Opinion
Civil No. 01-2162 (JBS).
June 25, 2002
Justin T. Loughry, Esquire, Loughry and Lindsay, LLC, Moorestown, New Jersey, Attorney for Plaintiff Walter Weaver.
David Samson, Attorney General of New Jersey, By: Ronald L. Bollheimer, Deputy Attorney General and David M. Ragonese, Deputy Attorney General, R.J. Hughes Justice Complex, Trenton, New Jersey, Attorneys for Defendant Michael McKeen.
OPINION
This matter comes before the Court on defendant Michael McKeen's motion to dismiss plaintiff Walter Weaver's complaint on grounds that defendant McKeen, an administrator of the New Jersey Department of Corrections, is entitled to qualified immunity, and for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), Fed.R.Civ.P. Plaintiff, formerly a New Jersey State inmate, is currently released on parole. Plaintiff brings the underlying cause of action pursuant to 42 U.S.C. § 1983 alleging that defendants McKeen, Community Corrections Corporation, and its employees Henry Jacobs and Kenneth Branton, violated his civil rights from May 1999 to his parole release date in March 2000 while he was participating in a community residential release program and later re-incarcerated at the New Jersey Department of Corrections' Central Reception and Assignment Facility ("CRAF"), where McKeen formerly worked as an administrator. Plaintiff's claims stem from the administration of a saliva swab test for alcohol while confined at a half-way house, allegedly unreliable and unauthorized, resulting in imposition of prison discipline upheld by defendant McKeen, and causing the Parole Board to rescind his early release date, delaying his release. The Parole Board later reinstated his original release date, declaring that the saliva swab test was unauthorized and should not serve as a basis to deny parole. Plaintiff alleges violations of his Fourth, Fifth, Eighth, and Fourteenth Amendment rights under 42 U.S.C. § 1983, as well as state constitutional claims.
Defendant McKeen filed this motion to dismiss on December 6, 2001, and this Court heard oral argument on the matter on January 18, 2002. Nothing herein addresses the claims against co-defendants Community Corrections Corporation, Henry Jacobs, and Kenneth Branton. For reasons discussed herein, defendant McKeen's motion will be granted on the basis of his qualified immunity.
BACKGROUND
In or about April or May 1999, plaintiff was in the custody of the New Jersey Department of Corrections, serving a prison sentence at a "half-way" house program known as Tully House. (Compl. ¶ 9.) His scheduled parole release date at that time was June 1, 1999. (Id.) On or about May 7, 1999, plaintiff attended an authorized job interview off premises. (Id. ¶ 10.) Upon his return, plaintiff alleges defendant Branton claimed to have detected the odor of alcohol among the group of returning inmates, and he and co-defendant Jacobs allegedly ordered plaintiff and others to submit to a "saliva swab" test. (Id. ¶ 11.) Although plaintiff alleges that he had not ingested any alcohol, he tested positive on the saliva swab test. (Id. ¶¶ 12-13.) Plaintiff alleges that defendants Jacobs and Branton administered this test to plaintiff twice, the second test indicating a positive result after the first test was inconclusive. (Id. ¶ 13.)
Plaintiff was then expelled from Tully House, was charged with a disciplinary infraction for unauthorized use and ingestion of alcohol, and returned to the New Jersey State Prison at CRAF. (Id. ¶¶ 18-19.) Plaintiff's disciplinary hearing was convened on May 11, 1999, and the saliva swab test evidence was admitted against him. The hearing officer imposed a sanction of 15 days detention, 150 days administrative segregation, 150 days loss of commutation time, and 120 days of urine monitoring. (Loughry Cert., Ex. A, Hearing Summary dated Feb. 14, 2000.) Superintendent McKeen considered the appeal on May 13, 1999, affirmed the finding of guilt, but reduced the penalty to detention for time served, 60 days administrative segregation, 60 days loss of commutation time, and 90 days of urine monitoring. (Id.) Plaintiff alleges that McKeen, a former administrator of the State Department of Corrections at the CRAF, was "responsible for conducting, and reviewing the outcome of, any disciplinary hearing held against [plaintiff]" and that plaintiff was "subject to a disciplinary hearing and was disciplined based upon the test results from the saliva swab test." (Compl. ¶¶ 19-20.) On May 18, 1999, the New Jersey State Parole Board put a hold on plaintiff's scheduled parole date of June 1, 1999. (Hearing Summary, Loughry Cert. Ex. A.) Plaintiff alleges that, as a result of the unlawful saliva swab test, his parole date was cancelled, and he was confined to punitive segregation for over two weeks, lost credited time, and was not released until May 2000. (Compl. ¶¶ 20-21.)
Plaintiff alleges in his Complaint that "[i]n or about autumn of [1999], the Parole Board met and considered plaintiff for parole. In or about February [2000], the Board ruled that the saliva swab test was unauthorized, that no unfavorable or punitive sanction should have resulted from that test, and that plaintiff should have been paroled on June 1, 1999." (Id. ¶ 22.) Plaintiff further alleged that "[t]he Parole Board or its designee ultimately found that Mr. Weaver's parole was wrongfully rescinded, as a result of an unauthorized alcohol test, and reinstated his parole. . . . [P]laintiff was thus vindicated and his parole date restored." (Id. ¶ 27.)
According to the New Jersey State Parole Board's decision, (Loughry Cert., Ex. A), hearing officer Martin Perrotta conducted a video conference hearing on rescission of Weaver's parole on October 12, 1999. In a decision dated February 14, 2000, the hearing officer found that the alcohol saliva swab test administered at Tully House was unauthorized, since the Administrative Code permits only breathalyzer testing for the suspected presence of alcohol. The officer found that this testing violated due process because it was unauthorized and it was uncorroborated by other evidence. (Id. at 6.) He recommended that the Parole Board should reaffirm the prior grant of parole and schedule a new parole date. On March 1, 2000, the Parole Board "confirmed" the Board's prior release date decision for parole release effective June 1, 1999, and determined that Weaver would be released on parole on March 15, 2000. (Id.)
On May 4, 2001, plaintiff filed the underlying complaint pursuant to 42 U.S.C. §§ 1983, 1986, 1988, against defendants Michael McKeen, Henry Jacobs, Community Corrections Corporation, and Kenneth Branton. (Compl.) Plaintiff alleges that defendants violated his constitutional rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments, and the New Jersey Constitution. (Compl. ¶ 1.) Plaintiff seeks compensatory damages, punitive damages, interest, attorneys' fees, and costs of suit. (Compl. ¶¶ 28, 32, 37, 41.) Defendant McKeen filed the instant motion to dismiss plaintiff's complaint on December 6, 2001. This Court heard oral argument on the matter on January 18, 2002.
The Complaint also names "John Doe, hearing officer employed by the Department of Corrections, individually and in his official capacity; and Jane Roe and James Roe, administrators at Central Reception and Assignment Facility of the New Jersey Department of Corrections." (Compl. Caption.)
DISCUSSION
I. Standard for Motion to Dismiss Under Rule 12(b)(6)
A motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted does not attack the merits of the case, but merely tests the legal sufficiency of the Complaint. See Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). When considering a Rule 12(b)(6) motion, the reviewing court must accept as true all well-pleaded allegations in the Complaint and view them in the light most favorable to plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Jordan v. Fox, Rothschild, O'Brien Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). In considering the motion, a district court must also accept as true any and all reasonable inferences derived from those facts. See Oshiver v. Levin, Fishbein, Sedran Berman, 38 F.3d 1380, 1384 (3d Cir. 1994); Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991). A court may not dismiss the Complaint "unless it appears 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).
II. Analysis
Defendant asserts that the Eleventh Amendment bars compensatory and punitive damages against McKeen in his official capacity. Defendant further argues that he is entitled to qualified immunity because plaintiff's constitutional rights were not clearly established. Lastly, defendant urges this Court to decline to exercise supplemental jurisdiction over plaintiff's state constitutional claims.
Defendant also argues that plaintiff's claims are procedurally barred because he has not alleged that the prison disciplinary proceeding has been overturned as required in order to bring a § 1983 claim under Edwards v. Balisok, 520 U.S. 641 (1997), and that plaintiff fails to state claims for violations under the Fourth Amendment, the Fifth Amendment, the Eighth Amendment, and the due process clause under the Fourteenth Amendment. Because defendant's motion is decided on other grounds, these issues need not be addressed.
A. Eleventh Amendment
Defendant asserts that plaintiff's claims for compensatory and punitive damages against defendant McKeen in his official capacity are barred by the Eleventh Amendment. In general, the Eleventh Amendment bars suits in federal court against states and state officials named in their official capacity, for monetary damages and equitable relief. See Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 98 (1984); Will v. Michigan Dep't of State Police, 491 U.S. 58, 70-71 n. 10 (1989). A sovereign's immunity may be waived where a State consents to suit against it in federal court, but this consent must be unequivocally expressed. See Pennhurst, 465 U.S. at 98 (citations omitted).
This case presents no exception to the general rule that state officials may not be sued in their official capacity. Here, where plaintiff has sued defendant McKeen in his official capacity for money damages, such claims will be dismissed as barred by the Eleventh Amendment. As plaintiff has also sued defendant McKeen in his individual capacity, such claims will be considered infra. See Papasan v. Allain, 478 U.S. 265, 278 n. 11 (1986) ("When a state official is sued and held liable in his individual capacity, however, even damages may be awarded.") (citing Scheuer v. Rhodes, 416 U.S. 232, 237-38 (1974)).
B. Qualified Immunity Defense
Defendant McKeen asserts that he is entitled to the qualified immunity defense because the contours of plaintiff's rights at issue in this case under the Fourth, Fifth, Eighth, and Fourteenth Amendments were not clearly established. Under the qualified, or "good faith," immunity doctrine, government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable prison administrator would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted); Paff v. Kaltenbach, 204 F.3d 425, 430 (3d Cir. 2000); see also Butz v. Economou, 438 U.S. 478, 504 (1978) (discussing immunity law under § 1983 as applicable against state officials).
Before addressing qualified immunity, however, a court must determine "whether the plaintiff has asserted a violation of a constitutional right at all." Siegert v. Gilley, 500 U.S. 226, 232, reh'g denied, 501 U.S. 1265 (1991); see also Paff, 204 F.3d at 430. A court presented with a qualified immunity claim must examine both "the law that was clearly established at the time of the alleged violation and the facts available to the official at that time, and must then determine, in light of both, whether a reasonable official could have believed his conduct was lawful." Paff, 204 F.3d at 431 (citing Good v. Dauphin County Soc. Servs. for Children Youth, 891 F.2d 1087, 1092 (3d Cir. 1989)). The qualified immunity doctrine must be resolved "at the earliest possible stage in the litigation." Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir. 2002) (quoting Saucier v. Katz, 533 U.S. 194, 200 (2001)).
Here, this Court must first examine the state of the relevant law at the time of the alleged incidents of the saliva swab test and the resulting revocation of the parole release date, and consider the information available to defendant McKeen at the time, in the context of each constitutional violation alleged. Given the established law and the information available to McKeen, this Court must then determine whether a reasonable prison administrator in McKeen's position could have believed that his conduct was lawful.
1. Plaintiff's Fourth Amendment Claim
As for plaintiff's Fourth Amendment claim, defendant McKeen contends that there is no clearly established right for a prisoner participating in a community release program to be free from a search for the use of alcohol by being compelled to take a saliva swab test. The first determination is whether plaintiff has alleged a constitutional violation. The Fourth Amendment protects "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures." U.S. Const. amend. IV. Where the government seeks to obtain physical evidence from a person, the Fourth Amendment is implicated on several levels. See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616 (1989). Obtaining and examining this type of evidence may be a search if doing so infringes an expectation of privacy that society finds is reasonable. See id. (citations omitted). The Supreme Court has long recognized that a "compelled intrusion into the body for blood to be analyzed for alcohol content" constitutes a Fourth Amendment search, see Schmerber v. California, 384 U.S. 757, 767 (1966) (blood testing for alcohol content deemed a search under Fourth Amendment), and that "[s]ubjecting a person to a breathalyzer test . . . implicates similar concerns about bodily integrity and . . . should also be deemed a search." See Skinner, 489 U.S. at 616-17 (compelled urinalysis deemed a search under the Fourth Amendment) (citingCalifornia v. Trombetta, 467 U.S. 479, 481 (1984)); see also Henry v. Ryan, 775 F. Supp. 247, 254-55 (N.D. Ill. 1991) (grand jury compelled detainee to produce blood and saliva samples) (citing Cupp v. Murphy, 412 U.S. 291, 295 (1973)).
The Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable. See Skinner, 489 U.S. at 619 (citations omitted). What is reasonable "`depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.'" Id. (quotingUnited States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985)). Testing for statutorily required blood and saliva samples has been deemed a "reasonable search and seizure" under the Fourth Amendment. See Schlicter v. Peters, 103 F.3d 940, 943 (10th Cir. 1996); Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir. 1997); see also Rise v. Oregon, 59 F.3d 1556 (9th Cir. 1995) (Oregon statute requiring DNA sampling of inmates is reasonable under Fourth Amendment), cert. denied, 517 U.S. 1160 (1996); Jones v. Murray, 962 F.2d 302 (4th Cir.) (Virginia statute requiring DNA blood sampling is reasonable under Fourth Amendment), cert. denied, 506 U.S. 977 (1992).
Here, however, while plaintiff alleges a constitutional violation based on being subjected to a saliva swab testing for the presence of alcohol, plaintiff has not alleged any participation by defendant McKeen in conducting the saliva sampling. To recover under 42 U.S.C. § 1983, plaintiff must establish that a state actor engaged in conduct that deprived him of "rights, privileges, or immunities" secured by the Constitution or laws of the United States. Wilson v. Russo, 212 F.3d 781, 786 (3d Cir. 2000) (citing Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996)). The only conduct allegedly attributable to defendant McKeen is his participation in the hearing on disciplinary charges against plaintiff. In his Complaint, plaintiff alleges that McKeen:
[A]s superintendent or other administrator responsible for the conduct of said disciplinary hearings and for review of appeals therefrom and enforcement thereof, affirmed or failed to reverse the legally erroneous and unconstitutional decision of the hearing officer defendant John Doe. . . . By failing to acknowledge and reverse the illegality of the result, the defendants acted knowingly and/or with deliberate indifference to the rights of plaintiff, in violating his federal constitutional rights to procedural and substantive due process, to be free of unreasonable search and seizure, free of punishment imposed without justification, and free of prosecution not justified in fact or law, all in violation of 42 U.S.C. §§ 1983 and 1986.
Compl. ¶ 36. As the Supreme Court has stated, the threshold question under qualified immunity is whether "the facts alleged show the officer's conduct violated a constitutional right[.]"Saucier, 533 U.S. at 201 (citing Siegert, 500 U.S. at 232) (emphasis added). Unlike the other defendants, McKeen did not conduct, order, or participate in the saliva swab test. His function instead was quasi-judicial, determining whether the hearing officer correctly determined that plaintiff violated the alcohol use policy. Because plaintiff's Fourth Amendment claim is based on the allegedly unlawful saliva swab test, as consistently maintained in his pleadings and moving papers, he has not sufficiently stated a Fourth Amendment claim against defendant McKeen. Thus, defendant McKeen's qualified immunity defense prevails on this ground. Plaintiff's Fourth Amendment claim will be dismissed as to defendant McKeen.
2. Plaintiff's Fifth Amendment Claim
Defendant contends that a reasonable prison official in defendant McKeen's position could have believed that the saliva swab test did not violate plaintiff's privilege against self-incrimination. The Self-Incrimination Clause of the Fifth Amendment prohibits a person being "compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. "`The prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him. . . .'"Schmerber, 384 U.S. at 763 (quoting Holt v. United States, 218 U.S. 245, 252-53 (1910)). While the Supreme Court stated that the protection of the privilege "reaches an accused's communications . . . and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers," Schmerber, 384 U.S. at 763-64, it held that, where "[n]ot even a shadow of communication by the accused was involved either in the extraction or in the chemical analysis," a compelled blood test for alcohol content did not implicate the accused's rights under the Fifth Amendment. Id. at 765. The Supreme Court further noted that "[t]he distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling `communications' or `testimony,' but that compulsion which makes a suspect or accused the source of `real or physical evidence' does not violate it."Id. at 764.
Plaintiff's claim presents similar difficulties, in that neither plaintiff's communications nor testimony in the context of a criminal proceeding are implicated by plaintiff's saliva swab test. The instant claim involves no communications or testimony, and furthermore, as with Schmerber, the compelled saliva swab test makes plaintiff the source of evidence which the Supreme Court has found falls outside the bounds of protection.See also United States ex rel. Dunn v. Lane, No. 89-C-1184, 1990 WL 6873, at *1 (N.D. Ill. Jan. 4, 1990) (holding that compelled saliva sampling does not demonstrate Fifth Amendment violation); Brent v. White, 276 F. Supp. 386, 388 (E.D. La. 1967) (holding that compelled saliva samples did not constitute Fifth Amendment violation), aff'd, 398 F.2d 503 (5th Cir. 1968). Like Schmerber, plaintiff's compelled test for alcohol does not implicate his right against self-incrimination. Thus, plaintiff has not sufficiently alleged a Fifth Amendment claim, and defendant McKeen's qualified immunity defense prevails on this ground. Plaintiff's Fifth Amendment claim as to defendant McKeen will be dismissed.
3. Plaintiff's Eighth Amendment Claim
Defendant McKeen asserts that he is entitled to qualified immunity as to plaintiff's Eighth Amendment claim because the existing case law has never defined the parameters of deliberate indifference on the part of a prison administrator for an unjustified detention under the Eighth Amendment. Subjecting a prisoner to detention beyond the termination of his sentence has been held to violate the Eighth Amendment's proscription against cruel and unusual punishment. See Moore v. Tartler, 986 F.2d 682, 686 (3d Cir. 1993). The Third Circuit has held that to establish § 1983 liability in this context, the plaintiff must demonstrate (1) that the prison official had knowledge of the prisoner's problem and thus of the risk that unwarranted punishment was being, or would be, inflicted; (2) that the official failed to act or took only ineffectual action under circumstances indicating that his or her response to the problem was a product of deliberate indifference to the prisoner's plight; and (3) a causal connection between the official's response to the problem and the infliction of the unjustified detention. See Sample v. Diecks, 885 F.2d 1099, 1110 (3d Cir. 1989) (holding that nine-month delay in prisoner's release due to miscalculation of sentence constituted an Eighth Amendment violation). The scope of defendant McKeen's duties and the role he plays in the prison are factors to be considered in this inquiry. See Sample, 885 F.2d at 1110. The Third Circuit has found that "not every official who is aware of a problem exhibits deliberate indifference by failing to resolve it." Moore, 986 F.2d at 686 (citing Sample, 885 F.2d at 1110).
Plaintiff alleges that defendant McKeen's affirmance of the disciplinary hearing "despite the known fact" that the sanctions depended upon an unauthorized test show that defendant McKeen was deliberately indifferent to plaintiff's rights under the Eighth Amendment. The Third Circuit's decision in Moore v. Tartler, 986 F.2d at 685-87, is instructive. In Moore, defendant parole board officials had incorrectly detained plaintiff for a six-month period due to confusion over a sentencing order. One individual parole board official had received plaintiff's appeal of the parole board decision which was subsequently denied, while another began inquiring into plaintiff's parole board status only after approximately three months had passed since the parole board decision. The Third Circuit noted that deliberate indifference had been demonstrated in other "cases where prison officials were put on notice and then simply refused to investigate a prisoner's claim of sentence miscalculation." 986 F.2d at 686 (citations omitted). The Third Circuit held inMoore that where the parole board officials attempted to resolve confusion over the sentencing order and take affirmative steps toward that end, there was no deliberate indifference to plaintiff's rights.
In this case, defendant McKeen upheld the adjudication that plaintiff was guilty of alcohol consumption based on the swab test, but reduced plaintiff's penalty from 15 days detention, 150 days administrative segregation, 150 days loss of commutation time, and 120 days of urine monitoring, to detention time served, 60 days administrative segregation, 60 days loss of commutation time, and 90 days urine monitoring. See Loughry Cert., at 1, Pl.'s Br. Ex. A. McKeen's decision occurred on May 13, 1999, only 6 days after the swab test was conducted.
Although plaintiff contends that defendant McKeen affirmed the hearing officer's decision "despite the known fact" that the sanctions depended upon an unauthorized swab test, Compl. ¶ 36, the weight of the evidence establishes that plaintiff did not raise the illegality of the swab test in his appeal to defendant McKeen, that plaintiff appealed on the basis of his innocence alone, and that neither plaintiff nor defendant McKeen knew of the illegality of the swab test until the New Jersey State Parole Board came to that conclusion in early 2000, at which time plaintiff's original parole release date was reinstated. LikeMoore, this situation is not one where the prison official was "put on notice" and then "simply refused to investigate" a prisoner's claim. Here, at the time defendant upheld the disciplinary hearing and reduced plaintiff's penalty, defendant McKeen did not know that the test on which the prison infraction was based was unauthorized by state regulations. Plaintiff has not alleged that he appealed the disciplinary charge on grounds that the swab test was unauthorized, nor can it be shown that defendant McKeen was put on notice that he was upholding a disciplinary charge that was based on an unauthorized test. On the facts of this case, defendant McKeen, who further reduced the penalty in plaintiff's favor, was not deliberately indifferent to plaintiff's rights under the Eighth Amendment. As a matter of law, a reasonable appellate hearing officer in McKeen's circumstance could have believed his conduct was lawful. Accordingly, defendant's qualified immunity argument succeeds, and plaintiff's Eighth Amendment claim will be dismissed as to defendant McKeen.
4. Plaintiff's Due Process Claim Under the Fourteenth Amendment
Defendant argues that the contours of any protected liberty or property interests under the Due Process Clause are not sufficiently defined so as to put defendant on notice that any of his actions were unlawful. Plaintiff bases his due process claim on defendant's alleged violation of the procedures for testing for alcohol consumption under state regulations.
The Third Circuit determined that, in the prison context, "[d]ue process protection for a state created liberty interest is thus limited to those situations where deprivation of that interest `imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). The baseline for determining what is "atypical and significant" is "ascertained by what a sentenced inmate may reasonably expect to encounter as a result of his or her conviction in accordance with due process of law."Griffin, 112 F.3d at 706. To the extent that plaintiff's claims are based on the alleged violations of procedures regarding his disciplinary charge finding, leading to his continued detention, those regulations are examined here.
In this case, the New Jersey Administrative Code sets forth sanctions for any "asterisk" offense to which a prisoner is subject if he is found guilty. See N.J.A.C. 10A:4-5.1(a). Alcohol consumption, the charge on which plaintiff was found guilty, Compl. ¶¶ 17-19, is listed as such an offense. N.J.A.C. 10A:4-4.1(a). The sanctions rendered upon an adjudication of guilty include "Administrative Segregation for a specified time not to exceed one year," and "[l]oss of commutation time up to 365 days." N.J.A.C. 10A:4-5.1(a)(3)-(4). Furthermore, the Administrative Code provides that "when an inmate violates a prohibited act(s) that is listed in N.J.A.C. 10:20-4.19, the inmate shall be transferred to a Department of Corrections correctional facility" from a community release program. N.J.A.C. 10A:20-4.43.
Even if plaintiff has a liberty interest in his release on parole, plaintiff fails to show that he has been subjected to "atypical and significant" hardships that would constitute a violation of the due process protections for a state created interest under Griffin. Plaintiff's transfer to CRAF, segregation for two weeks, and loss of commutation credits are not hardships that would fall outside the bounds of a prisoner's ordinary life. Like Griffin, where the inmate was held in administrative custody for 15 months, plaintiff's loss of commutation time, administrative segregation, and transfer do not rise to the level of "atypical and significant" hardship. Accordingly, plaintiff's fails to assert a due process claim against defendant McKeen, and he is entitled to the defense of qualified immunity. Plaintiff's due process claim will be dismissed as to defendant McKeen.
C. Plaintiff's State Claim
Finally, in Count Four of his Complaint, plaintiff alleges that defendants McKeen and the John Doe defendant hearing officers violated plaintiff's substantive and due process rights under the New Jersey Constitution. As for plaintiff's remaining state law claim against McKeen, this Court declines to exercise supplemental jurisdiction over it after finding defendants entitled to qualified immunity from the federal law claims. The Third Circuit has stated:
The power of the court to exercise pendant jurisdiction, although largely unrestricted, requires, at a minimum, a federal claim of sufficient substance to confer subject matter jurisdiction on the court. The substantiality of the federal claim is ordinarily determined on the basis of the pleadings. If it appears that the federal claim is subject to dismissal under F.R. Civ. P. 12(b)(6) or could be disposed of on a motion for summary judgment under F.R. Civ. P. 56, then the court should ordinarily refrain from exercising jurisdiction in the absence of extraordinary circumstances.Tully v. Mott Supermarkets, Inc., 540 F.2d 187, 196 (3d Cir. 1976). Statutorily, the Court may decline to exercise supplemental jurisdiction over a pendant claim if "the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). In the instant case, defendant's qualified immunity "is an immunity from suit rather than a mere defense to liability." Bennett, 274 F.3d at 136. As such, it precludes plaintiff from bringing a cognizable claim for relief against defendant McKeen under federal law. This Court acts within its discretion and declines to exercise supplemental jurisdiction over the remaining state claim against defendant McKeen, which will be dismissed without prejudice.
CONCLUSION
For the reasons discussed above, defendant McKeen is entitled to qualified immunity as to plaintiff's claims asserted under § 1983, and Count Three will be dismissed. In addition, this Court declines to exercise supplemental jurisdiction as to plaintiff's state law claim against McKeen in Count Four. Accordingly, plaintiff's federal claims as alleged against defendant McKeen in Count Three will be dismissed with prejudice. Plaintiff's state law claim against McKeen will be dismissed without prejudice for lack of jurisdiction. The accompanying Order will be entered.ORDER
THIS MATTER having come before the Court upon defendant Michael McKeen's motion to dismiss plaintiff Walter Weaver's complaint; and this Court having considered the parties' submissions; and the Court having heard oral argument on January 18, 2002; and for the reasons stated in the Opinion of today's date;IT IS on this ____ day of June, 2002, hereby
ORDERED that defendant McKeen's motion to dismiss [Docket Item 25-1] be, and hereby is, GRANTED ; and plaintiff's federal law claims as alleged against defendant McKeen in Count Three are hereby DISMISSED with prejudice; and plaintiff's state law claim as alleged against McKeen in Count Four are hereby DISMISSED without prejudice for lack of jurisdiction.