Opinion
Civil Action No. 98-4348 (NHP).
September 2, 1999
Mr. Richard Poorman, #280652, Northern State Prison, Newark, N.J., Plaintiff Pro Se.
Daniel F. Dryzga, Jr., Deputy Attorney General, JOHN J. FARMER, JR., ATTORNEY GENERAL OF NEW JERSEY, Trenton, N.J., Attorneys for Defendants.
THE ORIGINAL OF THIS LETTER OPINION IS ON FILE WITH THE CLERK OF THE COURT
Dear Litigants:
This matter comes before the Court on the motion by defendants Jack Terhune, James Barbo, the Department of Corrections, Howard Beyer, Gail Gillespie, Michelle Ricci, Lydell Sherrer, Edwin Simmons, Eric Stokes, Dennis Bernat, Clarence Barnes, Yvette Carroll and Charles Robinson for summary judgment. This matter was decided without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons stated more particularly herein, the motion by defendants for summary judgment is GRANTED and the Complaint of plaintiff Richard Poorman is DISMISSED WITH PREJUDICE AGAINST ALL DEFENDANTS.
At this time, the Court will likewise DISMISS plaintiff's Complaint sua sponte against the remaining defendants for the same reasoning applied herein.
At this time, the Court will likewise DISMISS plaintiff's Complaint sua sponte against the remaining defendants for the same reasoning applied herein.
STATEMENT OF FACTS PROCEDURAL HISTORY
Plaintiff Richard Poorman ("plaintiff"), an inmate of the New Jersey State Prison system currently incarcerated at Northern State Prison proceeding in forma pauperis, filed a Complaint against defendants James Barbo, Jack Terhune, the Department of Corrections, Howard Beyer, Gail Gillespie, Michelle Ricci, Lydell Sherrer, Edwin Simmons, Eric Stokes, Dennis Bernat, Clarence Barnes, Yvette Carroll, Charles Robinson, Nurse Mack, Doctor Starrett, Unknown Sergeant, Mr. R. Edmiston, [first and/or last name unknown] Gregory, and CMS pursuant to 42 U.S.C. § 1983.See Complaint dated September 4, 1998. Plaintiff seeks monetary compensation in the amount of at least $10,000 from each defendant and an injunction requiring that each defendant cease his actions immediately.On January 22, 1999, this Court dismissed portions of plaintiff's Complaint and allowed plaintiff to proceed with his Eighth Amendment inadequate medical care, Fifth Amendment double jeopardy claim, and his First Amendment retaliation claim. With regard to plaintiff's Eighth Amendment inadequate medical care claim, plaintiff alleges that defendants Mack, CMS, Ricci, and Barbo were deliberately indifferent to his serious medical needs. More specifically, plaintiff alleges that although he notified defendants numerous times that he was out of his "Life Saving Medication," his requests were ignored. Plaintiff further claims that the medication must be taken with food, but that he is denied a correct diet. He asserts that defendant Robinson will not permit him to receive trays of food on his unit so that he can take the medication. Plaintiff also states that he is in pain due to a back injury suffered in an automobile accident, but that Dr. Starrett refuses to provide x-rays. He complains that it often takes several months for a prisoner to see a doctor, and that CMS often delays treatment.
Plaintiff further alleges that the prison officials do not provide inmates with certain basic hygienic items such as soap, toothpaste, deodorant, or shaving cream. Plaintiff contends that the inmates cannot afford to purchase these items at the prison commissary due to a 10% surcharge that the New Jersey Department of Corrections adds to each inmate purchase. Plaintiff asserts that this surcharge supplements that Victims of Crime Compensation Board Fund and, therefore, is a violation of his plaintiff's Fifth Amendment right against double jeopardy because he has already paid the Victims Compensation Board Fund ordered at sentencing.
Finally, plaintiff alleges that two corrections officers retaliated against him for filing grievances against them. Plaintiff states that when his laundry bag was not returned from the laundry, he asked Officer Barnes numerous times to file a report and that Officer Barnes refused. Plaintiff further asserts that he told Officer Barnes that he would pursue the matter in court if Barnes did not file a report. Plaintiff alleges that Barnes did not report the missing property, but instead wrote plaintiff a false disciplinary charge. Plaintiff also claims that on another occasion, Officer Carroll would not permit him to leave his unit to go to a meal. He claims that he did not argue with the officer but that he did request a Remedy Form. Plaintiff claims that Officer Carroll told him that if he filed the Remedy Form, he would get a disciplinary charge against him and would be confined to his cell for five days.
DISCUSSION
I. Standard of Review for Summary Judgment
The standard governing a summary judgment motion is set
forth in Fed.R.Civ.P. 56(c), which provides, in pertinent
part, that:
[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Procedurally, the movant has the initial burden of identifying evidence that it believes shows an absence of genuine issues of material fact.See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). When the movant will bear the burden of proof at trial, the movant's burden can be discharged by showing that there is an absence of evidence to support the non-movant's case. Id. at 325. If the movant establishes the absence of a genuine issue of material fact, the burden shifts to the non-movant to do more than "simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In this matter, there are no genuine issues of material fact and therefore, summary judgment is appropriate in these circumstances.
II. § 1983 and Medical Conditions
In order to prevail on a § 1983 claim, a plaintiff must establish that: (1) the defendant has deprived him of a right secured under the constitution, and (2) the deprivation was caused by a person acting under color of state law. See Adickes v. S.H. Kress Co., 398 U.S. 144, 150 (1970).
In this matter, plaintiff alleges that defendants violated his right to be free from cruel and unusual punishment pursuant to the Eighth Amendment. More specifically, plaintiff contends that defendants Mack, CMS, Ricci, Barbo, Robinson and Dr. Starrett generally provide inadequate medical care.
To prove a violation of one's Eighth Amendment rights, the plaintiff "must satisfy both the objective and subjective elements of a cruel and unusual punishment allegation." Diaz v. Edgar, 831 F. Supp. 621, 623-24 (N.D.Ill. 1993). The objective prong of an Eighth Amendment cruel and unusual punishment analysis requires that the deprivation be "sufficiently serious." See Wilson v. Seiter, 501 U.S. 294, 298 (1991). Notably, the objective component of an Eighth Amendment analysis is "contextual and responsive to `contemporary standards of decency.'"Hudson v. McMillian, 503 U.S. 1, 8 (1992). Accordingly, the courts have indicated that a condition will be deemed "sufficiently serious" if the "`conditions . . ., alone or in combination, deprive inmates of the minimal civilized measure of life's necessities.'" Hassine v. Jeffes, 846 F.2d 169 (3d Cir. 1988) (citing Union County Jail Inmates v. Di Buono, 713 F.2d 984, 999 (3d Cir. 1983) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981),cert. denied, sub. nom., Union County Jail Inmates v. Fauver, 465 U.S. 1101, sub. nom., Di Buono v. Fauver, 465 U.S. 1102 (1984))).
The subjective element of an Eighth Amendment cruel and unusual punishment analysis requires that the plaintiff show that the resulting injury was caused by the prison official's "deliberate indifference."See Davidson v. O'Lone, 752 F.2d 817, 820 (3d Cir. 1984), aff'd sub nom,Davidson v. Cannon, 474 U.S. 344 (1986). To establish that a state actor was deliberately indifferent to a prisoner's conditions of confinement, it must be shown that the prison official acted with "subjective recklessness." See Farmer v. Brennan, 511 U.S. 825 (1994). In other words,
a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.Id. at 837. Thus, an analysis of the prison official's state of mind is entirely mandatory in the determination of whether the complainant has suffered cruel and unusual punishment. See id. at 838.
A state clearly has the obligation to provide medical care for inmates at a penal institution since inmates at a prison are unable to provide medical care for themselves. See In the Matter of the Commitment of F.H., 258 N.J. Super. 532, 536-537 (N.J.Super.Ct. App. Div. 1992). A medical need meets the objective prong and is, therefore, "sufficiently serious" if the condition is "one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention." Monmouth County Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987),cert. denied, 486 U.S. 1006 (1988) (citing Pace v. Fauver, 479 F. Supp. 456, 458 (D.N.J. 1979), aff'd, 649 F.2d 860 (3d Cir. 1981)); see also Colburn v. Upper Darby Township, 946 F.2d 1017, 1023 (3d Cir. 1991) (holding that a condition is "sufficiently serious" if "a failure to treat can be expected to lead to substantial and unnecessary suffering, injury or death.").
Here, this Court will assume for purposes of this analysis that plaintiff has alleged that the deprivations suffered are "sufficiently serious."
To establish deliberate indifference to the medical needs of an inmate, the plaintiff must produce evidence that the prison guards intentionally delayed or denied access to the inmate's treatment once such treatment was prescribed by a physician. See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). A showing of deliberate indifference requires "facts which indicate not only the conduct but also the attitude of prison authorities." Smith v. Fielder, 867 F. Supp. 832, 834 (E.D.Wis. 1994), aff'd sub nom., 68 F.3d 477 (7th Cir. 1995). Notably, not every "inadvertent failure to provide adequate medical care," however, can be deemed violative of the Eighth Amendment. It is only such "deliberate indifference" that can affront "evolving standards of decency" in direct contradiction to the Eighth Amendment. Id. at 106.
In the present matter, plaintiff's contends that he is not being given his "Life Saving Medications," is not receiving a correct diet, and is not receiving x-rays on an expedited basis. A review of plaintiff's Complaint and documentation submitted by plaintiff in connection with the subject motion reveals that there is no evidence to support the contention that any of the defendants acted with deliberate indifference to his medical needs. In fact, the documentation attached to plaintiff's Complaint reveals that plaintiff consistently has received medical care from the prison. For example, the record is replete with "Medical Lay-In Pass[es]" which were given to plaintiff indicating that he was receiving medical care in prison.
Notably, "[w]here a person is suffering injury as an incidental and unintended consequence of official actions, the abuse of power contemplated in the Due Process and Eighth Amendment cases does not arise." Rhodes v. Robinson, 612 F.2d 766, 772 (3d Cir. 1979). Accordingly, mere negligence on the part of a state official does not implicate the Due Process Clause. Farmer v. Brennan, 511 U.S. 825, 835 (1994); Daniels v. Williams, 474 U.S. 327, 329-30 (1986). See also Office of Inmate Advocacy v. Fauver, 222 N.J. Super. 357, 360 (N.J.Super.Ct. App. Div.), certif. denied, 111 N.J. 637 (1988). Assuming arguendo that this Court finds plaintiff's statements contained in his Complaint to be credible, the allegations, without more, do not amount to deliberate indifference. Such conduct or omission amounts to, at most, mere negligence.
III. Fifth Amendment Double Jeopardy
Plaintiff alleges that the imposition of a 10% surcharge on his commissary purchases is violative of the Fifth Amendment prohibition against double jeopardy.
The Double Jeopardy Clause provides that no "person [shall] be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const., amend. 5. "The Double Jeopardy Clause protects only against the imposition of multiple criminal punishments for the same offense."Helvering v. Mitchell, 303 U.S. 391, 399 (1938). Typically, in determining whether a particular punishment is civil or criminal, a court must ask "whether the legislature, `in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.'" Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488 (1997) (quoting United States v. L.O. Ward, 448 U.S. 242, 248 (1980)).
Even in situations where the legislature "`has indicated an intention to establish a civil penalty, [the Supreme Court] ha[s] inquired further whether the statutory scheme was so punitive either in purpose or effect,' as to `transfor[m] what was clearly intended as a civil remedy into a criminal penalty.'" Hudson, 522 U.S. at ___, 118 S.Ct. at 493 (quoting Rex Trailer Co. v. United States, 350 U.S. 148, 154 (1956)).
In Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), the United States Supreme Court provided the factors for determining whether the statutory scheme is so punitive in nature as to transform the civil remedy into a criminal penalty. Those factors are as follows:
(1) [w]hether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment-retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned."Hudson, 522 U.S. at ___, 118 S.Ct. at 493 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)).
The Third Circuit, however, has stated that it uses a different test to determine whether a measure is punitive in nature. The Circuit Court opined that in order for a measure to constitute non-punishment in this Circuit, it must pass a three-prong test: "(1) actual purpose; (2) objective purpose; and (3) effect." United States v. Edwards, 162 F.3d 87, 91 n. 5 (3d Cir. 1998) (citing Artway v. Attorney General, 81 F.3d 1235, 1263 (3d Cir. 1996)). The Court continued: "If the legislature intends a particular measure to be `punishment,' or if retribution was one of its actual purposes, then it must fail constitutional scrutiny; if, however, the `restriction of the individual comes about as a relevant incident to a regulation,' the measure must be further analyzed." Id. (citingArtway, 81 F.3d at 1263).
The Victims Compensation Board Fund surcharge is authorized by N.J.S.A. § 30:4-15.1 and is known as the "VCCB Surcharge." The VCCB Surcharge requires that funds obtained from the surcharge be given to the Victims of Crime Compensation Board for subsequent distribution to victims of crime. See N.J. Stat. Ann. § 30:4-15.1 (West 1999). Since the legislature did not expressly indicate whether the VCCB surcharge is intended to be a civil or criminal penalty, the Court will utilize the Third Circuit test and discuss the actual purpose, objective purpose and practical effect of the terms of the statute.
The actual purpose of the statute which governs the VCCB Surcharge is not expressly stated. However, the Court can imply that the statute was not enacted to punish an individual prisoner but, instead, to generate additional revenues to compensate the victims of crime. Notably, the VCCB charge is not linked to a prisoner's individual crime but is equally applied to all purchases made by all prisoners. Moreover, the effect of the statute is remedial because it recognizes that not all of the VCCB penalties imposed at sentencing are completely satisfied and, therefore, the funds will be used towards the remedial goal of compensating victims of crimes. Quite simply, the payment of money in this case via a VCCB surcharge on commissary items does not amount to a punishment. Therefore, plaintiff's Fifth Amendment claim must be dismissed.
IV. Retaliation
"Retaliation for the exercise of constitutionally protected rights is itself a violation of rights secured by the Constitution actionable under section 1983." White v. Napolean, 897 F.2d 103 (3d Cir. 1990). In order to prove a claim for retaliation pursuant to § 1983, a plaintiff would have to prove that: (1) he engaged in protected activity; (2) the government or a person acting under color of state law responded with retaliation; and (3) the protected activity was the actual cause of the government's retaliation. See Anderson v. Davila, 125 F.3d 148, 161 (3d Cir. 1997) (holding, in part, that the filing of a Complaint by a prisoner with the EEOC amounted to protected activity because it served as a "check against the government's [alleged] abuse of power" and served as the first step towards accessing the courts).
Here, plaintiff alleges that two corrections officers retaliated against him by filing false disciplinary charges. More specifically, plaintiff contends that the prison officials filed the false disciplinary charges against him because he filed grievances against them for an incident involving plaintiff's laundry. There is no evidence in the record, other than plaintiff's mere allegation, that the prison officialsresponded with disciplinary charges against plaintiff. In other words, there is no evidence in the record that the alleged protected activity, presumably freedom of expression, was the actual cause of the government's retaliation. Quite simply, the resulting disciplinary charges could have been levied for a legitimate reason, such as his failure to obey certain directives.
Moreover, "[t]he filing of false disciplinary charges against plaintiff does not in itself deprive an inmate of a constitutional right." White v. Fauver, 19 F. Supp.2d 305, 319 (D.N.J. 1998) (citing Freeman v. Rideout, 808 F.2d 949 (2d Cir. 1986) (holding that "`the mere filing of [a false] charge itself' does not constitute a cognizable claim under § 1983 so long as the prisoner `was granted a hearing, and had the opportunity to rebut the unfounded or false charges'"), cert. denied, 485 U.S. 982 (1988)).
Therefore, plaintiff's retaliation claim must be dismissed.
CONCLUSION
For the foregoing reasons, the motion by defendants for summary judgment is GRANTED and the Complaint of plaintiff Richard Poorman is DISMISSED WITH PREJUDICE AGAINST ALL DEFENDANTS.