Opinion
Civ. No. 98-5025 (DRD)
May 20, 1999.
Darryl Allmond, # 295155 B-1-E, Northern State Prison, Newark, New Jersey, Pro se Plaintiff.
Adriana M. Calderon, Esq., Deputy Attorney General, Newark, New Jersey, Attorneys for Defendants Department of Corrections, James Barbo and Bruce Sapp
O P I N I O N
Plaintiff Darryl Allmond, a prisoner incarcerated at the Northern State Prison, instituted this action for alleged violations of his civil rights pursuant to 42 U.S.C. § 1983. Plaintiff appeals Magistrate Judge Ronald J. Hedges's Letter- Order filed March 10, 1999 and moves for injunctive relief and for entry of default. Defendants New Jersey State Department of Corrections, James Barbo and Bruce Sapp move to revoke plaintiff's in forma pauperis status or, in the alternative, dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, plaintiff's appeal and motions will be denied, plaintiff's in forma pauperis status will be revoked and defendants' motion to dismiss the Complaint will be granted.
Plaintiff also filed a petition for a writ of mandamus on April 22, 1999. His petition concerns the calculation of his eligibility for parole and, as such, is beyond the scope of the facts alleged in the Complaint in this Section 1983 action. Accordingly, his petition will be denied without prejudice.
BACKGROUND AND PROCEDURAL HISTORY
In his Complaint filed on December 8, 1998 Plaintiff alleges violations of his civil rights while incarcerated at Northern State Prison. The Department of Corrections, Northern State Prison Administrator James Barbo and Corrections Sergeant Bruce Sapp are named as defendants along with the Northern State prison staff and unnamed officials, and mail room John and Jane Does. Plaintiff claims that defendants have violated his First, Fifth, Sixth and Fourteenth Amendment rights because his incoming legal mail has allegedly been interfered with. In the Complaint, plaintiff alleges the following:
On 10-27-98, received a letter-order from Hon. Hedges, stating that Attorney Mitzner alleges that plaintiff "refused" to accept his client's (Wagner) answers to Interrogatories. And Attorney Mr. Wright, stated also plaintiff "refused" the same in his correspondence to the Court on 10-16-98. However the plaintiff did not refuse any legal mail sent by these Lawyer's, and plaintiff did not tell prison officials to refuse the mail or return it to sender. Plaintiff also received mail from the U.S.C.A. and it was written on the envelope "hold for arrival 10-21-98," and plaintiff been at this prison since the end of July, 1998.
Plaintiff move for default and sanctions for the 2 Attorney's failing to comply to the imposed time limits of the Court Letter-Order's reguarding discovery, that would have barred the defendants from pressing motions. The Prison Officials prejudiced the case by refusal to accept incoming legal mail in the civil Rights Actions, and that cause the sanction or judgment to be denied, given the defendants more time. Censored, opening, reading Legal mail, to the State Parole Board, Postmarked returned date 10-7-98 I received it 2 or 3 weeks later opened it was returned to sender wrong P.O. Box, it was mail out on 10-5-98.
Compl. ¶ 6.
On March 9, 1999 Magistrate Judge Hedges allowed plaintiff to amend the Complaint with a supplemental pleading. In his supplemental pleading plaintiff adds that on January 14, 1999 he received envelopes from Judge Stephen M. Orlofsky and Magistrate Judge Joel B. Rosen in Camden relating to Civil Action No. 98- 1243. Supp. Pleading ¶ 1. He alleges that "the defendant's has open this mail and read the mail again they have interfered with incoming federal court mail. . ." Id. ¶ 2. He further states that "[t]he unit officer gave this mail to plaintiff at his cell not at the legal mail window or did plaintiff sign for the mail." Id.
Plaintiff submitted the Complaint along with an application to proceed in forma pauperis ("IFP") without prepayment of fees pursuant to 28 U.S.C. § 1915. On the complaint filing form, Plaintiff answered the question concerning his previously dismissed federal civil actions or appeals by responding, "1915(g) do not apply to case's filed before April (1997)." After screening the Complaint pursuant to 28 U.S.C. § 1915(e)(2) and 1915A this Court concluded in an Order filed December 8, 1998 that dismissal of the Complaint was unwarranted and granted plaintiff IFP status.
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STANDARD OF REVIEW FOR PRO S.E. SUBMISSIONS
It is recognized that pro se submissions "must be held to 'less stringent standards than formal pleadings drafted by lawyers.'" Estelle v. Gamble, 429 U.S. 97, 106 (1976), reh'g denied, 429 U.S. 1066 (1977) (quoting Conley v. Gibson, supra, 355 U.S. at 45-46); see also Haines v. Kerner, 404 U.S. 519, 520, reh'g denied, 405 U.S. 948 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992); Lewis v. Attorney Gen. of the United States, 878 F.2d 714, 722 (3d Cir. 1989). When reviewing apro se complaint, a court must construe a plaintiff's factual allegations and his or her claim liberally. Neitzke v. Williams, 490 U.S. 319, 330 n. 9 (1989); Haines, 404 U.S. at 520; Roman v. Jeffes, 904 F.2d 192, 197 (3d Cir. 1990).
ANALYSIS
I. PLAINTIFF'S MOTIONS
Plaintiff appeals Magistrate Judge Hedges's Letter-Order filed March 10, 1999 and moves for injunctive relief and for entry of default.
A. Magistrate Appeal
Plaintiff appeals Magistrate Judge Hedges's Letter-Order granting defendant Department of Corrections's motion pursuant to Fed.R.Civ.P. 6(b)(2) for a 30-day extension to answer the Complaint out of time, granting, sua sponte, the same extension to defendants Barbo, Sapp and Northern State Prison, and denying plaintiff's motion for entry of default. Plaintiff contends that "Clearly the Court is bias and has denied Plaintiff a fundamental fairness." "Interlocutory Appeal" ¶ 3.
A party may file objections to the decision of a magistrate judge on a pretrial matter not dispositive of a claim or defense within 10 days after being served with a copy of the order. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a); Local Civil Rule 72.1(c). "The district judge to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a). In determining whether a decision is clearly erroneous, the court must evaluate whether it is "left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
When a magistrate judge has ruled on a discovery motion, the ruling "is entitled to great deference and is reversible only for abuse of discretion." Kresefky v. Panasonic Communications and Sys. Co., 169 F.R.D. 54, 64 (D.N.J. 1996). A magistrate judge has wide discretion, but his or her decision must be based on clearly articulated principles.Schroeder v. Boeing Commercial Airplane Co., 123 F.R.D. 166, 169 (D.N.J. 1988).
Magistrate Judge Hedges's Letter-Order must be affirmed on two separate grounds. First, plaintiff's appeal (inaccurately designated as an interlocutory appeal) was filed on April 12, 1999, more than a month after the Letter-Order was filed and clearly outside the ten-day time limitation imposed in Fed.R.Civ.P. 72(a) and Local Civil Rule 72.1(c). Plaintiff fails to assert that he was not served with a copy of the Letter-Order in a timely fashion. Second, Magistrate Judge Hedges acted within his discretion in granting all parties an extension of time to answer the Complaint and denying plaintiff's request for entry of default. Pursuant to Fed.R.Civ.P. 6(b)(2):
When by these rules or by a notice given thereunder or by order of Court an act is required or allowed to be done at or within a specified time, the Court for cause shown may at any time in its discretion . . . (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect. . . .
Accordingly, Magistrate Judge Hedges did not abuse his discretion in granting an extension to the defendants and denying plaintiff's request for entry of default. As a general rule it is preferable to dispose of a case on its merits rather than resorting to entry of a default. Thus, the Letter-Order is not clearly erroneous and it will be affirmed.
B. Motion for Injunctive Relief
Plaintiff argues that the continued interference with his legal mail constitutes an irreparable injury and that pursuant to Fed.R.Civ.P. 65 a preliminary injunction should be granted. Defendants correctly respond that injunctive relief is an extraordinary remedy which is not warranted in this action.
In the Third Circuit preliminary injunctive relief may be granted if a plaintiff establishes the existence of each of the following factors: 1) the likelihood that the plaintiff will prevail on the merits at final hearing; 2) the extent to which the plaintiff is being irreparably harmed by the conduct complained of; 3) the extent to which the defendant will suffer irreparable harm if the preliminary injunction is issued; and 4) the public interest. American Tel. Tel. Co. v. Winback and Conserve Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994), cert. denied, 514 U.S. 1103 (1995).
This issue need not be discussed at any great length because plaintiff has failed to demonstrate a likelihood of success on the merits. Indeed, as discussed below, the Complaint will be dismissed for failure to state a claim upon which relief may be granted. As a result, the motion for injunctive relief will be denied.
C. Entry of Default
Finally, plaintiff moves for entry of default against defendants. As discussed above, however, Magistrate Judge Hedges's order granting defendants an extension of time to answer the Complaint and denying plaintiff's request for entry of default will be affirmed. As a result, plaintiff's motion for entry of default will be denied.
II. DEFENDANTS' MOTION
Defendants argue that plaintiff's IFP status should be revoked or that, in the alternative, the Complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.
A. IFP Status
S The Prison Litigation Reform Act ("PLRA"), which was enacted on April 26, 1996, states in pertinent part:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). "This provision of the PLRA, commonly known as the 'three strikes' provision, requires frequent filer prisoners to prepay the entire filing fee before federal courts may consider their lawsuits and appeals." Rivera v. Allin, 144 F.3d 719, 723 (11th Cir. 1998) (citation and internal quotation marks omitted). Defendants argue that plaintiff's IFP status should be revoked because he has had three complaints dismissed for failure to state a claim, namely: Allmond v. Nunn, Civil Action No. 98-1790, Allmond v. Union County Jail, Civil Action No. 94-3210 and Allmond v. Union County Jail, Civil Action No. 98-201. See Exhibit to Defs. Moving Br. (Feb. 5, 1999 Order of Judge Orlofsky in Allmond v. Nunn dismissing complaint and citing Civil Action Nos. 94-3210 and 98-201 to find that dismissal was plaintiff's third for failure to state a claim).
If those were the only three actions brought by Allmond that were dismissed for failure to state a claim, it is uncertain that the "three strikes" provision would warrant revocation of his IFP status in the present case. Allmond v. Nunn was dismissed by Judge Orlofsky on February 5, 1999, almost two months after plaintiff was granted IFP status in this case. Thus, there is a question whether it would be permissible to revoke a prisoner's IFP status in an action if one of the "three strikes" against him came from an action that, like Allmond v. Nunn here, had been brought before, but dismissed after, his IFP status had already been granted.
This question need not be answered here, however, because a review of court records reveals that plaintiff has filed at least 17 IFP lawsuits in the District of New Jersey since 1993 and that of the five of them that were dismissed for failure to state a claim, four were dismissed before plaintiff was granted IFP status in this action. Those four cases are Allmond v. Froehlich, Civil Action No. 93-3406, dismissed on July 12, 1995; Allmond v. Union County Jail, Civil Action No. 94-3210, dismissed on July 25, 1995; Allmond v. Fauver, Civil Action No. 93-4855, dismissed on December 21, 1995; and Allmond v. Union County Jail, Civil Action No. 98-201, dismissed on January 13, 1998. A chart listing the current status of all of plaintiff's actions is attached as Exhibit A to this Opinion.
Allmond v. Turback , Civil Action No. 94-3211, was consolidated with this action and dismissed at the same time.
Allmond v. Fauver , Civil Action No. 93-4864, was consolidated with this action and dismissed at the same time.
The Third Circuit has held that "dismissals for frivolousness prior to the passage of the PLRA are included among the three that establish the threshold for requiring a prisoner to pay the full docket fees unless the prisoner can show s/he is 'under imminent danger of serious physical injury.'" Keener v. Pennsylvania Board of Probation and Parole, 128 F.3d 143, 144-45 (3d Cir. 1997) (quoting 28 U.S.C. § 1915(g)). While the Third Circuit in Keener noted that it had "no occasion to consider the statutory provision that counts among the dismissals that are disqualifying those that were dismissed for failure to state a claim upon which relief may be granted, as distinguished from frivolousness,"id. at 145 n. 2, this Court sees no reason to distinguish between such dismissals for the purposes of three strikes analysis under Section 1915(g). See, e.g., Rivera, 144 F.3d at 730 ("[U]nder section 1915(g), federal courts may properly count as strikes lawsuits or appeals dismissed as frivolous, malicious or failing to state a claim upon which relief may be granted prior to April 26, 1996"); McFadden v. Parpan, 16 F. Supp.2d 246, 247 (E.D.N.Y. 1998) ("[A]ctions dismissed before the enactment of the PLRA, either as frivolous or for failure to state a claim, count toward the calculation of the three-dismissal allotment under § 1915(g)"). As a result, the dismissals that occurred prior to the effective date of the PLRA count as "strikes" against plaintiff.
In light of the foregoing, plaintiff had four strikes against him when he was erroneously granted IFP status in this action. Further, the "imminent danger" exception to Section 1915(g) is inapplicable despite plaintiff's last-ditch attempt to qualify for this exception by asserting in his brief that he had been threatened, attacked and denied medical attention. These allegations are wholly unrelated to the original claim in his Complaint that defendants interfered with his legal mail. As a result, plaintiff's IFP status will be revoked. This discussion hopefully will serve to alert the judges in this district that plaintiff has exhausted his three strikes and is therefore not entitled to proceed IFP in the actions that, given his penchant for litigation, he no doubt will file in the future (with the exception, of course, of any action in which the "imminent danger" exception legitimately applies).
If this Court was not granting defendants' motion to dismiss the Complaint it would have ordered plaintiff to pay the full filing fee within 30 days. The Complaint would then have been dismissed only if plaintiff failed to timely pay the fee. See Gibbs v. Ryan , 160 F.3d 160, 162 n. 2 (3d Cir. 1998) (noting that this course is better than dismissing complaint outright upon revocation of IFP status).
Indeed, the revocation of plaintiff's IFP status in some of his numerous pending cases may be justified.
B. Motion to Dismiss for Failure to State a Claim
Defendants argue that the Complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) on three grounds. They assert that i) the claims against the individual defendants in their official capacity for monetary damages are barred by the Eleventh Amendment; ii) the claims against the individual defendants are barred because an action under Section 1983 cannot be based upon a theory of vicarious liability; and iii) plaintiff does not have a cognizable legal access claim.
A complaint must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted if the court finds "beyond doubt that the 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 motions 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). A court should allow a plaintiff to amend the complaint instead of dismissing it where "a more carefully drafted complaint might state a claim upon which relief could be granted." Friedlander v. Nims, 755 F.2d 810, 813 (11th Cir. 1985);see Howze v. Jones Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984).
i. Eleventh Amendment Immunity
The Eleventh Amendment provides:
The judicial power of the United States shall not be construed to extend to any lawsuit in law or equity, commenced against one of the United States by Citizens of another State or by Citizens or Subjects of any foreign State.
The Eleventh Amendment acts as a jurisdictional bar to damage actions brought in federal courts against state governments, their agencies and state officials in their official capacity. Kentucky v. Graham, 473 U.S. 159 (1985). See also McClary v. O'Hare, 786 F.2d 83 (2d Cir. 1986) (affirming dismissal of complaint against New York's Commissioner of Labor sued for actions taken in her official capacity); Snyder v. Baumecker, 708 F. Supp. 1451, 1455-56 (D.N.J. 1989) (finding that New Jersey State Department of Corrections is alter ego of the state and immune from suit); Miller v. Rutgers, 619 F. Supp. 1386 (D.N.J. 1985) (dismissing complaint against state university and university officers sued in their official capacity).
Suits in federal court against state officials are barred by the Eleventh Amendment where the state is the real party in interest. Hindes v. FDIC, 137 F.3d 148, 165 (3d Cir. 1988). "[A]n official-capacity suit against a state officer is not a suit against the official but rather is a suit against the official's office. As such it is no different from a suit against the State itself." Hafer v. Melo, 502 U.S. 21, 26 (1991) (citation and internal quotation marks omitted).
The New Jersey State Department of Corrections, named as a defendant in this action, is organized by statute as a department of the State of New Jersey, N.J.S.A. 30:1B-2 et seq., and as such is immune from suit under the Eleventh Amendment. Snyder, 708 F. Supp. at 1455-56. In addition, while individual defendants Barbo and Sapp are sued in both their official and individual capacities, no alleged facts describe actions taken in their individual capacity. Thus, this action must be dismissed as barred by the Eleventh Amendment.
ii. Vicarious Liability
The Supreme Court has ruled that in Section 1983 actions persons can be held responsible only for their own conduct and not under a theory ofrespondeat superior. Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). In order for a supervisory official to be found liable under Section 1983, the official must have been personally involved in the challenged incident, or there must be a causal connection between an act of the official and the alleged violation. Skevofilax v. Quigley, 586 F. Supp. 532, 543 (D.N.J. 1984). Such a causal connection can be shown by establishing an affirmative link between the incident and an official plan, policy or act explicitly or implicitly authorizing the violative conduct. Rizzo v. Goode, 423 U.S. 362, 371-376 (1976).
Plaintiff has failed to allege either that defendants were directly involved in depriving him of his constitutional rights or that there exists a causal connection between defendants and the complained of acts. As a result, under Monell defendants cannot be held vicariously liable for the alleged deprivation of plaintiff's constitutional rights.
iii. Failure to State Cognizable Legal Access Claim
Finally, defendants argue that plaintiff has failed to state a cognizable claim for lack of access to the courts. Plaintiff responds that the "continued interference with incoming and outgoing legal mail, deliberately and repeatedly interference invades the privacy of his legal mail and thus directly interfers with his ability to communicate with the courts and counsel." Reply Br. at 1.
Prison inmates have a constitutional right of meaningful access to the courts. Bounds v. Smith, 430 U.S. 817 (1977). In Bounds the Supreme Court held that "the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law."Id. at 828. In Lewis v. Casey, 518 U.S. 343 (1996), the Supreme Court revisited the legal access issue and held that prisoners were required to allege actual injury, such as the loss or rejection of a legal claim, in order to pursue a claim of denial of access to the courts. The Supreme Court stated:
Because Bounds did not create an abstract, free-standing right to a law library or legal assistance, an inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is sub-par in some theoretical sense. That would be the precise analogue of the healthy inmate claiming constitutional violation because of the inadequacy of the prison infirmary. Insofar as the right vindicated by Bounds is concerned, "meaningful access to the courts is the touchstone. . . ."Id. at 351 (quoting Bounds, 430 U.S. at 823). Actual injury arises, for example, where an inmate's complaint is dismissed for failure to meet some technical requirement because he lacks access to legal materials or where an inmate "had suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by the inadequacies of the law library that he was unable to even file a complaint." Id. See also Oliver v. Fauver, 118 F.3d 175, 178 (3d Cir. 1997) (recognizing that under Casey an inmate must "'demonstrate that the alleged shortcomings . . . hindered his efforts to pursue a legal claim'") (quoting Casey, 518 U.S. at 351).
The Supreme Court in Casey narrowed the types of legal claims reviewable under a denial of legal access analysis. The Court stated:
Bounds does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack their sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration."518 U.S. at 355 (emphasis in original). The Court left it to prison officials to determine how best to ensure that inmates "have a reasonably adequate opportunity to file nonfrivolous legal claims challenging their convictions or conditions of confinement." Id. at 356.
In the present case, plaintiff has failed to allege that he has suffered any actual injury as required under Casey and Oliver. The Complaint and supplemental pleading are devoid of any allegations that the alleged interference with his legal mail actually "hindered his efforts to pursue a legal claim." Indeed, his vigorous litigation of this and his many other lawsuits strongly suggests that his right of access to the courts has in no way been impinged. Therefore, plaintiff fails to state a claim upon which relief may be granted and the Complaint will be dismissed.
CONCLUSION
For the reasons set forth above, plaintiff's appeal and motions will be denied, plaintiff's IFP status will be revoked and defendants' motion to dismiss the Complaint will be granted. An appropriate order follows.
O R D E R
This matter having been opened to the Court by plaintiff on an appeal of Magistrate Judge Ronald J. Hedges's Letter-Order filed March 10, 1999 and motions for injunctive relief and for entry of default, and by the attorneys for defendants on a motion to revoke plaintiff's in forma pauperis status or, in the alternative, to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6), and notice having been given to all parties, in consideration of the papers submitted, for good cause shown, and for the reasons set forth in the Court's opinion of even date,
IT IS, on this day of May 1999, ORDERED as follows:
1. Plaintiff's appeal of Magistrate Judge Ronald J. Hedges's Letter-Order filed March 10, 1999 is denied and the Letter-Order is affirmed.
2. Plaintiff's motions for injunctive relief and for entry of default are denied.
3. Plaintiff's petition for a writ of mandamus filed on April 22, 1999 is dismissed without prejudice.
4. Plaintiff's in forma pauperis status is revoked.
5. Defendants' motion to dismiss the Complaint pursuant to
Fed.R.Civ.P. 12(b)(6) is granted and the Complaint is dismissed with prejudice.