INZAR v. NEW JERSEY DEPARTMENT OF CORRECTIONS et al, No. 2:2016cv05547 - Document 3 (D.N.J. 2016)

Court Description: LETTER OPINION. Signed by Judge John Michael Vazquez on 11/28/2016. (seb)
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CHAMBERS OF JOHN MICHAEL VAZQUEZ UNITED STATES DISTRICT JUDGE 2 FRANK R. LAUTENBERG POST OFFICE AND COURTHOUSE FEDERAL SQUARE, RooM 417 NEVARK, NJ 07102 973-2974851 November 28, 2016 LETTER OPINION Re: Lnzar v. New Jersey Dep’t of Corrections, et a!. Civil Action No. 16-05547 Dear Litigant: The Court is in receipt of your complaint, motion for pro bono counsel, and application to proceed without prepayment of fees or costs in this matter under 28 U.S.C. § 1915. See D.E. I & 7 Under § 1915, this Court may excuse a litigant from prepayment of fees when the litigant “establish[es] that he is unable to pay the costs of his suit.” Walker i’. People Express Airlines, Inc., 886 F.2d 598, 601 (3d Cir. 1989). At the outset, Plaintiff sufficiently establishes her inability to pay, and the Court grants her application to proceed in/bnna pauperis without prepayment of fees and costs. However, when allowing a plaintiff to proceed infonna pauperis, the Court must review the complaint and dismiss the action if it detennines that the action is frivolous, malicious, fails to state a claim upon which relief maybe granted. or seeks monetary relief against a defendant who is immune. 28 U.S.C. § 1915(e)(2). “A complaint is frivolous if it ‘lacks an arguable basis either in law or in fact.” Okpor i’. Sedgwick (‘MS. No. 12-652 1. 2013 WL 1145041, at * I (D.N.J. Mar. iVillianis, 490 U.S. 319, 325 (1989)). And when considering 18, 2013) (quoting Neitzke dismissal under § 1915(e)(2)(B)(ii) for failure to state a claim on which relief can be granted, the Court must apply the same standard of review as that for dismissing a complaint under Federal Rule of Civil Procedure 12(b)(6). Schreane i’. Seana, 506 Fed. App’x 120, 122 (3d Cir. 2012). In addition, “[a] federal court is bound to consider its own jurisdiction preliminary to consideration ofthe merits.” Kaplan v. Garrison, No. 15-1915, 2015 WL 2159827, at *2 (D.N.J. May 6,2015) (quoting Trent RealivAssocs. i First Fed. Sai’. & Loan Ass’,, of Phila., 657 F.2d 29,36 (3d Cir.1981)). If subject matter jurisdiction is lacking, the Court must dismiss the action. UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY Fed. R. Civ. P. 12(h)(3). A federal court has jurisdiction in a civil case if either a federal question is presented or if the parties are completely diverse and the attendant monetary threshold is satisfied. SeeArbntigh “. Y&H Corp., 546 U.S. 500, 513 (2006). Because Plaintiff is proceedingpro se, the Court construes the pleadings liberally and holds them to a less stringent standard than those filed by attorneys. Names v. Kerner, 404 U.S. 519, 520 (1972). “The Court need not, however, credit apro se plaintiffs ‘bald assertions’ or ‘legal conclusions.” DAgostino v. CECOMRDEC, No. 10-4558, 2010 WL 3719623, at *1 (D.N.J. Sept. 10, 2010) (citing Morse v. Loner Mcrion Sc!,. DisL, 132 F.3d 902, 906 (3d Cir.1997)). The facts of this matter are derived from Plaintiffs complaint. On November 22, 2014, Plaintiff was visiting her fiancé, Hakeem Allen, who was incarcerated at East Jersey Slate Prison (“EJSP”). D.E. 2. Plaintiff was “removed from [Ihe visiting hail] and told not to return.” Id. Plaintiff does not specify why she was asked to leave the prison or why she could not come back. Apparently as a result of this incident, Plaintiffs was suspended from visiting her fiancé for twelve months. IS. On February 23, 2015, Plaintiff was permanently barred “from all New Jersey State [Penal] Institutions.” Id. It is not clear from the complaint what occurred prompting this greater sanction. On December 18. 2015, “Plaintiff submitted [a] request for contact visitation reinstatement,” which apparently resulted in Plaintiff obtaining reinstatement of “window visits only.” Id. On August 2, and August 23, 2016, Plaintiff again sought to obtain “contact visits,” but both requests were apparently denied. Id. Plaintiff filed this complaint seeking an order penmtting her to engage in “contact visits” with her fiancé. D.E. 1. Plaintiffs complaint names the following five defendants: (1) the New Jersey Department of Corrections (“NJDOC”), (2) Gary Lanigan, Commissioner of the NJDOC, (3) Patrick Nogan. Administrator of EJSP (4) Eddie Weldon. Assistant Administrator ofEJSP, and (5) Helen Adams, Assistant Administrator of EJSP. Plaintiffs complaint is deficient in three respects. First, Plaintiff has not set forth a basis for the Court’s subject matter jurisdiction. “Federal courts have subject matter jurisdiction over a case if it satisfies federal question jurisdiction under 28 U.S.C. § l331.ordiversityjurisdictionunder28 U.S.C. § 1332.” Nincsv. Jn’ington Counseling Or., 933 F. Supp. 382, 387 (D.N.J. 1996). The basis for a district court’s federal question jurisdiction is found in 28 U.S.C. § 1331, which provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the Uniled States.” “[A] claim arises under federal law if federal law creates the cause of action.” Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 706 (2006) (quoting Merrell Don Phann. Inc. i’. Thompson, 478 U.S. 804, 808 (1986)). To establish diversity jurisdiction pursuant to 28 U.S.C. § 1332(a), “the party asserting jurisdiction must show that there is complete diversity of citizenship among the parties” as well as an amount in controversy exceeding the statutory threshold. Schneller e.v ret Schncller v. Cmzer Chester Med. Ctr., 387 Fed. App’x 289, 292 (3d Cir. 2010). Here, the complaint fails to set forth facts to support federal question jurisdiction. Plaintiff does not identify how her complaint raises an issue arising under federal law. Even when viewing the complaint liberally, the Court is unable to ascertain a violation of a federal right that would create federal question jurisdiction. Notably, the Federal Constitution does not recognize a right to contact visits, which is the entire basis of Plaintiffs complaint. Block i’. Rzitheijörd, 468 U.S. 7 576, 589 (1984) (holding that “the Constitution does not require that detainees be allowed contact visits when responsible, experienced administrators have determined, in their sound discretion, that such visits will jeopardize the security of the facility”). In short, the nature of the cause of action pursued by Plaintiff is unclear, and thus, the Court is unable to ascertain whether the complaint alleges a violation of the Constitution or a federal statute. Additionally, the complaint fails to establish diversity jurisdiction. According to the complaint, Plaintiff lives in New Jersey, and the addresses Listed for all of the Defendants are in New Jersey as well. Although the individual Defendants’ addresses appear to be their places of employment (as opposed to their home addresses), Plaintiff has provided no facts indicating that they are citizens of a state other than New Jersey. Moreover, the NJDOC is not a citizen of any state for purposes of diversity jurisdiction. See Moor i’. Alameda (‘tv, 411 U.S. 693, 717 (1973) (holding that a State and “the arm or alter ego of the State” is not a citizen for purposes of diversity jurisdiction);Johnson i’. ?‘deit Jersey Dep’t of Corr.. No. 06-926, 2006 WL 1644807, at *2 (D.N.J. June 2, 2006) (noting that “the New Jersey Department of Corrections is an arm of the State”). Accordingly, the parties here are not diverse. Moreover, Plaintiff does not allege that she sustained damages in an amount greater than the statutory threshold. For those reasons, the Court concludes that it lacks subject matter jurisdiction. Second, Plaintiff does not demonstrate why the New Jersey Department of Corrections and the other named defendants are not shielded from liability under the doctrine of sovereign immunity. “Under the Eleventh Amendment, states and state agencies are immune from suit in federal court.” Walker v. Beard, 244 F. App’x 439, 440 (3d Cii. 2007). Without question, “the NJDOC is a state agency entitled to sovereign immunity under the Eleventh Amendment.” Scott v. Corr. Med. Sen’s., Inc.. No. 06-5552, 2007 WL 3231785, at *1 (D.N.J. Oct. 30, 2007). Plaintiff pleads no facts indicating why the NJDOC and the individual defendants acting in their official capacities are not entitled to sovereign immunity. Therefore, Plaintiffs complaint is barred by the doctrine of sovereign immunity. Third, Plaintiff fails to state a claim upon which relief can be granted. Plaintiff does not identify what legal theory she is proceeding under. The complaint alleges that she has been denied contact visits with her fiancé, but does not specify what cause of action is implicated as a result. The Court is unaware ofany viable cause of action arising under the facts as alleged. Accordingly. Plaintiff has failed to state a claim for which relief can be granted, In conclusion, the Court grants Plaintiffs application to proceed in fonna pauperis. The Court dismisses Plaintiffs complaint without prejudice. Plaintiff shall have forty-five (45) days to file an amended complaint if she intends to do so. The Court reserves its decision on Plaintiffs motion for appointment of pro bono counsel. Plaintiff may renew her motion if she files an amended complaint establishing the Court’s jurisdiction and a viable cause of action or actions. John Michael Vazqu, U’.)DJ. 3