0 it it CD H 0 5 CD H it CD it CD it HCD it CD it it CD CD it Co Co CC it CD HH 0 it CD CC CD Co Co CD CD H C) it 0 H CD H Co CD it it CD HH CD it HCD it it CD C) CD H- 0 C) CD Co 0 CD it CD CD it CD Co 0 C) Co HCD C) S CD CD CD Co HQ H- it it CD C) it fri 0 CD it it C) CD H CD it CC CD 0. it H it CD H- it CD C) CD H CD CD CD CD it H- CD HH CD it CD it H CD Co H) it it H- CD CC 0 H C Hit C) it CD CD CD CD it CD CD S CD C) H) C) CD H- CC it 0 C) it it CD CD it CD H C) CD CD CD it C) it 0 5 Hit CD 5 it it 0 it H CD CD H- H CD CC CD H CD Co it it Hit CD CD H- C) H CD CC it CD H H0 it CD it HC) CD it CD CD CD it CD 0 CD H it it CD 0 the facility, such as a public advocate attorney. Thus, because Mercado alleges that this policy is applied to all visitors, residents and inmates moving within the EJSP facility as a whole, such policy demonstrates that it was not intended to harass or punish anyone, but instead to maintain a safe and secure facility. Therefore, based on all of these factors, this Court will dismiss Mercado s Fourth Amendment unlawful search claim, pursuant to 28 U.S.C. § l915(e) (2) (B) (ii), for failure to state a cognizable claim under § 1983. 2. Unsanitary Conditions Mercado next alleges that the EJSP STrj has leaking ceilings when it rains, cold showers, and that some residents allegedly have suffered a rash from taking showers longer than five minutes. He admits that the administrators have told him they are working on these problems. Mercado does not allege that he has suffered any injury from the leaking ceiling or that he has experienced any rashes or other injury or harm from the cold showers. Thus, Mercado does not contend that these conditions are intended as punishment, or that he has suffered adversely from these alleged conditions. Based on these general allegations, even if true, the Court finds no atypical or significant deprivation that would rise to the level of a constitutional violation at this time. 22 Therefore, with respect to his conditions claims as alleged, this Court finds that Mercado has failed to state a cognizable claim in this regard at this time, and the alleged corditions of confinement claims wi.ll be dismissed without prejudice. To the extent that Mercado can allege additional facts to show that unconstitutional conditions of confinement exIst, he may seek leave to re open this case and file an amended pleading. C. Ial oT real n tClaim Mercado also is asserting generally that his therapy or treatment sessions will be disrupted or denied because of the prison setting and control by NJDOC officials over movement schedules and conduct of the residents in the EJSP-STU. ¶ 4d) Thus, (Compl., Mercado appears to argue that he may be denied the right to adequate treatment and reasonable care applicable to civilly committed SVPs, in violation of the Fourteenth Amendment. The Fourteenth Amendment to the United States Constitution, § 1, life, guarantees that {n]o State shall liberty, or property, .. . deprive any person of without due process of law. This Should plaintiff so choose to amend his Complaint to cure the deficiencies noted herein, pursuant to Federal Rule of Civil Procedure 15, Mercado should note that when an amen.ded complaint is filed, the original complaint no longer performs any func.t ion i.n the case and cannot be utilized to cure dE.fects in the amended [conplaintj, unless the relevant portion is spec.ifically incorporated in the new {conplaintj. 6 Wright, Miller & bane, § 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, To avoid confusion, the sa.fer d. course. is to file. an am.ended complaint that com.plete in itself, Id. . duE. process guarantee has been inte.rpreted to have both procedural and substantive components, the latter which protects fundamental rights that are so implicit in the concept of ordered liberty that neither liberty nor justice would exist if they were sacrificed, alkovConp , 1 302 U.S. 319, 325. (1937). These fundamental rights include those ¢ ¢ guaranteed by the Bill of Rights, as well as certain liberty and privacy interests implicitly protected by the Due Process Clause, to marry. 521 U.S. such as the right 702, 720 (1997) Substantive due process also protects against government conduct that is so egregious that it shocks the conscience, even where the conduct does not implicate any specific fundamental right. See ed5tatesv. Salerno, 481 U.S. 739, 746 (1987) Laws disturbing fundamental rights receive strict scrutiny and will be upheld if they are narrowly tailored to serve a compelling state interest. (1993) . However, (in other words, geno y.Flores, 507 U.S. 292, 302 regulations not implicating fundamental rights those claims attacking Particularly egregious or arbitrary governmental actions) are analyzed under the deferential standard referred to as the rational basis review, and will generally succeed onl.y if the qovernment action shocks the conscience, e Glucks erg, 521 U.S. at 728. With respect to Mercado s claim, it appears that he is asserting that he has a fundamental right to adeÃ§uate treatment as a civi.lly committed sex offender, a.nd t.hat as a result of the 24 prison setting he will not be afforded adequate treatment. The Supreme Court established that there exists a constitutionally protected right of mental].y retarde.d persons confined at a state institution to minimally adequate treatment, Specifically, the Supreme Court held that there is a constitutjona right of mentally disabled persons confined at a state institution to mi.nimally adequate habilitation , self care treatment or training to the extent necessary to protect their recognized fundamental rights to safety and freedom from physical restraints. XQqb, 457 U.S. at 316, 319 and 322. The Supreme Court further held that, right is at issue, where a fundamental a district court must balance the liberty of the individual and the demands of an organized society to determine whether such right has been violated. U.S. at 320. 457 Although restrictions burdening a fundamental right generally receive strict scrutiny, in the Supreme Court found that this sort of rigorous analysis would unduly burden the ability of states, employees, specifically their professional to administer mental health institutions Consequently, Id. at 322. the Court concluded that the Constitution only requi.res that the courts make certa.in that prc. was .in fact exErcised, because [i]t is essional judgment not appropriate for t.he courts to specify which of several Professionally acceptable choices should have been made.. and citation omitted) Thus, . at 321 a dcci sion, (internal quotation if made by a H- C) it U H HH U it HC) U) U) CD it U) U it C) it it 0 U U U) * CD S CD C) U) CD CD it U it U it 0 H U) it U) CD it U CD S CD it CD it CD iQ H U U) U H- U U U) U) CD H CD U it U Hit U HH CC CU H U) HH U) CD it U) it U) U) U C) C) U CD CD U) U CD U) H- U U U CD U) HC) U) it U) CD H U U) U) (C CD CD CD it U U) C) U CD . it U) H C) U. 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Apa.rt from that recognized in Xber to prevent the violation of recognizE. d fundamental rights to safety and freedom from physical restraints, this Court finds the Third Circuit s holding in eamr to clearly extend to an involuntarily cowitted sex offender under New Jersey s SVPA, Like Leamer, the length of Mercado s confinement under the SVPA is predicated on his response to treatment. Indeed, the provisions of the SVPA explicitly recognize New Jersey s obligation to provide treatment to SVPs for their eventual release based on successful therapy. See N.J.5.A. 27.32(a) 4 O: 3 ( If the court finds by clear and convincing evidence that the person needs continued involuntary coitment as a sexually violent predator, it shall issue an order authorizing the involuntary coitment of the person to a facility designated for the custody, care and treatment of sexually violent predators ) (emphasis added); N.J.S.A. 30:4- 34 (b) ( The Division of Mental Health Services in the Department of Human Services shall provide or arrange for treatment for a person committed pursuant to this act. Such treatment shall be appropriately tailored to .ddress the specific needs of sexuaJ.l.y violent predators. ); N.J.S.A. 27.36(a)(At 4 O: 3 any time during the involuntary commitment of a person under this act, if the person s treatment team determines that the person s mental condition has so changed that the person is not likely to eng.ag.e 27 in acts of sexual violence if released, the treatment team sha.. 11 recommend that the Department of Human Services authorize the person to pe.tition the court for discharge from involuntary commitment status ); see also Kansas v. He ricks 521 U.S. 346, 367 (1997) (concluding from similarly-worded provisions of Kansas SVP ct that the State has a statutory obligation to provide care and treatment for [persons adjudged sexually dangerous] designed to effect recovery . . . . ) (alterations in original) (internal citations omitted) Therefore, based on and amer, this Court concludes that Mercado may have a fundamental liberty interest in treatment, but has not stated a cognizable claim at this time for purposes of both procedural and substantive due process analyses. See th 8 940 F.2d 1150, 1154 ( Cir. 1991), t. denied, that XQer 503 U.S. 952 (1992) (where the Eighth Circuit noted did not establish a right for the civilly committed to treatment ner ; the Supreme Court only held that the Constitution required only such as may be reasonable in light of minimally adequate training [the] liberty interest[ j in safety and freedom from unreasonable restraints. ) (quoting Xonn:brg., 457 U.S. at 322), In ile, the Eighth Circuit ccncluded that pLaintiff had no r.ight to psychiatric treatment to overcome a se.xual offender condition because he was neither in danger during his civil commitment nor was he subject to any restraints beyond the ordinary incidents of any 28 N) S Cl CC) C) 0 C) C) CD it C) C) Cl HH CD C) it CD Cl CD CD C). C) CD Hit C) ¢ H CD Cl CD CD C) - it it HCD C) CD CD C) H HCD C) CD CD HCD C) CD HCD C) C Hit C) HC) CD CD it C) HCD CD CD it HCD it CD C) C) CD H CD C) CD CD it it CD CD S C) H CD 5 C) H C) CD C) CD C) H- CD ¢ Di H 5 5 C) HCD CD CD it H CD it CD C) Cl CD CD C) it it C) C) HCD CD HH CD CD CD C) H C) CD )C C) HC) C) HCD 5 C) H CD CD CD rt it HCD C) H HCD C) CD C) it C) CD it C) Cl CD CD it C) CD CD CD CD CD CD C) it CD HCD it CD C) C) 5 C) HCD - C) CD it C) CD H CD CD it it H CD Di it CD CD cC 5 CD CD it H it CD CD Cl it C) CD. 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In .rea.er, the Third Circuit, relying on Sandin, found that Leamer would face signifi.cant obstacles in establishing a procedural due process claim based on his placement on RAP (restricted activities program) status because the mere fact of placement in administrative segregation is not in and of itself enough to implicate a liberty interest. mer, 288 F.3d at 546. Similarly, in the instant case, although Mercado and other disruptive and agitative residents may be placed in MAP status in response to their behavior or uncooperation there is no indication from the allegations here that these residents have been or will be denied 9 treatment. Indeed, there are no factual allegations of an absolute denial of treatment, Mercado merely alleges that prison staff regulate movement and conduct searches and other policy measures for the orderly running and security of the EJSP facility as a whole, which Mercado feels affects his access to the treatment sessiors o. his choice, He doE.s not allece that he has be.en In his motion for a temporary restraining order, Mercado suggests that he may be placed on MAP status in retaliation by defendants for bringing this action. The allegation was nothing more than a bare legal conclusion and was insufficient t.o supoort preli.minary injunctive relief., as plaintiff failed to allege any facts to suport. his bald ci aim, denied treatment altogether Further, Mercado x.ecites legal conclusions in his ccmplaint about being made to feel like a prisoner rather than a civilly committed person rather than allege any facts to support a claim that he has be en denied treatment, Indeed, he Seems mostly fixated on the idea of being in a prison setting and does not allege any real disruption or interference with his treatment, other than controlled movements in the EJSp facility, which on its own, does not curtail group therapy. This Court likewise finds no substantive due process violation at this time. Substantive due process prevents the government from engaging in conduct that shocks the conscience, or interferes with rights implicit in the concept of ordered liberty. sber, 521 U.S. at 721. Under this standard, Defendants actions in denying Mercado his statutory right to treatment will be found unconstitutional under the Fourteenth Amendment if they were so arbitrary or egregious as to shock the conscience, See 288 F.3d at 546 47 (substantive due process claim alleging inadequate treatment for coitted sex offender must focus on the challenged abuse of power by officials i.n denying [the plaintiffJ the treatment regimen that was st.atutoriiy mandated and was necessary in order for his condition to improve, and thus for him to advance toward release ) 31 Here, as demonstrated above, defendants have not categorically declined to provide any mental health treatment to Mercado. Thus, this Court cannot readily conclude that Defendants actions were conscience_shocking and in violation of Mercado s substantive due process rights. Indeed, plaintiff s allegations, as set forth above, are merely conclusory and factually unsubstantiated. Mercado has not shown any disruption of treatment. Instead, he simply objects to the manner and place in which treatment and sessions are provided. Thus, the Court concludes that treatment has not been denied to Mercado, as alleged because there is no demonstrated interruption of adequate treatment that would rise to the level of a constitutional due process deprivation as alleged. Further, this Court concludes that the allegations asserted in Mercado s Complaint do not show such egregious conduct or disruption as to render mental treatment at EJSP conscience_shockingly deficient. Accordingly, based on the facts as alleged in the Complaint, any purported claim by Mercado that alleges denial or inadequate treatment must be dismissed for failure to state a cognizable claim of a deprivation of a constitutional right. V. CONCLUSIQif For the reasons set forth above, plaintiff s Complaint will be dismissed without prejudice, in its entirety as against all named defendants, for failure to state a claim at this time, pursuant to 28 U.S.C. § l l5(e) 9 (2) (B) (ii). Plaintiff may seek 32 leave to re-open.. this case to file a.n amended pl.eading on.ly to the extent he can allege facts to cure the deficiencies noted herein wi.th respect to a claim 01. Inadequate treatment or unsanitary living conditions, The motions to dismiss and/or for summary iudgment, filed by defendants, Merril Main and Steven Johnson, (Docket entry nos, 12 and 16, respectively) will be denied as moot. An appropriate order follows. CHESLER United States District Judge

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