Opinion
Civil Action No. 03-775 (DRD).
April 22, 2004
Abdullah Khaliq, East Jersey State Prison, New Jersey.
Todd Fletcher, Bayside State Prison, Leesburg, New Jersey.
Walter Griggs, New Jersey State Prison, Trenton, New Jersey.
Gregory Perry, Northern State Prison, Newark, NJ. Plaintiffs, pro se
Peter C. Harvey, Esq., Attorney General of New Jersey.
Katherine M. Weiss, Esq., Deputy Attorney General, OFFICE OF THE ATTORNEY GENERAL DEPARTMENT OF LAW AND PUBLIC SAFETY DIVISION OF LAW, Trenton, New Jersey, Attorney for Defendants James McGreevey, Devon Brown, Robert Balicki, Terry Moore, Walter Wise, Michael Power, Frank Pascucci, Morris, and Fellman.
Stephen M. Holtzman, Esq., Jeffrey S. McLain, Esq., HOLTZMAN McLAIN, P.C. Linwood Commons, Suite, Linwood, New Jersey, Attorneys for Defendant David Flynt
OPINION
In this civil rights case Plaintiffs, all inmates in the New Jersey prison system, and all now formerly residents of the Administrative Close Segregation Unit ("ACSU") in the East Jersey State Prison ("EJSP") in Rahway, allege that conditions and practices to which they have been subjected violate provisions of the U.S. and New Jersey constitutions, along with New Jersey statutes and administrative regulations. Plaintiffs seek damages and declaratory and injunctive relief; and they have requested a temporary restraining order and a preliminary injunction.
In an opinion issued September 29, 2003 (the "Screening Opinion"), the Court dismissed Plaintiffs' access to court claims and their denial of disciplinary due process claims under 42 U.S.C. § 1983 for failure to state a claim, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). The remaining claims were allowed to proceed past the screening stage. The court also ordered Defendants to submit affidavits addressing Plaintiffs' allegations of certain particularly egregious conditions in the ACSU, so that a determination could be made whether a preliminary injunction is warranted.
Defendants James McGreevey, Devon Brown, Robert Balicki, Terry Moore, Walter Wise, Michael Power, Frank Pascucci, Morris, and Fellman (the "State Defendants"), and Defendant David Flynt have now moved to dismiss all the claims asserted against them on various grounds.
For the reasons state below, Plaintiffs' application for a temporary restraining order or a preliminary injunction will be denied; Defendants' motions to dismiss will be granted in part, and the following claims will be dismissed:
1. All claims for injunctive relief, with the exception of free speech claims arising from the treatment of inmates' mail
2. Claims for damages asserted against the State Defendants in their official capacities
3. Claims based on any breach of the settlement agreement in D.M. et al. v. Terhune, 96-cv-1840
4. Any claims based on violations of the equal protection guarantees contained in the United States or New Jersey Constitution, or on 42 U.S.C. § 1985 (3) or § 1986.
5. Claims of denial of access to court and denial of procedural due process under the New Jersey Constitution
6. Claims based on violations of statutes and regulations governing or issued by the New Jersey Department of Corrections — Title 30, subtitle 1, Chapter 1B of New Jersey Statutes and Title 10A of the New Jersey Administrative Code.
The Screening Opinion dismissed Plaintiffs' claims of denial of access to court and allowed Plaintiffs to proceed with claims relating to the treatment of legal mail. It should be noted that the legal mail claims survived only to the extent that they are based on the right of free speech under the First Amendment and the New Jersey Constitution's free speech guarantee: to the extent that the legal mail claims assert a denial of access to courts, they were dismissed (along with the other access to court claims) for failure to allege actual injury as required by Lewis v. Casey, 518 U.S. 343, 350 (1996), andOliver v. Fauver, 118 F.3d 175 (3d Cir. 1997).
With respect to all other claims that were not previously dismissed, Defendants' motions to dismiss will be denied.
Defendant Flynt has also moved pursuant to Fed.R.Civ.P. 30 (a) for leave to depose Plaintiffs. That motion will be granted.
BACKGROUND
The allegations in the Complaint were recounted at length in the Screening Opinion, and there is no need for them to be summarized in detail again here. As the Screening Opinion explained, the Complaint could be read to potentially assert the following claims under § 1983: (1) deficient conditions of confinement in violation of the Eighth Amendment (overcrowding; exposure to diseases, such as Hepatitis C and the AIDS virus; no screening, evaluation, or classification of mentally-ill inmates or inmates with sexually and physically violent behavior; inadequate sanitation, hygiene and ventilation; inadequate and contaminated food; denial of medically-prescribed or religious diets; denial of medical care); (2) deliberate indifference to the standards of medical and psychiatric care in the ACSU in violation of the Eighth Amendment; (3) failure to screen and evaluate new inmates in the ACSU for special dietary, medical and psychiatric needs in violation of the Eighth Amendment; (4) denial of ACSU inmates' rights to practice religion in violation of the First Amendment; (5) denial of access to the courts (untrained paralegals, inadequate law library) in violation of the First, Fifth, Sixth and Fourteenth Amendments; (6) interference with inmates' legal mail in violation of the First and Sixth Amendments; (7) denial of procedural due process in disciplinary hearings (denial of rights to confront witnesses; inadequate appeal process) in violation of the Fifth, Sixth and Fourteenth Amendments; and (8) denial of recreation in violation of the Eighth Amendment. The access to courts claims and the procedural due process claims were dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
The Screening Opinion also noted that the claims in categories 2 and 3 asserted violations of the settlement agreement if D.M. v. Terhune.
The Complaint might also be read to claim equal protection violations: Plaintiffs mention equal protection and, in Count IV, invoke 42 U.S.C. §§ 1985 (3), which bars conspiracies to deny equal protection. These claims however are asserted (if at all) so vaguely and inadequately that they were not even considered in the screening opinion. The only allegation of discrimination in the Complaint is the charge that "custody staff," left to determine double celling assignments without a suitable system, resort to assigning inmates solely on the basis of race, for example, leaving a white inmate single-celled until another white inmate is available to share a cell with him. But these discriminatory assignments are not alleged to have been made by any of the Defendants; and although the Complaint's general allegations of Defendants' knowledge of conditions in the ACSU could be taken to apply also to segregated double-celling, the Complaint does not clearly allege any knowledge or acquiescence by any Defendants in intentional discrimination unjustified by security concerns. To prevail on an equal protection claim, Plaintiffs would have to plead and prove intentional discrimination. Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265-66 (1977);Washington v. Davis, 426 U.S. 229, 241 (1976). Racial segregation of prisons is unconstitutional. Lee v. Washington, 390 U.S. 333, 333-34 (1968). But prison officials "have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security, discipline and good order in prisons and jails." Id. Officials may take actions that restrict prisoners' constitutional rights when they are "reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987). Here there is no coherent allegation of discriminatory intent on the Defendants' part. Nor do the Plaintiffs specifically allege that any of them were victimized as members of a protected class. Accordingly, assuming that claims arising from denials of equal protection are asserted in the Complaint, those claims will be dismissed.
In dismissing one of Plaintiffs' procedural due process claims, the claim arising from allegedly arbitrary use of prehearing detention status, the Court mistakenly invokedEdwards v. Balisok, 520 U.S. 641, 648 (1997), under which a claim "based on allegations . . . that necessarily imply the invalidity of the punishment imposed, is not cognizable under § 1983" unless the judgment has been overturned or invalidated.Edwards v. Balisok does not apply where, as here, the sanctions giving rise to the claim do not affect the duration of an inmate's sentence. See Leamer v. Fauver, 288 F.3d 532, 540-44 (3d Cir. 2002). Nevertheless, dismissal of this procedural due process claim was proper on other grounds that were not fully considered in the Screening Opinion. The restrictions that define prehearing detention (described at ¶ 96 of the Complaint) do not constitute the sort of atypical and significant hardship (especially for inmates already confined in the ACSU) that implicates a liberty interest under Sandin v. Conner, 515 U.S. 472, 484 (1995).
In accordance with the Court's instructions, Defendants submitted affidavits and other evidence relating to conditions in the ACSU at EJSP. The State Defendants have also provided an affidavit (by Stephen M. Johnson, an executive assistant at EJSP) showing that, as of November 19, 2003, Plaintiffs Griggs and Fletcher were no longer residents of EJSU, having apparently been transferred to other prisons. The State Defendants also assert in their brief in opposition to a preliminary injunction that Khaliq, though in custody at EJSP, is (as of November 20, 2003) no longer held in the ACSU; and Plaintiffs do not appear to dispute that assertion.
Plaintiffs have also submitted factual materials in support of their claims and their request for preliminary injunctive relief. These materials include Perry's certification and those of three non-plaintiff ACSU inmates, along with copies of correspondence and administrative forms relating to deficient conditions at EJSP. These materials are irrelevant to the motions to dismiss for failure to state a claim, which must of course be decided on the basis of the Complaint. Although Plaintiff Perry indicates (in his certification) that Plaintiffs intend to file an amended complaint, which will include allegations relating to the three non-plaintiff ACSU prisoners, no such amended complaint has yet been filed; so none of the materials submitted in connection with the present motions have been incorporated into any pleading. Indeed, it is not even entirely clear which of the various materials Plaintiffs might wish to use to supplement their allegations.
For a different reason, most of Plaintiffs' submissions are also not material to their entitlement to a preliminary injunction. In his certification (dated December 6, 2003) Perry refers to his imminent transfer from EJSP, and it appears from New Jersey Department of Corrections records (as available through its website) that Perry has in fact been transferred to Northern State Prison in Newark. As discussed below, the fact that none of the Plaintiffs continues to be housed in the ACSU at EJSP moots their request for a preliminary injunction with respect to conditions and practices in the ACSU; and there is no need to consider at this stage of the case (or summarize here) any of their certifications or documents relating to conditions in the ACSU.
DISCUSSION
I. Claims for Injunctive Relief
A. Mootness
Raising a challenge to the Court's subject matter jurisdiction, Defendants contend that Plaintiffs' claims for injunctive relief are moot. The "inability of the federal judiciary to review moot cases derives from Article III of the Constitution under which the exercise of judicial power depends on the existence of a case or controversy." DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (internal quotation marks omitted). "The central question of all mootness problems is whether changes in circumstances that prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief." Jersey Cent. Power Light Co. v. State of N.J., 772 F.2d 35, 39 (3d Cir. 1985). "An inmate's transfer from the facility complained of generally moots the equitable and declaratory claims." Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003). This principal applies even where a Plaintiff inmate is transferred from a high security unit to the general population. In Abdul-Akbar v. Watson, 4 F.3d 195 (3d Cir. 1993), the Court of Appeals held that an inmate's transfer out of a maximum security unit rendered moot his claims for injunctive relief with respect to practices affecting that unit. Id. at 206-207. It also held that the mere possibility of retransfer did not warrant the application of the narrow exception to the mootness doctrine for claims that are "capable of repetition, yet evading review."Id.
The State Defendants' mootness arguments actually appear in their papers in opposition to the request for a preliminary injunction, but their objections clearly reach the claims for injunctive relief generally.
Because Fletcher, Griggs, and Perry have all been transferred out of EJSP, they can no longer assert claims for injunctive relief with respect to conditions or practices there. Because Khaliq is no longer in the ACSU, his claims for injunctive relief with respect to conditions and practices in that unit must also be dismissed as moot. Virtually all the claims in the Complaint (at least among those that survived screening under §§ 1915 and 1915A) focus on the ACSU and must therefore be dismissed to the extent that they seek injunctive relief. The only exception appears to be Plaintiffs' claims regarding the treatment of inmate mail. Plaintiffs assert that inmate mail is opened illegally pursuant to an order issued by the Governor. Assuming that that order reaches all inmate mail, Plaintiffs' claim for injunctive relief as to the treatment of their mail is not rendered moot by their transfers.
Khaliq has been transferred to the general population, and he will presumably not return to the ACSU unless he is subject to some future disciplinary action. (It is not clear whether the other Plaintiffs are in any form of segregation at their new facilities.) In Khaliq's case at least, therefore, it is relevant that "for purposes of assessing the likelihood that state authorities will reinflict a given injury, [the Supreme Court] generally [has] been unwilling to assume that the party seeking relief will repeat the type of misconduct that would once again place him or her at risk of that injury." Honig v. Doe, 484 U.S. 305, 320 (1988).
Perry suggests that the decision to transfer him was made with the improper motive of mooting his claims for injunctive relief. But there is no substantial support for his suspicion in the record; and the fact that the State Defendants did not themselves bring Perry's transfer to the Court's attention indicates strongly that it was not effected to influence this case.
To the extent that Plaintiffs' declaratory relief claims merely seek a determination of rights and duties governing future conduct, they are also moot. See Sutton v. Rasheed, 323 F.3d at 249 (simultaneously dismissing claims for declaratory and injunctive relief). But to the extent that Plaintiffs seek declarations that their rights were violated in the past, their declaratory relief claims may not be moot. See Winsett v. McGinnes, 617 F.2d 996, 1004 (3d Cir. 1980) (en banc) (holding that although a claim for injunctive relief is moot where a prisoner was released on parole, "claims for damages and for declaratory relief as a predicate to damages, are not"). To be sure the likely utility of such retrospective declaratory relief is not at all clear. "[T]he remedy of a declaratory judgment is discretionary even where a justiciable controversy exists." Zimmerman v. HBO Affiliate Group, 834 F.2d 1163, 1170 (3d Cir. 1987). "A court should refuse to proceed if it finds that a declaratory judgment action will not serve a useful purpose or is otherwise undesirable," Gruntal Co., Inc. v. Steinberg, 837 F. Supp. 85, 89 (D.N.J. 1993) (quoting United Sweetener USA, Inc. v. Nutrasweet Co., 766 F. Supp. 212, 216 (D. Del. 1991)) (internal quotation marks omitted); and it has been observed that a "declaratory judgment is inappropriate solely to adjudicate past conduct." Grutnal, 837 F. Supp. at 89 (quoting Crown Cork Seal Co., Inc. v. Borden, Inc., 779 F. Supp. 33, 35 (E.D. Pa. 1991)). Nevertheless, it cannot be said at this stage that Plaintiffs' declaratory relief claims are entirely moot.
B. Preliminary Injunctive Relief
A preliminary injunction "is 'an extraordinary remedy, which should be granted only in limited circumstances.'" Novartis Consumer Health, Inc. v. Johnson Johnson, 290 F.3d 578, 586 (3d Cir. 2002) (quoting Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir. 1989)). "[T]he movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972 (1997).
To obtain an injunction, [a movant must] demonstrate (1) that [it is] reasonably likely to prevail eventually in the litigation and (2) that [it is] likely to suffer irreparable injury without relief. If these two threshold showings are made the District Court then considers, to the extent relevant, (3) whether an injunction would harm [the non-movant] more than denying relief would harm the [movant] and (4) whether granting relief would serve the public interest.Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly, 309 F.3d 144, 157 (3d Cir. 2002). Specifically with respect to the second part of the analysis, "[t]o obtain injunctive relief, a party must make a clear showing of 'immediate irreparable injury' or a 'presently existing actual threat.'" Marsellis-Warner Corp. v. Rabens, 51 F. Supp. 2d 508, 528 (D.N.J. 1999) (quoting Acierno v. New Castle County, 40 F.3d 645, 655 (3d Cir. 1994)).
To the extent that Plaintiffs' claims for injunctive relief are moot, Plaintiffs obviously have no remaining basis for their application for preliminary injunctive relief. In addition, even though the legal mail claim is not apparently mooted by the transfers, Plaintiffs have provided no evidence that the treatment of inmate mail presents a substantial risk of irreparable harm, or that such a risk outweighs the potential harm from enjoining the state's practices. Because the only alleged conduct that could be seen as threatening irreparable harm to the Plaintiffs related to conditions at the ACSU, and because none of them are currently housed there, preliminary injunctive relief is clearly unwarranted.
II. Eleventh Amendment Immunity
"[T]he Eleventh Amendment bars a damages action against a state in federal court." Kentucky v. Graham, 473 U.S. 159, 169 (1985). "This bar remains in effect when State officials are sued for damages in their official capacity." Id. Accordingly, to the extent that the Complaint asserts damages claims against the State Defendants in their official capacities, those claims will be dismissed.
III. Dismissal for Failure to State a Claim
A. Standard
A complaint must be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted if the court finds "beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In analyzing a motion to dismiss, all allegations set forth in the complaint must be accepted as true and all reasonable inferences must be drawn in the plaintiff's favor. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991).
Under Fed.R.Civ.P. 8(a)(2), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Under Fed.R.Civ.P. 8(f), "[a]ll pleadings shall be construed as to do substantial justice." A complaint must give "fair notice of what the plaintiff's claim is and the grounds upon which it rests," Conley v. Gibson, 355 U.S. 41, 47 (1957).
There is no heightened pleading standard for civil rights claims. In the past the Court of Appeals did impose such a heightened pleading standard, see, e.g., Colburn v. Upper Darby Tp., 838 F.2d 663, 666 (3d Cir. 1988) — requiring for example that individual defendants' personal involvement with alleged violations be pleaded with particularity, see Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). But it is now apparent that courts may not in fact require extraordinary particularity in the pleading of civil rights claims. InLeatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993), the Supreme Court held that the federal courts may not apply a pleading standard more demanding than the "liberal standard" of Rule 8(a) to civil rights claims alleging municipal liability under § 1983. 507 U.S. at 168. The Leatherman Court expressly declined to decide whether a heightened pleading standard might apply to claims against individual defendants, leaving open the possibility that some § 1983 claims could still be subject to stricter pleading requirements. Id. at 166-67. But recently the Court of Appeals stated comprehensively and unequivocally that its previous insistence on a heightened pleading requirement for civil rights claims "cannot be reconciled with the Supreme Court's holdings inLeatherman and Swierkiewicz [v. Sorema N.A., 534 U.S. 506 (2002)]" (a Title VII case in which the Supreme Court reaffirmed and applied the reasoning of Leatherman). Alston v. Parker, ___ F.3d. ___, No. 03-2683, 2004 WL 720230, at *3 (3d Cir. April 5, 2004); see also Ray v. Kertes, 285 F.3d 287, 297 (3d Cir. 2002); Abbott v. Latshaw, 164 F.3d 141, 149 (3d Cir. 1998). Consequently, Plaintiffs' allegations must be analyzed according to the liberal notice pleading requirements of Rule 8.
B. Analysis
1. Federal Law Claims
Given the generosity of the applicable standard, all the federal claims that were identified but not dismissed at the screening stage survive the present motions to dismiss. Defendants argue that the allegations in the Complaint are in several ways insufficiently specific. They note (quite correctly) that the Complaint rarely if ever attributes specific conduct to a specific Defendant or a specific injury to a specific Plaintiff; and they also observe that the Complaint, although it focuses generally on conditions and practices in the ACSU, does not specify the places or the time frames in which the alleged violations occurred. The Complaint identifies Plaintiffs and the alleged Plaintiff class, indicating that they are or were assigned to the ACSU; and it lists the Defendants, briefly identifying them by their offices. The Complaint generally alleges that each Defendant participated in or knew of the violations alleged, and then describes a long series of policies and practices allegedly affecting the ACSU. Defendants suggest that by alleging collectively conduct by all the Defendants and injuries inflicted on all the Plaintiffs, the Complaint fails to state adequately any particular claim on behalf of any particular Plaintiff and against any particular Defendant. But given an appropriately generous reading, the Complaint does actually state with sufficient clarity all the federal claims that survived the § 1915 screening stage. The Complaint's main shortcoming is that it focuses heavily on stating claims on behalf of a class of inmates, rather than on behalf of the individual Plaintiffs. In doing so it does not allege as directly as it might the harm suffered by any particular individual Plaintiff. Nevertheless, because the individual Plaintiffs are presented as representative members of the class of ACSU inmates, for the most part the Complaint can fairly be read to allege that they were affected by the violations alleged to have been inflicted generally upon that class.
In making their arguments Defendants (whose briefs were all submitted before the decision in Alston) cite cases applying heightened pleading requirements in civil rights cases; and it appears that their motions are at least to some extent predicated on the application of the now rejected heightened standard.
The claims on behalf of the class were dismissed at the screening stage.
Plaintiffs' claims relating to the overall conditions of confinement in the ACSU (the first type of claim identified in the Screening Opinion) are presented with enough specificity to withstand the present motions to dismiss. The Complaint describes conditions (such as poor sanitation and ventilation) that affected the ACSU as a whole, and it alleges that all the Plaintiffs were housed in the ACSU. The clear implication is that all the Plaintiffs were subjected to essentially similar harm, and there is no need for the Complaint to recite separate allegations with respect to each of them. Although it would be helpful for Plaintiffs to identify the time frame within which the alleged violations took place, their failure to do so is not fatal to their claims: it can reasonably be presumed that the adverse conditions in the ACSU are alleged to have persisted throughout the time the Plaintiffs spent there (a period ascertainable by reference to the Defendants own records).
It must be noted that some of the allegations underlying the conditions of confinement claims are not about general conditions: for example, the Complaint describes specific instances in which inmates were paired with mentally ill and violent cellmates, and it recounts specific instances of assaults involving cellmates. Plaintiffs fail to make clear which of them, if any, were affected by these cell assignments and assaults. Nevertheless, the Complaint can fairly be read to assert generally that all the Plaintiffs were affected by double celling with (and more broadly by confinement in the ACSU with) mentally ill or abusive inmates. See, e.g., Complaint ¶ 140. The extent to which they were actually subject to such practices can be determined through discovery and motions for summary judgment.
Similarly, the claims alleging unavailable or inadequate medical screening and care (the second and third categories claims identified in the Screening Opinion) are sufficient to survive the motion to dismiss. Plaintiffs do allege generally that they and others similarly situated were denied prescription medications and medically prescribed diets, and they allege a general failure to screen inmates upon admission to the ACSU. See, e.g., Complaint ¶¶ 148, 150, 158.
The alleged failure to screen inmates entering the ACSU is also an aspect of the conditions of confinement claim: the failure to screen, and therefore to properly house and treat, mentally ill inmates impacts the conditions under inmates housed with them are confined.
It should be noted that healthy inmates who have not been injured (and have no likely prospect of being injured) by deficient prison health care policies or practices may have no standing to assert claims based on such policies or practices.See Lewis v. Casey, 518 U.S. 343, 350 (1996) (dicta).
Similar general allegations, which can fairly be read to include the individual Plaintiffs, support Plaintiffs' claims that they were denied the right to practice their religions; that their legal mail was interfered with (in violation of the First Amendment); and that they were denied recreation in violation of the Eighth Amendment (the fourth, sixth, and eighth categories of claims listed in the Screening Opinion).
For example, Plaintiffs allege generally that inmates in the ACSU were denied religious counseling. Complaint ¶ 69.
Finally, Plaintiffs' general allegations of Defendants' participation in or knowledge of the alleged violations, though not very particularized, are sufficient to provide the required notice of their claims under Rule 8. In addition, at one point the Complaint asserts that many of the "health and sanitation deficiencies which plague [the] ACSU . . . have been brought to the attention of" the Defendants, Complaint ¶ 52; at another it states that "defendants are well aware of these on-going problems with the mentally ill-inmates. Complaint ¶ 91.
To be sure, the allegations of knowledge or participation may not all be very plausible: it seems improbable for example that an official as remote from the ACSU as Governor McGreevey would have any knowledge of its practices. But (except perhaps in some extreme cases) claims may not be dismissed under Rule 12(b) (6) merely because they are implausible.
2. Claims Based upon Breach of the Settlement Agreement in D.M. et al. v. Terhune
The settlement agreement in D.M. provides that "[a]ctions to enforce the settlement agreement shall be brought in the Superior Court of New Jersey, Chancery Division unless otherwise prohibited by law" and prescribes Mercer County as the venue for such actions. (In its opinion approving the settlement, the court in D.M. also noted that an action to enforce the agreement may be brought only by class counsel, D.M. v. Terhune, 67 F. Supp. 2d 401, 405 (D.N.J. 1999); but such a requirement does not appear in the copy of the agreement that Flynt has provided in connection with his motion.) The present action does not satisfy the forum selection provision. For that reason at least (if not also for the reason that it has not been brought by class counsel), Plaintiffs claims based on the settlement agreement must be dismissed.
The settlement agreement is Exhibit B to the Certification of Counsel submitted in support of Flynt's motion to dismiss.
3. State Law Claims
I. Constitutional Claims
In addition to the federal claims identified at the screening stage as part of the determination whether the Complaint stated any claims that could be brought in this court, the Complaint also purports to state a number of claims under state law. These claims were not discussed in the Screening Opinion and are not specifically targeted in the present motions to dismiss. But, in a further exercise of its screening function under § 1915, and in order to clarify the case as much as possible at this stage, the Court will discuss the state law claims here.
Plaintiffs invoke the New Jersey Constitution along with the U.S. Constitution, asserting parallel claims under the state constitution corresponding to their eight federal constitutional claims. With the same standards applied to the state claims as to the analogous federal claims, the same claims that are viable under the U.S. Constitution are also viable under New Jersey's. Plaintiffs therefore state viable claims under the New Jersey Constitution arising from aggregated conditions of confinement, deficient medical screening and care, infringement of their rights to practice their religions, improper treatment of legal mail (in violation of the right of free speech), and denial of recreation.
These state constitutional claims correspond to the first, second, third, fourth, sixth, and eighth types of federal constitutional claims identified as potential claims in the screening opinion.
Conversely, the same types of claim that fail under the federal constitution also fail under New Jersey's (though not in every instance for identical reasons). First, just as Plaintiffs have no standing to assert their access to courts claims under § 1983, they also have no standing to assert the same claims invoking the New Jersey Constitution. Because they have not pleaded an impediment to an effort to present or pursue a non-frivolous legal claim, Plaintiffs have pleaded no injury and therefore, under Lewis v. Casey, have no standing to pursue any access to court claim (including any access to court claim based on the treatment of legal mail).
Second, just as Plaintiffs' claims of discrimination and denial of equal protection, to the extent they are stated at all, are too vague and fragmentary to be viable under the U.S. Constitution and § 1985(3) or 1986, any such claims under the state Constitution are pleaded too sketchily for Plaintiffs to be allowed to proceed with them.
Third, because there is no reason to suppose that New Jersey affords inmates a constitutional right to a particular grievance procedure where the federal Constitution does not, any claims arising from defects in such a procedure (or the failure to implemented it) are no more viable under state constitutional law than under federal; and those claims will be dismissed.
Plaintiffs' procedural due process claims under the New Jersey Constitution also fail. New Jersey follows Sandin in determining whether a prison disciplinary sanction implicates a liberty interest for due process purposes. See Smith v. New Jersey Dept. of Corrections, 346 N.J. Super. 24, 29-30 (App. Div. 2001) (citing Muhammad v. Balicki, 327 N.J. Super. 369, 372 (App.Div. 2000)). Accordingly, Plaintiffs' claims of due process violations in connection with the imposition of prehearing detention are deficient because (as noted above) the restrictions involved in prehearing detention are not severe enough to trigger due process protections.
Plaintiffs' other procedural due process claims under the state constitution also fail. In some circumstances the New Jersey Constitution may provide greater protection than that provided by the federal Constitution. See Decker v. New Jersey Dept. of Corrections, 331 N.J. Super. 353, 357 (App.Div. 2000) (citing Avant v. Clifford, 67 N.J. 496, 522-24 (1975)). However, even assuming that such greater protections might be applicable to the procedures to which Plaintiffs' allegations refer, their claims are fatally deficient: the Complaint does not identify, even in collective or conclusory terms, any sanctions of constitutional magnitude imposed as a result of the challenged procedures; nor does it describe the offenses adjudicated or set forth the evidence that might have been offered in any particular proceeding. Absent such essential information (especially without sufficient indications of the sanctions at issue), the allegations do not state a claim.
ii. Claims Based on Violations of Statutes and Regulations Governing or Issued by the New Jersey Department of Corrections
The Complaint frequently cites, and in some instances appears intended to state claims under, New Jersey statutes and regulations governing or issued by the Department of Corrections — appearing in Title 30, subtitle 1, Chapter 1B of New Jersey Statutes and Title 10A of the New Jersey Administrative Code. Because it does not appear that a private right of action for damages is available from either of these sources of law, any claims asserted under them must be dismissed.
In determining whether there is a private right of action under a provision of state law, New Jersey applies a test drawn fromCort v. Ash, 422 U.S. 66 (1975), considering "whether the plaintiff is one of the class for whose especial benefit the statute was enacted; whether there is any evidence that the Legislature intended to create a private cause of action under the statute; and whether implication of a private cause of action in this case would be consistent with the underlying purposes of the legislative scheme." Matter of State Com'n of Investigation, 108 N.J. 35, 41 (1987) (internal quotations and citations omitted). Application of these factors leads to the conclusion that Plaintiffs have no private right of action for damages based on the statutes and regulations.
Department of Corrections regulations are issued pursuant to authority granted in N.J.S.A. §§ 30:1B-6 and 30:1B-10. Section 30:1B-6 provides the Commissioner of the Department with authority to
[f]ormulate, adopt, issue and promulgate, in the name of the department such rules and regulations for the efficient conduct of the work and general administration of the department, the institutions or noninstitutional agencies within its jurisdiction, its officers and employees as may be authorized by law. . . .
N.J.S.A. § 30:1B-6. Similarly, under N.J.S.A. § 30:1B-10.
All functions, powers and duties of the Commissioner of Institutions and Agencies and the Department of Institutions and Agencies with respect to all county and city jails or places of detention, county or city workhouses, county penitentiaries, privately maintained institutions and noninstitutional agencies for the care, treatment, government and discipline of adult inmates are hereby transferred to the Department of Corrections established pursuant to section 2 of P.L. 1976, c. 98 (C. 30:1B-2). The commissioner may, in accordance with the Administrative Procedure Act, P.L. 1968, c. 410 (C. 52:14B-1 et seq.), promulgate such rules and regulations as he shall deem necessary to establish minimum standards for such care, treatment, government and discipline.
N.J.S.A. § 30:1B-10. In addition (in a provision apparently related to some of the regulations that might have a bearing on certain of Plaintiffs' claims), under N.J.S.A. § 30:1B-10.1,
[t]he Commissioner of Corrections shall provide or arrange for appropriate mental health services to State-sentenced incarcerated persons who suffer from mental illness, as defined in section 2 of P.L. 1987, c. 116 (C.30:4-27.2), but are not in need of inpatient treatment at a State psychiatric facility. The commissioner may, in accordance with the "Administrative Procedure Act," P.L. 1968, c. 410 (C. 52:14B-1 et seq.), promulgate rules and regulations governing the provision of mental health services to inmates.
The purpose of the Department of Corrections is set forth in N.J.S.A. § 30:1B-3:
The Legislature hereby finds and declares that the purpose of the department shall be to protect the public and to provide for the custody, care, discipline, training and treatment of adult offenders committed to State correctional institutions or on parole; to supervise and assist in the treatment and training of adult offenders in local correctional and detention facilities, so that such persons may be prepared for release and reintegration into the community; and to cooperate with the other law enforcement agencies of this State to encourage a more unified system of criminal justice.
The Legislature further finds and declares that:
a. There is a need to:
(1) Provide maximum-security confinement of those offenders whose demonstrated propensity to acts of violence requires their separation from the community; and
(2) Develop alternatives to conventional incarceration for those offenders who can be dealt with more effectively in less restrictive, community-based facilities and programs;
b. The environment for incarcerated persons should encourage the possibilities of rehabilitation and reintegration into the community; and
c. The incarcerated offender should be protected from victimization within the institution.
N.J.S.A. § 30:1B-3. Not surprisingly, these provisions indicate that the laws establishing and governing the operation of New Jersey's prisons were not enacted for the especial benefit of the inmates. There is negligible support at best for any argument that the legislature intended prisoners to have the right to sue for violations of prison regulations, and such a private right of action would be entirely inconsistent with the legislative scheme. Although the statutes and regulations at issue predictably and properly reflect in some instances concern with the rights and welfare of prisoners, generally their principal, dominant purpose is to provide for the safe and effective management of correctional institutions. The statutes and regulations take the needs and rights of prisoners into account, but they balance those needs and rights against numerous other considerations; and inferring a private right to a damages action for inmates under these provisions would be inconsistent with the underlying purposes underlying them.
Regulations governing disciplinary proceedings may even be invoked in appeals. See, e.g., Decker, 331 N.J. Super. 353.
That Plaintiffs may not sue directly for violations of prison regulations does not imply that those regulations are irrelevant to their case. In some areas Plaintiffs might properly invoke the regulations in attempting to prove the Defendants' culpability under applicable standards.
IV. Motion to Compel
Defendant Flynt has moved pursuant to Fed.R.Civ.P. 30(a) to compel the depositions of the four Plaintiffs. Because it is clear that additional information obtainable (perhaps exclusively) from the Plaintiffs will be essential to the adjudication of their claims, that motion will be granted. It should be noted however that Defendants, in view of the collective nature of many of the allegations in the Complaint, might be well advised to avail themselves of interrogatories first in order to confirm which individual Plaintiffs and Defendants are actually alleged to be implicated in which violations.
CONCLUSION
For the reasons state above, Plaintiffs' application for a temporary restraining order or a preliminary injunction will be denied; Defendants' motions to dismiss will be granted in part, and the following claims will be dismissed:
1. All claims for injunctive relief, with the exception of free speech claims under the United States and New Jersey constitutions arising from the treatment of inmates' mail
2. Claims for damages asserted against the State Defendants in their official capacities
3. Claims based on any breach of the settlement agreement in D.M. et al. v. Terhune, 96-cv-1840
4. Any claims based on violations of the equal protection guarantees contained in the United States or New Jersey Constitution, or on 42 U.S.C. § 1985(3) or § 1986
5. Claims of denial of access to court and denial of procedural due process under the New Jersey Constitution (including claims challenging the treatment of inmate grievances)
6. Claims based on violations of statutes and regulations governing or issued by the New Jersey Department of Corrections — Title 30, subtitle 1, Chapter 1B of New Jersey Statutes and Title 10A of the New Jersey Administrative Code.
With respect to all other claims that were not previously dismissed, Defendants' motions to dismiss will be denied. To the extent that the dismissal of Plaintiffs' claims is based solely on a lack of clarity or particularity in their allegations, Plaintiffs will be afforded 30 days from the date of this Opinion and the accompanying Order to amend the Complaint and provide more detailed allegations with respect to these claims. The motion by Defendant Flynt pursuant to Fed.R.Civ.P. 30(a) for leave to depose Plaintiffs will be granted.
The claims for which Plaintiffs have leave to amend are (1) claims for violations of equal protection under the federal and state constitutions and under 42 U.S.C. § 1985(3) and § 1986 and (2) claims for violations of procedural due process in disciplinary proceedings and appeals under the New Jersey Constitution.
Taking into account both the initial screening and this Opinion (with its accompanying Order), the claims remaining to be litigated will be the federal constitutional claims identified in the initial screening and not dismissed, along with the analogous claims under the New Jersey Constitution. Among these remaining claims only those arising from the treatment of inmates' mail may provide a basis for injunctive relief. Only those claims may be pursued against the State Defendants in their official capacities.
These surviving federal claims are (1) deficient conditions of confinement in violation of the Eighth Amendment (overcrowding; exposure to diseases, such as Hepatitis C and the AIDS virus; no screening, evaluation, or classification of mentally — ill inmates or inmates with sexually and physically violent behavior; inadequate sanitation, hygiene and ventilation; inadequate and contaminated food; denial of medically-prescribed or religious diets; denial of medical care); (2) deliberate indifference to the standards of medical and psychiatric care in the ACSU in violation of the Eighth Amendment; (3) failure to screen and evaluate new inmates in the ACSU for special dietary, medical and psychiatric needs in violation of the Eighth Amendment; (4) denial of ACSU inmates' rights to practice religion in violation of the First Amendment; (5) interference with inmates' legal mail in violation of the First Amendment; (6) denial of recreation in violation of the Eighth Amendment.
ORDER
Plaintiffs have requested a temporary restraining order and a preliminary injunction. Defendants James McGreevey, Devon Brown, Robert Balicki, Terry Moore, Walter Wise, Michael Power, Frank Pascucci, Morris, and Fellman (the "State Defendants") have moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss all the claims against them; Defendant David Flynt has also moved under Rule 12(b)(6) to dismiss all the claims against him. Defendant Flynt has also moved pursuant to Fed.R.Civ.P. 30(a) for leave to depose the Plaintiffs.Notice having been given to all parties, in consideration of the submissions, and for the reasons set forth in the Court's Opinion of even date,
IT IS, on this 22nd day of April 2004, ORDERED as follows:
1. Plaintiffs' application for a temporary restraining order and a preliminary injunction is DENIED as moot.
2. Defendants' motions to dismiss is GRANTED IN PART, and the following claims are DISMISSED:
a. All claims for injunctive relief, with the exception of free speech claims under the United States and New Jersey constitutions arising from the treatment of inmates' mail
b. Claims for damages asserted against the State Defendants in their official capacities
c. Claims based on any breach of the settlement agreement in D.M. et al. v. Terhune, 96-cv-1840
d. Any claims based on violations of the equal protection guarantees contained in the United States or New Jersey Constitution, or on 42 U.S.C. § 1985(3) or § 1986
e. Claims of denial of access to court and denial of procedural due process under the New Jersey Constitution (including claims challenging the treatment of inmate grievances)
f. Claims based on violations of statutes and regulations governing or issued by the New Jersey Department of Corrections — Title 30, subtitle 1, Chapter 1B of New Jersey Statutes and Title 10A of the New Jersey Administrative Code.
3. With respect to all other claims that were not previously dismissed, Defendants' motions to dismiss are DENIED.
4. To the extent that the dismissal of Plaintiffs' claims is based solely on a lack of clarity or particularity in their allegations, Plaintiffs shall be afforded 30 days from the date of this Order to amend the Complaint and provide more detailed allegations with respect to these claims.
5. Defendant Flynt's motion pursuant to Fed.R.Civ.P. 30(a) for leave to depose Plaintiffs is GRANTED.