Riley v. Brown, Dist. Court, D. New Jersey 2006
(2006)
George Riley, et. al, Plaintiffs, v.
Devon Brown, et. al, Defendants.
Civ. No. 06-0331 (DRD).
United States District Court, D. New Jersey.
March 16, 2006.
George Riley, James J. Krivacska, Paul Cornwell, Vincent Macrina, William F. Vansciver, Richard A. Gibbs, Peter Braun, ADULT DIAGNOSTIC & TREATMENT CENTER, Avenel, NJ, Pro se Plaintiffs.
Zulima V. Farber, Attorney General of New Jersey, Victoria L. Kuhn, Deputy Attorney General, Susan M. Scott, Deputy Attorney General, R.J. Hughes Justice Complex, Trenton, New Jersey, Potential Attorneys for State Defendants Devon Brown and William Plantier.
OPINION
DICKINSON DEBEVOISE, Senior District Judge
Plaintiffs, George Riley, James J. Krivacska, Paul Cornwell, Vincent Macrina, William F. Vansciver, Richard A. Gibbs, and Peter Braun, who are state inmates currently housed in the Adult Diagnostic and Treatment Center ("ADTC") in Avenel, New Jersey, filed a complaint against Defendants, Devon Brown, Commissioner of the New Jersey Department of Corrections ("DOC"), William Plantier, Director of Operations for the DOC, and various John Does, employees of the DOC, claiming that Defendants denied them certain constitutional rights and unlawfully discriminated against them by failing to protect them from other state inmates during visits to other facilities for medical treatment and legal proceedings. The factual allegations of the complaint are supported by affidavits which have not been denied by counter affidavits.
Specifically, Plaintiffs' complaint lists the following counts: (1) violation of the Fourteenth Amendment right to substantive and procedural due process; (2) violation of the Fourteenth Amendment right of equal protection; (3) violation of the First Amendment right to seek redress and to have access to the courts; (4) violation the New Jersey Law Against Discrimination ("NJLAD") and the Americans with Disabilities Act; and (5) violation of the Eighth Amendment protection against cruel and unusual punishment.
Plaintiffs assert those claims on behalf of all inmates currently held at ADTC and wish to have their complaint certified as a class action. Plaintiffs now move for a temporary restraining order and/or preliminary injunction to enjoin Defendants from engaging in any further violations. Plaintiffs also move for appointment of pro bono counsel.
I. BACKGROUND
ADTC is a facility operated by the DOC for the detention and treatment of inmates who have been convicted of sexual offenses and found to be compulsive and repetitive in their offending behavior. Plaintiffs allege that prisoners such as themselves, who have been convicted of sexual offenses, are the most despised and reviled inmates in the prison system. As such,

Plaintiffs allege that they are harassed and physically assaulted by other state inmates whenever they are exposed to those inmates, such as when they are transported to and detained in other facilities (e.g., when they seek medical care at another prison or attend a legal proceeding). As Plaintiffs wish to represent a class of inmates they state that each member of the class has suffered from the violations alleged in the complaint. In addition, each named Plaintiff alleges facts specific to his own experience.
Claims of Plaintiff Paul Cornwell
Mr. Cornwell alleges that he was transported from ADTC to the New Jersey State Prison ("NJSP") on May 24, 2005 to receive physical therapy for a herniated disc. After receiving medical treatment he was transported to the Garden State Correctional Facility and placed in a holding area with another ADTC inmate, Zhi-men Chen, and approximately twelve other state prisoners for a period of about three hours.
Mr. Cornwell alleges that when he and Mr. Chen were placed in the holding area, one of the two corrections officers announced to the other prisoners that Mr. Cornwell and Mr. Chen were from Avenel, implying that they were sex offenders. The two officers then allegedly stood outside a Plexiglass window and observed the events that followed.
According to Mr. Cornwell, the other inmates began asking him and Mr. Chen questions. They first asked Mr. Chen where he was from and Mr. Chen responded that he was from ADTC. To that, another inmate said, "I know that place; that's where all the rapists go." After several other questions another inmate allegedly asked Mr. Cornwell, "what did you do, rape a little girl?" The inmate then allegedly stood up and began yelling, accusing Mr. Cornwell of raping a little girl. The inmate then allegedly sat down next to Mr. Cornwell and punched him in the chest. He then allegedly demanded the gold chain and cross that Mr. Cornwell was wearing. Mr. Cornwell says that he replied, "I'm not giving you my fucking chain."
The inmate then allegedly stood up and offered Mr. Cornwell an outstreched hand, saying "I'm sorry." When Mr. Cornwell shook the inmate's hand, the inmate allegedly pulled Mr. Cornwell forward and punched him in the left temple, knocking him to the floor and knocking him unconscious.
Mr. Cornwell alleges that he was assaulted while he was unconscious and that when he awoke he had a large abrasion on his right arm and that the officers, still standing on the other side of the Plexiglass, had not responded. Mr. Cornwell alleges that Mr. Chen gave a statement in which he said that after Mr. Cornwell was knocked out, the assault continued for several minutes and that Mr. Cornwell was "pummeled with fists and kicked with feet about his body while he was unconscious and defenseless" and yet the officers did nothing to stop the assault. Mr. Cornwell was then allegedly taken to the infirmary and given a bag of ice for his head.
After returning to ADTC Mr. Cornwell allegedly reported the incident to Sergeant Collins and was then examined by a nurse. Mr. Cornwell alleges that his injuries included head injuries leading to dizziness and loss of consciousness, severe swelling in his face, and injuries to his right arm that eventually required surgery. He says he was hospitalized for a total of 55 days and has a permanent scar on his right arm because of the assault. He further alleges that he suffered severe psychological symptoms and that he was diagnosed as having post-traumatic stress disorder resulting from the assault.
Mr. Cornwell further alleges that since the attack he has declined medical treatment because he is afraid of suffering another attack. He says he filed a grievance with the DOC regarding the May 24th incident but that the DOC rejected it. He also says that he filed a Tort Claim Notice against the DOC but that it was denied. As such, he says the DOC has been deliberately indifferent to the risk of future attacks.
Claims of Plaintiff Peter Braun
Plaintiff, Peter Braun, alleges that he was assaulted by a state inmate from another facility when he was returning from a court hearing at the Union County Courthouse on December 13,

2005. Specifically, Mr. Braun alleges that he was driven past the ADTC facility in Avenel to Bordentown, in Mercer County, where he was transferred to a van in the parking lot of the Garden State Youth Correctional Facility. Mr. Braun further states that he was placed in the back seat of the van next to two state inmates from another facility, even though the front row of seats in the van's inmate compartment was empty.
Mr. Braun alleges that for the next hour and forty minutes, while the van drove to Northern State Prison in Newark, he was "subjected to a barrage of harassment, intimidation, physical assault and psychological torture." (Compl. ¶ 142). Specifically, Mr. Braun alleges that one of the other prisoners grabbed him, shoved his fist at him, threatened to punch and shank him, and pulled on his collar and sleeves looking for jewelry and a watch. Mr. Braun alleges that the inmate told him that the "`cops ain't going to help you, they set you up and told us to have fun with you.'" (Compl. ¶ 144). In addition, the other inmate allegedly told Mr. Braun that the DOC officers told the inmates that he was from ADTC and was a convicted sex offender. Mr. Braun further states that the two other inmates then threatened to torture, kill and rape him. Finally, Mr. Braun says the DOC officers could see and hear everything that occurred and that they were laughing and making jokes about the threats and harassment.
Mr. Braun states that he requires frequent transport for both medical treatment and court hearings. He says the assault on December 13th left him severely distraught and afraid of making future trips in DOC custody.
Mr. Braun alleges that he filed an ARF on December 22, 2005, asking to be segregated on future trips. He says that he has not received any response to the ARF.
Claims of Plaintiff George Riley
Plaintiff, George Riley, alleges the following: He is Chairman of the ADTC Legal Subcommittee to the Inmate Resident Committee. In that capacity, and on his own behalf, he wrote to Grace Rogers, ADTC Administrator, to request that procedures be put in place to protect ADTC inmates from other state prisoners when they are transported. Bernard Goodwin, Associate Administrator, responded with a letter telling Mr. Riley that only the DOC Central Office, not ADTC, had authority to change the procedures in question. Thus, Mr. Riley wrote to Defendant, William Plantier, Director of Operations for the DOC, and repeated his request. He has not received a response from Mr. Plantier.
Mr. Riley does not allege that he has ever been personally assaulted by other state inmates. However, he says he is aware of such assaults on ADTC inmates and fears that Defendants' failure to prevent such attacks presents an imminent risk to his health and safety as he will need the DOC to transport him for court appearances and medical treatment in the near future.
Claims of Plaintiff James J. Krivacska
Plaintiff, James J. Krivacska, like Mr. Riley, does not allege that he has ever been personally assaulted by other state inmates. On the contrary, Mr. Krivacska describes his May 31, 2005 visit to NJSP that transpired without incident. Presumably, his account serves as an example of how Plaintiffs wish to be transported as Mr. Krivacska describes being segregated from other inmates at all times and says that DOC officers protected him from other inmates and took precautions to conceal his identity as an ADTC inmate.
Despite that positive experience, Mr. Krivacska alleges that he is afraid of future trips, either for medical care or court proceedings, because of what happened to Mr. Cornwell on May 24, 2005. Mr. Krivacska alleges that he filed an Administrative Remedy Form ("ARF") expressing his concern regarding the assault on Mr. Cornwell and indicating his fear of making future trips for medical care and court proceedings.
Mr. Goodwin allegedly responded to the ARF with the same explanation he gave to Mr. Riley, i.e., that ADTC had no authority to change transport procedures. Mr. Krivacska alleges that he
appealed Mr. Goodwin's decision to no avail.
Claims of Plaintiff Vincent Macrina

Claims of Plaintiff Vincent Macrina
Plaintiff, Vincent Macrina, does not claim to have been assaulted but says that on one occasion he was placed in a large holding cell with other state inmates while awaiting medical treatment. As he alleges that he suffers from several serious medical conditions he says he needs frequent medical attention but turns it down because he is afraid of being assaulted by other state inmates during the transport process.
Claims of Plaintiff William F. Vansciver
Plaintiff, William F. Vansciver, does not claim to have been assaulted but says that on various occasions, when being transported for medical purposes, DOC officers identified him as an ADTC inmate to other state inmates, thereby putting him at risk of assault. Mr. Vansciver alleges that he suffers from serious medical conditions and needs frequent medical attention. However, he states that he has declined medical attention because of the risk involved in seeking such attention.
Claims of Plaintiff Richard Gibbs
Plaintiff, Richard Gibbs, does not claim to have been assaulted but says he is aware of the attack on Mr. Cornwell and assault of Mr. Braun. Although he wishes to attend court hearings connected with his post-conviction relief hearing, he says he is afraid to attend because of the risk involved in being transported to the hearings.
Assault of Todd Becka
In addition to the above allegations Plaintiffs describe an attack on a former ADTC inmate, Todd Becka that allegedly occurred on July 20, 2004. Mr. Becka, according to Plaintiffs' allegations, was threatened and attacked by an inmate from another facility while in transport to receive medical attention. The details of Plaintiffs' allegations are drawn from a complaint that Mr. Becka filed with the ADTC administration. Plaintiffs state that Mr. Becka was punched in the head and subjected to repeated threats of violence and that the DOC officers who were present at the time did nothing to protect him.
Plaintiffs claim to know of other ADTC inmates who have suffered verbal and physical abuse from inmates of other facilities while on medical or court trips but do not describe any of those incidents.
II. DISCUSSION
Standard of Review for a Temporary Restraining Order/Preliminary Injunction
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). Moreover, "[a] preliminary injunction cannot be issued when there are disputed issues of fact. Hunterdon Transformer Co. v. Cook, No. 89-3132, 1990 U.S. Dist. LEXIS 1382, at *4 (D.N.J. Feb. 6, 1990).
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

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)).
1. Likelihood of success on the merits
For a moving party to demonstrate a reasonable likelihood of ultimate success in the litigation "it is not necessary that the moving party's right to a final decision after trial be wholly without doubt; rather, the burden is on the party seeking relief to make a prima facie case showing a reasonable probability that it will prevail on the merits." Oburn v. Shapp, 521 F.2d 142, 148 (3d Cir. 1975). Thus, for Plaintiffs to satisfy their burden they must establish a prima facie case for at least one of their claims.
A. Eighth Amendment Protection Against Cruel and Unusual Punishment
The Eighth Amendment's ban on inflicting cruel and unusual punishments . . . `[proscribes] more than physically barbarous punishments.' It prohibits penalties that are grossly disproportionate to the offense, as well as those that transgress today's `broad and idealistic concepts of dignity, civilized standards, humanity, and decency.'" Hutto v. Finney, 437 U.S. 678, 685 (U.S. 1978).
"It is undisputed that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Helling v. McKinney, 509 U.S. 25, 31 (U.S. 1993). "`When the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well being . . . .'" Id. at 32. As such, " [t]he Eighth Amendment . . . requires that inmates be furnished with the basic human needs," including medical care and a reasonably safe environment. Id. at 33.
The Supreme Court has further stated that prison officials have an obligation to not only protect inmates from immediate harms but to also protect them from "condition[s] of confinement that [are] sure or very likely to cause serious illness and needless suffering [in] the next week or month or year." Id. at 33. With regard to claims of unsafe conditions, the Court said that "a prisoner need not wait until he is actually assaulted before obtaining relief." Id. at 34 (citing Ramos v. Lamm, 639 F.2d 559, 572 (10th Cir. 1980). Thus, "the Eighth Amendment protects against sufficiently imminent dangers as well as current unnecessary and wanton infliction of pain and suffering . . . ." Id.
To prove a cause of action against a prison official for the deprivation of basic necessities a prisoner must satisfy a two prong test. First, the prisoner must show that the alleged deprivation is, "objectively, `sufficiently serious'[and that the] prison official's act or omission . .. result[ed] in the denial of `the minimal civilized measure of life's necessities[.]' For a claim . .. based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm." Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Second, the prisoner must show that the prison official acted with "a `sufficiently culpable state of mind.' In prison-conditions cases that state of mind is one of `deliberate indifference' to inmate health or safety . . . ." Id. Deliberate indifference exists where a prison "official knows of and disregards an excessive risk to inmate health or safety . . . ." Id. at 837. Furthermore, "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and . . . must also draw the inference." Id. However, a prisoner "need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm." Id. at 842.
In claims against prison supervisors, the above standard is modified, requiring an inmate to prove, in addition to the above elements, that his injury was caused by a supervisor's failure to establish or enforce appropriate policies or practices.

Supervisor-centered claims against prison officials are analyzed under the fourprong test set forth in Sample v. Diecks, 885 F.2d 1099 (3d Cir. 1989). Under the Sample test, to hold a supervisor liable because his policies or practices led to an Eighth Amendment violation, the plaintiff must identify a specific policy or practice that the supervisor failed to employ and show that: (1) the existing policy or practice created an unreasonable risk of the Eighth Amendment injury; (2) the supervisor was aware that the unreasonable risk was created; (3) the supervisor was indifferent to that risk; and (4) the injury resulted from the policy or practice.
Liles v. Camden County Dep't of Corr., 225 F. Supp. 2d 450, 463 (D.N.J. 2002). Prison supervisors may not be held responsible under a respondeat superior theory of liability. Dempsky v. Walker, No. 05-4483, 2005 U.S. Dist. LEXIS 22983, at *12 (D.N.J. Sept. 29, 2005).
In the present case, Plaintiffs claim they suffered injuries and are likely to suffer further injuries due to Defendants' failure to protect them from other state inmates. Plaintiffs allege that Defendants' practice of identifying them as sex offenders and refusing to separate them from other state inmates when they place them in vehicles and holding cells with such inmates creates an unreasonable risk that they will be assaulted by those inmates. Moreover, Plaintiffs allege that the risk of assault has prevented them from seeking necessary medical care.
With regard to the first element in the above test, Plaintiffs can show that Defendants' practice created an unreasonable risk by presenting "evidence that such harm has in fact occurred on numerous occasions." Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989). In Liles, 225 F. Supp. at 462, two inmates brought a cruel and unusual punishment claim against DOC supervisors and employees alleging that the defendants' policy of having some inmates sleep on mattresses on the floor of their cells, near the toilet, such that they were splashed with urine when other inmates used the toilet, led to several fights breaking out between inmates. Plaintiffs alleged that the condition led to one of the plaintiffs having a fight with another inmate on one occasion and the other plaintiff having fights on at least two occasions. Id. The court said that those "incidents establish[ed] a pattern of violence" and that such allegations raised a question of fact, sufficient to survive summary judgment, as to whether the condition "constituted a threat to the health and safety of [the plaintiffs] that violated the Eighth Amendment." Id.
In the present case, Plaintiffs allege that prison officials engage in a practice of identifying them as sex offenders, placing them in close proximity to other state inmates, and failing to protect them from assaults by those inmates. As evidence of that practice, Plaintiffs offer detailed accounts of three separate violent attacks: one on Plaintiff Cornwell, one on Plaintiff Braun, and one on former inmate Becka. Moreover, due to those assaults, Plaintiffs allege that they are afraid to seek medical care because they cannot do so without risking physical injury. Such conditions "transgress today's `broad and idealistic concepts of dignity, civilized standards, humanity, and decency.'" Hutto, 437 U.S. at 685. No member of society should be subjected to violent attack nor should anyone have to risk such an attack to receive medical care. Thus, Plaintiffs have established a pattern of violence that constitutes an unreasonable risk to their Eighth Amendment rights. They have therefore satisfied their burden under the first element of the above test.
With regard to the second element, Plaintiffs say they notified various prison officials of the unsafe condition. Specifically:
• Mr. Riley allegedly wrote a letter to Ms. Rogers asking for better protection during transportation. Mr. Goodwin allegedly responded to that letter stating that ADTC administrators could not do anything to alter current procedures and that only the DOC Central Office had authority over such matters. Thus, Mr. Riley says he wrote to Mr. Plantier, Director of
Operations for the DOC, requesting greater protection. Mr. Riley says he has received no response to that letter.
• Mr. Cornwell allegedly filed a grievance with the DOC and a Tort Claim Notice against the DOC regarding his alleged assault but says both were denied. In addition, Mr. Cornwell says he reported the incident to Sergeant Collins and was hospitalized for fifty five days.

• Mr. Krivacska allegedly filed an ARF expressing his concern over the assault on Mr. Cornwell but says that Mr. Goodwin responded with the same explanation he gave to Mr. Riley.
• Mr. Braun allegedly filed an ARF asking to be segregated on medical trips but says he has not received any response.
• Mr. Becka allegedly filed a complaint with the ADTC administration regarding the assault he suffered.
Of the above notifications, Mr. Riley's letter to Mr. Plantier is the only evidence that could prove that either of the named Defendants had actual knowledge of the alleged dangerous condition but there is no proof that Mr. Plantier actually read the letter. However, Mr. Goodwin's responses to both Mr. Riley and Mr. Krivacska show that Mr. Goodwin had actual knowledge of the condition. Although Mr. Goodwin is not named as a defendant, Plaintiffs' complaint alleges claims against John Does, DOC employees. Thus, Plaintiffs' allegations are sufficient to satisfy Plaintiffs' burden of showing that a defendant supervisor was aware of the unreasonable risk created under the existing transport procedures.
In addition, Plaintiffs' other letters, complaints, Administrative Remedy Forms and allegation that Mr. Cornwell spent fifty five days in the hospital, which suggests that prison officials must have known of his assault, tend to show that other prison officials were also aware of the unsafe condition. As stated in Liles, "[a] defendant's knowledge of a risk can be proved indirectly by circumstantial evidence . . . ." Id. at 463. Plaintiffs' allegations show that other prison officials, in addition to Mr. Goodwin, likely knew of the unsafe condition as well.
As to the third element, Plaintiffs claim that prison supervisors have acted with deliberate indifference in that they have failed to correct the unsafe condition. Mr. Goodwin allegedly stated that ADTC has no authority to change the procedures by which prisoners are transported. However, that explanation does not relieve Mr. Goodwin of his duty to protect ADTC inmates when he knows they are being subjected to cruel and unusual punishment. As stated above, prison officials have an affirmative duty to protect inmates from immediate threats as well as conditions that are likely to cause harm in the future. Mr. Goodwin's knowledge of the unsafe condition and his failure to correct it, or even attempt to correct it, show that he knew of, and disregarded an excessive risk to inmate health and safety. Thus, Plaintiffs have satisfied their burden for the third element.
Regarding the fourth element, Plaintiffs' past injuries and the likelihood of future injuries arise from prison officials' current practice of telling other state inmates that Plaintiffs are sex offenders when they put Plaintiffs in vehicles and holding cells with those inmates. Thus, Plaintiffs have satisfied their burden as to this element as well.
As Plaintiffs have satisfied their burden under all four of the above elements, they have succeeded in establishing a prima facie case showing a reasonable probability that they will prevail on the merits with regard to their claim of cruel and unusual punishment against Mr. Goodwin. As it seems likely that other prison officials were also aware of, and disregarded, the unsafe condition, it is probable that Plaintiffs will prevail in their claims against other officials as well.
In addition to their Eighth Amendment claim, Plaintiffs' complaint lists four other causes of action. The merits of those claims need not be analyzed at the present time as Plaintiffs have shown a likelihood of success on a claim that will entitle them to the requested relief if they succeed in establishing the remaining elements in the preliminary injunction analysis.
Likelihood of suffering irreparable injury
"The Third Circuit has interpreted `irreparable harm' to mean `that which cannot be repaired, retrieved, put down again [or] atoned for.'" Monmouth County Correctional Institution Inmates v. Lanzaro, 643 F. Supp. 1217, 1228 (D.N.J. 1986). "In order to demonstrate irreparable harm the plaintiff must demonstrate potential harm [that] cannot be redressed by a legal or an equitable remedy following a trial." Forchion v. Intensive Supervised Parole, 240 F. Supp. 2d 302, 310 (D.N.J. 2003).
In the present case, Plaintiffs' allegations that Mr. Cornwell, Mr. Braun, and Mr Becka, were

In the present case, Plaintiffs' allegations that Mr. Cornwell, Mr. Braun, and Mr Becka, were assaulted due to the practice described above, along with their allegations that said practice still occurs, establish a likelihood that Plaintiffs will be assaulted again if an injunction is not issued. In addition, the allegation that Plaintiffs cannot, in some instances, receive medical care without risking physical injury, shows that Plaintiffs will, effectively, be denied medical care if an injunction is not issued.
In Monmouth County, the court granted the plaintiff-inmates' application for a preliminary injunction against prison officials where the officials enforced a policy of requiring a court ordered release and refusing to provide funding (in violation of a statute) for abortions. 643 F. Supp. at 1229. In finding that the defendants' policy substantially delayed the plaintiffs' access to the procedure, the court stated the following:
It is well-accepted that a substantial delay in the decision to abort increases the risks associated with the procedure . . . . "The enhanced risks of an abortion delayed to the second trimester are of such nature and magnitude that, even though abortion remains lawfully available, the parent is effectively `denied a meaningful opportunity' to decide whether the fetus should be aborted."
Id. at 1228. The court found that the plaintiffs had "adequately established the requisite irreparable injury." Id.
That case is similar to the present case in that Plaintiffs, like the plaintiffs in Monmouth County, are "effectively denied" access to medical care because of the risk involved in receiving such care. Thus, Plaintiffs are not, as Defendants claim, refusing to receive medical care. Rather, medical care has been effectively denied because of the risk involved.
However, Defendants cite Board of Education v. New Jersey Education Ass'n., 96 N.J. Super. 371, 390-91 (N.J. Super. Ct. 1967) for the proposition that "[h]arm is not irreparable unless it results in a material injury for which monetary damages are inadequate." (Def's' Br. 17). But the discussion in that case does not relate to physical injury. Courts have frequently found that an injunction is the appropriate remedy where a plaintiff's health or well-being is threatened. See e.g., Boone v. Brown, No. 05-750, 2005 U.S. Dist. LEXIS 18131 (D.N.J. Aug. 22, 2005); Hutto v. Finney, 437 U.S. 678 (U.S. 1978); Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974).
Finally, Defendants argue that Plaintiffs have failed to prove irreparable harm "since four of [them] have never been so much as verbally harassed" and the others "have failed to show that. . . [injury] is `virtually certain.'" (Def's' Br. 17). But in Helling, the Supreme Court stated:
It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them . . . . [Furthermore,] a remedy for unsafe conditions need not await a tragic event.
In the present case, Plaintiffs have plainly established an unsafe condition that could be life threatening in the event that one of them is brutally attacked, as was Mr. Cornwell, or effectively denied medical care for a serious illness or injury. Thus, Plaintiffs have sufficiently established a likelihood of irreparable injury.
Harm imposed on Defendants
Generally, an injunction should not be issued if it will harm the non-moving party more than the moving party would be harmed if relief was denied. Defendants state two specific harms that will result if Plaintiff's motion is granted. First, they say the injunction will undermine the DOC's
discretion to establish transportation procedures. Such a harm seems insignificant when compared to the constitutional violations that Plaintiffs allege.
Second, Defendants argue that granting the injunction will invalidate a state law, N.J.S.A. 2C:47-3(h), that allows the DOC to house certain sex offenders in the same facility as other inmates. Presumably, an injunction that imposes upon the DOC an obligation to keep ADTC inmates separate from other state inmates could be read as imposing upon it an obligation to segregate all sex offenders from other state inmates. However, a properly tailored injunction could provide Plaintiffs with adequate protection without imposing such an obligation on the

could provide Plaintiffs with adequate protection without imposing such an obligation on the Defendants. Thus, Defendants' alleged harms do not outweigh the harms allegedly imposed on Plaintiffs.
Public interest
There is no doubt that society has an interest in protecting all of its members, including those incarcerated for sex-offenses, from cruel and unusual punishment.
Other relief
Plaintiffs seek to proceed as a class action and for the appointment of an attorney to represent the class. A ruling on those applications will be deferred in the expectation that the prison authorities, in conformity with the preliminary injunction to be issued herewith, or as appropriately modified from time to time, will take all necessary actions to provide effective relief. Failing that, attorneys can be appointed to move for class designation and represent the class as appropriate.
CONCLUSION
For the reasons set forth above, Plaintiff's motion for a preliminary injunction is granted. Defendants, Devon Brown and William Plantier and all those operating under their direction and control will be preliminarily enjoined, directed and ordered as follows:
1. When inmates are removed from ADTC and held or transported with inmates from other correctional institutions: i) they shall not be identified as inmates of Avenel; ii) inmates from other correctional institutions shall not be confined either in a vehicle or holding area so as to have physical access to the Avenel inmates unless a guard is present who is able to prevent the Avenel inmates from being subjected to violence from other inmates; iii) guards and other prison officials shall be directed to halt forthwith any verbal or physical assaults made by inmates upon Avenel inmates; iv) prison authorities shall investigate and promptly report upon any violence committed against any Avenel inmates;
2. Defendants and Plaintiffs may apply to the Court for any modification of the accompanying order that may be necessary to accommodate prison administration or may be necessary to effectuate its purpose of protecting Avenel inmates from physical and other abuse.
3. A ruling on Plaintiffs' applications for class designation and appointment of an attorney will be deferred until it can be determined whether full relief can be affected through implementation of the accompanying order.

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 Case 2:06-cv-00331-DRD -ES Document 5 FIile'Id 01/27/06 Page 1 of 50 PageID: 129

George Riley, l33229B, 2W James J. Krivacska, 106128C, 2W Paul Cornwell, 081208B, 8L Vincent Macrina, 865812C, 7L William F. Vansciver, 033020A, 7L Richard A. Gibbs, 2322l5C, 3W Peter Braun, 786615A, BR Adult Diagnostic & Treatment Center 8 Production Way Avenel. NJ 07001 No Telephone Pro se Litigants

f\ECEIYEO -CLER~(. U.'S. DISTRICl COUi{ I /GOb JAN 2-1 A II: 0b

GEORGE RILEY, JAMES J. KRIVACSKA, PAUL CORNWELL, VINCENT MACRINA, WILLIAM VANSCIVER, RICHARD A. GIBBS, PETER BRAUN and others Similarly situated,
Plaintiffs,
v.
DEVON BROWN, WILLIAM PLANTIER, JOHN and JANE DOES 1 - 10 unnamed. sued in their official capacities,
Defendants.

UNITED STATES DISTRICT COURT FOR THE DISTRICT
OF NEW JERSEY

Olo - Docket No. :

Q3'8j

COMPLAINT

Plaintiffs, for themselves and all other members of the class hereinafter described, allege as follows:

I. INTRODUCTION

l.

This is an action for equitable relief challenging the

practice of transporting and holding inmates of the Adult

Diagnostic and Treatment Center (''A.D.T.C.''). a facility operated

by the New Jersey Department of Corrections (''DOC'') for the

treatment of inmates convicted of sexual offenses who have been

~1·/;:·;~·;:,x,, !:1

'''"~

Case 2:06-cv-00331-DRD -ES Document 5 2

FiRleidle0y1/,27e/0t6 aPl avge. 2Borfo5w0nP, aegetID: 130

Civil Class Action Complaint

1

found to be compulsive and repetitiv in their offending behavior,

with dangerous state prisoners, with ut reasonable provision for

their care, safety and protection fr m constant, substantial

and/or pervasive risk of physical assault and bodily harm, which

risks defendants knew of and know of, and disregarded and

disregard, constituting deliberate indifference to an excessive

risk to inmate health and safety.

2. This is a class action brought by Plaintiffs on their

own behalf and on behalf of all others similarly situated,

pursuant to the provisions of Rules 23(a), 23(b) (1), 23(b)(2) and

23(b)(3) of the Federal Rules of Civil Procedure.

3. Plaintiffs allege deprivatlon of their rights,

privileges, or immunit secured by the Due Process Clause of the

Fourteenth Amendment, violation of their right to be protected

from cruel and unusual punishment under the Eighth Amendment, and

deprivation of their right of access to the courts under the

redress of grievances clause of the First Amendment, by defendants

who are acting under the color of statute, ordinance, regulation,

custom, or usage of the State of New Jersey, in violation of 42

U.S.C. § 1983, and seek equitable relief, including a Temporary

Restraining Order, and Preliminary and Permanent Injunction,

against the defendants, to prevent the imminent violation of

constitutionally protected rights to which the Defendants have and

Case 2:06-cv-00331-DRD -ES Document 5 File'I d 01/27/06 Page 3 of 50 PageID: 131

Riley. et

Brown, et al

3

will aubj ect the Plaintiffs,,. and dec:j;ar11.tory relief pursuant to 28
u.s.c. § 2201.

II. JURISDICTION

4.

This is a civil action authorized by 42 U.S.C. § 1983 to

redress the deprivation, under color of State law, of rights,

privileges and immunities secured by the Constitution and laws of

the United States.

5. This Court has jurisdiction pursuant to 28 U.S.C. §

133l(a) and 1343, directly under the Constitution of the United

States.

6.

Plaintiffs have exhausted administrative remedies as

required under 42.U.S.C. § 1997e(a), thereby granting this court

jurisdiction over this claim.

I

I
III. PART!' ES

PLAINTIFFS

7. Individual Plaintiffs GEORGE RILEY, JAMES J. KRIVACSKA,

PAUL CORNWELL, VINCENT MACRINA, WILLIAM VANSCIVER, RICHARD A.

GIBBS, and PETER BRAUN are prisoners of the State of New Jersey,

in the custody of the New Jersey Department of Corrections. They

are currently confined to the Adult Diagnostic and Treatment

Center, 8 Production Way, Avenel, New Jersey 07001.

! !I
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DEFENDANTS 8. Defendant DEVON BROWN is the Commissioner of the New
Jersey Department of Corrections. As such, during the dates and times mentioned herein, he was responsible for and in control of the actions of the employees and agents of the DOC.
9. Defendant WILLIAM PLANTIER, is the Director o£ Operations for the DOC. and as such is responsible for developing and implementing department polic and procedures for the transport of DOC inmates. including those housed at the A.D.T.C., and as such is directly responsible for the deprivations visited upon Plaintiffs by his acts of commission and omission regarding providing for the safety of A.D.T.C. inmates on trips outside of the institution.
10. Defendants JOHN and JANE DOES are employees of the State of New Jersey Department of Corrections and are responsible for developing, implementing and/or supervising policies and procedures for the transport of DOC inmates, including those housed at the A.D.T.C., and as such, aie directly responsible for the deprivations visited upon Plaintiff by their acts of commission and omission regarding providing for the safety of A.D.T.C. inmates on trips outside of the institution.
11. Defendan"ts BROWN. PLANTIER and JOHN and JANE DOES are being sued in their official capacities.

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I
12. At all times material to t :iis complaint. Defendants

BROWN, PLANTIER, and JOHN and JANE DOEs'who were or are employed

by the DOC, were acting, and continue to act, under color of state

law.

IV. CLASS ACTION ALLEGATIONS 13. The class represented by the named plaintiffs in this action, and of which named plaintiffs are themselves members, consists of the class of persons who have been convicted of sexual offenses as delineated in N.J. Stat. Ann. Title 2G and who are currently confined at the A.D.T.G. administered by the New Jersey DOC, and who are, have been, or will be required to, or need to, be transported out of the A.D.T.C. by the Central Transport Unit of the DOC for medical, court or other trips. 14. The number of members of the class, as hereinabove identified and described, is approximately 650 members, or the current inmate count at the A.D.T.C .. The class is so numerous that the joinder of individual members herein is impracticable. 15. There are common questions of law and fact in the action that relate to and affect the rights of each member of the class and the relief sought is common to the entire class, namely: (a) whether the commissions and omissions of the defe'ndants,
whereby defendants knowingl,)disregarded an excessive risk to the health and safe~y of A.D.T.C. inmates when
1:
II

Case 2:06-cv-00331-DRD -ES Document 5 6

I
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said defendants failed to actl reasonably to supervise
' '
and safeguard A.D.T.C. inmatei$ from known violent and

dangerous state prisoners during medical, court and

other trips - given a history of physical assaults

against A.D.T.C. inmates by state prisoners, and where

that history demonstrates a substantial likelihood of

such assaults in the future - constitutes deliberate

indifference in the form of cruel and unusual punishment

prohibited by the Eighth Amendment of the United States

Constitution;

(b) whether the commissions and omissions of the defendants,

whereby defendants knowingly disregarded an excessive

risk to the health and safety of A.D.T.C. inmates when

said defendants failed to act reasonably to supervise

and safeguard A.D.T.C. inmates from known violent and

dangerous state prisoners during medical trips - given a

history of physical assaults against A.D.T.C. inmates by

state prisoners. and where that history demonstrates a

substantial likelihood of such assaults in the future -

resulting in A.D.T.C. inmates deferring needed medical

treatments out of fear of serious harm or injury,

constit~tes deliberate indifference to the serious

medical needs of Plaintiffs as prohibited by the Eighth

Amendment of the United States Constitution;

Case 2:06-cv-00331-DRD -ES Document 5 Filed 01/27/06 Page 7 of 50 PageID: 135
(c) whether the commissions and omissions of the defendants,
'
whereby defendants knowingly disregarded an excessive risk to the health and safety of A.D.T.C. inmates when said defendants failed to act reasonably to supervise and safeguard A.D.T.C. inmates from known violent and dangerous state prisoners during court trips - given a history of physical assaults against A.D.T.C. inmates by state prisoners, and where that history demonstrates a substantial likelihood of such assaults in the future resulting in A.D.T.C. inmates being deterred from exercising their right to redress of grievances and access to the State and Federal Courts for fear of serious bodily harm or injury, violates Plaintiffs' rights under the First Amendment of the United States Constitution; (d) whether the commissions and omissions of the defendants in failing to act reasonably to supervise and segregate A.D.T.C. inmates from state prisoners the defendants knew were violent and dangerous, during medical, court and other trips, evidences a disregard for an excessive, pervasive and imminent risk O·f serious and substantial bodily harm or injury against Plaintiffs in violation of the Eighth Amendment to the United States Constitution.

Case 2:06-cv-00331-DRD -ES Document 5 8

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laint

16. The claims of the named Plaintiffs. who are

representative of the class herein, are typical of the claims of

the class, in that the claims of all members of the class,

including Plaintiffs, depend on a showing of the commissions and

omissions of defendants giving rise to the right of plaintiffs to

the relief sought herein. There is no conflict as between any

individual named Plaintiff and other members of the class with

respect to this action, nor with respect to the claims for relief

herein set forth.

17. The named plaintiffs are the representative parties for

the class, and 11re able to, !'nd will, fairly and adequately

protect the interests of the class .
.
18. This action is properly maintained as a class action in

that the prosecution of separate actions by individual members of

the class would create a risk of varying adjudications with

respect to individual members of the class which would establish

incompatible standards of conduct for the defendants herein.

19. Moreover this action is properly maintained as a class

action inasmuch as the defendants herein, all of whom oppose the

class, have acted or refused to act, as hereinafter more

specifically stated, on grounds which are appl able to the class.

and have by reason of such conduct, made appropriate final

injunctive relief o~ corresponding declaratory relief with respect

to the entire class, as sought in this action.

Case 2:06-cv-00331-DRD -ES Document 5 File'Id 01/27/06 Page 9 of 50 PageID: 137

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Civil Class Action Complaint
·.. , ., ''

20. Finally, this action is ~r Jerly maintained as a class

I'

,'

action inasmuch as the questions of a,land fact common to the

members of the class predominate ovet Jhy questions affecting only

individual members, and a class action :is superior to other

available methods for the fair and efficient adjudication of the

controversy.

V. GENERAL FACTS
21. Each of the named plaintiffs and members of the class
i;'
were convicted of a sexual offense as enumerated under N. J. Stat. Ann. § Title 2 and either sentenced to the A.D.T.C. under N.J. Stat. Ann. § 2C:47-3 or otherwise sent~nced to State Prison. but transferred to the A.D.T.C. by the Commissioner to serve their
sentence. 22. The A.D.T.C. houses only iinlmates who have been convicted
I
of a sexual offense. 23. As used in this complaint., "State prisoners" will refer
to prisoners committed to the custody of NJ DOC who are not housed at the A.D.T.C., while "A.D.T.C. inmates" will refet: to those who are housed at the A.D.T.C.
24. Two of the named Plaintif s, George Riley, and James J. Krivacska, are members of the Legal Subcommittee of the A.D.T.C.
Inmate Resident Committee; Mr. Rile ilr currently Chairman of that subcommittee.

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laint

25. The Inmate Resident Cc\mmi tt ~!consists of inmates
! I
elected by the residents of each hous'rt unit and meets weekly to
' '
discuss issues of concern to the A.D.T.C. population and then

meets monthly with Administration to review those concerns with

administration and to receive information of interest and

importance to the population from the Administration.

26, Complaints about the risk of physical injury and

recurring psychological abuse visited upon A.D.T.C. inmates by

state prisoners during trips away from the facility are long·

standing, dating back at least to 19f~·

27. In 1989, the Inmate Resideht Committee, as reported in

the inmate newsletter, the Podium, dat<l!d July/Aug. 198~. brought

to the administration's attention at a meeting on June 27, 1989,

concerns about threats and harassment suffered by A.D.T.C. inmates

at the hands of prisoners and officers from other institutions

while on medical trips, complaints which brought no corrective

action by defendants.

Z8. In 1989, William Plantier was an administrator at the

A.D.T.C.

Z9. On information and belief, state inmates who have been

convicted of sexual offenses are the most despised and reviled

inmates in the prison system, and such inmates housed in general

population, hide the nature of their crimes to avoid harassment

and assault by non·se:x: offending inmates.

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Civil Class Action Complaint

30. The Monmouth County CorrectI ional Facility, at which

Plaintiffs Riley and Krivacska were housed, and Cape May County

Jail at which Plaintiff Cornwell was housed, and Camden County

Correctional Facility at which Plaintiff Macrina was housed, and

Burlington County Correctional Facility at which Plaintiff

Vansciver was housed, and Union County Correctional Facility at

which Plaintiff Braun prior to being transferred to the custody

of DOC- maintain separate wings, pods or tiers in which those

accused of committing a sexual offense and awaiting trial. or

those convicted of a sexual offense and awaiting transfer to the

custody of the State DOC, are housed.

CLAIMS OF PLAINTIFF GEORGE RILEY 31. Mr. George Riley. on his own behalf, and as Chairman of
the IRC Legal Subcommittee, wrote to Mrs. Grace Rogers, A.D.T.C. Administrator. and requested that proce,dures be put into place to secure the safe transport of A.D.T.C. inmates on medical and court trips in light of the history of assaults, threats and acts of intimidation made against A.D.T.C. inmates by state prisoners.
32. On July 6, 2005, Mr. Bernard Goodwin, Associate Administrator responded, noting that A.D.T.C. did not have authority to change methods of inmate transport. such authority residing with the N.J. DOC Central Office.

Case 2:06-cv-00331-DRD -ES Document 5 12

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33. Mr. Riley ne~t wrote to Mr. Plantier, DOG Director of

Operations repeating these concerns; no answer has been received.

34. Mr. Riley currently has an appeal of a Post-Conviction

Relief petition pending before Superior Court-Appellate Division

which, if remanded to the trial court. will require his appearance

in court in the near future.

35. Mr. Riley is 72 years old, and is thus concerned about

the probability of suffering a medic•l ailment in the near future
I
that may require a medical trip out of the building. He is

concerned that he may have to forego needed medical treatment if

no provisions for the safe transport of A.D.T.C. inmates is made,

so as to avoid risk of even more ser ous injury or harm.

36. Mr. Riley has been an inma e at the A.D.T.C. for 19

years and has personal knowledge tha the issue of the safety of

A.D.T.C. inmates on medical and cour trips has periodically been

raised by A.D.T.C. inmates- usually/ after a particularly

egregious and damaging assault - but' that DOC has repeatedly

ignored these concerns and continues to place A.D.T.C. residents

at risk for serious bodily harm or death by continuing to

transport and hold A.D.T.C. inmates in unsafe conditions with

dangerous and violent state prisonere.

37. Mr. Riley accuses Defenda'fts of being deliberately
indifferent to his serious medical ~eeds by failing to act

reasonably in the face of a known substantial, pervasive and

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13

Civil Clas Action

imminent risk to his health and safety, to provide safe transport

for him to receive medically necessary treatment in violation of

the Eighth Amendment to the United States Constitution.

38. Mr. Riley accuses Defendants of being deliberately

indifferent to the excessive risk of serious bodily harm or injury

that is likely to occur by transporting and holding him with

violent and dangerous state prisoners. in violation of the Eighth

Amendment to the United States constitution.

39. Mr. Riley accuses Defendants of being deliberately

indifferent to the excessive risk of serious bodily harm or injury

that is likely to occur by transporting and holding him with

violent and dangerous state prisoners, said indifference creating

such a risk of serious harm or injury that Mr. Riley has been

deterred from exercising his tionstitutional right of access to the

courts, resulting in a violation of Mr. Riley's rights under the

First Amendment to the United States Constitution.

CLAIMS OF PLAINTIFF JAMES J. KRIVACSKA 40. On May 31, 2005. Mr. Krivacska was transported to the
New Jersey State Priso~ (NJSP) to have a tooth removed. 41. He was transported with three other inmates from the
A.D.T.C., as well as approximately 10 other inmates from other state prisons and a half-way house.

Case 2:06-cv-00331-DRD -ES Document 5 Filed 01/27/06 Page 14 of 50 PageID: 142 Riley, et al v. Brown, et al Civil Class Action Complaint
4.2. However. on the transport vehicle, the A.D.T.C. inmates were separated, front and back, by a row of empty seats, thus making it impossible for inmates from other facilities to have any physical contact with them.
43. During the trip, one of the state prisoners made a derogatory comment about pedophiles but the officer on the vehicle enforced the rule that inmates could not get up out of their seat for any reason, and no further incident during the trip occurred.
44. Upon arrival at the NJSP, the A.D.T.C. inmates were kept in separate holding areas at all times from inmates from other state prisons (with the exception o one occasion when the halfway house and A.D.T.C. inmates were kept in a holding area
.
together for approximately 15 minut s - half-way house inmates pose little risk of harm to A.D.T.C. inmates because they fear losing their half-way house status if they break any rules).
45. Throughout the time spent at the NJSP, from approximately 9:00 AM to 2:00 FM. Mr. Krivacska and the other A.D.T.C. inmates were kept segregated from other state prisoners, except for a brief period while waiting in the infirmary to be seen by the dentist. However. during this period, there was no way for the other state prisoners in the room to know where Mr. Krivacska and the other A.D.T.C. inmates were from (none of them having been on the vehicle). More importantly, a corrections

II Case 2:06-cv-00331-DRD -ES Document 5 Filed 01/27/06 Page 15 of 50 PageID: 143

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Civil Class Action Complai~i

i '
officer was seated in the waiting roQ~ with all the inmates at all

times.

1- .

46. After the dental procedure lwere completed, Mr.

Krivacska and the A.D.T.C. inmates w re again housed in a separate

holding area for lunch and then later in a different holding area

while awaiting transport back to the A.D.T.C ..

47. While at NJSP any time inmates from different facil s

were brought together to be divided up either for holding purposes

or to load a vehicle, the central transport officer in charge

continuously shuffled the paperwork f the A.D.T.C. inmates to the

bottom of the pile so that as he cal ed out inmates from other

facilities, he did not have to discl ~e which facility Mr.

•

I

Krivacska and the other A.D.T.C. inm tes were from with other

inmates around. Only after inmates f om all the other facilit s
I
I I
had been moved, did he collect the A.b.T.C. (and half-way house)

inmates.

48. A.D.T.C. inmates were again ;;~eparated by an empty row

from inmates from other facilities on the bus trip back. Mr.

Krivacska and the other A.D.T.C. inmates were transported directly

back to the A.D.T.C. from the NJSP, with no stops at any other

facility. Nor were they held at any other facility other than

NJSP.

49. On June 4. 2005, Mr. Krivacska filed an Administrative

Remedy Form (ARF) which was assigned' the case number 05-06 · 0006.

Case 2:06-cv-00331-DRD -ES Document 5 Filed 01/27/06 Page 16 of 50 PageID: 144

16

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so. ARFs are the DOC prescribed procedure for filing

administrative grievances.
i
51. In that ARF he described h~s concern over the assault of

Mr. Cornwell on a trip to NJSP several days before his own (herein

detailed at 73) .

52. Mr. Krivacska.indicated that he required a second trip

to NJSP for the removal of a second molar, a broken tooth that

left sharp, protruding edges in his mouth, which frequently caused

cuts to his tongue and inner check; the dental consult authorizing

the extraction procedure having been issued on March 28, 2005.

53. Mr. Krivacska indicated that he was fearful of being

assaulted or even killed if he was not kept segregated from

violent and dangerous state prisoners, as had occurred with Mr.

Cornwell, if he went to NJSP to have.the tooth pulled.

54. Mr. Krivacska also indicated that he had a pending

Superior Court case which would require his transport to Monmouth

County court sometime in the future.

55. Mr. Krivacska requested that A.D.T.C. inmates be

segregated from state prisoners during medical and court trips so

as to ensure their safety, as had occurred on his May 31, 2005

trip.

56. Mr. Krivacska indicated that he was afraid to go to NJSP

to have his tooth pulled because of the history of assaults on

A.D.T.C. inmates on such trips when they ate not segregated.

Case 2:06-cv-00331-DRD -ES Document 5 Riley, et al v. Brown, et al Civil Class Action Com laint

I 1
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57. Mr. Bernard Goodwin, Associ te Administrator of the
by A.D.T.C., responded on June 14, 2005, informing Mr. Krivacska

that transportation arrangements were under the authority of the

Central Transport Unit of DOC and that A.D.T.C. had no authority

to change the method of transport, and that it was Mr. Krivacska's

decision whether or not to continue his dental treatments.

58. Mr. Krivacska appealed that decision on June 23, 2005,

indicating that he did wish to continue his dental treatments, but

not at risk of bodily injury or worse. He also identified the fact

that there had been a clear pattern of abuse of A.D.T.C. inmates

by state prisoners over the years. He also noted in his appeal

that if A.D.T.C. did not have the authority to change the policy

on the transport of A.D.T.C. inmates, that he would like his ARF

forwarded to an administrator in the. DOC who had the authority to

review and change that policy.

59. Mr. Krivacska pointed out in his appeal the ready

availability of holding tanks to segregate A.D.T.C. inmates in all

correctional facilities and other measures to protected A.D.T.C.

inmates such as those used on his May 31, 2005 trip (hiding the

identity of A.D.T.C. inmates whenever possible, ensuring the

presence of a corrections officer any time A.D.T.C. inmates are

mixed with state prisoners, etc).

60. Mr. Krivacska also pointed out that DOC was clearly

awar·e of the risk posed by state prisoners not sentenced to the

Case 2:06-cv-00331-DRD -ES Document 5 18

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laint

Ii A.D.T.C. for treatment and therefore not benefiting from the
positive effects of treatment (such developing empathy and

impulse control), by virtue of the i position of greater

restrictions on A.D.T.C. inmates after DOC started to house state

prisoners not sentenced to the A.D.T.C. at the A.D.T.C. in October

of 2003.

61. Mr. Goodwin, on July 18, 2005 resolved the appeal of his

own earlier decision, by reasserting that A.D.T.C. has no

authority over how Central Transport manages the transfer of

inmates. Although indicating that central transport was aware of

the concerns of A.D.T.C. inmates, Mr. Itrivacska's grievance was

not forwarded to Central Transport as Mr. Krivacska had requested.

62. The ARF is the sole means of filing an grievance in the

New Jersey Department of Corrections. Mr. Krivacska's grievance of

June 4, 2005, and his June 23, 2005 appeal of the decision of June

14, 2005, exhausted his appeals in this administrative agency.

63. Mr. Krivacska delayed having his tooth pulled, despite

considerable discomfort. until he was able to arrange with the

ombudsman to have an oral surgeon who periodically came to the

A.D.T.C. to perform dental work on half"way house inmates, to make

an e~ception and pull his tooth at the A.D.T.C. without having to

be transported to the NJSP. That tooth extraction occurred on

October 26, 2005, some si~ months after a dental consult had first

determined that the tooth had to be removed.

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Civil Class Action

64. Mr. Krivacska is currently ~efendant in a civil action
in Essex County Superior Court (Dock~tJr·o.: ESX-L 3229·05).

involving $100,000 in contested legal , es in which his former law

firm is the plaintiff.

65. Although he has ~:eque~Jted a jury tri!ll, Mr. Krivacska

will be forced to default on his defenses costing $100,000 in a

judgment against him because he fears being transported to the

Essex County facility without a guarantee of segregation from

other prisoners who are highly likely to harm him.

66. The DOC's failure to provide Mr. Krivacska with safe

access to the courts. access which he can exercise without fear of
' '
bodily harm. or death, deprives him of his right of access to the

courts.

67. Mr. Krivacska has a Post Conviction Relief petition

currently pending before Judge Neafsby of the Monmouth County

Superior Court, which petition will eventually require his

appearance and probable testimony.

68. The threat of verbal assault, physical harm or death

leaves Mr. Krivacska very fearful of his safety and will very

likely interfere with his ability to prepare for this PCR hearing,

assist his counsel, or serve as a witness on his own behalf.

69. Mr. Krivacska also fears suffering any major medical

problem requiring transport out of the A.D.T.C., and believes he

Case 2:06-cv-00331-DRD -ES Document 5
20

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laint

may have to forego needed medical tr atment for fear of his

safety. 70.

I
Mr. Krivacska accuses Defendants of being deliberately

indifferent to his serious medical needs by failing to act

reasonably in the face of a known substantial, pervasive and

imminent risk to his health and safety, to provide safe transport

for him to receive medically necessary treatment in violation of the Eighth Amendmen~ to the United States Constitution.

71. Mr. Krivacska accuses Defendants of being deliberately

indifferent to the excessive risk of serious bodily harm or injury

that is likely to occur by transporting and holding him with

Violent and dangerous state prisoners, in violation of the Eighth

Amendment to the United States Constitution.

7 2.

Mr. Krivacska accuses Defendants of being deliberately

indifferent to the excessive risk of serious bodily harm or injury

that is likely to occur by transporting and holding him with

violent and dangerous state prisoners, said indifference creating

such a risk of serious harm or injury that Mr. Krivacska has been

deterred from exercising his constitutional right of access to the

courts, resulting in a violation of Mr. Krivacska's rights under

the First Amendment to the United States Constitution.

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CLAIMS OF PLAINTIFF PAUL CORNWELL

i

73. On May 24, 2005, inmate Paul Cornwell was transported to

NJSP for a medical trip to receive physical therapy for a

herniated disc (L-4, L-5).

74. At the conclusion of his medical trip. he and another

A.D.T.C. inmate, Zhi-men Chen. were transferred to the Garden

State Correctional Facility and placed in a holding area for three

hours with approximately a dozen state prisoners.

75. When the A.D.T.C. inmates were .placed into the holding

area, one of the escorting correction officers announced to the

other state prisoners that Mr. Cornwell and Mr. Chen were from

"Avenel."
.
76. The only DOC facility in ''Avenel" is the A.D.T.C.: the

officers had thus announced that these two inmates were convicted

sex offenders. As they removed the wrist restraints, one of the

officers asked the other if they should remove the leg restraints,

to which the other officer replied, "No, let's keep it a fair

fight."

77. After the two officers left. they stood outside a

Plexiglas window and observed the events that transpired next.

78. As the inmates in the holding area began to eat their

lunches. one of the inmates asked Inmate Chen where he was from,

despite having already been told by the officer.

79. Inmate Chen responded "A.D.T.c.·

Case 2:06-cv-00331-DRD -ES Document 5 Filed 01/27/06 Page 22 of 50 PageID: 150

22

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laint

80. Another inmate stated "I kno ,,1 that place: that's where all the rapists go." He then asked Chen" "What did you do?"

81. Inmate Chen replied he had: a ,consensual relationship
I
with a 14-year-old girl.

82. Another inmate asked Mr. Cornwell "Where you from?"

83. Mr. Cornwell replied that he was right next to Rahway.
I
The same inmate then said., "You're w~tl:t this guy [meaning Chen] ,

you came from the same place. Why dir you say you were from

Rahway?"

I

84. Mr. Cornwell answered, "I didn't say I was from Rahway,

I said I was next to Rahway."

85. The inmate who had been talking to Chen then came over

and sat next to Mr. Cornwell and asked, "What did you do, rape a

little girl?" to which Mr. Cornwell replied, "No, I did not rape a

little girl."

86. The inmate then got up and got loud and arrogant and

started yelling, "He raped this little girl, he fucked her in the

ass." And Mr. Cornwell said. "No, I didn't do that."

87. The inmate then sat back down bes Mr. Cornwell and

reached around and punched him in the chest. Then he demanded the

gold chain and cross Mr. Cornwell was ~earing.

88. Mr. Cornwell answet"ed, "I'm not giving you my fucking

chain.~'

ill

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89. Then the inmate stood up, and came up in front of Mr. Cornwell and offered an e~tended left hand looking for a handshake and said, •r·m sorry.•
90. After taking Mr. Cornwell hand, the inmate pulled Mr. Cornwell towards him and then punched Mr. Cornwell hard on the left temple, knocking him down to the floor and knocking him out.
91. When Mr. Cornwell came to, he·was lying on the floor, and had a large cut/abrasion on his right arm; at this point. though the assault had ended, the officers observing from behind the Plexiglas window, still had not called for a Code.
92. According to the statement given by Inmate Chen, the Officers watched the assault for several minutes and did not sound the alarm. call a ' Code, request assistance or make any attempt to intervene, until the assault ended.
93. Based on the statement given by Inmate Chen, after Mr. Cornwell was knocked unconscious, the assault continued with Mr. Cornwell being repeatedly pummeled with fists and kicked with feet about his body while he was unconscious and defenseless.
94. Mr. Cornwell was taken to the infirmary where he was given a bag of ice for his head and information recorded about where he was hurt.
95. Mr. Cornwell returned to the A.D.T.C. later that evening where he gave a statement about the incident to Sergeant Collins, and where he was also examined by the nurse.

Case 2:06-cv-00331-DRD -ES Document 5 24

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96. Mr. Cornwell continued to suffer from injur s sustained

in this attack for many weeks.

97. Mr. Cornwell suffered severe physical injuries as a

result of this assault, including head injuries leading to

dizziness and loss of consciousness in the days after the assault,

severe swelling to his face, severe injuries to his right arm

which eventually required surgery, and other medical problems

continuing to this day.

98. These medical problems resulted in Mr. Cornwell being hospitalized for a total of 55 days, including two separate hospitalizations at St. Francis, each for about a week, and the remainder of the time spend in the hospital at the A.D.T.C. facility.
99. Mr. Cornwell has a permanent scar on his right arm as a result of his injuries.
100. Mr. Cornwell also suffered severe psychological symptoms after the assault including night terrors, nightmares, flashbacks, a hypersensitivity to his environment, fear of being around other people, fear of leaving his immediate bed area in his housing unit.
101. Because he was exhibiting such severe symptoms, Mr. Cornwell was referred for a psychiatric consult and was seen by
Dr. Harris, an A.D. T, c;. staff p sychiat:rist, who diagnosed him as

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suffering from Post-traumatic Stress Disorder (PTSD) resulting

from the assault, prescribed medication (Remeron) and group mental

health therapy. which he began receiving from social workers Singh

and Eramus.

102. For fear of another attack, Mr. Cornwell refused several

medical treatments for his back injury, eventually agreeing to a

trip, during which he was continuously subjected to verbal

harassment and abuse by a State pris~ner during the van trip to

the New Jersey State Prison.

103. In light of that experience, and the assault of May 24th, and the refusal of the Department of Corrections to ensure his safety, and the fact that his grievances filed under the DOC
grievance procedure were rejected, a ~~~is Tort Claim Notice filed
against DOC under the New Jersey Tort dlaims Notice Act was denied, Mr. Cornwell determined that DOC would make no effort to minimize the risk to his personal healthy and safety posed by State prisoners on medical and court trips, and has thus since declined to be transported out of A.D.T.C. for medical·purposes.
104. Mr. Cornwell accuses defendants of being deliberately indifferent to a known and identifiable. substantial risk ot physical injury or death, by disregarding that risk and failing to act reasonably to provide supervision and segregation of A.D.T.C. inmates like himself. during medical and court trips.

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CLAIMS OF PLAINTIFF VINCENT MACRINA 105. Plaintiff Vincent Macrina. s • 73 year old inmate at

the A.D.T.C. who suffers from serious medical conditions including

heart disease, severe arthritis in hi1s shoulder and neck as well

as a damaged rotator cuff, causing him to suffer from periodic

e~cruciating pain in his neck, shoulder and arms. 106. Mr. Macrina, at 73 years of age, believes he is

especially vulnerable to attack because he is unable to defend

himself because of his advanced age. 107. Mr. Macrina bas been scheduled for medical trips to

receive physical therapy, however, because of the incidents of
verbal and physi6al assault on. medic~l trips from state prisoners,
I
I he so fears for his own safety, that he has refused needed medical

tripS to avoid risk of physical assa~lt and injury.
I
108. On the last trip taken by .r. Macrina in the early fall ..

though he was seated in the front of the van, once he arrived at

St. Francis, he was placed in one large holding cell with state

prisoners. 109. Mr. Macrina accuses Defendants of being deliberately

indifferent to his serious medical needs by failing to act

reasonably in the face of a known substantial, pervasive and

imminent risk to his health and safety, to provide safe transport

for him to receive medically necessary treatment in violation of

the Eighth Amendment to the United States Constitution.

I'·

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110. Mr. Macrina accuses Defend!nta ·of being deliberately indifferent to the excessive risk of serious bodily harm or injury that is likely to occur by transporting and holding him with violent and dangerous state prisoners, in violation of the Eighth Amendment to the United States Constitution.
CLAIMS OF PLAINTIFF WILLIAM F. VANSCIVER 111. Mr. Vansciver. was not found to be compulsive and
repetitive under N.J.S.A. 2C;47-3 and was consequently not sentenced to the A.D.T.C.; rather, before his transfer to A.D.T.C. he was housed at South Woods Correctional Facility.
112. While housed in state prison, the nature of Mr. Vansciver's offen~e was not disclosed by actions of the NJ DOC toward him, and thus nothing in how NJ DOC treated him during medical or court trips while housed at South Woods Correctional Facility placed him at risk for having the nature of his offense disclosed to other State prisoners; thus keeping him safe from assault by .those State prisoners who harbor particular enmity toward sexual offenders.
113. Mr. Vansciver suffers from a seizure disorder, both grand mal and petite mal, for which he takes several different medications to control.

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114. Despi~e these medications, ~r. Vansciver, as documented
I
I in his DOC main~ained medical record , ~~ontinues to have seizures,
I
which cause continuing and permanent n¢urological damage.
I
115. Among the effects of the seizures from which Mr.

Vansciver suffers are memory loss, difficulty with balance while

walking, difficulty focusing and maintaining attention, and

language deficits.

116. Mr. Vansciver also suffers from numerous injuries to his

hands. legs. shoulders, back, and other parts of his body,

injuries incurred while experiencing a seizure.

117. Mr. Vansciver requires electro-encephalogram evaluation

and neurological consults that cannot be provided at the A.D.T.C.

118. Because of the severity of these sei~ures, a blow to Mr.
r'o Vansciver's head is especially like}r cause harm, including

potentially death.

!

.

119. Mr. Vansciver is aware of the assaults A.D.T.C. inmates

have experienced on court and medical trips. including those

reported by Mr. Becka and Mr. Cornwell.

120. Since being transferred to the A.D.T.C. by the NJ DOC, a

facility to which he was not sentenced, Defendants and their

agents now cause his identity as a seJtual offender to be di.sclosed

each ~ime he is ~ransported and held with state prisoners on court

and medical trips exposing him to rHsk of harm that was not

present when he was housed at other state prisons.

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121. Specifically, in t~e past ~'en Mr. Vansciver has been

transported from A.D.T.C. for me dica Ip·~rposes by of f1' cers of the

I' I

I

Central Transport Unit of DOC, those 1 officers have identified him

as an A.D.T.C. inmate to inmates from other state prisons.

122. Prior to the incident involving Mr. Cornwell, Mr.

Vansciver would be transported to NJSP for neurological consults

approximately three to four times a year and to St. Francis

Medical Center for neurological tests approximately twice a year.

123. Because Central Transport Unit refuses to ensure the

anonymity of A.D.T.C. residents on medical and court trips, and

refuses to segregate A.D.T.C. inmates from other state prisoners,

Mr. Vansciver is highly fearful of suffering severe physical and potentially fatal ' injuries and has thus declined to go on any more

medical trips. irrespective of medical need. where DOC will not

guarantee his safety.

124. Mr. Vansciver has not received needed medical treatments

because of his fear of being transported under dangerous

conditions, resulting in an exacerbation of his seizure disorder

and additional neurological damage,

125. Having received no consultation, monitoring of

medication or treatment in approximately six months, on October

22, 2005, Mr. Vansciver suffered a severe seizure which required,

in the opinion of the A.D.T.C. medical staff, his emergency

transport via ambulance to Rahway General Hosp:ital. where he was

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treated and released back to the A.D t.c., and for which ambulance

services he was subsequently billed $18.00.

126. Mr. Vansciver accuses Defemdants of being deliberately

indifferent to his serious medical needs by failing to act

reasonably in the face of a known substantial. pervasive and

imminent risk to his health and safety, to provide safe transport

for him to receive medically necessary treatment in violation of

the Eighth Amendment to the United States Constitution.

127. Mr. Vansciver accuses Defendants of being deliberately

indifferent to the excessive risk of serious bodily harm or injury

that is likely to occur by transporting and holding him with

violent and dangerous state prisoners, in violation of the Eighth

Amendment to the United States Constitution.

CLAIMS OF PLAINTIFF RICHARD GIBBS 128. Richard Gibbs was sentenced to the ADTC on July 16,
1998, and began serving his sentence at the ADTC on approximately October 23, 1999.
129. Mr. Gibbs has a post-conviction relief petition currently pending before Judge LeBon of the Burlington County Superior Court, and has a hearing currently scheduled on a motion seeking to recuse Judge LeBon from hearing his PCR Petition, which hearing is scheduled for January 30. 2006.

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130. Mr. Gibbs has beeri .advised ,,b,Y;' s attorney that his

presence at this hearing is vital as Mr. Gibbs' personal testimony

under oath will be critical to establishing a record in support of

this motion.

131. Mr. Gibbs has advised his attorney in correspondence

dated December 23, 2005 that he feels compelled to waive his right

to appear at this hearing, recognizi~g such waiver may well result in a denial of his recusal motion, b~cause of his fear of being
seriously injured or killed during t~' ansport to and from the court

and any period he is held with State Prisoners.

132. Mr. Gibbs is aware of the assault and injuries suffered

by M. Cornwell, and the recent harassment and threat of assault

suffered by Mr. Braun, co-plaintiffs in this complaint, and is

fearful for his health and safety should he consent to such a

trip.

133. Mr. Gibbs has advised his attorney that he will only

agree to be transported to the Burlington County Court if an court.

order is presented to DOC compelling DOC to keep Mr. Gibbs

separate from State Prisoners throughout the court trip and any

period of holding in other facilities.

134. Mr. Gibbs accuses Defendants of being deliberately

indifferent to the excessive risk of serious bodily harm or injury

that is likely to occur by transporting and holding him with

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violent and dangerous state prisoners. in violation of the Eighth
Amendment to the United States Const~tution.

135. Mr. Gibbs accuses Defendadts of being deliberately

indifferent to the excessive risk of serious bodily harm or injury

that is likely to occur by transporting and holding him with

violent and dangerous state prisoners, said indifference creating

such a risk of serious harm or injury that Mr. Gibbs has been

deterred from exercising his constitutional right of access to the

courts, resulting in a violation of Mr. Gibbs' rights under the

First Amendment to the United State,Constitution.

CLAIMS OF PLAINTIFF PETER BRAUN

136. Plaintiff Peter Braun su

severe medical

condition, cancer, which has recen ly required surgery to treat,

and for which he will require additional medical follow-up care

outside of the A.D.T.C.

137. He also has a history of strokes and high blood pressure

and receives medication to control his anxiety.

138. He is also receiving mental health treatment by the

mental health staff at the A.D.T.C.

139. Additionally. Mr. Braun is currently involved in legal

proceedings in Union County Superior Court - Family Part,

involving his children, for which he appears approximately every

thre·e months.

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140. On December 13, 2?.05, whil<:; ,re,turning from a court trip

to the Union County Courthouse, Mr. Braun was driven by three

officers from the CTU from that court house. past the A.D.T.C. in

Avene1, Woodbridge, all the way to Bordentown in Mercer County,

where he was transferred to a van in the parking lot of the Garden

State Youth Correctional Facility.

141. Mr. Braun was placed in the back seat of the van, next

to two State prisoners, despite the fact the front row of seats in

the inmate compartment of the van was empty.

142. During the ten minutes before the van left and through

the hour and a half it took for the van to proceed from Bordentown

to the Northern State Prison in Newark, Mr. Braun was subjected to a barrage of haras' sment, intimidation, physical assault and

psychological torture.

143. One of the State prisoners, who was from Northern State,

was the primary aggressor and initially grabbed him a·nd shoved his

fist at Mr. Braun, threatening to punch him and shank him. and

then pulled down Mr. Braun's shirt collar looking for neck chain,

and his shirt sleeve looking for a watch.

144. Mr. Braun was told by the State prisoners that the "cops

ain't going to help you, they set you up and told us to have our

fun with you."

145. Mr. Braun was told by the State prisoners that the two

CTU officers in the front of the van had told them before Mr.

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Braun entered the van that he was from the A.D.T.C. and was a

convicted sex offender.

146. Throughout the two hour trip the State prisoners

continuously harassed, threatened and psychologically tortured Mr.

Braun, asking him to give them a good reason why they shouldn't

kill him, or torture him. or rape him like he did to his victim,

not knowing that Mr. Braun was not incarcerated for rape.
I
147. They additionally made hiq beg them not to hurt him and
o~ to verbalize that he was "a piece shit• because he was a sex

offender. 148. Throughout this abuse, theI officers could see and hear

what was going on, and laughed at t,e threats and harassment they

heard and made jokes about it.

I

149. Upon returning to the A.D.T.C. Mr. Braun was so

distressed that an A.D.T.C. Sergeant noticed and questioned him

about what had happened.

150. Mr. Braun was then seen by the medical staff in the

infirmary and appeared so distraught that they contacted the staff

psychiatrist at home.

151. The psychiatrist ordered he be held in the hospital

overnight for observation, and was provided with medication..

152. Mr. Braun was released to general population the next

day, but was placed on close watch status for the next two days,

which status

ed his housing officer to continually check on

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him at regular intervals du~ing the +y to make sure he was

psychologically stable.

i'

153. Mr. Braun filed an administrative remedy form on

December 22, 2005, requesting keep separate status on any future

court or medical trips, a grievance to which he has not received

any response.

154. Mr. Braun anticipates numerous court and medical trips

within the coming weeks and months.

155. Mr. Braun accuses Defendants of being deliberately

indifferent to his serious medical needs by failing to act

reasonably in the face of a known, substantial, pervasive and

imminent risk to his health and safety, to provide safe transport

for him to receive medically necessa.ry treatment in violation of

the Eighth Amendment to the United States Constitution.

156. Mr. Braun also accuses Defendants of being deliberately

indifferent to the excessive risk of serious bodily harm or injury

that is likely to occur by transportin~ and holding him with

violent and dangerous State prisoners, in violation of the Eighth

Amendment to the United States Cons~itution.

ASSAULT OF TODD BECKA ON MEDICAL TRIP

157. In July of 2004, the Legal Subcommittee received .a copy

of a complaint filed with the administration authored by Todd

Becka, an inmate at the A.D.T.C. who, along with another inmate,

. L .
.
.

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Donald Schultz, reported an inciden of harassment and assault by

State Prisoners during a medical tr p.

158. The complaint filed with he administration described an

incident which occurred on July 20, 2004, at which time Mr. Becka

and Mr. Schultz were placed in the front seat of a DOC Central

Transport Van under the supervision of Corrections Officers Coons

and Gorski. The particulars of the reported incident are as

follows.

159. At the time A.D.T.C. inmates Becka and Schultz were

placed in the van several inmates, who had already been picked up

from other State prisons, were already seated directly behind

where inmates Becka and Schultz were placed. 160. Througho' ut the trip from A.D.T.C .. the A.D.T.C. inmates

were subjected to a continuous barrage of harassing and

intimidating comments. including racial slurs, threats of personal

injury and homicide.

161. As no response from the correctional officers on the bus

was observed, the state prisoners escalated the severity of their

threats as they also increased the volume of their voices.

162. At one point a state prisoner told the A.D.T.C. inmates

that "I'm doing 30·50 ... fuck it ... !'m gonna do you now, white-ass

crackuh."

163. This state prisoner then immediately delivered a "sharp

blow" to the back of Mr. Becka's head, stunning him for a moment.

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164. Mr. Becka immediately reported to SCO Coons and Gorski

that he had been assaulted. Without turning around to see who was

speaking, one of the officers asked Mr. Becka if he wanted medical

attention, to which Mr. Becka responded. "No, I want protection."

165. During the rest of the trip to NJSP. the insults and

threats from the state prisoners against the A.D.T.C. inmates

continued unabated with no intervention from the officers.

166. Upon arrival at NJSP, Sgt. Ahearn briefly interviewed

Mr. Becka and Officer Coons, and had Mr. Becka go to the infirmary

where he received a cursory examination and 600 mg of Ibuprofen.

167. Mr. Becka was scheduled for another medical trip for

physical therapy on 7/21/04. However, Central Transport claimed

they did not have paperwork authorizing his transport with his

back brace.

168. Mr. Becka's back brace is medically prescribed and

necessary to prevent further injury to his back. Despite

previously transporting Mr. Becka with the back brace, and

therefore aware of its existence and prior medical documentation.

Central Transport refused to transport Mr. Becka to his physician-

prescribed and scheduled Physical Therapy appointment with his

back brace, and also refused to call upstairs to the A.D.T.C.

hospital to have documentation of his need for a back brace

brought down or confirmed.

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;irs 169. On July 27, 2004, Mr. Beck

again scheduled for

transport to NJSP for physical therapy'~reatment. This time, the

paperwork for the back brace was secured, however, the

transporting officer complained to Mr. Becka about how many more

of these trips they would have to take him on.

CLAIMS BY OTHER INMATES 170. On information, knowledge and belief, each of the named
plaintiffs knows of additional A.D.T.C. inmates who have refused medical or non-compulsory court trips out of fear of suffering serious bodily harm or death from a dangerous and violent state prisoner.
171. On info~mation, knowledge and belief, each of the named plaintiffs knows of additional A.D.T.C. inmates who h<tve suffered verbal or physical assaults while on medical or court trips at the h<tnds of dangerous and violent state prisoners.
172. Many medical procedures needed by Plaintiffs and other A.D.T.C. inmates are unavailable at the A.D.T.C. and can only be provided at either other facilities or at hospitals with which DOC contracts. Inmates who decline transport to these other facilities for medical treatments, have no ready alternative at the A.D.T.C. to meet their medical needs.
173. A.D.T.C. inmates, including the Plaintiffs. are routinely confronted with the Hobson's choice of risking serious

II II
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Page 39 of 50 PageID: 167 39

injury or disability as a result of refusing a trip for needed

medical treatment or, seeking such treatment and risking serious

injury or disability lt the hands of a dangerous and violent state

prisoner during the medical trip.

174. Similarly, A.D.T.C. inmates, including the Plaintiffs,

are routinely confronted with the Hobson's choice of risking

serious injury or disability at the hands of dangerous and violent

state prisoners by consenting to a court trip, or foregoing

important civil and constitutional rights by declining the trip,

in order to preserve and protect their body from physical assault.

175. Inmates who have been convicted of sex offenses but who

are housed at DOC facilities other than the A.D.T.C., are able to

access the courts and seek needed medical treatment without risk

of verbal and physical assault because of their status as sex

offenders, because Defendants' actions with respect to such

inmates protects them from disclosure of the nature of their

offenses to violent and dangerous state prisoners.

176. The State of New Jersey has sought to segregate a

subpopulation of New Jersey State Prisoners who have committed sex

offenses and who have been found to suffer from a mental

abnormality, disorder or disability that predisposes them to

engage in compulsive and repetitive sex offending behavior, and

who have been found to be in need o[ treatment for that mental

abnormality, disorder or disability, in a facility apart from

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other state prisoners, and in such a mI anner that the sexual nature

i

Ct;.~r· of the crimes committed by those at

A.D. T, C. is disclosed

merely by the fact of where they are lIh •used.

177. State law compels DOC to hou' se those sentenced to the

A.D.T.C. under N.J.S.A. 2C:47-3 et seq. apart from state prisoners

not so sentenced.

VI. CAUSES OF ACTION FIRST COUNT
(DENIAL OF SUBSTANTIVE DUE PROCESS RIGHTS) 178. Plaintiffs repeat and reallege each and every allegation as set forth in paragraphs 1 to 177 as if set forth herein. 179. Defendants knowingly disregarded an excessive risk to the health and safety of A.D.T.C. inmates during court and medical trips and iled to act reasonably to protect A.D.T.C. inmates from the substantial risk of serious bodily harm or injury, which conduct constitutes deliberate indifference, and has deprived Plaintiffs of substantive and procedural due process rights under the Fourteenth Amendment to the United States Constitution, including the right to redress of grievances under the First Amendment, and the right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution. 180. Defendants knowingly disregarded an excessive risk to the health and safety of A.D.T.C. inmates during court and medical

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trips and failed to act reasonably to protect A.D.T.C. inmates from the substantial risk of serious bodily harm or injury, which conduct constitutes deliberate indifference, and has deprived Plaintiffs of a liberty and property interest (both with respect to needed medical treatment and liberty interests that are the subject of any court proceeding. access to which is deterred by defendants' actions or inaction) in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
SECOND COUNT (EQUAL PROTECTION) 181. Plaintiffs repeat and reallege each and every allegation as set forth in paragraphs 1 to 180 as if set forth herein. 182. Defendants knowingly disregarded an excessive risk to the health and safety of A.D.T.C. inmates during court and medical trips and failed to act reasonably to protect A.D.T.C. inmates from the substantial risk of serious bodily harm or injury, which conduct constitutes deliberate indifference. and has therefore denied to Plaintiffs equal protection under the law in violation of the Fourteenth Amendment to the United States Constitution, by deterring the exercise of A.P.T.C. inmates' constitutional rights of access to the courts and necessary medical treatment based solely on where they are housed, while guaranteeing these same

. . II
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rights to those convicted of sex of ~nse, but housed at other NJ

DOC facilities.

183.

THIRD COUNT (RIGHT TO PETITION)
Plaintiffs ~:epeat and reallege each and every allegation

as set forth in paragraphs 1 to 182 as if set forth herein.

184. Defendants knowingly disregarded an excessive risk to

the health and safety of A.D.T.C. inmates during court trips and

failed to act reasonably to protect A.D.T.C. inmates from the

substantial risk of se~:ious bodily harm or injury. which conduct

constitutes deliberate indifference, and has deterred Plaintiffs

from exercising their rights to seek redress of grievances and to

have access to the courts, in violation of the First Amendment to

the United States Constitution.

FOURTH COUNT (VIOLATION OF THE NEW JERSEY LAW AGAINST DISCRIMINATION
AND THE AMERICANS WITH DISABILITIES ACT) 185. Plaintiffs repeat and reallege each and every allegation as set forth in paragraphs 1 to 184 as if set forth herein. 186. The actions of defendants in failing to provide a safe
and secure environment in which Plaintiffs may exercise their
constitutional rights of access to the courts and necessary
medical treatment, on the basis of their diagnosis of suffering from a mental abnormality, disorder or disability that predisposes

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them to compulsively and repetitivel.y·>~;.co)Jlmit sexual offenses.

violates Plaintiff's rights to be protected from discrimination on

the basis of mental condition protected under the New Jersey Law

Against Discrimination.

187. The actions of defendants in failing to provide a safe

and secure environment in which Plaintiffs may exercise their

constitutional rights of access to nee sary medical treatment,

denies to inmates suffering from conditions that qualify them to

protection under the Americans with Disabilities Act (ADA). 42

U.S.C. § 12010 et seq .. with equal protection of the law, and

discriminates against such inmates in violation of the ADA.

FIFTH COUNT' (CRUEL AND UNUSUAL PUNISHMENT) 188. Plaintiffs repeat and reallege each and every allegation as set forth in paragraphs 1 to 187 as if set forth herein. 189. The actions of defendants in failing to provide a safe and secure environment in which Plaintiffs may exercise their constitutional rights of access to the courts constitutes deliberate indifference to a well established and documented danger, in violation of the Eighth Amendment protections against cruel and unusual punishment. 190. The actions of the defendants in failing to provide a safe and secure environment in which Plaintiffs may exercise their constitutional rights of access to n~cessary medical treatment

Case 2:06-cv-00331-DRD -ES Document 5 44

Filed 01/27/06 Page 44 of 50 PageID: 172' ·,

Riley. et al v. Brown, et al

Civil Class Action

laint

constitutes deliberate indifference ~o a serious medical need, in

violation of the Eighth Amendment protkctions against cruel and

unusual punishment.

Case 2:06-cv-00331-DRD -ES Document 5 Filed 01/27/06 Page 45 of 50 PageID: 173

Riley, et al v. Brown, et al

45

Civil·Class Action

VII. STATEMENT OF CLAIMS APPLICABLE TO ALL COUNTS

191. The Defendant's actions complained of herein are done

knowingly, voluntarily, intentionally. purposely and maliciously

with reckless disregard for Plaintiff's rights, under the United

States Constitution.

192. The Plaintiffs have no plain, adequate or complete

remedy at law to redress the wrongs described herein. Plaintiffs

have been and will continue to be irreparably injured by the

conduct of the Defendants unless this court grants the declaratory

and injunctive

which Plaintiffs seek.

193. In satisfaction of 42 U.S.C. § 1997e(a), Plaintiffs have

. fully exhausted all available administrative remedies on all
claims presented herein.

VIII. PRAYER FOR RELIEF WHEREFORE, Plaintiffs request this Court. as authorized by 28

U.S.C. §§ 2201 and 2202. and pursuant to its own equitable powers:

A.

To certify this complaint as a class action and certify

the class defined herein;

E.

To appoint counsel to represent the interests of the

class;

C.

To render a declaratory judgment, declaring the actions

and inactions of the Defendants described herein to be in

Case 2:06-cv-00331-DRD -ES Document 5 46

Fil!eI d 01/27/06 Page 46 of 50 PageID: 174
Riley, et al v. Brown, et al 'Civil Class Action Complaint

violation of the provisions of the onstitution and laws of New

Jersey and the United States:

D.

To enter a preliminary an permanent injunction

enjoining defendants from violating constitutional and statutory

rights of plaintiffs as alleged herein;

E.

To award Plaintiffs the costs of bringing this action, a

reasonable attorney's fees pursuant to. 42 U.S.C. § 1988: and

F.

To award such other additional relief as the Court may

determine to be just and proper.

'II -, •
•

.C. ase 2:06-cv-00331-DRD -ES

Document 5

Riley, et al v. Brown, et al

Civil Class Action Complaint

II
Filed 01/27/06 Page 47 of 50 PageID: 175 47

VI. REPRESENTATIONS BY PLAINTIFFS TO COURT

Plaintiffs represent to this Court that this Complaint is not

bein1 presented for any improper purposes, such as to harass or to

cause unnecessary delay or needless increase in the cost of

litigation; and

The claims and legal contentions are warranted by existing law

or are non-frivolous arguments for the extension, modification or

, reversal of existing lay, or the establishment of new law; and

\' \'

: ... ' \

\

The allegations and factual contentions contained in this

Complaint have evidentiary support.

I. GEORGE RILE,Y. Plaintiff in the above entitled action, pursuant to 28 U.S.C. § 1746, declare under penalty of perjury that the foregoing is true and correct.
Dated: January 10, 2006
I, JAMES J. KRIVfoCSKA, Plaintiff in the above entitled action,
/
pursuant to 28 U.Sic. § 1746, declare under penalty of perjury that the foregoing is true and correct.
Dated: January 10, 2006

Case 2:06-cv-00331-DRD -ES Document 5 48

Filed 01/27/06 Page 48 of 50 PageID:•176r -r
'·
Riley, et al v. Brown, et al Civil Class Action Complaint

I, PAUL CORNWELL, Plaintiff in he above entitled action,

I
pursuant to 28 U.S.C. § 1746, declare under penalty of perjury

that the foregoing is tcuo=d~ ~

Dated: January 10. 2006

Paul Cornwell. Pro se

I, VINCENT MACRINA. Plaintiff in the above entitled action. pursuant to 28 U.S.C. § 1746, declare under penalty of perjury that the foregoing is true and Dated: January 10, 2006

I, WILLIAM VANSCIVER, Plaintiff in the above entitled action,

pursuant to 28 U.S.C. § 17~6. declare under penalty of perjury

that the foregoing is true and correct.

Dated: January 10, 20.06

'william Vansciver, Pro se

I. RICHARD·GIBBS; Plaintiff in the above entitled action,
pursuant to 28 U.S.C. § 1746, declare under penalty of perjury
. that the foregoing is true and c ~"'-...~rt··• .
Dated: January 10, 2006 Richard A. Gibbs, Pro se

I, PETER BRAUN, Plaintiff in the above entitled action,

pursuant to 28 U.S.C. § 1746, declare under penalty of perjury

that the foregoing is true and correct.

Dated: January 10, 2006

Peter Braun, Pro se

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 Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 1 of 37 PageID: 88
I

Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 2 of 37 PageID: 89

George Riley, 133229B, 2W

James J. Krivacska, 106128C, 2W

Paul Cornwell, 081208B, SL

Vincent Macrina, 865812C, 7L

William F. Vansciver, 033020A, 7L

Richard A. Gibbs, 232215C, 3W

Peter Braun, 786615A, 8R

Adult Diagnostic & Treatment Center

8 Production Way

Avenel, NJ 07001

No Telephone

Fro se Lit

s

l·l·onn~.. ''''··'''' I 8 A /1: 15

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

CIVIL ACTION

GEORGE RILEY, et al, Plaintiffs
v.
DEVON BROWN, et al, Defendants.

otc -cs~.~l~D) CLASS ACTION I ( 'l'r) :\
No,

MEMORANDUM OF LAW IN SUPPORT OF TEMPORARY RESTRAINING ORDER AND PRELil1INARY INJUNCTION

Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 3 of 37 PageID: 90

II I !

Case 2:06-cv-00331-DRD -ES Document 3-1I ' Filed 01/18/06 Page 4 of 37 PageID: 91

Riley v. Brown. et

i

Memorandum

of

Law in

ort

------~·-·····

of

Motion

for

TRO- - - - - - - - - - -

TABLE OF CONTENTS

TABLE OF CON'rENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I

TABLE OF AUTHORITIES ............... , ........................... I

STATEMENT OF THE CASE ...........•.............................. 1 STATEMENT OF FACTS •............• •!I •• ~ .............................. 3

ARGUMENT

.......................................................... 21

POINT I - PLAINTIFFS ARE ENTITLED TO A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION ....... 21

A.

PLAJNTIF<'S !\.RE THRRI\TllNED m·ra IRREPAR.n.B!.E IIARM . . . . . . • . . . . . . . . . . . 21

B.

THE BALANCR OF HARDSHIPS FAVORS THE PLAlNTIFFS . . . • • . . . . . . . . . . . . 25

c.

THE Pl,I\INTIFF'S ARE LTKRLY TO SUCCgED ON TI{R MERITS ••••••••..• , • , 2 6

D.

THR RELIEF SOUGHT WILL SERVE tHE PlJBT.JC INTEREST . . . . . . . . • . . . . . 28

POINT II

THE PLAINTIFF SHOULD NOT BE REQUIRED TO POST
SECURITY ................................................... 3 0

CONCLUSION ........................................ ~ ................... 31

TABLE OF AUTHORITIES

STATE STATUTES
N.J.S.A. 2C:47-3

5' 7' 17

~ Fed. R. Civ. P. 23 .................................................. 5 Fed. R. Civ. P. 65(c) .............................................. 27

FEDER.I\L CASES

_!!IS;~~~':c·__SSmith, 430 .S. 817, 97 ~.Cl..:_ 1491, 521 L.. Ee_.2d 72

1977 ............................................................ 24

'=7==:-'!· ...Anaya, 642 F'.Supp. 510 (D.N.M. 1986) ...................... 23

=-~=7:--'-'...-':B'-'u"'r:C"ns , 4 2 7 S . 3 4 7 ( 19 7 6 I . • . • .. .. .. .. . . .. . . . .. .. . . .. . . . .. 2 2

v. Gamble, 429 U.S. 97, 97 S.Ct. 285,

50 L.Ed. 251 (1976) -..-.-. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Heller v. McKinnE!Y• 509 U.S. 25, 113 S.Ct. 2475,
---:i:2s L. Ed ..~.<:'! 22 (1993) . -:-:-:--~ ......... ~ . . . . . . . . . . . . . . . . . . . . . . 24, 25

Hutto .'\!. e-inney, 427 ~ 678, 98 S. Ct. 2565,

57 L.Ed.2d 522 (1978) ............................................ 25
J.L. v. Par!:>am, 412 f .. s':'EE.:.. 112 (D.Ga. 1976),

rev'd on other grounds, 442 lG_S. 584, 99

. 2493 (1979) ....... 27

Mitchell v. Cuomo, '748 F.2d 804 (2nd Cir. 1984) ................ 22, 23 ~~om v. _Norris, 888 F .2d 371 (6th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . 22

Orantes-Hernandez v. Smith, 541 F.Supp. 351, (C'.O.Cal. 1982) . .

27

Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 5 of 37 PageID: 92

ii

Riley, et al v. Brown, et al

randum of Law 1n
···--+--

art of Motion for TRO

. of Ccn·.r·ections
. 1990), c.n'

932

(6th ;cir. 1991) ...................................... 22

ll!_illiams v. ~an§_, 6 6 _I'.S:t,t.!2£,_ 13'!9 (N.D.Ill. 1986),

att'd, 851 l'.2d 8 7 ('!th Cir. 1986) ......................... .

Wilson v. Seiter, 5 1 U.S. 294, 111 S.Ct. 2321,
115 L.Ed..2d 271 I 991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Youngberg v. Pome<:), 457 !L::..S._ 307, 102 ~_.C!:_,_ 2452,

73 L.F.d.2d 28 (19 2) .............................................. 25

FEDERAL STATUTES

42 u.s.c. § 1983

................................................. 5

42 u.s.c. § 1997e(a ....... -- .......... -- ........... -- .......... --. 15

Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 6 of 37 PageID: 93

Riley v. Brown, et al

1

Memorandum of Law in

art of Motion for TRO· - - - - - - - -

STATEMENT OF THE CASE

This is a civil rights Glass Action complaint brought under

42 U.S.C. § 1983 and Fed. R. Civ. P. 23 by New Jersey inmates

housed at the Adult D

stic and Treatment Center (hereinafter

"A.D.T.C."). the designated facility in New Jersey for offenders

who have been found to suffer from a mental abnormality that

predisposes them to commit sexual offenses in a compulsive and

repetitive manner pursuant to N.J.S.A. 2C:47-3 et seq. The

complaint upon which this action is based alleges violation of

Plaintiffs' and class members' constitutional rights under the

First, Eighth and Fourteenth Amendments to the Constitution of

the United States. Specifically, the complaint alleges denial of

right of access to the courts under the First Amendment;

imposition of cruel and unusual puni~hment in violation of the

Eighth Amendment resulting from interference with the exercise of

inmates' rights to necessary medical treatment, and from

subject

inmates to serious physical injury. or threat of such

injury; and denial of protected property and liberty interests

under the Fourteenth Amendment.

Plaintiffs allege that Defendants, acting under the color of

state law, have failed and continue to fail to provide the

Plaintiffs with protection from risk of serious assault, injury

and even death at the hands of violent and dangerous state

Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 7 of 37 PageID: 94 ' '

2

Riley, et al v. Brown, et al

prisoners, during medical, court and other trips outside of the

A.D.T.C. facility. Specifically, he complaint alleges that inmates housed at

the A.D.T.C. (her inafter "A.D.T.C. inmates") are not segregated

from or otherwise protected from violent and dangerous prisoners

housed at other s ate prisons (hereinafter ''State Prisoners'') who

have in the past nd will continue in the future, to verbally and

physically asssul A.D.T.C. inmates during periods when State

Prisoners and A.D.T.C. inmates are held and transported

r

on court. medical and other trips. Such State Prisoners harbor

particular enmity toward A.D.T.C. inmates because of the nature

of their crimes ( exual offenses), and seek to cause them

physical and psyc ological harm in the absence of protection by

New Jersey Departient of Corrections (DOC) officials.
The failure o~ Defendants to adopt and implement policies.

practices. and pr cedures that segregate and protect A.D.T.C.

inmates from assa lt by State Prisoners, has in the past resulted in A.D.T.C. inmat s suffering serious physical injury at ~he

hands of State Pr soners. The absence of such protective

policies, practic s and procedures creates till imminent and

substantial risk f

ury to any A.D.T.C. inmate who requires a

court, medical or other trip outside of A.D.T.C.

Out of fear o being seriously injured or even killed by State ~risoners ~ the absence of such protective policies,

' .

Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 8 of 37 PageID: 95

Riley, et al v. Brown, et al

3

Memorandum of Law in Support of Motion for--T-RO---------

practices and procedures, many A.D.T.C. inmates, including the

Plaintiffs, have foregone needed medical treatment and court

appearances which have placed thef at risk of suffering serious

medical problems, and sacrificing 1 significant property and/or

liberty interests.

In the case of mandatory court appearances which Plaintiffs

cannot waive, Plaintiffs are at imminent and substantial risk of

serious injury at the hands of State Prisoners in the absence of

protective policies, practices and procedures to ensure their

safety.

The failure of the defendants to act to protect A.D.T.C.

inmates on court, medical and other trips compromises those

inmates constitutional rights under the First, Eighth and

Fourteenth Amendments.

STATEMENT OF FACTS As alleged in the verified complaint and the declarations of George Riley, James J. Krivacska. Paul Cornwell. Vincent Macrina. William Vansciver. Richard A. Gibbs and Peter Braun filed contemporaneously with and in support of this motion for a Temporary Restraining Order (TRO) , P1aintiffs are inmates currently housed at the A.D.T.C. in Avenel. New Jersey. The
ed as the DOC facility for those convicted of sexual offenses and found to be compulsive and repetitive offenders pursuant to N.J.S.A. 2C:47-3 et seq. As

. Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 9 of 37 PageID: 96

'

4

Riley, et al v. Brown, et al

Memorandum of Law in

ort of Motion for TRO

declared by PlainJiff William Vansciver, DOC has begun to house

at A.D.T.C.

s who, though convicted of a sex offense, were

not found to be c mpulsive and repetitive and thus sentenced to

the A.D.T.C. However,

ective of whether sentenced to the A.D.T.C. or

sexual offense ar housed at the A.D.T.C.

The recitatio of facts contained herein, are drawn from and

supported by the. erified complaint and individual declarations

submitted on beha f of the Plaintiffs along with this motion

Dating back t at least 1989, A.D.T.C. inmates have

complained about erbal and physical abuse suffered at the hands
I
of State prisonerJ, and even, at times, DOC corrections officers,

while b

!
trans*orted to court, medical and other trips outside

of the A.D.T.C. MJre recently, an assault upon an A.D.T.C.

I
I
inmate, Todd Beck , instigated activity by the Le

Subcommittee

of the A.D.T.C. I mate Resident Committee (I.R.C.) 1 • As detailed

in the verified c mplaint, Mr. Becka was struck in the head by a

State Prisoner du ing a medical trip, and subjected to an

incessant barrage of invective and insults designed to intimidate

and frighten him. Subsequent to complaints made by Mr. Becka and

'The Inmate Res:i.d nt Committee is an administration sanctioned inmate organ:i.zati n comprised of inmates who are elected by their peers on their ho sing units to represent their interests and concerns to the a ministration.

. '

Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 10 of 37 PageID: 97

Riley, et al v. Brown, et al

5

Memorandum of Law in

ort of Motion fo-r -TR-O - - - -

the IRC, no actions were taken by DOC officials to protect

A.D.T.C. inmates during such trips.

Then on May 24, 2005. Plaintiff Paul Cornwell, on the return

leg of a medical trip, was seriously injured by a State Prisoner

while being held in a holding area at the Garden State

Correctional Facility. He was placed, along with another A.D.T.C.

inmate, Zhi-men Chen, into a holding tank with about a dozen

State Prisoners. While his wrist shackles were being removed, one

of the corrections officers announced that the two inmates were

from "Avenel," which in the parlance of the New Jersey Prison

system is understood to be the A.D.T.C. facility which houses sex

offenders. In deciding to leave the two inmates' leg irons on,

one of the officers commented that doing so would make it a "fair

fight." The two officers then left the holding area, secured the

door, and watch what transpired next from behind a Plexiglas

partition.

A State Prisoner first struck Mr. Cornwell in the chest. and

then delivered a blow to his head which knocked him unconscious.

For several minutes. the State Prisoner then continued to pummel

and kick Mr. Cornwell. while he was unconscious and laying on the

floor. Only after the State Prisoner had tired of the assault and

stopped did the officers call for assistance and enter the

holding area. Mr. Cornwell was thereafter taken to the infirmary

for treatment. and subsequently was hospitalized for 55 days for

Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 11 of 37 PageID: 98 ' '

6

Riley, et al v. Brown, et al

Memorandum of Law in

or·t of Motion for TRO

·---1-.:...:...._

injuries incurred from the assault, which hospitalization

included two week-

stints at St. Francis Hospital where he

underwent surgery lfor the injuries sustained to this arm. He
I

continues

r from the injuries sustained in that attack

and has had to un ergo additional medical trips to treat those

injuries during ich he has feared for his safety.

As a result o I this assault, Mr. Cornwell suffered severe

psychological trat.hna as well, displ

symptoms including night

terrors, nightmat s, hypersensit

to his environment.

flashbacks, and far of being around other people and of leaving

his bed area in h s dorm. These symptoms were so severe, he was

referred to one o the A.D.T.C. staff psychiatrists, Dr. Harris.

who diagnosed him aB suffering from Post-traumatic Stress

Disorder (PTSD). r. Harris treated Mr. Cornwell. prescribing

medication for hi PTSD (Remeron) and assigning him to group

psychotherapy in ne of the A.D.T.C. mental health treatment

groups. Mr. Cornw 11 filed an administrative grievance and a Tort

Claims Notice reg rding this incident. His request for greater

protection of A.D T.C. inmates during transport with State

prisoners - sough in the administrative grievance - was

disregarded, and is request for compensation for his injuries.

pain and sufferin

sought in the Tort Claim Notice was

denied.

. ~

I I II
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Riley~ et al v. Brownt et al

1

7

Memorandum of Law in

ort of Motion for TRO

A week after the assault on Mr. Cornwell, Plaintiff James

Krivacska was scheduled to be transported to the oral surgery

clinic at New Jersey State Prison (NJSP) to have a tooth

extracted. Mr. Krivacska had only one prior experience with being

transported out of the A.D.T.C. In August of 2002, he was

transported to Monmouth County Superior Court for a court

proceeding. During that trip, he was seated in a van next to

State Prisoners who were aware of his status as an A.D.T.C.

inmate because they were already in the van when Mr. Krivacska

was picked up at the A.D.T.C. While held at the Monmouth County

Jail and Courthouse, Mr. Krivacska was not segregated from these

State Prisoners. Nor was he segregated on the return trip or for

the approximately two hour period he was held with State

Prisoners in a holding area at Garden State Correctional

Facility. As a result, throughout this trip and while being held

in various holding tanks, Mr. Krivacska was subject to verbal

abuse and threats of physical assault because of his status as an

A.D.T.C. inmate and convicted sex offender.

Scheduled for the medical trip to extract his tooth on May

31, 2005, Mr. Krivacska was confronted with his fear of again

b~ing subjected to the risk of verbal and physical abuse, as

compared to the excruciating pain he was suffering from the tooth

that needed to be extract Concluding that the incident

involving Mr. Cornwell the prior week might have sufficiently

Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 13 of 37 PageID: 100 I I

8

Riley, et al v. Brown, et al

: Memorandum of Law in S ort of Motion for TRO

chastened DOC off~cials that they would be taking additional I I
precautions while lthe Cornwell assault was still being

invest

ed, he ecided to risk the trip.

On the trip fr m A.D.T.C. to NJSP, which Mr. Krivacska took

with three other .D.T.C. inmates, the A.D.T.C. inmates were kept

separate from inm tes from Northern State Prison by an empty row

in the vehicle, a

enforcement by the officers of the

rule that inmates must remain in their seat during the transport.

As a result, the .D.T.C. inmates were physically protected from

contact with the tate Prisoners, although they were nevertheless

exposed to verbal

Throughout th five hours Mr. Krivacska and the A.D.T.C.

inmates remained NJSP. they were kept in holding areas

unloaded from vehicles, A.D.T.C. inmates, who were seated in

front of the Stat Prisoners, were loaded last and unloaded first

to ensure no phys cal contact would occur. While being moved

between areas at he NJSP, the officers in charge. who may at

times call for in ates based on where they are housed, shuffled

the paperwork so hat all other State Prisoners were called

first, so as to a oid ident

A.D.T.C. inmates and where they

were from.

At any time S ate Prisoners and A.D.T.C. inmates were not

separated (in cor idors, or clinic waiting areas). a DOC

\ I Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 14 of 37 PageID: 101

Riley, et al v. Brown. et al

9

Memorandum of Law in

art of Motion for TRO

corrections officer(a) was physically present. On the return trip

from NJSP, the A.D.T.C. inmates were transported directly back to

A.D.T.C. without stopping at the Garden State Correctional

Facil

Other than some verbal abuse on the morning trip from

A.D.T.C. to NJSP, Mr. Krivacska was not subjected to any threats

of physical harm, or risk of physical harm because of the efforts

of DOC officials to keep A.D.T.C. inmates physically separate

from State Prisoners.

Despite demonstrating that

segre ion was possible and

could be accomplished with minimal effort, Mr. Krivacska learned

from other inmates going on court or medical trips that, within a

few weeks, DOC staff had returned to mixing A.D.T.C. inmates and

State Prisoners. and had, in some cases, even returned to the

practice of informing State Prisoners of where the A.D.T.C.

inmates were from, again plac

A.D.T.C. inmates at risk. As a

result, Mr. Krivacska delayed the extraction of a broken tooth

for six months, until he was able to arrange to have the tooth

pulled by an oral surgeon who visits the A.D.T.C. periodically to

care for inmates at a half-way house the A.D.T.C. infirmary

services.

Mr. Krivacska currently has pend

before the Monmouth

County Superior Court. a Post Conviction Relief Petition (the New

Jersey equivalent of federal habeas corpus). In light of the

. Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 15 of 37 PageID: 102

'

10

Riley, et al v. Brown, et al

Memorandum of Law in

rt of Motion for TRO

risks associated

being transported with State Prisoners, Mr.

Krivacska has, against the advice of counsel, waived his right to

appear at status !'onferences, or pre hearing proceedings. Mr.

Krivacska's attor ey has advised him that absenting himself from

those proceedingsjcould compromise his representation of Mr.
Krivacska. as que~tions might come up during a conference or

proceeding that h would need to ask Mr. Krivacska about.

However, Mr. Kriv cska's fear of serious physical assault or

injury is so seve e that he would

r waive his rights to

appear in court t an risk such

ury. Currently, an appearance

before the Monmouih County Court is scheduled for February 17,
I I
2006. an appearan e Mr. Krivacska will be forced to waive if the

relief sought is ot granted.

Mr. Krivacska is also the defendant in a lawsuit filed by his

ex-law firm for a alle

outstanding balance of over $100,000

in legal fees. Th t action, pending in Essex County Superior

Court, will soon ove into the pre-trial stage, as the discovery

period has nearly concluded. Mr. Krivacska answered this

complaint by rais ng several valid defenses which he believes he
could succeed wit if the matter is taken to trial. However, for

fear of serious i jury or death if he is not segre ed from State Prisoners d ring trips to the Essex County .Jail and 1~hile

held in Essex Cou ty Jail or the court house, Mr. Krivacska is

preparing to waiv his right to a trial and accept a judgment

Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 16 of 37 PageID: 103

_________ Riley, et al v. Brown. et al

11

Memorandum of Law in S ort of Motion for TRO .....

against him in the amount of $100,000. Mr. Krivacska will be

faced with making this decision within the next few weeks unless

the relief sought by the TRO and preliminary injunction is

granted.

Mr. Krivacska formally grieved the practice of mixing State

Prisoners and A.D.T.C. prisoners during medical. court and other

trips in an Administrative Remedy Form dated June ~. 2005. The

Administrative Remedy Form (ARF) is the only approved procedure

for an inmate to file a formal grievance with the DOC. That ARF

was responded to by Associate Administrator Mr. Goodwin on June

l~. 2005, in which he noted that A.D.T.C. had no authority over

the transport policies of Central Transport. Mr. Krivacska then

appealed that decision using the appeal process in place for

inmate grievances, requesting that his grievance be forwarded to

the Central Transport Unit or other administrator who had the

authority to

polic s regarding the se

ion and

transport of A.D.T.C. inmates. That appeal was submitted on June

23, 2005.

Mr. Goodwin responded on July 10. 2005 again asserting that

A.D.T.C. does not have the authority to change transport

policies. Though stating that Central Transport was aware of the

concerns of the A.D.T.C. inmates, he gave no indication in his

response that any action in response to those concerns was

Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 17 of 37 PageID: 104 • I

12

Riley, et al v. Brown, et al

....1Memorandum of Law in

ort of Motion for TRO

forthcoming or th~t he had forwarded Mr. Krivacska~s grievance to

Central Transport lor a

level administrator as requested.

Hav

filed , formal grievance and having pursued that

grievance through appeals to its conclusion, Mr. Krivacska

exhausted all adm nistrative remedies available to an inmate in

the New Jersey De artment of Corrections, with regard to the

issues being pres nted in this complaint. Thus, the Plaintiffs

have complied wit the

lon requirements of 42 U.S.C. §

1997e (a).

Plaintiff Riclard Gibbs has the most pressing claim before

this court and is most critically in need of a temporary

restraining order With a court appearance in Burlington County

Court scheduled f r January 30, 2006, he will confront almost

immediately the c oice of either sacrificing constitutionally

he chooses to exe cise those rights. Mr. Gibbs has pending before the Burlington Co nty Superior Court. a Post-conviction Relief Petition. As part of the proceedings on that petition, his attorney, appoint d by the Office of the Public Defender, has filed a motion se king to recuse Judge LeBon, before whom the PCR petition is pendi g. from continuing to hear or rule on the petition. A heari g to receive testimony on that motion is schedule just a f w days away, on January 30, 2006. Mr. Gibbs' attorney has advi ed him that his [Mr. Gibbs'] testimony may be

I • Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 18 of 37 PageID: 105

Riley, et al v. Brown, et al

13

Memorandum of Law in

art of Motion for TRO

critical to winning this motion and has advised him to attend

this hearing and offer testimony. As with Mr. Krivacska, Mr.

Gibbs is very fearful of being assault. injured or even killed

during a court trip if he is not segregated from state prisoners,

and has thus advised his attorney that absent assurances of his

safety, or an order of a court that he be kept separate from

State prisoners at all times, he feels compelled to waive his

rights to appear and participate in this hearing.

Future proceedings may also require Mr. Gibbs to choose

between his safety and pres

his constitutional r

s, but

at the moment, the January 30th date looms large for Mr. Gibbs'

interests.

Plaintiff George Riley is a long-time inmate at the A.D.T.C.

and has been informed about the physical and verbal abuse

A.D.T.C. inmates are subjected to during court and medical trips

for many years. He is aware of prior att

s to

DOC

officials to take these concerns seriously and to take action to

protect A.D.T.C. inmates during such trips.

Mr. Riley is an elected member of the Inmate Resident

Committee (IRC). representing his housing unit, and is also

chairman of the IRC's legal subcommittee. In that capacity he has

received information from many inmates of the phys al and verbal

abuse to which they are subjected on court and medical trips from

not only State Prisoners. but. at times, from DOC employees. This

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14

Riley, et al v. Brown, et al

Memorandum of Law in
••• ,1,

ort of Motion for TRO

abuse is solely a~tributable to their status as inmates of the

'
A.D.T.C., and thelrelated fact revealed by their housing
location; that th~y are convicted sex offenders.

Records retai4ed by the IRC indicate that complaints about
verbal and physic~l abuse of A.D.T.C. inmates at the hands of

state prisoners d -te back at le.ast to 1989; complain-ts which were

ignored by DOC of icials. including the then A.D.T.C.

administrator and current Director of Operations, William

Plantier.

Mr. Riley alsd has an appeal of a PCR petition currently

pending before tht Superior Court-Appellate Division, which, if

remanded to the t ial court. will require him to be transported

to and to appear t in Monmouth County Court. Mr. Riley fears

that he will be e posed to a substantial risk of severe physical

injury should he ttend those procee

s. He is subjec-t to a

remand by the App llate Court at any time.

In his capaci y as Chairman of the IRC's Legal Subcommittee,

Mr. Riley wrote t A.D.T.C. Administrator Grace Rogers in June

of 2005, requesti g that steps be taken to ensure the safety of

A.D.T.C. inmates ur

court and medical trips, particularly in

li

of

rece t assault on

Cornwell. Mr. Bernard

Goodwin, Associat Administrator of the A.D.T.C. responded and

informed Mr. Rile that A.D.T.C. has no control or authority over

how A.D.T.C. inma es are transported. Mr. Riley then wrote to Mr.

I. •

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Riley, et al v. Brown. et al

15

Memorandum of Law in

ort of Mot

for TRO

William Plantier. former administrator/superintendent at the

A.D.T.C. and currently DOC Director of Operations. requesting

information regarding current policies, practices and procedures

regarding transport of A.D.T.C. inmates during court and medical

trips. No corrective action has been taken.

Plaintiff Peter Braun has been diagnosed with cancer and has

had to have surgery as part of his treatment for this condition.

Mr. Braun will require medical follow-up care for this condition

which will require his transport to medical facilities outside of

the A.D.T.C. He also is currently involved in 1

proceed s

requiring his appearance in Union County Superior Court - Family

Part, again necessitating his transport out of the A.D.T.C. Mr.

Braun has two sons. one of whom has been in a coma for two years

as a result of a traffic accident when he was 13 years old. His

other son is 14 years old. Both are in foster care under the

supervision of the State. The only means by which Mr. Braun is

able to learn about how hi,s sons are doing. and in particular

obtain any information about the medical status of his gravely

injured son, is through is attendance at compliance conferences

in Union County Family Court.

As noted above, A.D.T.C. administrators responded to Mr.

Krivacska's ARF by indicating that CTU was aware of the concerns

of the A.D.T.C. residents regarding safety on medical and court

trips. Despite this. on December 13, 2005, Mr. Braun was

Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 21 of 37 PageID: 108 : J )

16

Riley, et al v. Brown. et al

art of Motion for TRO

transported to

Cotlnty Cour·thouse for a compl~ance hearing.

i
hopeful of obtainfng information about the status of his

children. without any provision be made to keep him safe and

secure.

In fact, Mr. raun was subjected to over two hours of

harassment, threa s, intimidation and psychological torture by

two very dangerou and violent State prisoners, one from Northern

State Prison in N wark, the other from East Jersey State Prison

in Rahway, while n

care and custody of officers of the CTU.

During this perio , not only was Mr. Braun not segregated for the

transport, he was forced by the CTU officers to sit next to the

State prisoners d spite the fact that there was empty seating

elsewhere in the an that would have kept him physically isolated

from these State risoners. Because he was seated next to these

prisoners, who re eatedly touched his pe.rson and search his body

looking for jewel y, he remained terrified that he would be

physically assaul ed and potentially seriously injured, s risk

enhanced by his w akened status because of his medical condition

and recent surger

Of especial oncern to Mr. Braun, and contributing

significantly to is fears for his s

Mr. Braun was informed

by the State pris ners that his identity as an inmate from the

A.D.T.C. and the act that he was a convicted sex offender was

revealed to th<i!m y the CTU officers in control of the van, who

Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 22 of 37 PageID: 109

Riley. et al v. Brown. et al

17

Memorandum of Law in

ort of

then also encouraged them to "have fun with him." Because Mr.

Braun had been transferred from another van in the parking lot of

the Garden State Youth Correctional Facility and because he did

not identify where he was from, the State prisoners could only

have known he was an A.D.T.C. inmate from the CTU officers. Mr.

Braun's worst fears were confirmed when he heard the CTU officers

laughing and joking about the abuse he was enduring.

Mr. Braun suffer such severe psychological trauma as a

result of his experience, that he was held in the A.D.T.C.

infirmary overnight for observation, medicated, and, when finally

released to the general population, was kept under close

observation for two more days. Mr. Braun is terrified of having

to again be subjected to threat of psychological and physical

abuse when he next goes on a court or medical trip, trips which

are inevitable and unavoidable because of on-going judicial

review of his sons' status and his medical needs.

Plaintiff Vincent Macrina is an inmate at the A.D.T.C. who suffers from numerous, serious medical conditions including heart disease and serious arthritis in the shoulder and neck. The latter condition causes Mr. Macrina to suffer several chronic symptoms, including pain in the neck and shoulder, shooting pain from his shoulder to the fingertips of his right hand, and poor circulation to his right arm. all probable symptoms of a pinched

Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 23 of 37 PageID: 110 ;. ,r

18

Riley, et

v. Brown, et sl

Memorandum of Law in

rt of Motion for TRO

nerve. Mr. Macrin' has previously taken trips to NJSP and St.

Francis Hospital to receive physical therapy to relieve many of

these symptoms. Hlwever, in light of the assaults on Mr.

Cornwell, the con inued practice of DOC corrections officers
identifying that ~r. Macrina is from the A.D.T.C. to State
I
Prisoners during ~is medical trips, and the fact given his age,

70 years old, and declining health, Mr. Macrina does not believe

he could adequate y defend himself if assaulted, he has concluded

that

on the e tr s creates too substantial a risk of

serious physical arm, or death. Thus, despite chronic, ongoing

pain, Mr. Macrina has and will continue in the future, to refuse

medical trips.

Plaintiff Wil. 1am Vansciver 1s an inmate at the A.D.T.C. who

suffers from a ch onic, severe, seizure disorder and neurological

disability. Mr. V nsciver is the only named Plaintiff who was not

sentenced to the .D.T.C. for treatment as a compulsive and

repetitive sex of ender. Though convicted of a sex offense, Mr.

Vansciver was not found compulsive and repetitive pursuant to

N.J.S.A. 2C:47·3, and thus was sentenced to State Prison, not the

A.D.T.C. Despite eing sentenced to state prison, Mr. Vansciver

was administrativ ly transferred to the A.D.T.C. Prior to this

transfer Mr. Vans iver was housed at South Woods Correctional

Facility (SWCF). r. Vansciver received medical treatment at

various medical f cilities outside of SWCF while housed there. As

1

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Riley, et al v. Brown, et al

1

1

19

Memorandum of_.~~~ in. Support of Motion for TRO

his status as a convicted sex offender was not known by the

inmate population at SWCF and as that status was not revealed to

other State Prisoners by reason of being from SWCF during medical

trips, Mr. Vansciver, prior to his transfer to the A.D.T.C .. was

free to participate in those trips and receive needed treatment

without fear of being physically injured or killed. He would

receive neurological consults at NJSP approximately every three

months and neurological evaluations at St. Francis approximately

twice a year.

Upon his transfer to the A.D.T.C. however, that situation

changed. Mr. Vansciver, because of his neurological problems and

seizure disorder, is at particular risk of serious brain damage

or death should he suffer a blow to the head. After learning of

the assault on Paul Cornwell. in particular the blow he suffered

to his head, Mr. Vansciver became fearful for his life if he

continued on these trips and no effort was made to segre e or

protect him from State Prisoners. Consequently. Mr. Vansciver has

not been receiving the neurological consults or monitoring via

EEG evaluation (Electro-encephalogram), he needs to monitor his

medication and control his seizures. As a result, Mr. Vansciver

continues to suffer and will continue to suffer grand mal and

petite mal seizures. These seizures result in physical injuries

to his head, hands, shoulders. and l~gs, and has also caused and

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20

Riley, et al v. Brown, et al

Memorandum of Law ln

ort of Motion for TRO

will continue to ¢ause, permanent memory loss and other

neurological impairment.

Moreover, witi the lack of monitor

and treatment of his

disorder, on Octo~er 22, 2005, he suffered a severe seizure which

required his emer ency transport to Rahway General Hospital by

ambulance, for wh ch he was later billed $518.00.

Plaintiffs Ri ey, Krivacska, Gibbs and Braun have docketed

cases pending bef re the Superior Courts of this state, which

cases will requir their appearance in the next few weeks and

months. Absenting themselves from those proceed s jeopardizes

their claims befo e these courts, while attending these

proceedings by ac epting transport with State Prisoners places

each of these Plaintiffs at substantial risk of serious physical

harm. These Plain iffs are then subject to irreparable harm,

either in the for of forfeited legal claims, or serious bodily

injury, if the re uested TRO is not forthcoming.

Plaintiffs Co nwell, Macrina, Vansciver and Braun suffer

medical condition that require immediate and continued medical

treatment. Denial of access to that treatment because of an

unsafe transport ystem, risks serious and permanent injury to

these plaintiffs. Conversely, if these Plaintiffs seek this

medical treatment

are at high risk for suffer

serious

and permanent inj ry if assaulted by State Prisoners, in the

absence of proced res to segregate A.D.T.C. inmates during

Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 26 of 37 PageID: 113

Riley, et al v. Brown, et al

21

Memorandum of Law ~n

rt of Motion for TRO

medical trips. In either case. these. plaintiffs are being

subjected to irreparable harm, either in the form of neglected

medical treatment and a worsening of their condition, or serious

bo

injury, if the requested TRO is not forthcoming.

ARGUMENT POINT I PLAINTIFFS ARE ENTITLED TO A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION In determining whether a party is entitled to a temporary
restraining order or a preliminary injunction, courts generally
consider several factors: whether the party will suffer
irreparable injury. the "balance of hardships" between the
parties, the likelihood of success on the merits, and the public
interest. Each of these factors favors the grant of this motion.

A. PLAINTIFFS ARE THREATENED WITH IRREPARABLE HARM Plaintiffs Riley. Krivacska. Gibbs and Braun face irreparable
harm with respect to the various civil cases they have pending before Superior Court if they choose to waive appearances at those proceedings out of fear of being assaulted or killed by a State Prisoner while being transported to court. In Mr. Riley's case, that irreparable harm would be, at worse, dismissal of his PCR petition, irrespective of its merits, or waiver of rights or arguments at a pre-hearing proceeding. Mr. Krivacska and Mr. Gibbs face a similar form of irreparable harm with respect to their PCR petitions, including waiving arguments or relevant

. Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 27 of 37 PageID: 114 /

22

Riley, et al v. Brown, et al

Memorandum of Law in

ort of Motion for TRO

facts by not beingi etvailable to assist in their own defense by
I

conferring with copnsel dur

actual proceedings in court.

Mr. Gibbs' sit ation is the most critical with an important

hearing scheduled or January 30, 2006 before Judge LeBon. Mr.

Gibbs' attorney ha filed a motion seeking recusal of Judge LeBon

from hearing Mr. G'bbs' PCR Petition. This attorney has

communicated to Mr. Gibbs that it is very important that Mr.

Gibbs attend so th t his testimony can be taken, in absence of

which he risks hav'ng the motion denied. Against his counsel's

recommendation and solely because of fear for his s

and

life, Mr. Gibbs wi 1 have to waive his right to appear on this

motion unless the otion for the TRO is granted.

r I

For his part.

Krivacska additionally faces irreparable

harm in the form o a binding judgment against him for over

$100,000 in a pend~ng civil action in Essex County Superior

Court, should he ive appearance at trial.

For Mr. Gibbs, Mr. Krivacska, Mr. Braun and Mr. Riley, the

irreparable harm wpuld ,;nsue from the dangerous conditions in

which DOC would require the PJ.aintiffs to be transported, so

dangerous as to e fectively deny them their right to access to

the courts under t e First Amendment. This harm is imminent as

11r. Gibbs,

Mr. Braun or Mr. Krivacska could be call

to app,;ar in court at any tim,; in their respective civil actions,

Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 28 of 37 PageID: 115

Riley. et al v. Brown, et al

23

Memorandum of Law

of Motion for TRO

and the fact that a required appearance for these Plaintiffs is

all but assured in the neat few months.

Mr. Gibbs has the most pressing and time sensitive claim. He

has a court appearance on a recusal motion schedul for January

30, 2006 and is immediately confronted with the choice of waiving

his constitutionally protected rights and relinquishing valid

claims he may have regarding the need for his PCR judge to recuse

herse from further involvement in the proceedings. or risk

serious injury or death if he chooses to make his appearance. For

Mr. Gibbs the irreparable harm would ensue from the dangerous

conditions in which DOC would require Mr. Gibbs to be

transported, so dangerous as to effectively deny him his right to

access to the courts under the First Amendment. This harm is very

imminent as Mr. Gibbs has been called upon to appear in court on

January 30, 2006, just a few days away, and there is insufficient

time for Mr. Gibbs to pursue any other form of relief.

Mr. Braun will again shortly need to appear in Family Court

in Union County and will again be at risk for suffering

irreparable harm if he is again physically and psychological

assaulted by dangerous and violent State prisoners should the CTU

continue to refuse to s egate him ..

Plaint

Cornwell, Macrina, Vansciver and Braun are likely

to suffer irreparable harm of a different var

, In

case,

these Plaintiffs suffer from serious medical conditions for which

Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 29 of 37 PageID: 116

24

Riley, et al v. Brown. et al

Memorandum of Law in S ort of Motion for TRO ·-- --·· ·-- ···--·

medical treatment is required. By denying them reasonably safe

transport to that medical treatment, DOC is essentially d

them access to m dical treatment in violation of the Eighth

Amendment. The

eparable harm threatened is serious and

permanent injury r disability caused by their untreated medical
conditions. harm ~hich may appear at any time. has already begun
to appear, and wi 1 continue to appear absent appropriate treatment,

All the Pl

iffs are at risk of irreparable harm should

they choose to go on, or in the case of mandatory court
I

appearances, fore

go on, a court or medical trip. That

irreparable harm

be serious bodily injury or death from an

assault by a Stat Prisoner in the absence of segre ing

A.D.T.C. inmates ,rom such prisoners.

vio~atlons Continuing

and deprivations of constitutionally

guaranteed rights constitutes immediate and irreparable harm.

-=e'--'-'. Bur11."'· 427 U.S. 347, 373 (1976). This principle has been applied in prison itigation generally. See Newsom v~orris. 888

L2d 371, 378 (6th Cir. 1989); Mi.tchell_y_,_Cuomo, 748

804,

' 646

1379. 1409

(N.D.Ill. 1986), atf'd, 851

867 (7th Cir. 1988),

109 ~

t79 (1989), and specifically in pri8on medical

care cases . .Philip ..~ichigan Dep:t;:__,_____g_f Corr.ections, 7 31 I_,_St\_Q_p__,_

792, 801 (W.D.Hich 1990), aff'd, 932 F.2d 969 (6th Cir. 1991).

Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 30 of 37 PageID: 117

Riley, at al v. Brown, at al

..

25

Memorandum of Law 1n

rt of Motion fo·r---T-R-O-------------· ..·-···...

B. THE BALANCE OF HARDSHIPS FAVORS THE PLAINTIFFS

i
In deciding whether to grant T!W'.s and preliminary

injunctions, courts ask whether the suffering of the moving party

if the motion is denied will outweigh the suffering of the non·

moving party

the motion is granted. See e.g.,

Cuomo, 748 F.2d, supra at 808 (holding that dangers posed by

prison overcrowding outweighed state's financial and

administrative concerns}; Duran v. Aqay~. 642 F.Supp. 510, 527

(D.N.M. 1986) (holding that prisoners' interest in safety and

medical care outweighed state's interest in saving money by

cutting staff).

Here, Plaintiffs' suffer

if relief is not granted,

substantially outweighs whatever minor inconvenience the State

might suffer. Among the harms the Plaintiffs will suffer from are

serious medical disability or death either from assault during a

medical trip or court trip, or in the case of those with chronic,

debilitating medical conditions, serious medical disability or

death from untreated medical conditions. Those Plaintiffs fore

to forego their constitutional rights under the First Amendment,

face prejudicial dismissal of their claims, wavier or forfeiture

of claims, defenses, or arguments in pending court cases, or ~n

the case of Plaintiff Krivacska. a judgment against him for over

$100,000 in a civil action.

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26

Riley, et al v. Brown, et al

Memorandum of Law in Support of Motion for TRO

By contrast. defendants' hardship 1s minimal if not

nonexistent. No ftcilities would have to be constructed as all

the secure facili ies operated at either the State or County

level at which A. . T. C. inmates may have to be transported,

contain multiple. secure. holding areas in which A.D.T.C. inmates

could be s~gregat d. In fact. the ability of DOC to transport and

hold A.D.T.C. inm tes in a manner that segregates and protects

them from State Prisoners was amply demonstrated in the wake of
the assault on Pa~l Cornwell when, as reported by Plaintiff

Krivacska, A.D.T.j. inmates were segregated or protected at all

times during tran port on May 31, 2005. Whatever reallocation of
staff that might t' e necessary based on the number of inmates that
I '
need to be transp rted on a given date, constitutes routine

administrative de isions regarding staff use that occur on a

daily basis anywa
: I
The balance of hardships tips overwhelmingly in favor of the

Plain"tiffs.

C. THE PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS The constitut onal rights of inmates to access to the courts

is clearly establ shed. Bounds v Smith. 430

817. 9 7 S. Ct

1491. 521 L.Ed.2d 72 (1977). So too is the right to adequate

medical care, Est lle v. Gamble, 429JLJL.. 97, 97 S.Ct. 285, 50

1,~d,2d 251 (1976 and the liability attendant to a DOC Officials

deliberate indiff renee to a serious medical need. Wilson v

I I

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Riley, et al v. Brown. et al

27

Memorandum of Law in

ort of Motion for TRO

Seiter:. 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.Zd 271 (1991). And

inmates do not need to wait until they suffer actual injury

before they may raise a claim of cruel and unusual punishment

under the Eighth Amendment.

25' 113

S.Ct. 2475, 125 L.Ed.2d 22 (1993) (prisoner's eighth Amendment

claim could be based on possible future harm to health as well as

present harm) ; Hutto. v. Finney, 42 7 Q.,_S ,_ 6 7 8. 682, 98 £_,_.Gt. 25 65,

2569. 57 L.Ed.2d 522 (1978) (an injunction cannot be denied to

inmates who plainly prove an unsafe, life-threatening condition

on the ground that nothing has yet happened to them).

Given a history of complaints by .A.D.T.C. inmates of verbal

and physical assaults by State prisoners during court and medical

trips dating back over fifteen years to 1989, and given the

recent incidents involving Mr. Becka, as reported in the verified

complaint and Mr. Cornwell, the State cannot claim it was not

noticed as to the r

posed by transporting and holding

A.D.T.C. inmates with State Prisoners. As noted in Heller,

"The [Eighth] Amendment, as we have said, requires

that

es be furnished with basic human needs.

one of which is 'reasonable safety.' [cite omitted]

It is 'cruel and unusual puni

to hold

convicted criminals in unsafe conditions.' You11gberg

v. Romeo, 457 ~ 307, 315-316, 102

2452,

2457-2458, 73 L.E.<:l

28 (1982). It would be odd to

deny an injunction to inmates who plainly proved an

unsafe, life-threatening condition in their prison

on the ground that nothing yet had happened to

them." Heller. supr_a, 509 U.S. at 33.

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28

Riley. et al v. Brown, et al

- - - - · Memorandum of Law in

ort of Motion for TRO

Clearly. then1 the Plaintiffs enjoy a substantial likelihood

of success on the merits of this claim.

D. THE RELIEF SOU HT WILL SERVE THE PUBLIC INTEREST The public in erest is certainly served by protecting

prisoners from ne dless and senseless violence. Society has a

strong interest i rehabilitation. an interest which is

shortchanged when prisoners suffer injury or death at the hands

of other prisoner . That interest is even stronger in the case of

those sentenced t the A.D.T.C. The public, through its elected

legislators, has etermined that its interests are particularly

served by providi g comprehensive psychological treatment to

those convicted o sexual offenses. Allowing those in treatment

to be subjected t physical and psycholo to the purpose of treatment.

al harm, runs counter

The public aljo has an interest in safe and secure prisons.
i
As illustrated byjMr. Cornwell's case, allowing unsafe conditions

to persist and re ult in injury to prisoners, increases the cost
I

of operating the

prisons. Mr. Cornwell's injuries

incurred as a res lt of the assault by the State Prisoner

required addition 1 medical treatment and medical tr s which

were paid for by he taxpayer.

But perhaps th most critical public interest, especially in

the wake of alleg tions of prisoner abuse at Abu Ghraib prison in

Iraq and at Guant amo base in Cuba, is in preserving the human

II I

Case 2:06-cv-00331-DRD -ES Document 3-1 Riley. et al v. Brown, et al

Filed 01/18/06 Page 34 of 37 PageID2:9121

Memorandu...m.......o...f-...L..a...w..-i-n - - -o'r-t 'o-f -M-ot-ion- -fo-r -TR-O- - - - - - - - - - ·

rights and dignities of those it confines, as a measure of our

standing in the world community. Conversely there is no public

interest served by turning a blind eye toward (or as has happened

too frequently in the past. actually encouraging or inst

ing)

attacks by one type of prisoner against another.

Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 35 of 37 PageID: 122

30

Riley, et al v. Erown, et al

___________M_e....m___orandum of Law in Support of Motion for TRO

POINT II PLAINTIFFS SHOULD NOT BE REQUIRED TO POST SECURITY
Usually a lit· gant who obtains interim injunctive relief is

asked to post sec

. Fed. R. Civ. P. 65(c). However, the

iffs are un ble to post secur

The court has discretion

to excuse an impo 1 erished litigant from posting security.

Orantes-Hernandez v. Smith, 541 fc__._~_)lpp, 351, 384, n. 30 (C.D.Cal.

1982); J.l;o,_ y. f'§! P3!J!}, 412 F.Supp. 112, 140 (D.Ga. 1976). rev'd

on other grounds, 442 U.S. 584, 99 S.Ct. 2493 (1979).

Although Plai tiffs did not file for ind ency status because

between them that had sufficient funds to afford the $150 filing

fee (which came t about $22 each) . they cannot afford counsel or

the cost of posti g security. In addition, as this is a class

action suit. Plaittiff should not be asked to bear the burden of posting security f' or the entire class.

In view of thE! immediate and irreparable harm facing
i
Plaintiffs, the Piaintiffs pray the Court grant the relief
I '
requested withoutlrequiring the post of security.

'\.··· .... /It Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 36 of 37 PageID: 123

Riley, et al v. Brown, et al

31

Memorandum of Law in

ort of Motion for TRO

CONCLUSION For the reasons enumerated herein, and on the facts attested to in the accompanying declarations, the Plaintiffs pray this court grant the relief requested.

Date: January L_o , 2006
Date: January~ 2006
Date: January~. 2006

Date: January

. 2006

Date: January ~. 2006
Date: January lv . 2006
Date: January 10 .. 2006

~p~ Paul Cornwell
xM~_-u·.A~
William Vansciver Richard Gibbs Peter Braun

Case 2:06-cv-00331-DRD -ES Document 3-1 Filed 01/18/06 Page 37 of 37 PageID: 124

 
 Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 1 of 26 PageID: 179

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
VICINAGE OF NEWARK

GEORGE RILEY, et al., : HON. DICKINSON R. DEBEVOISE, U.S.D.J.

Plaintiff,

: Civil Action No. 06-0331 (DRD)

v.

:

DEVON BROWN, et al.,

:

Defendants. :

________________________________________________________________
BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER
________________________________________________________________

ZULIMA V. FARBER Attorney General of New Jersey R.J. Hughes Justice Complex PO Box 112 Trenton, New Jersey 08625 (609)292-8550 Potential Attorney for State Defendants Devon Brown and
William Plantier

VICTORIA L. KUHN Deputy Attorney General
Of Counsel
SUSAN M. SCOTT Deputy Attorney General
On the Brief

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 2 of 26 PageID: 180
TABLE OF CONTENTS PAGE
PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . 1 PROCEDURAL HISTORY AND COUNTER-STATEMENT OF FACTS . . . . . . . 2
A. Facts Specific to Plaintiff James J. Krivacska . . . 4 B. Facts Specific to Plaintiff Richard Gibbs . . . . . . 5 C. Facts Specific to Plaintiff George Riley . . . . . . 5 D. Facts Specific to Plaintiff Peter Braun . . . . . . . 6 E. Facts Specific to Plaintiff Vincent Macrina . . . . . 7 F. Facts Specific to Plaintiff William Vansciver . . . . 7 G. Facts Specific to Plaintiff Paul Cornwell . . . . . . 8 Plaintiffs’ Motion for Temporary Restraining Order . . . . . . 8 LEGAL ARGUMENT PLAINTIFFS HAVE FAILED TO ESTABLISH THE ELEMENTS NECESSARY TO IMPOSE PRELIMINARY RESTRAINTS UPON THE STATE DEFENDANTS . . . . . . . . . . . . . . . . . . . . . . . 10 1. It is Not Probable that Plaintiffs will Succeed on
the Merits . . . . . . . . . . . . . . . . . . . . 11 2. Plaintiffs Will Not Suffer Irreparable Injury in
the Absence of Preliminary Relief . . . . . . . . . 15 3. The Hardship to Plaintiffs in the Absence of Relief
Does Not Outweigh the Hardship to the State Defendants and the Public . . . . . . . . . . . . . 18 4. Plaintiffs’ Request for Preliminary Relief is Not in the Interest of the Public . . . . . . . . . . . 21 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 22
i

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 3 of 26 PageID: 181
TABLE OF AUTHORITIES CASES
Adams v. Freedom Forge Corporation, 204 F.3d 475 (3rd Cir. 2000) . . . . . . . . . . . . . . . . 15 Board of Educ., Borough of Union Beach v. New Jersey Educ. Ass’n, 96 N.J. Super. 371 (Law Div. 1967), aff’d, 53 N.J. 29 (1968) . . . . . . . . . . . . . . . . . . 17 Continental Group, Inc. V. Amoco Chem. Corp., 614 F.2d 351 (3rd Cir. 1980) . . . . . . . . . . . . . . 15, 16 E.B. v. Poritz, 914 F. Supp. 85 (D.N.J. 1996), 119 F.3d 1077 (3d Cir. 1997) . . . . . . . . . . . . . . . . 11 Ecri v. McGraw-Hill, Inc., 809 F.2d 223 (3rd Cir. 1987) . . . 16 Farmer v. Brennan, 511 U.S. 825 (1994) . . . . . . . . . . . 20 Frank's GMC Truck Ctr. Inc. v. Gen. Motors Corp., 847 F.2d 100 (3d Cir. 1988) . . . . . . . . . . . . . . . . . 10 Gerardi v. Pelullo, 16 F.3d 1363 (3d Cir. 1994) . . . . . . . 10 Hudson v. Palmer, 468 U.S. 517 (1984) . . . . . . . . . . . . 20 Kershner v. Mazurkiewicz, 670 F.2d 440 (3d Cir. 1982) . . . . 11 LCN Enters. v. City of Asbury Park, 197 F. Supp. 2d 141 (D.N.J. 2002) . . . . . . . . . . . . 11, 12 Meachum v. Fano, 427 U.S. 215 (1976)), 154 N.J. 19 (1998) . . . . . . . . . . . . . . . . . . . . . 14 Oburn v. Shapp, 521 F.2d 142 (3d Cir. 1975) . . . . . . . . . 12 Opticians Ass'n of Amer. v. Independent Opticians of Amer., 920 F.2d 187 (3d Cir. 1990) . . . . . . . . . . . . . . . . . 11 Procunier v. Martinez, 416 U.S. 396 (1974) . . . . . . . . . 19 Sandin v. Conner, 515 U.S. 472 (1995) . . . . . . . . . . 14, 15 SI Handling Systems, Inc. v. Heisley, 753 F.2d 1244 (3d Cir. 1985) . . . . . . . . . . . . . . . . 10
ii

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 4 of 26 PageID: 182
Smith v. Travelers Mortgage Services, 699 F.Supp. 1080 (D.N.J. 1988) . . . . . . . . . . . . . . . 17 Thornburgh v. Abbott, 490 U.S. 401 (1989) . . . . . . . . . . 19 Trantino v. N.J. State Parole Bd., 296 N.J. Super. 437 (App. Div. 1997) . . . . . . . . . . . . 13 Turner v. Safley, 482 U.S. 78 (1987) . . . . . . . . . . . . 19 United States v. City of Philadelphia, 644 F.2d 187 (3d Cir. 1980) . . . . . . . . . . . . . . . . . 10
STATUTES 42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . 1-8, 18 N.J.S.A. 2C:47-3(h) . . . . . . . . . . . . . 12, 13, 15, 20, 21 N.J.S.A. 2C:47-3(h)(1) . . . . . . . . . . . . . . . . . . . 12 N.J.S.A. 2C:47-3(h)(2) . . . . . . . . . . . . . . . . . 12, 13 N.J.S.A. 30:4-91.2 . . . . . . . . . . . . . . . . . . . . . 12
REGULATIONS N.J.A.C. 10A:3-9.3(j) . . . . . . . . . . . . . . . . . . . . 20
OTHER AUTHORITIES The Standard for Preliminary Injunctions, 91 Harv. L.Rev. 525 (1978) . . . . . . . . . . . . . . . 15, 16
iii

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 5 of 26 PageID: 183
PRELIMINARY STATEMENT Plaintiffs have filed a Complaint and Motion for Temporary Restraining Order against the State Defendants alleging a 42 U.S.C. § 1983 cause of action under the First, Eighth and Fourteenth Amendments of the United States Constitution. Plaintiffs, all state inmates currently housed in the Adult Diagnostic and Treatment Center (“ADTC”), seek a Temporary Restraining Order requiring the New Jersey Department of Corrections (“DOC”) to: 1) keep all “ADTC inmates” segregated from state inmates of other institutions at all times during trips to and from the ADTC; 2) have a Corrections Officer present at all times when segregation is not possible; 3) institute policies and procedures directing DOC staff not to identify “ADTC inmates” as such; 4) provide “ADTC inmates” with clothing that does not identify them as such; and 5) institute polices and procedures providing for "keep separate" status for “ADTC inmates,” isolating them from state inmates of other institutions. There is no merit to plaintiffs’ claims for injunctive relief. The State Defendants oppose plaintiffs’ Application for a Temporary Restraining Order because plaintiffs have failed to prove: (1) a reasonable probability of success on the merits; (2) they will suffer irreparable harm;(3)that the balance of hardships weighs in favor of granting the relief; or (4)the preliminary relief will be in the public interest.

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 6 of 26 PageID: 184
PROCEDURAL HISTORY AND COUNTER-STATEMENT OF FACTS1 Plaintiffs, George Riley, 133229B, James J. Krivacska, 106128C, Paul Cornwell, 081208B, Vincent Macrina, 865912C, William Vansciver, 033020A, Richard Gibbs, 232215C, and Peter Braun, 786615A, filed a Motion for Temporary Restraining Order on or about January 18, 2006 and a 42 U.S.C. § 1983 Complaint on January 27, 2006, against State Defendants, Devon Brown, Former Commissioner of the New Jersey Department of Corrections, and William Plantier, Director of the Division of Operations for the New Jersey Department of Corrections. The Motion for Temporary Restraining Order and Complaint were sent ex parte to the court. However, the court has permitted the Office of the Attorney General to file an opposition to plaintiffs’ motion by February 17, 2006. Accordingly, this letter brief is submitted to the court. Plaintiffs’ Motion for Temporary Restraining Order and Complaint were served on State Defendants by Waiver of Service on February 9, 2006. Therefore, State Defendants Answer to Plaintiffs’ Complaint is due on April 10, 2006. Plaintiffs, state inmates housed at the Adult Diagnostic and Treatment Center (“ADTC”), allege the State Defendants imposed cruel and usual punishment on the plaintiffs, by subjecting plaintiffs to serious physical injury, or threat of injury, which
1The Procedural History and Counter-Statement of Facts have been combined for the convenience of the Court as they are inextricably intertwined.
2

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 7 of 26 PageID: 185
in turn, has allegedly interfered with plaintiffs’ right to necessary medical treatment. (Plaintiffs’ MEMORANDUM OF LAW IN SUPPORT OF TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION (“Memo of Law”), 1).
Specifically, plaintiffs allege the State Defendants have failed to protect plaintiffs from other state inmates, which they come in contact with during medical, court, and other trips outside of the ADTC facility. (Id. at 2). Plaintiffs state that these other state inmates harbor particular enmity toward plaintiffs because the plaintiffs have been convicted of sexual offenses and therefore, these other inmates seek to cause plaintiffs physical and psychological harm in the absence of protection by DOC officers. (Id.)
Plaintiffs assert that the alleged failure of the State Defendants to protect plaintiffs from other state inmates has resulted in plaintiffs fear of being seriously injured by other state inmates during trips outside the ADTC. (Id.) Plaintiffs claim that due to their fears, they have voluntarily forgone needed medical treatment2 and necessary court appearances, which has allegedly placed them at risk of suffering serious medical problems
2State Defendants note at the outset that although plaintiffs allege they forgo necessary medical trips outside the ADTC, medical care is provided within the ADTC facility, and medical transports are only for that care which, above and beyond the basic medical care provided at the ADTC. Therefore, plaintiffs are not entirely without medical care when they voluntarily refuse to go on medical trips outside the ADTC.
3

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 8 of 26 PageID: 186
and sacrificing significant property and/or liberty interest. (Id. at 3). A. Facts Specific to Plaintiff James J. Krivacska
Plaintiff James Krivacska, currently housed at the ADTC, is serving a sixteen-year sentence for one count of aggravated sexual assault in the first degree, two counts of aggravated sexual assault in the third degree, and two counts of endangering the welfare of a child. (New Jersey Department of Corrections Inmate Locator, https://www6.state.nj.us/DOC_Inmate/inmatefinder?i=I).
Plaintiff Krivacska alleges that in August of 2002, he was transported for a court proceeding and throughout that trip he was allegedly subjected to verbal abuse and threats of physical assault, by another state inmate, due to Krivacska’s status as a convicted sex offender. (Plaintiffs’ Memo of Law, at 7). Plaintiff Krivacska also alleges that on May 31, 2005, he was scheduled for a medical trip to have a tooth extracted. (Id.). Krivacska went on his medical trip, coming into contact with state inmates housed at other institutions, and allegedly suffered some verbal abuse on the morning trip. (Id. at 8-9). Krivacska was not threatened or physically assaulted on this trip. (Id. at 9). Despite the safe medical trip on May 31, 2005, Krivacska, allegedly still fearful, claims to have delayed the extraction of a broken tooth for six months until an oral surgeon visiting the ADTC could perform the procedure. (Id.). Plaintiff Krivacska has a court
4

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 9 of 26 PageID: 187
appearance scheduled for February 17, 2006, which he allegedly intends to waive his right to appear due to his alleged fear of physical assault or injury at the hands of other state inmates during the trip. (Id. at 10). B. Facts Specific to Plaintiff Richard Gibbs
Plaintiff Richard Gibbs, currently housed at the ADTC, is serving a twenty-five year sentence for two counts of sexual assault on a victim under thirteen years of age, four counts of endangering the welfare of a child in the second degree, and one count of aggravated sexual assault in the first degree. (New Jersey Department of Corrections Inmate Locator, https:// www6.state.nj.us/DOC_Inmate/inmatefinder?i=I).
Plaintiff Gibbs alleges only that he had a court appearance scheduled for January 30, 2006 and he was allegedly fearful of being assaulted during that trip and waived his right to appear. (Plaintiffs’ Memo of Law, at 12-13). C. Facts Specific to Plaintiff George Riley
Plaintiff George Riley, currently housed at the ADTC, is serving thirteen years for one count of rape and carnal abuse, one count of endangering the welfare of a child, and one count of criminal attempt to commit a sexual offense. (New Jersey Department of Corrections Inmate Locator, https://www6.state.nj.us/ DOC_Inmate/inmatefinder?i=I).
5

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 10 of 26 PageID: 188
Plaintiff Riley alleges only that he has an Appeal before the Appellate Division and that if his case is remanded, he will be required to be transported to and from court. (Plaintiffs’ Memo of Law, at 14). Riley is allegedly fearful of physical injury or assault during these potential court trips. (Id.) D. Facts Specific to Plaintiff Peter Braun
Plaintiff Peter Braun, currently housed at the ADTC, is serving eight years for one count of sexual assault on a victim under thirteen years of age, one count of endangering the welfare of a child by selling/viewing child pornography, and one count of endangering the welfare of a child in the second degree. (New Jersey Department of Corrections Inmate Locator, https:// www6.state.nj.us/DOC_Inmate/inmatefinder?i=I).
Plaintiff Braun alleges that he must attend compliance conferences in Union County Family Court. (Plaintiffs’ Memo of Law, at 15). Braun alleges that on December 13, 2005, during a trip to one of these conferences, he was subjected to verbal harassment and threats by other state inmates, who also allegedly touched Braun’s person searching for jewelry. (Id. at 16). Braun claims he suffered psychological trauma as a result of this incident and that he is allegedly fearful of abuse during his next trip to court. (Id. at 17). Finally, Braun alleges that the state inmates knew he was a convicted sexual offender because the corrections officers told them. (Id.).
6

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 11 of 26 PageID: 189

E. Facts Specific to Plaintiff Vincent Macrina

Plaintiff Vicent Macrina, currently housed at the ADTC, is

serving eleven years for one count of aggravated sexual assault, in

the first degree, on a victim under thirteen. (New Jersey

Department of Corrections Inmate Locator, https://www6.state.nj.us/

DOC_Inmate/inmatefinder?i=I).

Plaintiff Macrina alleges that due to his medical condition,

he must make frequent medical trips to New Jersey State Prison and

St. Francis Hospital. (Plaintiff’s Memo of Law, at 18). Plaintiff

Macrina alleges that he is fearful of being assaulted and

therefore, allegedly refuses his medical trips. (Id.).

F. Facts Specific to Plaintiff William Vansciver

Plaintiff William Vansciver, currently housed at the ADTC, is

serving eighteen years for two counts of aggravated sexual assault

on a victim under thirteen. (New Jersey Department of Corrections

Inmate

Locator,

https://www6.state.nj.us/DOC_Inmate/

inmatefinder?i=I).

Plaintiff Vansciver alleges that due to his medical condition,

he is in need of frequent medical trips. (Plaintiffs’ Memo of Law,

at 19). However, Vansciver is allegedly fearful of injury or

assault on these medical trips and therefore, has allegedly

foregone necessary medical trips. (Id.).

7

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 12 of 26 PageID: 190
G. Facts Specific to Plaintiff Paul Cornwell Plaintiff Paul Cornwell, currently housed at ADTC, is serving
five years, one month and eight days for one count of sexual assault in the second degree. (New Jersey Department of Corrections Inmate Locator, https://www6.state.nj.us/DOC_Inmate/ inmatefinder?i=I).
Plaintiff Cornwell alleges that during his return from a medical trip on May 24, 2005, he was injured by another state inmate while being held in a holding area at Garden State Prison. (Plaintiffs’ Memo of Law, 5). Cornwell alleges that he was placed in the holding cell with another state inmate from ADTC and that while his wrist shackles were being removed, one of the Corrections officers announced that they were from “Avenel”, which is allegedly understood to mean the ADTC facility. (Id.). Cornwell further alleges that the Corrections officers left his leg shackles on, stating it would make a “fair fight.” (Id.). Then Cornwell alleges that the officers left the holding area and watched from a plexiglass partition as he was physically assaulted by another state inmate. (Id.). Cornwell allegedly suffered injuries and psychological trauma as a result of the assault. (Id. at 6). Plaintiffs’ Motion for Temporary Restraining Order
Plaintiffs filed an Order to Show Cause seeking a Temporary Restraining Order compelling the DOC to: 1) keep all “ADTC inmates” segregated from State inmates of other institutions at all times
8

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 13 of 26 PageID: 191 during trips to and from the ADTC; 2) have a Corrections Officer present at all times when segregation is not possible; 3) institute policies and procedures directing DOC staff not to identify “ADTC inmates” as such; 4) provide “ADTC inmates” with clothing that does not identify them as such; and 5) institute polices and procedures providing for "keep separate" status for “ADTC inmates,” isolating them from State inmates of other institutions. (Plaintiffs’ MOTION FOR TEMPORARY RESTRAINING ORDER). This office opposes plaintiffs’ application for a Temporary Restraining Order because plaintiffs’ have failed to establish the elements necessary to impose preliminary restraints on the State Defendants.
9

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 14 of 26 PageID: 192
LEGAL ARGUMENT
PLAINTIFFS HAVE FAILED TO ESTABLISH THE ELEMENTS NECESSARY TO IMPOSE PRELIMINARY RESTRAINTS UPON THE STATE DEFENDANTS. Plaintiffs have failed to satisfy their burden of proof as to the standards governing applications for preliminary relief. Plaintiffs have failed to prove irreparable harm, have no probability of success on the merits, and will suffer no hardship in the absence of relief. Injunctive relief is an extraordinary equitable remedy which should be granted in limited circumstances. Frank's GMC Truck Ctr. Inc. v. Gen. Motors Corp., 847 F.2d 100, 102 (3d Cir. 1988)(citing United States v. City of Philadelphia, 644 F.2d 187, 191 n. 1 (3d Cir. 1980)). Four factors govern a district court's decision whether to issue a preliminary injunction: (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably injured by denial of the relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting the preliminary relief will be in the public interest. Gerardi v. Pelullo, 16 F.3d 1363, 1373 (3d Cir. 1994), quoting SI Handling Systems, Inc. v. Heisley, 753 F.2d 1244, 1254 (3d Cir. 1985). “An injunction should issue only if the plaintiff produces evidence sufficient to convince the court that all four factors
10

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 15 of 26 PageID: 193
favor preliminary relief.” E.B. v. Poritz, 914 F. Supp. 85, 90 (D.N.J. 1996), rev'd on other grounds, 119 F.3d 1077 (3d Cir. 1997) (citing Opticians Ass'n of Amer. v. Independent Opticians of Amer., 920 F.2d 187, 192 (3d Cir. 1990).
As set forth more fully below, plaintiffs cannot satisfy their burden of proof as to each of these required elements. In particular, plaintiffs have not shown that: (1) a reasonable probability of success on the merits; (2) they will suffer irreparable harm;(3)that the balance of hardships weighs in favor of granting the relief; or (4)the preliminary relief will be in the public interest. Therefore, plaintiffs Motion for Temporary Restraining Order should be denied.
1. It is Not Probable that Plaintiffs will Succeed on the Merits.
Plaintiffs have not made a preliminary showing of a likelihood of success on the merits as they have brought a claim for that which they are not entitled; namely, complete isolation and segregation from the rest of the inmate population not housed in the ADTC.
To prevail on an application for temporary relief,"the party seeking a preliminary injunction must demonstrate a ‘reasonable probability of eventual success in the litigation.’" LCN Enters. v. City of Asbury Park, 197 F. Supp. 2d 141, 145 (D.N.J. 2002) (quoting Kershner v. Mazurkiewicz, 670 F.2d 440, 443 (3d Cir. 1982)). The party seeking relief must "make a prima facie case
11

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 16 of 26 PageID: 194
showing a reasonable probability that [they] will prevail on the merits." LCN Enters., 197 F. Supp. 2d at 145 (quoting Oburn v. Shapp, 521 F.2d 142, 148 (3d Cir. 1975)).
Plaintiffs fail to state a claim upon which relief may be granted because plaintiffs assert that they are entitled to complete segregation from the rest of the entire state inmate population by virtue of the fact that they have been housed at the ADTC. However, plaintiffs are not entitled to such segregation, as even the Legislature has recognized that state inmates convicted of sexual offenses may be housed in state institutions other than the ADTC.
Pursuant to N.J.S.A. 2C:47-3(h), a state inmate, convicted of a sexual offense, is housed in either the Adult Diagnostic and Treatment Center or another DOC facility based on the length of his sentence. If the court sentenced a sex offender/inmate to a term of seven years or less, pursuant to N.J.S.A. 2C:47-3(h)(1), the inmate shall be initially housed in the ADTC, as soon as practically possible. However, pursuant to N.J.S.A. 2C:47-3(h)(2), if the inmate was sentenced to greater than a seven-year term, the ADTC eligible defendant must initially be placed in a traditional state correctional facility designated by the commissioner pursuant to N.J.S.A. 30:4-91.2. Once the commissioner has placed the inmate in the designated facility, the commissioner must then calculate the expiration date of the inmate’s sentence, including reductions
12

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 17 of 26 PageID: 195
for any credits. N.J.S.A. 2C:47-3(h)(2). When the inmate is within five years of parole eligibility, the commissioner would transfer the sex offender into the ADTC for the remainder of his sentence. Id.
Therefore, the Legislature has recognized that inmates convicted of a sexual offense are not entitled to segregation from the rest of the state inmate population and any such segregation would fly in the face of N.J.S.A. 2C:47-3(h), which permits the State to house state inmates convicted of sexual offenses in the same institutions as those state inmates convicted of other criminal offenses.
Plaintiffs attempt to create an imaginary distinction between themselves and state inmates housed at other institutions. In fact, there is no distinction. They are all state inmates, convicted of a criminal offense. Inmates convicted of a sexual offense are not entitled to complete isolation and segregation from the rest of the state inmates population. N.J.S.A. 2C:47-3(h). As stated above, even the Legislature has recognized that inmates convicted of sexual offenses are not entitled to separate housing from those state inmates convicted of other criminal offenses, as the DOC may place them in any other state institution until there is room at the ADTC. N.J.S.A. 2C:47-3(h).
Additionally, state inmates have no liberty interest in which state institution they are placed. Trantino v. N.J. State Parole
13

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 18 of 26 PageID: 196
Bd., 296 N.J. Super. 437, 493 (App. Div. 1997)(citing Meachum v. Fano, 427 U.S. 215, 224 (1976)), modified in part on other grounds and aff’d, 154 N.J. 19 (1998); Sandin v. Conner, 515 U.S. 472, 486 (1995); and Meachum, 427 U.S. at 224. Under the Due Process Clause, liberty interests are limited to circumstances exceeding the sentence "in an unexpected manner." Sandin, 515 U.S. at 484. Thus, the Due Process Clause does not create a liberty interest in being free from "every change in the conditions of confinement having a substantial adverse impact on the prisoner" or from transfers from one cell to another or one prison to another, so long as conditions remain "’within the normal limits or range of custody which the conviction has authorized the State to impose.’" Id. at 478, 115 S.Ct. at 2297 (quoting Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 2538-39, 49 L.Ed.2d 451 (1976)). In sum, liberty "interests will be generally limited to freedom from restraint which, while not exceed the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484 (citations omitted).
Those inmates convicted of a sexual offense may be housed in an institution other than the ADTC, provided they are not within the last five to seven years of their sentence, and have no right
14

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 19 of 26 PageID: 197
to segregation from the rest of the inmate population. N.J.S.A. 2C:47-3(h). Therefore, they have no liberty interest in being completely segregated and isolated from other state inmates. Sandin, 515 U.S. at 484.
Accordingly, the Court should deny plaintiffs’ request for Temporary Restraining Order.
2. Plaintiffs Will Not Suffer Irreparable Injury in the Absence of Preliminary Relief.
The harm plaintiffs claim to be suffering, namely failing to attend medical appointments and court appearances, is a result of their own refusal to attend such appointments. The Department of Corrections continues to make transports available to plaintiffs for such appointments, yet plaintiffs allege that they voluntarily choose to forgo necessary medical trips and court appearances. Therefore, plaintiffs are in control of the harm they are allegedly suffering and such harm is not attributable to the DOC.
Plaintiffs must make a "clear showing of immediate irreparable injury." Continental Group, Inc. V. Amoco Chem. Corp., 614 F.2d 351, 359 (3rd Cir. 1980). ". . .injunctions will not be issued merely to allay the fears and apprehensions or to soothe the anxieties of the parties." Ibid. "Not even all irreparable harm, but only irreparable harm to legal rights, should count." Adams v. Freedom Forge Corporation, 204 F.3d 475, 489 (3rd Cir. 2000); quoting favorably John Luebsdorf, The Standard for Preliminary Injunctions, 91 Harv. L.Rev. 525, 541 (1978).
15

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 20 of 26 PageID: 198
Plaintiffs have not established that they will suffer irreparable injury if the Court does not intervene now. The irreparable harm alleged by plaintiffs is entirely self-inflicted and not the result of any actions or inactions of the State Defendants. Plaintiffs alleged that due to their fear of being injured or assaulted, they have and will continue choosing to forgo necessary medical visits and court appearances. Of the seven plaintiffs, only one, Cornwell, alleges that he was physically assaulted, and just two, Krivacska and Braun, allege they were merely subject to verbal harassment, allegedly at the hands of other state inmates during trips from the ADTC. (Plaintiffs’ Memo of Law at 5-20). The remaining four plaintiffs, Riley, Gibbs, Macrina and Vansciver, allege that it is their fear of being assaulted that keeps them from medical appointments and court appearances. (Id.).
It is never sufficient to merely allege in a conclusory fashion, as plaintiffs have, that they will suffer immediate and irreparable harm in the absence of restraints.
“Establishing a risk of irreparable harm is not enough. A plaintiff has the burden of proving a ‘clear showing of immediate irreparable injury.’” Ecri v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3rd Cir. 1987) (quoting Continental Group, Inc. v. Amoco Chem. Corp., 614 F.2d 351, 359 (3d Cir. 1980). The applicant must present specific facts establishing that irreparable harm is
16

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 21 of 26 PageID: 199
virtually certain without restraints and not merely just a risk thereof. Smith v. Travelers Mortgage Services, 699 F.Supp. 1080, 1084 (D.N.J. 1988). Plaintiffs have failed to make a showing that irreparable harm is “virtually certain,” especially since four of the plaintiffs have never been so much as verbally harassed on a trip outside the ADTC and their allegations that they are fearful of injury or physical attack at the hands of other state inmates during such trips outside the ADTC are completely unfounded.
Additionally, plaintiffs, Krivacska and Braun, who allege they were harassed by other inmates, have failed to show that they will suffer “virtually certain” irreparable harm as they alleged they were merely harassed by other state inmates. The allegation that these plaintiffs were harassed by other state inmates, while on trips outside the ADTC, does not support their alleged fear that they will suffer injury or physical assault while on such trips.
Furthermore, plaintiff Cornwell, who alleges that he was physically assaulted by another inmate, has failed to show harm which is irreparable. Harm is not irreparable unless it results in a material injury for which monetary damages are inadequate. Board of Educ., Borough of Union Beach v. New Jersey Educ. Ass’n, 96 N.J. Super. 371, 390-91 (Law Div. 1967), aff’d, 53 N.J. 29 (1968). Plaintiffs have made no allegations nor have they offered any evidence that they will suffer any injuries for which pecuniary damages are insufficient. Specifically, plaintiff Cornwell alleges
17

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 22 of 26 PageID: 200
a single assault as a result of the actions of a single officer, which would serve as the basis for a single 42 U.S.C. § 1983, failure to protect claim, rather than a request for system wide changes in the Department of Corrections Central Transportation system.
Therefore, plaintiffs’ claim of injury is voluntarily withdrawing from transports to medical appointments and court appearances due to their unfounded fear of harassment by other state inmates. Plaintiffs have failed to identify any injuries, imaginary or real, monetary or otherwise, which are attributable to the State Defendants.
Accordingly, the Court should deny plaintiffs’ request for Temporary Restraining Order.
3. The Hardship to Plaintiffs in the Absence of Relief Does Not Outweigh the Hardship to the State Defendants and the Public.
The balance of hardships favors the State Defendants, as there is no hardship to the plaintiffs. Plaintiffs claimed hardship is that plaintiffs will allegedly continue to voluntarily forgo necessary medical appointments and court appearances, which plaintiffs allege will result in plaintiffs suffering serious medical conditions and forfeiture of their claims, defenses and/or arguments in pending court cases. Again, as set forth in more depth in Point 2, this harm plaintiffs claim to suffer is entirely self inflicted by plaintiffs voluntarily refusing to go on medical
18

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 23 of 26 PageID: 201
or court trips due to unfounded fears of injury or assault. The new Jersey Department of Corrections will continue to provide safe transports for medical appointments and court appearances. If plaintiffs continue to voluntarily refuse to take part in the transport, then they control whether they suffer injury.
In contrast, the hardship on the State Defendants is greater than that of the alleged hardship placed on the plaintiffs by the plaintiffs themselves.
While prisoners retain constitutional rights, the Supreme Court has stated “these rights must be exercised with due regard for the ‘inordinately difficult undertaking’ that is modern prison administration.” Thornburgh v. Abbott, 490 U.S. 401, 407 (1989) (citing Turner v. Safley, 482 U.S. 78, 85 (1987)).
Acknowledging the expertise of [prison] officials and that the judiciary is “ill equipped” to deal with the difficult and delicate problems of prison management, this Court has afforded considerable deference to the determinations of prison administrators who, in the interest of security, regulate the relations between prisoners and the outside world. [Thornburgh, 490 U.S. at 407-08 (citing Procunier v. Martinez, 416 U.S. 396, 405 (1974).] Such deference is essential to prevent disorder in “the volatile prison environment . . . .” Thornburgh, 490 U.S. at 413. The Department of Corrections has established Central Transportation, which has developed a safe and secure schedule for
19

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 24 of 26 PageID: 202
the transportation of those inmates housed at the ADTC. N.J.A.C. 10A:3-9.3(j). The transportation schedule developed by Central Transportation is not only for the safety of the inmates, but also for the safety of the correctional staff, as well as the public, and is rationally related to its legitimate penological goal of maintaining and improving the safe, secure, orderly, and efficient administration of New Jersey state correctional facilities. Farmer v. Brennan, 511 U.S. 825, 832 (1994)(quotations omitted) (the Eighth Amendment requires prison officials to “take reasonable measure to guarantee the safety of inmates”); and Hudson v. Palmer, 468 U.S. 517, 526-527 (1984) (“... prison administrators are to take all necessary steps to ensure the safety of not only the prison staffs and administrative personnel, but also visitors. They are under an obligation to take reasonable measures to guarantee the safety of the inmates themselves.”).
To grant the relief sought by plaintiffs would undermine the discretion of the Department of Corrections in the administration of the correctional institutions by invalidating the current Central Transportation system. Additionally, granting plaintiffs’ relief would undue N.J.S.A. 2C:47-3(h). As set forth more fully in Point 1, the Legislature enacted N.J.S.A. 2C:47-3(h) to alleviate some of the overcrowding issues in the DOC by allowing the DOC to place those convicted of sexual offenses in institutions other than the ADTC. Therefore, granting plaintiffs’ relief would render
20

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 25 of 26 PageID: 203
N.J.S.A. 2C:47-3(h) useless and place the Department of Corrections back in the position in which is was prior to the enactment of N.J.S.A. 2C:47-3(h).
Therefore, the hardship to the DOC substantially outweighs any harassment that plaintiff may face as a result of their voluntarily forgoing medical appointments and court appearances. Accordingly, the Court should deny plaintiffs’ request for Temporary Restraining Order.
4. Plaintiffs’ Request for Preliminary Relief is Not in the Interest of the Public.
The public will be harmed by plaintiff’s request for injunctive relief because it has a paramount interest in the safe, secure, orderly, and efficient administration of the New Jersey state prison system. The transportation schedule of inmates housed at the ADTC to medical appointments and court appearances outside the ADTC is not only for the safety of the inmates, but also for the safety of the correctional staff, as well as the public. To grant the relief requested, the state will be required to provide additionally transports to and from the ADTC, thus increase the risks already associated with the transportation of state inmates.
21

Case 2:06-cv-00331-DRD -ES Document 6 Filed 02/17/06 Page 26 of 26 PageID: 204 CONCLUSION
Based upon the aforementioned, this office respectfully submits that plaintiffs’ have not established that they are entitled to the preliminary restraints they are seeking and therefore, the court should deny plaintiffs’ Motion for Temporary Restraining Order.
Respectfully submitted, ZULIMA V. FARBER ATTORNEY GENERAL OF NEW JERSEY
By: s/ S usan M . S cott
Susan M. Scott Deputy Attorney General
22

 
 , I
Case 2:06-cv-00331-DRD -ES Document 7 Filed 03/01/06 Page 1 of 29 PageID: 222

!I Case 2:06-cv-00331-DRD -ES Document 7 FilI'ed 03/01/06 Page 2 of 29 PageID: 223

.. I

UNITED STATES qiSTRICT COUR1' 1., .::;, 1.. :

FOR THE DISTRIC] OF NEW JERSEY VICINAGE OF NEWARK

/\ ll: 3~.

George RILEY, et al., Plaii1tiffs,
v.
Devon BROWN, et al., Defendants

HON. DICKINSON R. DEBEVOISE, USDJ CIVIL ACTION: 06-0331 (DRD)

REPLY BRIEF IN SUPPORT OF PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER
James J. Krivacska, 106128C, 2W
George Riley, 133229B, 2W Richard A. Gibbs, 232215C, 3W Adult Diagnostic
& Treatment Center
8 Production Way Avenel, NJ 07001 No Phone Pro Se Plaintiffs

. .,
Case 2:06-cv-00331-DRD -ES Document 7 Filed 03/01/06 Page 3 of 29 PageID: 224

Case 2:06-cv-00331-DRD -ES Document 7 Filed 03/01/06 Page 4 of 29 PageID: 225

R~ley, et al. v. Brown. et al

~

ly Brief in Support of Tetnp<)t<H'Y Restralnlng Order

TABLE OF AUTHORITIES

STATE STATUTES
2 C : I! 7 " 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ 1 0
2 c :4 7 • 3 ..................•••....................•.. passim
2C:47-5 ................................................ 12
"'-'-C"-'"'-'A. 3 0 : 4A . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . 13 , 16
N.J .S ..A•. 44:5-Za . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

STATE CASES

r

tions,

201 N.J.Super. 438 (App.Div. 1985) ............................ 12

State v. Krol. 68 N.J. 236 (1975) ............................... 13

FEDERAL CASES

ggnt~nental Group v. Amoco Chem. Corp.,

614 F.2d. 351 (3rd Cir. 1980) ................................. 18

===-'--'--=~=""'' 511 lGJL_ 825, 114 §.Ct. 1970, 128 L.Ed.2d 811 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Heller v. t!cl~),nney, 509 U,~ .• 25, 113

2475,

125 L.Ed.2d 22 (1993) ......................................... 18

.I',."C.<t.rner v. Fauy.!'J;:. 288 F.3d 532 (3d Cir. 2003) . . . . . . . . . . . . . . . 12, 16

FEDERAL STATUTES 42 u.s.c. § 1983 ................................................ 18

Case 2:06-cv-00331-DRD -ES Document 7 Filed 03/01/06 Page 5 of 29 PageID: 226

ll

Riley. et al. v. Brown, et al

Reply rief in Support of Temporary ReAtraining Order

j Case 2:06-cv-00331-DRD -ES Document 7
• Riley, et al. v. Brown, et al

FilIIed 03/01/06

Page 6 of 29 PageID: 227
1

Reply Brief in Support of Tempornr Restraining Order

PRELIMINARY STATEMENT1

In reply to Plaintiffs' motion, the State has filed a brief

that si

antly misrepresents the New Jersey Statute gove

the sentencing of those convicted of a sexual offense and found to

be compulsive and repetitive and therefore in need of treatment

(!1, J.

2C:47-3 et seq), and otherwise distraets this court's

attention away from the core of the controversy with non·sequitors

and irrelevant argument. Additionally, the conduct of State Actors

towards Mr. Krivacska in the last two weeks raises the specter o£

retaliatory interference with Plaintiffs' access to the courts.

PROCEDURAL HISTORY AND COUNTER-STATEMENT O.E' FACTS'

Respondents were served with the complaint and TRO motion in this action on February 9, 2006. Subsequently. the State requested and received a short adjournment from the Feb. 14, 2006 return date for Plaintiffs' TRO motion, and were given until Feb. 17, 2006 to submit a brief. Mr. Krivacska, in turn, requested until March 3, 2006 to file a reply brief'. Plaintiffs seek to clarify several relevant misstatements of fact in the State's brief, as well as revise the Statement of Facts to reflect recent
dev~>lopments.

'Because of time constraints, and the fact that the various

Plaintiffs are housed on d

rent hous

units, this reply brief

is being signed by Plaintiffs Riley, Krivacska and Gibbs, but is

believed to accurately represent the interests of all Plaintiffs.

'The Procedural History and Counter-

ement of Facts have been

combined for the convenience of the Court as they are inextricably

intertwined.

'Declaration of James J. Krivacska. 2/27/06. at ~29, hereinafter

"Krivacska Decl. 2/27/06."

_ _ _ _ _ _ _ __ ...........,_,,

Case 2:06-cv-00331-DRD -ES Document 7 Filed 03/01/06 Page 7 of 29 PageID: 228

2

1

Riley, et al. v. Brown, et <il

Reply !rief in Support of Temporary Restraining Order

Krl~acska, Plaintiffs

Riley and Gibbs were all specifically

and exclusively se tonced to the A.D.T.C. for specialized

treatment, subsequ nt to be~.ng found to be compulsive and

repetitive offende s.

at ,3. See also Declaration of Richard

Gibb1, 2/27/06, at 1'4 (hereinafter "Gibbs Decl. 2/27/06") and

Declaration of Geo ge Riley, 2/27/06, at '4 (hereinafter ''Riley
Decl. 2/27/06") 4 • T1<' version of N.J.S.A,. 2C:47-3 under which they
were sentenced com~elled their sentence to A.D.T.C. and did not
permit, as the Sta~e seems to argue, the DOC discretion to house
them with the gene~al prison population.

The State in . ts brief states that Plaintiff Ktivacska

claimed that he ha been subject to abuse during a Court trip in

August 2002 becaus of his "status as a convic1:hl sex offender."
p. 4 of State's Br'ef, citing to p. 7 of Plaintiffs' Memorandum of

Law, dated 1/10/06 (hereinaf·t:er "Memo of Law"). Similarly, 1:he

State attributes M , Htaun's concerns to DOC officers reveal

his statws as a sa offender, again citing Plaintiffs' Memorandum.

State Brief at 6.

However, Plai1tiffs' Memorandum clearly claims the harm was

and convict· d sex offender." Memo of Law a1: I
added), See also a 16. As will be argued below, it is the
Plaintiffs' status as residents of the A.D.T.C. that is critical
' The sentences for each defendant as reported by the State are incorrect. Mr. Ril y is serv~.ng a 20 year term, Riley Decl. 2/27/06 at ,3, Mr. Krivacska a 26 year term, Krivacska Decl. 2/27/06, at ~3 and Mr. Gibbs a 45 year eentence, Gibbs Dec!. 2/27/06, at ~3.

Case 2:06-cv-00331-DRD -ES Document 7 Filed 03/01/06 Page 8 of 29 PageID: 229

Riley, et al. v. Brown, et al

3

Reply Brief in Support of Temporary Rastr

Order

to the complaint and requested relief, net solely their status as

sex offenders.

In addition, since the filing of the complaint and TRO

motion, the situations of Mr. Gibbs and Mr. Krivacska have changed

as recorded in the accompanying Declarations.

Subsequent to the fil

of the complaint and TRO motion, Mr.

Gibb's court appearance of January 30, 2006 was adjourned to

February 17. 2006. Mr. Gibb1 was able to waive his appearance and

secure proof of the waiver and provide it to DOC and thus was able

to ensure he was not transported that day. Gibbs Decl. 2/27/06 at

~5-9. The motion for recusal of Judge LeBon was heard without Mr.

Gibbs' presence; as a result Mr. Gibbs was unable to provide any

testimony in support of his motion, and the motion was denied by

the t::ourt. Id. at ~10. On February 22, 2006, Mr. Gibbs' attorney

informed him that his PCR petition would be heard in May of 2006,

at which time Mt. Gibbs will again be faced with the choice of

risking assault, injury or death at the hands of a State prisoner

because of his status as an A.D.T.C. inmate and convicted sex

offender in order to protect his First Amendment right of access

to the court, as well as his 5'' and 14'' Amendment Ri , or waive

those rights to ensure his s

at 1111- 12.

Mr. Krivacska also had a court date scheduled for February

17, 2006. However, Mr. Krivr1cska, who, l

Mr. Gibbs, also waived

his appearance, was unable to obtain independent confirmation of

that waiver and cancellation of the writ prior to the 17th and was

forced to rely on the good faith conduct of DOC not to at::t on a

Case 2:06-cv-00331-DRD -ES Document 7 Filed 03/01/06 Page 9 of 29 PageID: 230

4

Riley, et al. v. Brown, et al

Reply rief ln Support of Temporary Restraining Order

vacated writ'. Howe er, he informed A.D.T.C. Administration in

writing of the cam elled writ on February 10, 2006 and requested

they confirm the s atus of any documentation of an order for him

to appear in court. No response was received.

On Febru.;>ry 1 2006, the day the State was to file its brief

in opposition to tle TRO motion, Mr. Krivacska was awoken at 6:15 i
AM and ordered to tJ,repare for transport to Monmou·t:h County
Courthouse. Mr. Kr~vacska attempted to advise both DOC custody
supervisors and of~icers of the Central Transport Unit (CTU) that

there was no valid Writ for his transport. but they refused to

make any attempt t9 verify the writ. Id. at '118-10.

Mr. Krivacska was transported to the Monmouth County Court

and placed in a holding tank at the courthouse; he was transported

and held with state prisoners, although CTU officers did not

reveal his status as an A.D.T.C. inmate at this time. On arriving

at the courthouse, r. Krivacska told the Sheriff's officer that
I
he had no court app~arance scheduled and asked him to contact
'
Judge Neabsey's chaMbers to confirm that he could be returned to

A.D.T.C. He repeated this request several times that day to

different officers nd was r

d each time.

at '1111 15.

In the meant , other State prisoners in the holding tank

made their court

earances and were taken to the county jail to

be pi

up by

for the return tr to state prison. Ibid.

Finally, at 3:00

approximately 1 1/2 hours afLer CTU left the

dl.r-(.-~ct c.ommunica't:
February 10. 2006.

that no writ existed for his transport via with the secretary to Judge Neabsey on d at '115.

1

Case 2:06-cv-00331-DRD -ES Document 7 .I F' ileI1 d 03/01/06 Page 10 of 29 PageID: 231

Riley. et al. v. Brown, et al

5

ly Brief in Support of Temporary Restr

Order

county jail, Mr. Krivacska was moved to the jail, consigned to

await pickup by CTU the following week. Id. at ~15-16.

Mr. Krivacska was held in a holding tank at the Monmouth

County Jail with othet state prisoners, newly sentenced state and

county inmates, individuals arrested that day on the street and

await

processing, and INS detainees; a total of about 20 other

individuals. Mr. Krivacska was held in booking from 3:00 PM until

1:30AM Saturday morning. Thus, Mr. Krivacska was kept in a

holding tank for 16 1/2 hours from 9:00 AM Friday, to 1:30 AM

Saturday. Id. at '1116 18. Despite identifying himself as a state

prisoner from A.D.T.C., and requesting to either be placed in a

protective custody unit or "M Pod - the unit at the Monmouth

County Jail where those arrested, convicted and/or sentenced for

sex offenses are housed and segregated from the generation

population- Mr. Krivacska was housed as the third man in a two

man cell (sleeping on the floor) with the general population in

the reception Pod. Id. at ~17-18. His cellmates were two other

newly sentenced state inmates. Ibid.

CTU delivered several moro state prisoners to the county

courthouse on Tuesday, February 21. 2006, (the 22nd having been a

state holiday), however, CTU

left Mr. Krivacska in the

county jail.

at '1121. Through his family, Mr. Krivacska

informed A.D.T.C. administration that he had pending court matters

that required his return to the A.D.T.C. and which he was be

deterred from by be

held in the county. Id, at •22.

Case 2:06-cv-00331-DRD -ES Document 7 Filed 03/01/06 Page 11 of 29 PageID: 232

6

Riley, et aJ.. v. Brown, et al

ly, rief in

port of Temporary Restrain

Order

Finally. CTU

to the county on Wednesday, February

22, 2006 and pickec up Mr. Krivacska and the State prisoners who

had arrived

vious day. Wlwn CTU officers surveyed which

inmates had to be eturned to which institution, Mr. Krivacska's

status as an A.D.T.C. inmate was revealed which led to a prisoner
from Bayside priao~ engaging in verbal harassment of Mr.
Krivacaka. Id at ·~3.

Mr. Krivacska was finally returned to the A.D.T.C. at 7:00PM that Wednesday. If!.·; at '1124, While held in the county. Mr.

Krivacska was kept :in lockdmm status in his cell for 22 houxs '' day, allowed out f~r showers, collect phone calls and recreation

only one hour each ~orning and one l1oU~ each afternoon/evening. i
Mr. Krivacska had o access to the law library, and though he

requested to make legal call to the court, was never provided

that call. He had o access to any of his property and was

confined in condit"ons equivalent to punitive detention in state

prison (no propert" . isolation and sensory depr-iv,J.tion for 22

hours a day, no change of clothing for six days).

at '1119-20.

After being returned to A.D.T.C., Mr. Krivacska contacted

Judge Neabsey'a of 'ice and confirmed again that the writ had been

cancelled and that 1e should not have been transported. He also

learned that the J dge' s secretary had, betw<c~en 9:15 and 9:30 AM

on the 17th, notified the Sheriff's officers in the court house

that Mr. Krivacska could be returned to State prison, which notice

gave the officers r J.meUHHl oppot:·tunities to return Mr. Krivacska

to CTU's custody (tree trips moving inmates from the courL house

I ! !I

Case 2:06-cv-00331-DRD -ES Document 7 Filed 03/01/06 Page 12 of 29 PageID: 233

Riley, et al. v. Brown. et al

7

ly Brief in Support of Temporary Restraining Order

to the county jail took place between the time of that notice and

CTU leaving the jail at 1:30 PM). Id. at 1125-27.

Finally, Mr. Krivacska did not receive a copy of the State's

brief while in county, and was effectively prevented from

responding to it or taking any other action to advance his claims

on this § 1983 claim, dur

his confinement in Monmouth County.

To date DOC has still not provided Mr. Krivacska with his legal

mail containing the State's brief, and has instead had to rely

upon a copy obtained from another Plaintiff.

at 1]28.

LEGAL ARGUMENT
PLAINTIFFS HAVE ALLEGED SUFFICIENT FACTS TO SUPPORT A PRIMA FACIA CASE FOR THE NEED FOR THE TEMPORARY RESTRAINING ORDER
A. POSSIBLE RETALIATION AGAINST PLAINTIFF SUPPORTS PLAINTIFFS' REQUEST FOR COURT INTERVENTION TO PROTECT PLAINTIFFS' RIGHTS

At the outset, the unusual events surrounding Mr. Krivacska's removal from A.D.T.C. during the same period during which Plaintiffs expected to receive the State's brief in opposition to the TRO Motion, and expected to reply to that brief, raise concerns about the use of state power to disable a state inmate litigant. While it may be impossible to ever prove a nexus between this complaint and the events of the 17th through the 22nd, the coincidences give one pause.
l1r. Krivacska and Mr. Riley, members of the Legal Subcommittee of the Inmate Resident Committee, drafted the complaint. declarations, TRO motion and supporting memorandum and other legal document, in this action. Krivacska Decl. 2/27/06 at

Case 2:06-cv-00331-DRD -ES Document 7 Filed 03/01/06 Page 13 of 29 PageID: 234

8

Riley. et al. v. Brown, et al

ly

jn Support of Temporary Restra

Order

~2. Mr. Krivacska' court date of February 17, 2006 is prominently featured in Plaint'ffs' complaint, Mr. Krivacska's declaration of January 10, 2006, nd the memorandum of law supporting the TRO motion. The State jought a delay in this court's decision on the motion which was o liginally scheduled ·to be decided on B'ebruary 14, 2006. Without !prejudging how the court will ultimately rule,
I
had the court deci,ed the motion for the Plaintiffs on the 14th, the State would hale been forced to segre e Mr. Krivacska on the
:
17th, no matter wheither the writ had been cancelled or not. But the State's request for a delay so it could submit an
opposing brief on ~ebruary 17th, ensured that no order would be in place to protect Mr. Krivacska should he be transported on that day. Despite the writ being cancelled, despite his alerting DOC to the cancellation o that writ five days earlier, despite advising DOC and CTU staff o · the absence of a writ and a request they verify the writ be· re transporting him, Mr. Krivacska was, in fact, removed from state prison without a writ and transferred to Monmouth County.
Upon arrival a the courthouse, Mr. Krivacska repeatedly

confirm his status ith Judg~ Neabsey so that he could be returned

to A.D.T.C. that

The officers refused to contact the court.

As it turns out,

y didn't have to. Accord

to

NeabHey'8

Secretary, sometime between 9:15 and 9:30AM. she advised the

Sheriff's officers hat Mr. Krivacska wasn't needed and should be

returned to State p !son. Despite being so informed, Mr. Kti.vacaka

Case 2:06-cv-00331-DRD -ES Document 7 Filed 03/01/06 Page 14 of 29 PageID: 235

Riley, et al. v. Brown, et al

9

Reply Brief in Support of Temporary Restraining Order

was held in the courthouse until 3:00 PM. well after CTU left on

its return trip, thus ensuring that Mr. Krj.vacska would be held at

least until the following Tuesday. Yet, even though CTU made a

trip to Monmouth County to deliver nine state prisoners to the

courthouse, on Tuesday, the 21st, Mr. Krivacska was again left in

the County j

by CTU. Only, apparently, after family and friends

of Mr. Krivacska contacted administration at the A.D.T.C. to

advise them that Mr. Kr

ska's detention in the county was

interfering with his access to the courts on pend ~ time

sensitive legal matters, did CTU finally return Mr. Krivacska to

A.D.T.C.

It is unknown at this time whether State actors knew that Mr.

Krivacska would be kept in 22 hour s day lockdown with no access

to his legal papers, no access to a law library and no way to

contact the court. However, it is somewhat disturbing that in

addition to the fact that Mr. Krivacska was rendered legally

impotent during a critical period in the presentation of a TRO

motion, even upon his return to the A.D.T.C., he remains the sole

Plaintiff who has not received a copy of the State's opposition

brief.

To be clear, Plaintiffs are not suggest

any malfeasance on

the part of the Attorney General's

e. and there is no

evidence that DAG Scott, herself, acted in any way

inappropriately. However, DOC officials were directly served on

February 9, 2006, and it is fair to assume that in preparation to

defend the action, the information in the complaint,

luding the

Case 2:06-cv-00331-DRD -ES Document 7 Filed 03/01/06 Page 15 of 29 PageID: 236

10

Riley, et al. v. Brown, ot al

ly rief in Support of T~mporary Restraining Order

I
identities of the laintiffs, was shared with CTU staff. It may

send a message to

of the Plaintiffs was too much to resist.

In either eve Plaintiffs would request that this court

make a strong stat ent about its intolerance for any act of

retaliation or retribution

t inmates who choose to exercise

their constitution~! right of access to

court, to prevent the

prop

!
ion of a ch~lling

ct on the ability of the Plaintiffs'

to develop their case.

B. STATE MISREPRESENTS THE PURPOSE. INTENT AND EFFECT OF THE SEX OFFENDER ACT

New Jersey's C iminal Code provides for a dual track system

of dealing with tho e convicted of sexual offenses. All defendants

convicted of certai• enumerated sexual offenses are required, by

statute, to be eval ated at the A.D.T.C. to determine if they are

compulsive and repe itive offenders (N ...J.S,.!L. 2C:I<7-1 et seg.). If

not found to be com ulsive and repetitive. they are sentenced the

same as other defen ants and serve their time in state prison. If

they are found to b. compulsive and repetitive, then a variety of

sentencing options

availabl" depending on what other findings

t.he c ou t:-t make B.

This section

the code, Title 2C, Chapter 47, otherwise

Act or SOA, has been amended frequently

over the last dec , and d

rent Plaintiffs have been sentenced

this Act (with the exception of Mr.

Vansciver who was ver sentenced to the A.D. C. under N.J.S.A.

jl !]

Case 2:06-cv-00331-DRD -ES Document 7 Filed 03/01/06 Page 16 of 29 PageID: 237

Riley, et al. v. Brown, et al

11

Reply Brief in Support of Temporary Restra:Ln:Lng Order

2C:47. but who was nevertheless transferred to the A.D.T.C. last year) .
Messrs. Riley, Krivacska and Gibbs were sentenced under a

requires only a finding of compulsive and repetitive sex offending

behavior, and which requires, upon such a find , that the

defendant be sentenced to the A.D.T.C. for a program of

specialized treatment for their mental condition. Messrs.

Cornwell, Braun, and Macrina were sentenced under a version of the

law passed in 1998 which requires, in addition to a finding of

compulsive and repetitive offending behavior, a finding of

amenability to and willingness to participate in sex offender

specific treatment. Contrary to the State's position, all six of

these Plaintiffs, under either version of the SOA, are mandated to

be segregated at ADTC as long as they cooperate in treatment (the

time parameters of J:-l_,_L.~..•./.:1,_,_ 2C; 47-3 (h) not applying to any of the

Plaintiffs), If sentenced to ADTC, the state is required to

provide treatment for the Plaintiffs' compulsive and repetitive

behavior. Once sentenced to the A.D.T.C., as was the case with

Messrs. Riley, Krivacska and Gibbs, the State has no statutory

authority to remove the inmate from A.D.T.C. as long as they

cooperate in their treatment.

Also under the pre 1998 version of tl•e law, those sentenced

to the A.D.T.C., notwithstand

any period of parole

ineligibility, are entitled to be paroled when it appears to the

Special Classification Review Board that the inmate is ''capable of

Case 2:06-cv-00331-DRD -ES Document 7 Filed 03/01/06 Page 17 of 29 PageID: 238

12

Riley, et al. v. Brown, et al

ly rief in Support of Temporary . Rest<e~ .J.ll.l.l Order

making an acceptab e social adjustment to the community." N.J.S.A~. 2C:47-5, a standar that has been characterized by the New Jersey Courts as a "treat ent-success release standard."

1985). The Third C"rcuit Court of Appeals has ruled that A.D.T.C.

sentenced inmates entenced under that standard, have a liberty

interest in receiv"ng treatment that can not be abridged without

due process protec ions.

532 (3d Cir.

2003) .

The State rel'es heavily on N.J.S.A. 2C:47·3(h) for its
argument that the ~tate legislature specifically intended that

sexual offenders n

segregated from the general population.

That argument cont

both the legislative intent and plain

reading of the sta

beyond any recognition.

First, it shotld be noted that aside from Mr. Vansciver, all

of the other Plain iffs are serving sentences under the various

versions of N.J.S. : 2C:47-3 (the paragraph (h) referred to by the

that they be house at the A.D.T.C. as long as they cooperate in

their therapy. So, even with the more recent versions of the SOA.

it is clear that o1ce the mandatory treatment component of the SOA

kicks in, the Legislature did intend for sex offenders sentenced

under the law to b segr

ed from the general prison population.

rn fact, the law 1 ecifically mandates that sex offender specific

treatment not be m available at any institution other than the

1
1

Case 2:06-cv-00331-DRD -ES Document 71 • F1iled 03/01/06 Page 18 of 29 PageID: 239

Riley, et al. v. Brown, et al

l3

Reply Bri in Support of Temporary Restraining Order

A.D.T.C. (with the exception for female offenders housed at the Wagner Correctional Facility). L. 1998, c72.
So contrary to the State's position. the versions of the SOA under which Messrs. Riley, Krivacska and Gibbs were sentenced. and even the version currently governing Messrs. Cornwell. Braun and Macrina, mandate their segre ion from a general prison population. The State's argument that !::(.J.S.A,_ 2C:47-3(h) supports its contention that the Le lature never intended to segregate A.D.T.C. inmates from the general population is also contradicted by the Statute that created the Diagnostic Center over fifty years ago. The enabling legislation for the Diagnostic Center required it to be ''centrally located in the state and not adjacent or contiguous to any existing mental, penal or correctional
institution.·· N..J.,..§._,_A. 30:4A. §'t seq_,_ Though passed a half-century
ago. this law remains in effect and has never been repealed or amended. In fact as recently as 1991, this Chapter was amended this provision survived the amendment. And the Diagnostic Center is included in the list of Health Care facilities listed at

More importantly. though. this case turns not on the status

of Plaintiffs as sex offenders. but on their status as residents

of A.D.T.C. It is

ir placement at the A.D.T.C. that labels them

sex o

ers. They are the only class of State prisoners the

State groups by offense; thus it is their classification and

placement by the State that uniquely identifieu them as sexual

offenders. When the State seeks to label, segregate and stigmatize

Case 2:06-cv-00331-DRD -ES Document 7 Filed 03/01/06 Page 19 of 29 PageID: 240

14

Riley, et al. v. Rrown, et al

Reply B ief in Support of Temporary Rest

Order

a subpopulat:i on of nmates ·that are. hated by othe.r. state inmates, it has an obli io to protect the inmates it has so identified

from harm. The State chal enges Plaintiffs' prima facia case for a

temporary restraini g order. In addition to the arguments advanced

in Plaint s' memo andum of 1/10/06, Plaintiffs respond to the

a~ State's arguments

follows.

;

C. PLAINTIFFS ARE bKELY TO SUCCEED ON '.CHE MERITS
i

The State arg es that Plaintiffs are unlikely to succeed on

the merits because the statutory scheme embodied in ):l . .J. S .A_,_

2C: 47 3, particula ly paragraph (h), demonstrc•·tes the St:ate

Legislature did no intend to so segregate A.D.T.C. inmates. Aside from the fact that Plaintiffs are seeking segre ion Bnd

protection during rips. not in housing at state prison

facilities, as she n in Point I.B. above such a reading of the Statute flies in t e fa.c:e of rea.~wn. The whole sta·tute is about segregation, even he more recent enactmen~ of paragraph (h) that

the State relies o . Even under that paragraph. Messrs. Co

1,

Bratln and Macrina, are mandated to he segregated from state

prisoners for the urpose of treatment at the A.O.T.C. as long as

they cooperate in .heir treatment. As for Messrs. Riley, Krivacska. and Gi bs sentenced under earlier versions of the SOA,

that segregation ·o mandated as well. Secondly, it is the act of segregation at the A.D.T.C. that

creates the need or segregation during court trips. Mr. Vansciver's situa ion proves the point. While he served his

Case 2:06-cv-00331-DRD -ES Document 7 Filed 03/01/06 Page 20 of 29 PageID: 241

Riley, et al. v. Brown, et al

15

Reply Brief in Support of Temporary Restraining Order

sentence in a state prison, he had no problems on court or medical

trips, because nothing about him, where he housed, or what

institution he was locked down in, revealed the nature his

offense. No inmate knew he was convicted of a sex offense whom he

did not himself tell. But as soon as he was transferred to the

A.D.T.C .. and even though he is not sentenc as a compulsive and

repetitive se~ual offender, he is nevertheless stigmatized not

only as a sex offender, but, albeit falsely, as a particularly

dangerous and mentally disordered offender. As a result, it was

not the nature of his conviction, but the fact that DOC segregated

him in a treatment center for mentally disordered se~ offenders

that placed him at risk of abuse at the hands of state prisoners

who despise the inmates housed at the A.D.T.C.

For this reason, the Plaintiffs' distinction is not imaginary

as claimed by the State, State Brief at 13, but quite ~eal. And it

is unmistakable in the Complaint and the TRO motion, memorandum

and accompanying declarations, that it is not the Plaintiffs'

status as sex offenders that ls creating the risk, but

ir State

sex offenders that poses

the risk.

The State next introduces in 1 brief a non sequitor

argument about liberty interest, or the lack of such an lnte~est

ln where an inmate is housed.

court should not be distracted

by this irrelevant argument. Again, Plaintiffs are arguing about

safety during t~ips, not whe~e they are housed. In fact,

Plaintiffs do have a liberty interest in being provided therapy

Case 2:06-cv-00331-DRD -ES Document 7 Filed 03/01/06 Page 21 of 29 PageID: 242

Riley, et al. v. Brown, et al

16

Reply .8 ief in Support of 'l'emporary Rest.rain

Orde;r

and treatment in a afe and secure environment, as found by the

Third Circuit in Le met·, gu..R.£&.. And Mr. Corm;ell has already

suffer a loss to hat liberty interest as he was unable to participate in ther py and thus advance toward attaining parole

during the period o his hospitalization after being seriously

injured by a State risoner on a tr . Moreover, Mr. Braun

suffered psycholog'cal trauma (he was diagnos by an A.D.T.C.

psychiatrist as su fering from l:'ost traumatic Stress Dir.wrder or

PTSD after the ass ult) as a result of his treatment at the hands

of state prisoner$ during a trip. He has had to devote therapy

time to the treatm nt of this State induced trauma which has set

him back in his se offender therapy and impeded progress toward

his sex offender t eatment goals. thus implicating his liberty

interest in advanc"ng toward parole through treatment.

Moreover, by rit·tue of the fact that !:l· LS ,_A_, 2C: 4 7-3 does

mandate. se3re

from State prisoners - a conclusion supported noted above - it is clear that the

Legislature inten

A.D.T.C.·sentenced offenders to be segregated

from State prison rs, a conclus3on opposite of that advanced by

the Stat:e. So. in fact, Plaintiffs have clearly established a reasonable
probability of su cess on the merits of this claim.
D. PLAINTIFFS WI L SUFFER IRREPARABLE HARM IF REQUESTED RELIEF IS NOT GIVEN
The State al eges that: the DOC "con·tinuer> to make transport available t.o Plai \tiffs ... " and blames Plaintiffs' volunt:ary

Case 2:06-cv-00331-DRD -ES Document 7 Filed 03/01/06 Page 22 of 29 PageID: 243

Riley, et al. v. Erown, et al

17

Reply Brief in Support of Temporary Restraining Order

choice not to exercise their access to legal and medical trips for

any harm that may ensue. This argument is disingenuous at best.

First, voluntary choice implies a choice free from fear, threat or

coercion. Plaintiffs' alle the presence of fear, threat and

coercion resulting from the actions of

State in identifying

them as A.D.T.C. residents dur

such tr s, null

s any claim

of voluntary choice. By the State's argument, forcing an inmate to

play Russian Roulette with a single bullet in a six chamber gun in

order to gain access to a court or medical trip, constitutes a

free choice because the inmate can always choose between putting

the gun to his head, pulling the trigger and trying his luck

versus refusing the trip. That is what it mean$ for an A.D.T.C.

inmate to get on a CTU van for a court or medical trip. Mr.

Cornwell cocked the gun one too many times and paid the price for

it. A.D.T.C. sentenced inmates should not be forced to make such a

macabre choice.

Second, the State has not contested a single fact advanced by

the Plaintiffs. It has submitted no affidavits or declarations

from any DOC official challenging the veracity of the alle ions

set forth in the complaint, Consequent

s Court., in

evaluating whether to grant this TRO, should consider as true all

of the facts asserted by the Plaint

which facts. on their

face, establish the long standing nature of the risk to A.D.T.C.

inmates. The fact. that no one can predict when the next assault

will take place is inconsequential. The reality is that another

assault will take place: it's just a matter of time.

Case 2:06-cv-00331-DRD -ES Document 7 Filed 03/01/06 Page 23 of 29 PageID: 244

18

Riley, et al. v. Brown. ct al

Reply B ief in Support of Temporary Restrain

Order

While the Stat relies on

Chem.

2d. 35 , 359 (3rd C.Lr. 1980), in which 1.:he court

not that injuncti ns should not be granted to ''allay fears and

apprehensions.'' it akes no mention of Pl

iffs' reliance on the

more rece.nt Heller..... McKinney, 509 y

25, ll3_S

2475. 125

L.Ed.2d 22 (1993) ~ ich made it clear that an inmate need not wait

for a threat to be ealized to seek injunctive relief. And here,

Plaintiffs have sho~n the ars to be grounded in a long history

of such assaults. F~nally, the State claims any injuries suffered

were "not the result of any action or inaction of the Sttit:e

defendants". Yet i the case of Cornwell and Braun, Plaint:iffs

allege it was &pec"fically the action of the State defendants in

purposefully ident"fying them as A.D.T.C. inmates and egging on

State prisonero to abuse them, that instigated the abuse. The detailed ~ature of Plaintiffs' claims. the fact that the

claims involve depJivation of First Amendment Rights which
i inherently constitite irreparable harm. and the risk of serious

injury, are exactl the types of harm injunctive relief is

int

d to av~rt. In fact. under 42

barred from seekin monetary recovery for the infliction of

psychological or e ot

1 trauma absent a physical

ury. In

such cases, such a Mr. Braun, the only available remedy under §

1983 is injunctive relief to remove the source of the trauma.

Plaintiffs ha e clearly demonstrated they are likely to

suffer irreparable harm to their legal rights if rel f is not

granted.

II II
Case 2:06-cv-00331-DRD -ES Document 7 Filed 03/01/06 Page 24 of 29 PageID: 245

Riley, e1: al. v. Brawn, et al

19

Reply Brief in Support of Temporary Restraining Order

E. BALANCE OF HARDSHIPS WARRANTS GRANT OF RELIEF TO PLAINTIFFS

The State again attempts to discount the hardships suffered

by the Plaintiffs by framing any injury or loss resulting from the

Plaintiffs' refusal of a court or medical trip as one suffered as

a result of a voluntary choice. Plaintiffs disposed of that

argument in Point I.D, above. and won't repeat the argument or the

Russian Roulette analogy here, incorporating

argument here.

by reference. Suffice it to say that Plaintiffs like Mr. Macrina

and Mr. Vansciver, both elderly and sickly, should not have to

make

Hobson's choice between risking death from their

illnesses if they don't go on a trip, and risking death from

another inmate as a result of an assault if they go on the trip.

And for mandatory court trips, there is no choice, only risk:

which the State has failed to take any actions to mitigate.

Moreover. it cannot be a hardship for the State to perform

its constitutional duty. Even the State cites Farme.r v. BrennaJ1,

511 U.S~ 825, 832, 114 S.Ct, 1970, 128 I,..Ed.2 811 (1994) for the

propo$ition that the state has en obligation to "take !;'easonable

measures to guarantee the safety of inmates.'' Plaintiffs' are

asking for nothing more, and providing inmates with the safety to

which they are constitutionally entitled constitutes not a

hardship, but an obligation.

The State again offers no affidavit or declaration either

asserting that granting the relief sought by Plaintiffs would

create a hardship, or how, in particular, each form of relief

requested would impose a hardship on the state. They have advanced

Case 2:06-cv-00331-DRD -ES Document 7 Filed 03/01/06 Page 25 of 29 PageID: 246

20

Riley, et al. v. Brown, et al
Reply B ief in Support of Temporary Restraining Order

no rationale for ho ensuring the presence of a corrections

officer whenever se re 1on is not possible creates a hardship.

Nor have

ezpla ned what hard

would ensue from directing

DOC staff to refrai from identifying A.D.T.C. inmates as such, or

the hardship involv d in providing A.D.T.C. inmates with clothing

that doesn't identi y them''" A.D.T.C. inmates. The State does offer a concluaory argument that segre
A.D.T.C. inmates on trips would create a hard~hip, and

particularly points to the absurd and incomprehensible claim that

segregating A.D.T.(\. inmates during trips would "undue l::L._LS.A.

2C:47-3(h)

I
[an~] granting Plait•tiffs' relief would render

2C: 47-3 (h)! usele•> s and place the Dep<>rtment of

Correc·tions back it the position in which is [sic] prior tCJ the

enactment of N.J.S.A_. 2C:47·3(h)" State brief at p. 20-21. Such a

bold, conclusory 1 atement begs explanation by the State an it is

inconceivable how . egre ing a few A.D.T.C. inmates during court
and medictil trips 1IfOUld possibly undermine the Sex Offender Act.
I
especially since t e act specifically calls for the segregation of

the Plaintiffs fro the

ral prison population, and their

placemen~ in a sep rate facility: A.D.T.C.

The State aga"n offers no affidavits or declarations

attesting to any h rdship placing A.D.T.C. inmates into separate

holding areas woul impose, nor any sworn statements refuting

Plaintiffs' conren ion that adequate holding areas exist in each

correctional facility to permit such segregation. Finally, the

manner in which Mr. Krivacska was segregated during his dental

'

II I Case 2:06-cv-00331-DRD -ES Document 7 Filed 03/01/06 Page 26 of 29 PageID: 247

Riley, et al. v. Browh, et a1

,

1

21

Reply Brief in Support of Temporary testraining Order

trip as described in his i/10/06 declaration, demonstrates that such segregation is certainly feasible and can be readily accomplished without significant hardship.

G. RELIEF SOUGHT IS IN THE PUBL,IC INTEREST

As argued in Plaintiffs' memorandum of law, there is a strong

public interest in keeping prisoners safe from assault, even sex

offenders. But the public interest goes farther.

The State contends that CTU would be required to provide

additional transports to and from A.D.T.C. to grant this relief.

This does not seem logical. The same number of transports to and

from A.D.T.C. would occur with or without the relief granted. The

difference is that if the relief is granted the vehicle traveling

to and from A.D.T.C. may not be making additional stops to pick up

inmates from other state prisons. But even that is not certain. As

Mr. Krivacska reported in his Declat"ation of l/10/06. when was

transported to New Jersey State Prison for dental work, he was

separated on the vehicle from prisoners from other institutions by

an empty row

seats and strict enforcement of the DOC policy

that inmates remain in their seats during transport. While this

does not necessary eliminate verbal harassment, the verbal

harassment s

red by Mr. Krivacska in August 2002 and Mr. Braun

in December 2005, was made particularly onerous and traumatizing

because Mr. Kt"ivacska and Mr. Braun were forced to sit next to the

state prisoners making the threato, creating the very real risk

that the verbal threats would be carried out. This is a

considerably more psychologically traumatic threat than an empty

Case 2:06-cv-00331-DRD -ES Document 7 Filed 03/01/06 Page 27 of 29 PageID: 248

22

1

Riley. et al. v. Brown, et al

ly B ief in Support of Temporary Restra

Order

T threat tossed from couple of rows away when there is no way for

the State prisoner o have physical contact with the A.D.T.C.

inmate.

So even if DOC is concerned about having more vehicles on the

road,

would be more the exception than the rule. And again,

the State has

d no affidavit or declaration from anyone at

DOC or CTU

g that transport

A.D.T.C. inmates on

separate vans would: pose any problem for DOC at all. The DAG

offering unsupported conclusions in opposing the relief 1

Finally. the s~atus ~0 actually creates a public s

risk

that is certainly +t in the interest of the public, one which the

relief sought easi y remedies. Placing A.D.T.C. inmates within

physical reach of tate prisoners, creates the risk of an assault

breaking out on th transport vehicle, as occurred during Todd

Becka's trip. See omplaint. 1/10/06. •157-169. Such an assault

could break out in o a melee if the A.D.T.C. inmate attempts to

defend himself. Fi bting between DOC inmates on a moving vehicle

poses an enormous isk to the public as a distracted DOC officer

is happening to navi e, relief sought, by medical trips be interest.

his vehicle and the road he is trying the risk of an accident. Clearly. the
the rjsk of confrontations on court and and state inmates, is in the public

I 1
Case 2:06-cv-00331-DRD -ES Document 7 Fi1,led 03/01/06 Page 28 of 29 PageID: 249

Riley, et al. v. Brown. et al

23

Reply Brief in Support of Tempera y Restrain

Order

CONCL SION

It J.S d

ult to fault the

ience e~hibited by A.D.T.C.

inmates on the issue of s

du

court and medical trips.

Identified as a problem as long as 17 years ago, Complaint,

1/10/06, •27, A.D.T.C. residents have repeatedly sought to work

with DOC o

ials to resolve this problem. Even after Mr;

Cornwell's assault, members of the Inmate Resident Committee's

legal subcommittee wrote to various DOC official& seeking to find

a resolution addressing both DOC and inmates' c.oncern8. Id. at

•31-33, •49-61. Those concerns were ignored and in December Mr.

Braun was subjected to two hours of mental torture at the hands of

state prisoners and at the instigation of CTU officers. The State

has had 17 years to find a solution that protects A.D.T.C. inmates

from the enmity of state prisoners. And clearly the problem was

created by the State when it decided to segre e inmates found to

be in need of treatment for their ]ental condition at the A.D.T.C.

It might as well have put a target on their backs. The relief

sought by the Pl

iffs seeks onl to remove that target. or at

~rom the very least, shield Plaintiffs

the verbal and physical

ass ts that target attracts. Date: February 27, 2006

I I
~'

. Kdm•k•

Date: February 27, 2006 Date: February 27, 2006

~-cp~n&~

.'G<iorgf'R:iley

/

~~- c- f-·c~L~

Richard Gibbs

l),.. Case 2:06-cv-00331-DRD -ES Document 7 Filed 03/01/06 Page 29 of 29 PageID: 250

24

Riley. et al. v. Brown. et al

ly

ln Support of Temporary Restra

Order

 
 Case 2:06-cv-00331-DRD -ES Document 37-1 Filed 08/17/06 Page 1 of 47 PageID: 2086

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
VICINAGE OF NEWARK

GEORGE RILEY, et al., : HON. DICKINSON R. DEBEVOISE, U.S.S.D.J.

Plaintiff,

: Civil Action No. 06-0331 (DRD)

v.

:

DEVON BROWN, et al.,

:

Defendants. :

_________________________________________________________________
BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS, PURSUANT TO FED.R.CIV.P. 12(b)(6), OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT, PURSUANT TO FED.R.CIV.P. 56
_________________________________________________________________

ZULIMA V. FARBER Attorney General of New Jersey R.J. Hughes Justice Complex PO Box 112 Trenton, New Jersey 08625 (609)292-8550 Attorney for State Defendants Devon Brown and William Plantier

JAMES MARTIN ASSISTANT ATTORNEY GENERAL
Of Counsel
VICTORIA L. KUHN DEPUTY ATTORNEY GENERAL
Of Counsel and On the Brief
SUSAN M. SCOTT Deputy Attorney General
On the Brief

Case 2:06-cv-00331-DRD -ES Document 37-1 Filed 08/17/06 Page 2 of 47 PageID: 2087
TABLE OF CONTENTS PAGE
PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . 1 PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . 3 STATEMENT OF FACTS
A. Inmate Transportation . . . . . . . . . . . . . . . . 4 B. Actions Taken When Inmate-on-Inmate Altercations
Occur . . . . . . . . . . . . . . . . . . . . . . . 10 C. Grievance Procedure . . . . . . . . . . . . . . . . 11 D. Alleged Incidents During Transports . . . . . . . . 12
1. Facts Specific to Former Inmate Todd Becka, Non-Party to this Matter . . . . . . . 12
2. Facts Specific to Plaintiff Paul Cornwell . . . . . . . . . . . . . . . . . . . 13
3. Facts Specific to Plaintiff Inmate Peter Braun . . . . . . . . . . . . . . . . . . . . 14
4. Facts Specific to Inmate Randall Venzie, Non-Party to this Matter . . . . . . . . . . . . . . . . . . . . . . . 15
5. Facts Specific to Plaintiffs’ Nine Additional Declarations . . . . . . . . . . . 15
E. Devon Brown, Former Commissioner of the New Jersey Department of Corrections . . . . . . . . . . . . . 18
STANDARD OF REVIEW A. The Rule 12(b)(6) Standard . . . . . . . . . . . . 18 B. Summary Judgment Standard . . . . . . . . . . . . . 18
-i-

Case 2:06-cv-00331-DRD -ES Document 37-1 Filed 08/17/06 Page 3 of 47 PageID: 2088
LEGAL ARGUMENT
POINT I
Plaintiffs’ Complaint must Be Dismissed as Moot . . . . . . . . . . . . . . . . . . . . . . . 19
POINT II
Plaintiffs’ Complaint Is Barred by Their Failure to Exhaust Their Administrative Remedies . . . . . . . . . . . . . . . . . . . . . 21
a. The Exhaustion Requirement Applies to Plaintiffs . . . . . . . . . . . . . . . . . . 22
b. Remedies Outlined In The New Jersey Department of Corrections Inmate Handbook Meet The Definition of An “Administrative Remedy” Within § 1997e (a)’s Exhaustion Requirement . . . . . . . . . 23
c. The Record Shows That Plaintiffs Failed To Exhaust Their Available Administrative Remedies . . . . . . . . . . . 23
d. “Total Exhaustion” Is The Rule Under Section 1997e(a) . . . . . . . . . . . . . . . 24
POINT III
Plaintiffs’ Complaint Is Barred as a Matter of Law Because a 42 U.S.C. § 1983 Claim Cannot Be Premised upon a Theory of Respondeat Superior . . . . . . . . . . . . . . . 25
POINT IV
Plaintiffs Cannot Show That Defendants Brown and Plantier Failed to Protect Them in Violation of the Eighth Amendment as There Is No Substantial Risk of Harm to Plaintiffs to Which Defendants Brown and Plantier Acted with Deliberate Indifference . . . . . . . . . . . 26
-ii-

Case 2:06-cv-00331-DRD -ES Document 37-1 Filed 08/17/06 Page 4 of 47 PageID: 2089
POINT V
Plaintiffs Do Not Possess A Liberty Interest In The Condition Of Their Confinement And Therefore Cannot Sustain A Cognizable 42 U.S.C. § 1983 Action Predicated Upon the Fourteenth Amendment Due Process Clause . . . . . . 29
POINT VI
Plaintiffs Cannot Establish an Equal Protection Claim Because They Are Not a Member of a Suspect Class and the State Defendants’ Transportation Procedures Are Rationally Related to a Legitimate State Purpose . . . . . . . . . . . . . . . . . . . . . . 30
POINT VII
Plaintiffs Cannot Establish a Legal Access Claim Because the State Continues to Provide Plaintiffs with Safe Transports to Their Court Appearances and Is Not in Any way Prohibiting Them from Accessing the Courts . . . . 31
POINT VIII
Plaintiffs’ Claims Against the Defendants Brown and Plantier Pursuant to the New Jersey Law Against Discrimination Are Barred by the Eleventh Amendment . . . . . . . . . . . . . . . . 33
POINT IX
Plaintiffs’ Claims Under the ADA Are Barred by the Eleventh Amendment . . . . . . . . . . . . . 34
POINT X
Plaintiffs Have Not Established a Prima Facie Showing of an Americans with Disabilities Act Violation . . . . . . . . . . . . . . . . . . . . . 36
a. Plaintiffs are Not “Disabled” Pursuant to the ADA . . . . . . . . . . . . . . . . . . 37
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CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 39
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TABLE OF AUTHORITIES CASES
Abany v. Fridovich, 862 F.Supp. 615 (D.Mass. 1994) . . . . . 32 Ahmed v. Dragovich, 297 F.3d 201 (3d Cir. 2002) . . . . . . . 22 ahon v. Crowell, 295 F.3d 585 (6th Cir. 2002). . . . . . . . 37 Baker v. Monroe Twp., 50 F.3d 1186 (1995) . . . . . . . . 25, 26 Booth v. Churner, 532 U.S. 731 (2002) . . . . . . . . . . 21, 22 Bounds v. Smith, 430 U.S. 817 (1977) . . . . . . . . . . . . 31 Bunting v. Mellen, 541 U.S. 1019, 124 S.Ct. 1750 (2004) . . . . . . . . . . . . 20 Camden County Recovery Coalition v. Camden City Bd. of Educ. for Public Sch. Syst., 262 F.Supp. 2d 446 (D.N.J. 2003) . . . . . . . . . . . . 33, 34 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) . . . 18, 19 Concepcion v. Morton, 306 F.3d 1347 (3d Cir. 2002) . . . . . 23 Doe v. Div. of Youth and Family Servs., 148 F.Supp. 2d 462 (D.N.J. 2001) . . . . . . . . . . . . . . 33 Farmer v. Brennan, 511 U.S. 825 (2004) . . . . . . . . . 26, 27 Fraise v. Terhune, 283 F.3d 506 (3d Cir. 2002) . . . . . . . 28 Hishon v. King & Spalding, 467 U.S. 69 (1984) . . . . . . . . 18 Hluchan v. Fauver, 480 F.Supp. 103 (D.N.J. 1979), aff'd 659 F.2d 1067 . . . . . . . . . . . . . . . . . . . . . 30 Ingalls v. Florio, 968 F.Supp. 193 (D.N.J. 1997) . . . . . . 31 Lewis v. Casey, 518 U.S. 343 (1996) . . . . . . . . . . . 31, 32 Mahon v. Crowell, 295 F.3d 585 (6th Cir. 2002) . . . . . . . 37 Meachum v. Fano, 427 U.S. 215 (1976) . . . . . . . . . . . . 30 Murray v. Woodburn, 809 F.Supp. 383 (E.D.Pa. 1993) . . . . . 29
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New Jersey Turnpike Authority v. Jersey Cent. Power and Light, 772 F.2d 25 (3d Cir. 1985) . . . . . . . . . . . . . . . . . 20 Oltarzewski v. Ruggiero, 830 F.2d 136 (9th Cir. 1987) . . . . 29 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) . . . . . . . . . . . . . . . . . . . . . 33 Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206 . . . . . . . . . . . . . . . . . . . . . . . . 37 Polk County v. Dodson, 454 U.S. 312 (1981) . . . . . . . . . 25 Porter v. Nussle, 531 U.S. 516 (2002) . . . . . . . . . . . . 21 Prisoners’ Legal Association v. Roberson, 822 F.Supp. 185 (D.N.J. 1993) . . . . . . . . . . . . . . . . 29 Ray v. Kertes, 285 F.3d 287 (3d Cir. 2002) . . . . . . . . . 24 Rivera v. Whitman, 161 F.Supp.2d 337 (D.N.J. 2001) . . . 21, 24 Robinson v. City of Pittsburgh, 120 F. 3d at 1294 . . . . . . 25 Rode v. Dellarciprete, 845 F. 2d 1195 (3d Cir. 1988) . . . . 25 Sandin v. Conner, 515 U.S. 472 (1995) . . . . . . . . . . 29, 30 Toyota Motor Manuf., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) . . . . . . . . . . . . . . . . . . . 37, 38 Turner v. Safley, 482 U.S. 78 (1987) . . . . . . . . . . . . 28 Tyler v City of Manhattan, 849 F. Supp. 1429 (D.C. Kan. 1994) . . . . . . . . . . . 37, 38 United States Parole Commn. v. Geraghty, 445 U.S. 388 (1980) . . . . . . . . . . . . . . . . . . . . . 19 United States v. Georgia, 126 S. Ct. 877 (2006) . . . . . 34, 35 Wilmington Firefighters Local 1590 v. City of Wilmington Fire Dept., 824 F.2d 262 (3d Cir. 1987) . 20 Woodford v. Ngo, 126 S.Ct. 2378, 2387 (2006) . . . . . . 22, 27
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STATUTES 18 U.S.C. § 3626(a)(2) . . . . . . . . . . . . . . . . 3, 6, 10 18 U.S.C. § 3626(e)(2) . . . . . . . . . . . . . . . . . . . . 3 42 U.S.C. § 1915 . . . . . . . . . . . . . . . . . . . . . . 22 42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . 3, 21, 25, 29 42 U.S.C. § 1997e(a) . . . . . . . . . . . . . . . 2, 21, 25, 27 42 U.S.C. § 12102(2) . . . . . . . . . . . . . . . . . . . . 37 42 U.S.C. § 12131 . . . . . . . . . . . . . . . . . . 36, 37, 38 42 U.S.C. § 12132 . . . . . . . . . . . . . . . . . . . . . . 36
REGULATIONS N.J.A.C. 10A:21-5.1(a) . . . . . . . . . . . . . . . . . . . 10 N.J.A.C. 10A:21-8.5(a) . . . . . . . . . . . . . . . . . . . 10 N.J.A.C. 10A:4-1.1 . . . . . . . . . . . . . . . 11, 15, 17, 18 N.J.A.C. 10A:4-4.1 . . . . . . . . . . . . . . . . . . . . . 11 N.J.A.C. 10A:4-5.1(a) . . . . . . . . . . . . . . . . . . . . 11
RULES Fed. R. Civ. P. 56(c) . . . . . . . . . . . . . . . . . . . . 18
OTHER AUTHORITIES U.S. Const. amend. XI . . . . . . . . . . . . . . . . . . . . 33
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PRELIMINARY STATEMENT Plaintiffs’ Complaint alleges allege the State Defendants have failed to protect Plaintiffs, inmates of the Adult Diagnostic and Treatment Center (“ADTC”), from other state inmates they come in contact with during medical, court, and other transports outside of the ADTC facility, which allegedly resulted in the Plaintiffs voluntarily forgoing medical treatment and court appearances due to their alleged fear of being physically assaulted by these other state inmates during transports. The Complaint is now moot because the New Jersey Department of Corrections updated the Standard Operating Procedures of Central Transportation on July 1, 2006, to include specific, permanent procedures regarding the transport, escort and holding of ADTC inmates. The specific procedures state that: (1) when inmates of the East Jersey State Prison (“EJSP”) are to be picked up with the same transport vehicle as ADTC inmates, EJSP inmates are to be picked up first; (2) when transporting ADTC inmates with inmates of other institutions, the ADTC inmates are to be seated on the front row bench seat within the inmate compartment, the second row bench seat will remain empty and all other inmates will be seated in the last row; (3) ADTC inmates are to be held separate from all other inmates at the St. Francis Medical Center and New Jersey State Prison (“NJSP”); (4) holding ADTC inmates at the Garden State Youth Correctional Facility (“GSYCF”) should be avoided as much as possible, however, if it is unavoidable, the ADTC inmates are to be

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held in one of the cells separate from all other inmates; (5) when transporting ADTC inmates for court or hearings, the ADTC inmates must be held in a separate holding cell away from other state or county inmates; and (6) the ADTC inmates will not be identified as being from the ADTC, but rather, they will be identified by name and number only. Therefore, the concerns raised by Plaintiffs in their Complaint have all been addressed by these updated Standard Operating Procedures rendering Plaintiffs’ Complaint moot.
Additionally, the Plaintiffs’ Complaint should be dismissed because Plaintiffs failed to properly exhaust their administrative remedies pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a), prior to bringing suit.
Moreover, Plaintiffs’ Complaint should be dismissed because it is based upon an impermissible theory of respondeat superior.
Furthermore, Plaintiffs have failed to set forth valid claims of: 1) failure to protect under the Eighth Amendment, 2) a violation of their due process rights under the Fourteenth Amendment, 3) Equal Protection under the Fourteenth Amendment, 4) a denial of legal access, 5) discrimination in violation of the New Jersey Law Against Discrimination, and 6) discrimination in violation of the Americans with Disabilities Act.
In sum, the defendants’ Motion to Dismiss, or in the alternative, for Summary Judgment, should be granted.
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PROCEDURAL HISTORY Plaintiffs filed a Motion for Temporary Restraining Order on January 18, 2006 and brought a Complaint pursuant to 42 U.S.C. § 1983 on January 27, 2006, against State Defendants, Devon Brown, Former Commissioner of the New Jersey Department of Corrections, and William Plantier, Director of the Division of Operations for the New Jersey Department of Corrections, which was served on Defendants Brown and Plantier by Waiver of Service on February 9, 2006. Defendants Brown and Plantier opposed Plaintiffs’ motion asserting that Plaintiffs failed to satisfy the elements necessary to impose preliminary restraints. On March 16, 2006, the Court entered a Preliminary Injunction against the Defendants Brown and Plantier. On May 1, 2006, a Motion to Dissolve the Preliminary Injunction was filed on behalf of the Defendants Brown and Plantier. In response, Plaintiffs filed a Motion to Postpone the Automatic Stay of the Preliminary Injunction that took place on June 1, 2006, pursuant to 18 U.S.C. § 3626(e)(2). Additionally, Plaintiffs filed a Motion for a Second Preliminary Injunction Upon the Automatic Termination of the First Preliminary Injunction, which occurred on June 16, 2006, pursuant to 18 U.S.C. § 3626(a)(2). Oppositions to Plaintiffs’ Motions were filed on behalf of Defendants Brown and Plantier on June 5, 2006.
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On June 21, 2006, the Court entered an Order and Opinion dismissing as moot the Defendants’ Motion to Dissolve the Preliminary Injunction and the Plaintiffs’ Motion to Postpone the Automatic Stay of the Preliminary Injunction because the preliminary injunction automatically expired on June 16, 2006; and granting Plaintiffs’ Motion for a Second Preliminary Injunction.
On July 19, 2006, the Court granted the Defendants’ Motion to Extend Time to Answer the Complaint. The Defendants’ Answer is due by August 17, 2006. This Motion to Dismiss in Lieu of an Answer, or in the alternative for Summary Judgment, follows.
STATEMENT OF FACTS A. Inmate Transportation
There were 1,975 transports of inmates housed at the Adult Diagnostic and Treatment Center (“ADTC”), from January 2004 through May 2006. See Affidavit of Loretta C. Brancato, dated August 16, 2006, (hereinafter “Brancato Aff.”), Exhibits C and E. Of those 1,975 ADTC inmate transports, only four alleged incidents occurred involving an assault or verbal harassment of an ADTC inmate by a state inmate from another institution, while under the custody and care of the New Jersey Department of Corrections; while 99.8% were completed without incident. See Brancato Aff., Exhibits C and E; and Affidavit of Melissa Matthews, dated August 15, 2006, (hereinafter “Matthews Aff.”), ¶¶ 29 and 31.
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A review of all Administrative Remedy Forms filed from January
2004 through May 31, 2006 by state inmates housed at the ADTC
revealed no additional complaints with regard to any assault or
harassment of ADTC inmates during transports with the exception of
those four alleged incidents.1 See Matthews Aff., ¶¶ 29 and 31.
Those state inmate transports conducted by the Central
Transportation Unit (“Central Transportation”) are governed by the
1
These reported incidents were the alleged assault of former inmate Todd Becka on July 20, 2004 during a medical transport (Chavers Aff., Exhibit A), the alleged assault of inmate Cornwell on May 24, 2005 in the GSYCF holding cell during his return trip from a medical appointment (Matthews Aff., Exhibits B), the alleged verbal harassment of inmate Braun on December 13, 2005 during the return trip from a court appearance (Matthews Aff., Exhibit D); and the alleged verbal harassment of Randall Venzie on April 7, 2006 in the GSYCF holding cell during his return trip from a court appearance (Matthews Aff., Exhibit R).
There were two other administrative remedy forms filed by ADTC inmates who alleged only that they were identified as ADTC inmates by DOC officers during transport. See Matthews Aff., ¶¶ 32 and 33. Inmate Michael Davidson filed a grievance form on May 3, 2006 alleging that he was identified during a transport by a state inmate who had seen the transport roster. See Matthews Aff., Exhibit S. However, upon investigation, it was determined that the state inmate could not have seen the transport roster because the transport paperwork was secured by the transport officers up front with them and the inmate did not have access to the paperwork at any time. Id.
Inmate Javier Ramirez filed a grievance form on March 23, 2006 alleging that while he was held in the GSYCF holding cell, an officer came in and asked “Who’s going to Avenel ADTC?” and inmate Ramirez identified himself. See Matthews Aff., Exhibit S. Although inmate Ramirez further contends that he was then left alone with the inmates in the holding cell, he does not allege that he was subject to any verbal harassment or physical assault. Id. Upon investigation, the officer reported that he did not recall entering the holding area and asking that question. Id. The officer further stated that doing what Ramirez alleged had never been a practice of his in the past or present. Id.
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Central Transportation Standard Operating Procedures.

See

Affidavit of Loretta C. Brancato, dated August 16, 2006,

(hereinafter “Brancato Aff.”), ¶ 2. On July 1, 2006, the New

Jersey Department of Corrections amended its Central Transportation

Standard Operating Procedures to include specific, permanent

procedures to be adhered to when transporting, escorting or holding

inmates housed at the Adult Diagnostic and Treatment Center

(“ADTC”). Id., ¶¶ 2 and 4, Exhibit A, 40-41. These procedures

regarding transporting, escorting or holding ADTC inmates are not

temporary policy changes for the Department of Corrections, but

rather permanent additions to the Central Transportation Standard

Operating Procedures. Id., ¶ 4.

Inmate transports are scheduled with Central Transportation by

either the institution in which the inmate is housed, Correctional

Medical Services, or the court. Id., ¶ 5. Correctional Medical

Services is responsible for notifying Central Transportation of an

inmate’s medical appointment and the need for a transport. Id., ¶

6. Inmates’ court appearances are scheduled with Central

Transportation when Central Transportation receives a Writ or Court

Order to produce an inmate at a court. Id., ¶ 7. The institutions

in which an inmate in need of transport for any purpose other than

medical or court, are responsible for notifying Central

Transportation of the need for a transport. Id., ¶ 8.

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Central Transportation then compiles all requests for transports for the following week and creates a schedule for the pick-up of inmates going out to and returning from appointments or appearances. See Brancato Aff., ¶ 9. The inmates of those institutions in close proximity to one another are transported together. Id., ¶ 10. For example, inmates of East Jersey State Prison (“EJSP”) and the ADTC are transported together because those institutions are physically located next to one another. Id., ¶ 12. When a transportation unit is scheduled to pick up inmates from both the ADTC and EJSP, the ADTC inmates will be picked up first. Id., ¶ 13 and Exhibit A at 40.
Once all inmates have been picked-up from their institutions, they are all brought to Albert C. Wagner Youth Correctional Facility (“ACWYCF”), where the transporting officers use the transportation schedule and the inmates’ names and numbers to separate the inmates by their destinations and place the inmates on a vehicle which is to proceed to their particular destinations. See Brancato Aff., ¶ 17. For example, at ACWYCF, all the inmates needing to go to Ocean County Court are put on the same vehicle which goes to Ocean County Court. Id., ¶ 18. It is the same for each destination; all those inmates heading to a particular destination are transported together to that destination. Id., ¶ 19.
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When transporting ADTC inmates with other state inmates, the ADTC inmates are to be seated on the front row bench seat within the inmate compartment, the second row bench seat will remain empty, and all other inmates will be seated in the last row. See Brancato Aff., ¶ 14 and Exhibit A at 40. Additionally, the transporting officers are not to identify ADTC inmates as being from the ADTC and will identify ADTC inmates by name and number only. Id., ¶ 15 and Exhibit A at 41. The transporting officers are provided with a schedule of transports, which lists the inmates’ names and numbers, and is used to verify the inmates are on the correct transport vehicle to proceed to their destinations. Id., ¶ 16.
When a transport occurs after 1:00 p.m., Central Transportation uses the Admission and Discharge Intake Area Tank 1 at GSYCF as a holding cell for inmates being transported from various locations across the State and returning to their home institution. See Brancato Aff., ¶ 20. The inmate is brought to the GSYCF holding cell to await a transport to their destination. Id., ¶ 21. However, holding ADTC inmates in GSYCF will be avoided as much as possible by making every effort to return ADTC inmates to the ADTC prior to 1:00 p.m. Id., ¶ 22 and Exhibit A at 41. When the transport of an ADTC inmate after 1:00 p.m. is unavoidable and the ADTC inmate must be held at the GSYCF, the ADTC inmate will
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be kept in a separate cell from all other inmates. Id., ¶ 23 and Exhibit A at 41.
When an inmate is transported to a medical appointment, he or she is escorted by an officer who remains with the inmate at the appointment. See Brancato Aff., ¶ 24. During medical appointments or outpatient testing at the St. Francis Medical Center, ADTC inmates will be held in holding cells separate from all other inmates. Id., ¶ 25 and Exhibit A at 41. During appointments at the New Jersey State Prison (“NJSP”), the ADTC inmates will be kept separate from all other inmates at all times, including intake holding cells for holding purposes and intake holding cells for strip search purposes. Id., ¶ 26 and Exhibit A at 41.
When an inmate is transported to a court appearance, he or she is escorted to the court and depending on the court and remand schedule, the transporting officer may remain with the inmate or remand the inmate to the custody of that court. See Brancato Aff., ¶ 27. If the inmate is remanded to that court, the transporting officer will leave the inmate in the custody of the county and return for the inmate when the court notifies Central Transportation that the inmate’s business with the court has concluded. Id., ¶ 28. When transporting ADTC inmates for court appearances, the ADTC inmates will be held in a separate holding cell away from other state or county inmates. Id., ¶ 29 and Exhibit A at 41.
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On return to their institutions from a transport, inmates are brought to ACWYCF, the transporting officers use their transport schedule and the inmates’ names and numbers to separate the inmates by their institutions and place the inmates on a transport vehicle to return to their institutions. See Brancato Aff., ¶ 30. Again, inmates of institutions that are near one another are transported together. Id., ¶ 31. Therefore, inmates of EJSP and ADTC are transported back to those institutions on the same vehicle with the ADTC inmates seated on the front row bench seat, the second row bench seat remaining empty, and the EJSP inmates seated in the last row. Id., ¶ 32 and Exhibit A, 40.
During all transports, inmates are shackled with leg irons, belly chains and wrist shackles that are secured to the belly chain. See Brancato Aff., ¶ 33 and Exhibit A, 25. Additionally, all inmates are kept under constant surveillance during and awaiting transport. Id., at ¶ 34 and Exhibit A, 30 and 33. B. Actions Taken When Inmate-on-Inmate Altercations Occur
When an Administrator of a Correctional Institution or designee learns of an inmate-on-inmate altercation, he or she shall notify the Special Investigations Division (“SID”), which shall make an immediate inquiry to determine the facts of the situation. N.J.A.C. 10A:21-5.1(a). The SID shall then investigate and prepare written reports regarding any inmate-on-inmate altercations brought to its attention. N.J.A.C. 10A:21-8.5(a). If an inmate is found
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to have threatened or assaulted another inmate, they are subject to disciplinary charges.2 N.J.A.C. 10A:4-1.1 et seq. C. Grievance Procedure
The administrative grievance procedure has been established to give the inmate population a way to bring complaints and problems to the attention of the Administration at the ADTC. See Matthews Aff., ¶ 12. Pursuant to the ADTC Inmate Handbook, the Administrative Remedy Forms are available to all ADTC inmates through their Housing Unit Officer, Unit Social Worker or the Law Library. Id., Exhibit J. Once the inmate completes the form and submits it to the Office of the Executive Assistant in Charge of Remedy Forms, the form is then given to the appropriate supervisor for a response. Id. When the inmate receives the response to the Administrative Remedy Form, his remedies have been exhausted. Id.
Those Administrative Remedy Forms filed by Plaintiffs were reviewed. See Matthews Aff., ¶ 19. Although Plaintiffs Cornwell, Macrina, Riley, and Gibbs have all filed Administrative Remedy Forms on various issues, they never filed an Administrative Remedy Form regarding the allegations in Plaintiffs’ Complaint. Id., Exhibits K, N, O, and P. Plaintiff Vansciver has not filed any
2Assaulting any person; threatening another with bodily harm or with any offense against his or her person or his or her property; and fighting with another person are all prohibited acts under N.J.A.C. 10A:4-4.1. If an inmate is found guilty of any of these prohibited acts, they are subject to the sanctions set forth in N.J.A.C. 10A:4-5.1(a).
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Administrative Remedy Forms in the last two years. See Matthews Aff., ¶ 23. D. Alleged Incidents During Transports
Only four incidents were reported within the last two and a half years regarding an ADTC inmate being verbally harassed or assaulted by a state inmate from another institution during or awaiting transport. Those alleged incidents are as follows:
1. Facts Specific to Former Inmate Todd Becka, Non-Party to this Matter
On July 20, 2004, former inmate Todd Becka, SBI# 014241C, was being transported from the ADTC to New Jersey State Prison (“NJSP”) for a medical trip, when he reported to the transporting officers that he had been “kicked in the head” by a state inmate sitting in the rear seat two rows behind him. See Affidavit of Caprice L. Chavers, dated April 28, 2006, (hereinafter “Chavers Aff.”), Exhibit A.) All inmates in the vehicle were secured in leg restraints and were under constant supervision. Id. The supervising officer did not witness any altercation that verified inmate Becka’s claim of assault. Id. Nevertheless, Becka was brought to the medical department of NJSP. Id. Upon evaluation, the physician noted Becka’s head appeared normal and prescribed Motrin for Becka’s complaints of tenderness and mild pain. Id.
Senior Corrections Officer, J.M. Coons, the transporting officer, wrote a special report regarding Becka’s allegations, which was forwarded from the Central Transportation Unit to the
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Special Investigations Division, which then investigated the matter. See Chavers Aff., Exhibit A.
2. Facts Specific to Plaintiff Paul Cornwell Plaintiff Cornwell, an ADTC inmate, alleged that during his return from a medical trip on May 24, 2005, he was injured by a state inmate while in the GSYCF holding cell awaiting transport. See Plaintiffs’ Memo of Law at 5. Cornwell alleged that he was placed in the holding cell, his wrist shackles were removed3 and an officer allegedly announced that Cornwell was from “Avenel,” then left the holding area to watch as Cornwell was physically assaulted by a state inmate. See Plaintiffs’ Complaint. However, Plaintiff Cornwell told a different story immediately after the incident. See Matthews Aff., Exhibit B. Following the incident, Cornwell stated that the state inmate “asked me where I was from and I stated ADTC, and he began hitting me and pulling at my chain.” Id. Cornwell told a medical staff member that, “Another inmate asked me where I was from and I told him I was from Avenel . . . ” Id. Cornwell did not advise that an officer indicated that he was from Avenel. Id. Senior Corrections Officer (“SCO”) Musso observed the altercation involving Plaintiff Cornwell and immediately notified Center Control of a Code #33. See Matthews Aff., Exhibit B.
3Pursuant to Central Transportation’s SOP, leg irons must remain on inmates in the GSYCF holding cell awaiting transport. See Brancato Aff., Exhibit A at 25.
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Center Control then announced the Code #33 for additional officers to respond and assist in the removal of the inmates. Id. The officers quickly entered the holding area and removed the inmates. Id. Both inmates were brought to the medical department. Id.
Plaintiff Cornwell suffered a contusion to his left eye, reddened area of the back of his head, a bloody nose and an abrasion to his right elbow. See Matthews Aff., Exhibit B. The other inmate suffered scrapes to his knees. Id. An investigation was conducted and the other inmate was issued a disciplinary charge for assaulting another inmate. See Affidavit of Donald Mee, dated May 1, 2006, (hereinafter “Mee Aff.”), Exhibit A. The disciplinary charge was amended by the Disciplinary Hearing Officer to fighting with another person, to which the inmate pleaded guilty and was sanctioned to fifteen days’ detention, 180 days’ loss of commutation credit, suspended for sixty days, 180 days’ administrative segregation, suspended for sixty days, and 15 days’ loss of recreational privileges. Id., Exhibit A.
3. Facts Specific to Plaintiff Inmate Peter Braun Plaintiff Braun, an ADTC inmate, alleged that on December 13, 2005, he was subjected to verbal harassment by a state inmate during his return transport from court. See Plaintiffs’ Memo of Law at 15-16. Braun did not advise anyone from the DOC of this incident. Rather, on December 13, 2005, officers noticed that Braun was agitated after his court trip and reported their
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observations to their supervisor. See Matthews Aff., Exhibit D. Braun was then brought to the medical department in the ADTC. Id. Braun stated to medical staff that during his transport another inmate grabbed him by the shirt, verbally accosted him and searched him for jewelry. Id. He further stated that he did not report the alleged incident to the officers because he was not physically assaulted. Id.
4. Facts Specific to Inmate Randall Venzie, Non-Party to this Matter
On April 7, 2006, inmate Randall Venzie was placed in the GSYCF holding cell during his return transport from a Cape May County Court appearance. See Matthews Aff., Exhibit R. Inmate Venzie alleges that in the holding cell the other state inmates surmised that he was from the ADTC and began verbally harassing him. Id. Inmate Venzie further alleges that Officer Masi then came into the holding cell and demanded that each inmate tell him where they were to be transported to; thus, confirming inmate Venzie was from the ADTC. Id. Thereafter, inmate Venzie alleges he was subject to further verbal harassment while kept in the holding cell and during the transport to the ADTC. Id. At no point was inmate Venzie physically assaulted by the other state inmates. Id.
5. Facts Specific to Plaintiffs’ Nine Additional Declarations Plaintiffs have supplied this Court with nine declarations of ADTC inmates in support of their Motion for a Second Preliminary
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Injunction and relied upon by Plaintiffs in their opposition to the State Defendants’ Motion to Dissolve. Five of those declarations fail to assert any new allegations of verbal harassment or physical assault while under the custody and control of the New Jersey Department of Corrections during transports or being held in a holding cell awaiting transports.4 See Declarations of Paul Bechold, Michael Davidson, Robert Pilkington, James J. Krivacska, John Thomas, William Dean and Phillip Disabella. Two of the nine declarations indicate that the ADTC inmates were subject to verbal harassment only after other state inmates identified them as ADTC inmates. See the Declarations of Ramoncito Ramos and Randall Venzie.
Only the Declaration of Keith Gardner, an ADTC inmate, alleges a physical assault by another state inmate while he was waiting in the GSYCF holding cell for a return trip to the ADTC on May 5, 2006. See Declaration of Keith Gardner. However, inmate Gardner
4The Declaration of James Krivacska provides no new allegations of verbal harassment or physical assault during or awaiting transport than alleged in his earlier declaration. The Declaration of Paul Bechold alleges suffering verbal harassment by other state inmates while being held in a holding cell in the Passaic County Jail. The Declaration of Michael Davidson alleges that a state inmate knew he was from the ADTC because that state inmate allegedly saw the transport roster. See the Declaration of Michael Davidson and Matthews Aff., Exhibit S. However, the investigation revealed that at no time did the state inmate have access to the transport roster as it was secured by the transport officers and in the front of the van with them. See Matthews Aff., Exhibit S.
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was never held in the GSYCF holding cell on May 5, 2006. See Brancato Aff., ¶¶ 39-49 and Exhibits G, H and I.
The daily transport schedule shows that inmate Gardner was the only ADTC inmate to be picked up from the ADTC and dropped off at the Middlesex County Court on May 5, 2006. See Brancato Aff., ¶ 39 and Exhibit G. The trip ticket for Gardner’s return trip from his Middlesex County Court appearance indicates that two inmates were picked up from the Middlesex County Court. Id., ¶ 43 and Exhibit H. The trip ticket further indicates that one of those inmates was brought directly back to “1500", which is the code for the ADTC, and the other was brought directly back to “1700", which is the code for the East Jersey State Prison. Id., ¶ 44 and Exhibit H. Because Gardner was the only ADTC inmate picked up and brought back from the Middlesex County Court on May 5, 2006, the inmate listed on the trip ticket as picked up from the Middlesex County Court at 1:18 p.m. and dropped off at the ADTC at 2:30 p.m. is Gardner. Id., ¶¶ 45 and 46; and Exhibits G and H. Additionally, the ADTC log book for Friday, May 5, 2006 indicates that inmate Gardner was received by the ADTC at 14:34 (2:34 p.m.) from a court transport. See Matthews Aff., Exhibit U.
Furthermore, any inmate placed in the GSYCF holding cell has his name listed in the GSYCF holding cell log book. See Brancato Aff., ¶ 48. The GSYCF holding cell log book for May 5, 2006 does
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not have Gardner listed as an inmate who was placed in the GSYCF holding cell on that date. Id., ¶¶ 47-49, Exhibit I. E. Devon Brown, Former Commissioner of the New Jersey Department
of Corrections Devon Brown has not been employed by the New Jersey Department of Corrections as the Commissioner since January 9, 2006. Affidavit of D. Craig Stevens, dated August 17, 2006, ¶ 2. In fact, Devon Brown is no longer employer by the New Jersey Department of Corrections in any capacity. Id., ¶ 3.
STANDARD OF REVIEW A. The Rule 12(b)(6) Standard
The Court has authority to dismiss a suit for failure to state a claim upon which relief can be granted if the Complaint clearly demonstrates that plaintiff cannot prove any set of facts that would entitle it to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). B. Summary Judgment Standard
Summary Judgment is proper in any case where there is no genuine issue of material fact. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A defendant who seeks summary judgment on a plaintiff’s cause of action must demonstrate the absence of a genuine issue of material fact by either (1) submitting summary judgment evidence that negates the existence of a material element of plaintiff’s claim or (2) showing there is no
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evidence to support an essential element of plaintiff’s claim. See Celotex Corp., 477 U.S. at 322-23.
LEGAL ARGUMENT POINT I
Plaintiffs’ Complaint must Be Dismissed as Moot. Plaintiffs’ Complaint has become moot because the New Jersey Department of Corrections Central Transportation Unit updated its Standard Operating Procedures on July 1, 2006 to include specific, permanent procedures to be adhered to when transporting, escorting or holding inmates housed at the Adult Diagnostic and Treatment Center (“ADTC”). Id., ¶¶ 2 and 4, Exhibit A, 40-41. “An actual controversy must exist at all stages of federal court proceedings, both at the trial and appellate levels. If events subsequent to the filing of the case resolve the dispute, the case should be dismissed as moot.” Chemerinsky, Erwin, Federal Jurisdiction § 2.5.1 (4th Ed. 2003). The Supreme Court explained that “mootness [is] the ‘doctrine of standing in a time frame. The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’” United States Parole Commn. v. Geraghty, 445 U.S. 388, 397 (1980) (quoting Henry Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973)). A court also must determine whether the facts underlying a dispute are still operative and thus whether a judgment by the
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court would provide meaningful relief. Wilmington Firefighters Local 1590 v. City of Wilmington Fire Dept., 824 F.2d 262, 266 (3d Cir. 1987). If the requested relief is unavailable, then the court’s opinion would be merely advisory and will not be rendered. [Id.] Generally, a case is moot when: (1) the specific alleged violation at tissue has ceased and it is not reasonably likely that it will occur again; and (2) the effects of the alleged violation have been eliminated by other interim relief or events. New Jersey Turnpike Authority v. Jersey Cent. Power and Light, 772 F.2d 25, 30 (3d Cir. 1985). More than mere speculation that the wrong may resume is required to “shield a case from a mootness determination.” Bunting v. Mellen, 541 U.S. 1019, 124 S.Ct. 1750, 1752 (2004).
On July 1, 2006, the New Jersey Department of Corrections Central Transportation Unit updated its Standard Operating Procedures to include the additional protections sought by the Plaintiffs in their Complaint. See Brancato Aff., Exhibit A at 4041. These procedures are a permanent addition to the Central Transportation Standard Operating Procedures, which has changed the way the ADTC inmates are transported, escorted and held awaiting transport. See Brancato Aff., ¶ 4.
Additionally, Plaintiffs’ claims against Defendant Brown are moot because Devon Brown is no longer employed by the New Jersey
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Department of Corrections and therefore, any injunctive relief

issued against Devon Brown would be pointless.

Therefore, there has been a change in circumstances such that

there is no longer a genuine conflict between the parties and

Plaintiffs’ Complaint is moot.

POINT II

Plaintiffs’ Complaint Is Barred by Their Failure to Exhaust Their Administrative Remedies.

Plaintiffs Complaint must be dismissed because they have

failed to properly exhaust their administrative remedies. The PLRA

requires prisoners asserting a claim under 42 U.S.C. § 1983 to

first exhaust administrative remedies. See 42 U.S.C. § 1997e(a).

Specifically, § 1997e(a) provides that:

No action shall be brought with respect to

prison conditions under section 1983 of this

title, or any other Federal law, by a prisoner

confined in any jail, prison, or other

correctional

facility

until

such

administrative remedies as are available are

exhausted.

The exhaustion requirement applies to prisoners who were in

custody at the time they filed their original complaint. Porter v.

Nussle, 531 U.S. 516, 524 (2002). Exhaustion is mandatory. Booth

v. Churner, 532 U.S. 731 (2002). Exhaustion must be total; that

is, a complaint raising any unexhausted claim must be dismissed in

its entirety even if the complaint also alleges exhausted claims.

Rivera v. Whitman, 161 F.Supp. 2d 343 (D.N.J. 2001). 42 U.S.C. §

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1997e(a) contains no futility exception that would excuse a failure to exhaust. Booth, supra, 532 U.S. at 741 n. 6.
The Supreme Court recently held that the PLRA requires “proper exhaustion.” Woodford v. Ngo, 126 S.Ct. 2378, 2387 (2006). The Court stated that “[p]roper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules because no adjudicative system can function effectively without some orderly structure on the course of its proceedings.” Id. at 2386.
a. The Exhaustion Requirement Applies to Plaintiffs.
42 U.S.C. § 1915 provides that "[a]s used in this section, the term 'prisoner' means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." In assessing whether the exhaustion requirement applies to plaintiff, a court must look to his status at the time he filed his complaint. See Ahmed v. Dragovich, 297 F.3d 201, 210 (3d Cir. 2002).
In this case, the record is undisputed that all Plaintiffs were prisoners incarcerated with the New Jersey Department of Corrections at the time they filed their Complaint. See Matthews Aff., Exhibits A, C, E, F, G, H and I).
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b. Remedies Outlined In The New Jersey Department of Corrections Inmate Handbook Meet The Definition of An “Administrative Remedy” Within § 1997e (a)’s Exhaustion Requirement.
The Third Circuit in Concepcion v. Morton, 306 F.3d 1347 (3d Cir. 2002) held that the PLRA’s exhaustion requirement applies to the grievance procedure set forth in a New Jersey Department of Correction’s inmate handbook. Concepcion, 306 F.3d at 1348-1349. Thus, based on Concepcion, the Plaintiffs were obligated to properly exhaust all available administrative remedies, such as those provided by the Inmate Handbook of the ADTC.
c. The Record Shows That Plaintiffs Failed To Exhaust Their Available Administrative Remedies.
All Administrative Remedy Forms filed by each plaintiff were reviewed. See Matthews Aff., ¶19. Plaintiff Braun was the only inmate to file an Administrative Remedy Form regarding the incident he was personally involved in on December 13, 2005. Id., at Exhibit L. Although Plaintiffs Braun and Krivacska filed Administrative Remedy Forms regarding their concerns for their safety during transports; they did not file any Administrative Remedy Forms concerning their other claims of violations of the Fourteenth Amendment right to substantive and procedural due process, Fourteenth Amendment right of equal protection, New Jersey Law Against Discrimination, and the Americans with Disabilities Act. See Matthews Aff., Exhibits L and M.
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Additionally, although Plaintiffs Cornwell, Macrina, Riley and Gibbs have all filed Administrative Remedy Forms on various issues, they never filed an Administrative Form regarding any of the claims in Plaintiffs’ Complaint. See Matthews Aff., Exhibits K, N, O and P. Finally, Plaintiff Vansciver has not filed any Administrative Remedy Forms in the last two years, let alone any with regard to the claims in the Complaint. See Matthews Aff., ¶23.
d. “Total Exhaustion” Is The Rule Under Section 1997e(a).
This Court has held that a prisoner must exhaust all of the claims that make up his federal civil action before he may file a civil rights suit in federal court. Rivera v. Whitman, supra, 161 F.Supp. 2d at 337, 341 (D.N.J. 2001) abrogated on other grounds, Ray v. Kertes, 285 F.3d 287, 293 n.6 (3d Cir. 2002). The Court held that “the plain language of section 1997e(a), as well as the legislative intent and policy interests behind it, compels a ‘total exhaustion’ rule.” Id. at 343.
In this case, some Plaintiffs pursued their administrative remedies with regard to only some of the allegations contained in their Complaint, while others failed to pursue their administrative remedies with regard to all of the allegations contained in their Complaint. See Matthews Aff., Exhibits K, L, M, N, O and P. Because Plaintiffs’ Complaint contains exhausted and unexhausted claims, the entire Complaint should be dismissed without prejudice
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for Plaintiffs’ failure to properly exhaust their administrative
remedies as required by 42 U.S.C. § 1997e(a).
POINT III
Plaintiffs’ Complaint Is Barred as a Matter of Law Because a 42 U.S.C. § 1983 Claim Cannot Be Premised upon a Theory of Respondeat Superior.
Plaintiffs’ Complaint must be dismissed as to Defendants,
Devon Brown, Former Commissioner of the New Jersey Department of
Corrections, and William Plantier, Director of the Division of
Operations for the New Jersey Department of Corrections because it
is based on an impermissible theory of respondeat superior.
Supervisory liability under 42 U.S.C. § 1983 cannot be
predicated solely upon a theory of respondeat superior. See Polk
County v. Dodson, 454 U.S. 312, 325 (1981).
A defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior. Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity. [Rode v. Dellarciprete, 845 F. 2d 1195, 1207 (3d Cir. 1988) (citations omitted).]
“Actual knowledge and acquiescence” suffice for supervisory
liability because together they “can be equated with ‘personal
direction’ . . . .” Robinson v. City of Pittsburgh, 120 F. 3d at
1294 (citation omitted). Furthermore, while knowledge can be
inferred from circumstances, Baker v. Monroe Twp., 50 F.3d 1186,
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1194 (1995), it nevertheless must be actual knowledge. See Id. at 1201 n.6 (Alito, C.J. concurring and dissenting).
Accordingly, because the record is completely devoid of any evidence that the Defendants Devon Brown and William Plantier participated in the alleged violation of Plaintiffs’ constitutional rights or had actual knowledge and acquiesced to another person's violation of their rights, Plaintiffs’ Complaint must be dismissed.
Furthermore, as Defendant Brown is no longer employed by the New Jersey Department of Corrections, any injunctive relief granted on the basis of his alleged knowledge and acquiescence is moot.
POINT IV Plaintiffs Cannot Show That Defendants Brown and Plantier Failed to Protect Them in Violation of the Eighth Amendment as There Is No Substantial Risk of Harm to Plaintiffs to Which Defendants Brown and Plantier Acted with Deliberate Indifference. Plaintiffs’ Complaint must be dismissed because they cannot establish a failure to protect claim under the Eighth Amendment. To establish a failure to protect claim, an inmate must show that: (1) “he is incarcerated under conditions posing a substantial risk of serious harm;”and (2) the defendant prison official acted with deliberate indifference. Farmer v. Brennan, 511 U.S. 825, 834-837 (2004). A prison official is deliberately indifferent when he “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the
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inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837. An official’s failure to alleviate a significant risk that should have been recognized, and was not, does not constitute a violation of the Eighth Amendment. Farmer, 511 U.S. at 838. Therefore, Plaintiffs’ claims that Defendants Brown and Plantier failed to protect them is without merit and should be dismissed.
A “pattern of violence” does not exist with regard to the alleged harassment or assaults of ADTC inmates by other state inmates during transport. In fact, of the 1,975 ADTC inmate transports, from January 2004 through May 31, 2006, only four alleged incidents occurred involving an assault or verbal harassment of an ADTC inmate by a state inmate from another institution, while under the custody and care of the New Jersey Department of Corrections. See Matthews Aff., ¶¶ 29 and 31.
A review of all Administrative Remedy Forms5 filed from January 2004 through May 31, 2006 by state inmates housed at the ADTC revealed no additional complaints with regard to any assault
5The administrative grievance procedure has been established to give inmates a direct avenue to bring complaints and problems to the attention of the DOC Administration. See Matthews Aff. ¶12 and Exhibit J. Plaintiffs attempt to argue that the absence of an inmate filing a grievance form does not equate to the absence of an incident having occurred during or awaiting transport. However, the PLRA and its interpreting caselaw consistently require inmates to file grievance forms with the DOC Administration so the DOC has the ability to address the situations prior to the inmates going to court. See 42 U.S.C. § 1997e(a); and Woodford, supra, 126 S.Ct. at 2387.
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or harassment of ADTC inmates during transports with the exception of those four incidents. See Matthews Aff., ¶¶ 29 and 31.
Although unfortunate, these random incidents are also very rare and unconnected to any behavior on the part of prison officials, and in no way are indicative of a “pattern of violence” or deliberative indifference. Rather, there is no evidence to support a finding of a “pattern of violence” nor the creation of an unreasonable risk that would support a failure to protect claim.
Not only are inmate-on-inmate altercations involving ADTC inmates during transport quite rare, but the DOC has implemented procedures to provide even further protection for ADTC inmates during or awaiting transports, which make the types of altercations complained of by Plaintiffs even less likely to occur. See Brancato Aff., Exhibit A, 40-41. Therefore, the DOC should be given the discretion it is entitled by the courts. It is an extraordinarily difficult task to conduct the transportation of inmates to and from institutions. See generally, Turner v. Safley, 482 U.S. 78, 84-85 (1987). “[T]he judiciary is ‘ill equipped to deal with the increasingly urgent problems of prison administration and reform’ and should therefore give significant deference to judgments made by prison officials in establishing, interpreting, and applying prison regulations.” Fraise v. Terhune, 283 F.3d 506, 515 (3d Cir. 2002) (quoting Turner, 482 U.S. at 84-85).
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Moreover, as Defendant Brown is no longer employed by the New Jersey Department of Corrections, any injunctive relief granted on the basis of his alleged failure to protect Plaintiffs is moot.
Therefore, Plaintiffs are unable to establish an Eighth Amendment claim and their Complaint should be dismissed.6
POINT V
Plaintiffs Do Not Possess A Liberty Interest In The Condition Of Their Confinement And Therefore Cannot Sustain A Cognizable 42 U.S.C. § 1983 Action Predicated Upon the Fourteenth Amendment Due Process Clause.
Plaintiffs cannot establish a claim that the Defendants Brown and Plantier disregarded an excessive risk to the health and safety of ADTC inmates during court and medical trips and that such conduct has deprived them of their substantive and procedural due process rights under the Fourteenth Amendment. See Plaintiffs’ Complaint, 40-41. Under the Due Process Clause, liberty interests are limited to circumstances exceeding the sentence "in an unexpected manner." Sandin v. Conner, 515 U.S. 472, 484 (1995). Thus, the Due Process Clause does not create a liberty interest in being free from "every change in the conditions of confinement having a substantial adverse impact on the prisoner" or from
6Also, Plaintiffs Eighth Amendment claims based upon verbal harassment must be dismissed because claims of harassment are not cognizable under 42 U.S.C. § 1983 and do not rise to the level of a constitutional violation. See Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987); Prisoners’ Legal Association v. Roberson, 822 F.Supp. 185, 189 (D.N.J. 1993); and Murray v. Woodburn, 809 F.Supp. 383 (E.D.Pa. 1993).
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transfers from one cell to another or one prison to another, so long as conditions remain "‘within the normal limits or range of custody which the conviction has authorized the State to impose.’" Id. at 478, (quoting Meachum v. Fano, 427 U.S. 215, 225 (1976)).
POINT VI Plaintiffs Cannot Establish an Equal Protection Claim Because They Are Not a Member of a Suspect Class and the State Defendants’ Transportation Procedures Are Rationally Related to a Legitimate State Purpose. Plaintiffs cannot establish an equal protection claim under the Fourteenth Amendment because they are not members of a suspect class and the inmate transportation procedures are rationally related to a legitimate state purpose. Plaintiffs claim to be members of a suspect class, which would require strict scrutiny of their claims. It is inconceivable that inmates convicted of sex offenses and found to be compulsive and repetitive offenders would give rise to a suspect class, and no court has so held. Therefore, the prison authorities' actions must be upheld if they are rationally related to a legitimate state purpose. Hluchan v. Fauver, 480 F.Supp. 103, 109 (D.N.J. 1979), aff'd 659 F.2d 1067 3d Cir. 1981). Therefore, Plaintiffs’ Equal Protection claim must be dismissed because the manner in which the transports are conducted is rationally related to legitimate state purposes and Plaintiffs cannot show that Defendants Brown and Plantier acted arbitrarily.
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POINT VII Plaintiffs Cannot Establish a Legal Access Claim Because the State Continues to Provide Plaintiffs with Safe Transports to Their Court Appearances and Is Not in Any way Prohibiting Them from Accessing the Courts. Plaintiffs allege that Defendants Brown and Plantier knowingly disregarded an excessive risk to the health and safety of ADTC inmates during and awaiting transports, and, in doing so,Defendants Brown and Plantier failed to act reasonably to protect ADTC inmates from the substantial risk of serious bodily harm or injury, which has deterred Plaintiffs from exercising their rights to seek redress of grievances and to have access to the courts. This claim is without merit, especially given the updated Central Transportation Standing Operating Procedures for transporting ADTC inmates. It is well established that “prisoners have a fundamental right to access to the courts which requires prison authorities to provide adequate law libraries or adequate assistance from persons trained in the law.” Ingalls v. Florio, 968 F.Supp. 193, 202 (D.N.J. 1997)(citing Bounds v. Smith, 430 U.S. 817 (1977)). However, in order to successfully establish a legal access claim, a prisoner must show that he suffered an “actual injury” as a result of an inadequate law library or inadequate legal assistance. Lewis v. Casey, 518 U.S. 343, 349 (1996). The United States Supreme Court in Casey instructs that an inmate must demonstrate
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that he was “hindered in his efforts to pursue a [nonfrivolous] legal claim” in order to meet the “actual injury” requirement. Id. at 351-353. Finally, Casey instructs that an inmate can only establish “actual injury” where his alleged hindered legal action concerned a direct or collateral attack upon his sentence, or a challenge to his conditions of confinement. Id. at 354-355.
Despite the alleged acts of Defendants Brown and Plantier deterring Plaintiffs from exercising their rights to seek redress of grievances and to have access to the courts, Plaintiffs have prolifically continued to use correspondence, administrative remedy forms and complaints, such as the instant written Complaint, to address their concerns. In fact, Plaintiffs set forth in this complaint that some of them filed a few Administrative Remedy Forms to address the concerns outlined in the complaint. See e.g., Abany v. Fridovich, 862 F.Supp. 615, 621 (D.Mass. 1994)("Not only does plaintiff not allege any facts indicating that his speech was chilled, but also that the fact that this suit was filed further suggests that their speech was not chilled."). Plaintiffs’ actions defeat any claim that they suffered adverse action sufficient to rise to the level of a constitutional violation.
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POINT VIII Plaintiffs’ Claims Against the Defendants Brown and Plantier Pursuant to the New Jersey Law Against Discrimination Are Barred by the Eleventh Amendment. Plaintiffs’ claims against Defendants Brown and Plantier under the New Jersey Law Against Discrimination are barred by the Eleventh Amendment. “Under the Eleventh Amendment, a federal court is prohibited from hearing a suit against a state unless the state has consented to such a suit.” Camden County Recovery Coalition v. Camden City Bd. of Educ. for Public Sch. Syst., 262 F.Supp. 2d 446, 448 (D.N.J. 2003). The Eleventh Amendment provides that: “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State.” U.S. Const. amend. XI. The Eleventh Amendment also prohibits suits against a state by its own citizens and suits against a state agency or department. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Thus, even where the state is not a named party to the action, the suit will be barred so long as the state is the real party in interest. Camden County Recovery Coalition, supra, 262 F.Supp. 2d at 448. “Therefore, absent waiver, neither a State, nor agencies under its control may be subjected to lawsuits in federal court.” Doe v. Div. of Youth and Family Servs., 148 F.Supp. 2d 462, 483
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(D.N.J. 2001). Moreover, regardless of whether the suit is for monetary damages or injunctive relief, the Eleventh Amendment bars suits against a state in federal court. Camden County Recovery Coalition, supra, 262 F.Supp. 2d at 448.
Therefore, Plaintiffs’ Complaint against Defendants Brown and Plantier is barred by the Eleventh Amendment.
POINT IX Plaintiffs’ Claims Under the ADA Are Barred by the Eleventh Amendment Plaintiffs’ claims under the Americans with Disabilities Act (“ADA”) are barred by the Eleventh Amendment as Plaintiffs have failed even to allege conduct on the part of Defendants Brown and Plantier that actually violated the Fourteenth Amendment. The Supreme Court has held that “insofar as Title II creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity.” United States v. Georgia, 126 S. Ct. 877, 882 (2006). In Georgia, the plaintiff alleged that he was confined for 23-to-24 hours per day in a 12-by3-foot cell in which he could not turn his wheelchair around. 126 S. Ct. at 880. He alleged that the lack of accessible facilities rendered him unable to use the toilet and shower without assistance, which was often denied. Id. On multiple occasions, he had injured himself in attempting to transfer from his wheelchair to the shower or toilet on his own, and on several other occasions,
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he had been forced to sit in his own feces and urine while prison officials refused to assist him in cleaning up the waste. Id. He also claimed that he had been denied physical therapy and medical treatment, and denied access to virtually all prison programs and services. Id. Therefore, the Supreme Court determined that plaintiff’s claims in Georgia were based, at least in large part, on conduct that independently violated the provisions of §1 of the Fourteenth Amendment. Id. at 882. The unanimous opinion of the Court goes no further than that, and does not hold that Title II can abrogate Eleventh Amendment immunity by conduct that does not independently constitute an actual violation of the Fourteenth Amendment.
The Supreme Court, in Georgia, stated that the “lower courts” are best situated to determine on a claim-by-claim basis, (1) which aspects of a state’s alleged conduct would violate Title II; (2) to what extent such conduct would also violate the Fourteenth Amendment; and (3) insofar as such misconduct would violate Title II but would not violate the Fourteenth Amendment, whether Congress’s purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid. 126 S. Ct. at 882.
As set forth more fully in Points V and VI, Plaintiffs cannot show that the conduct of Defendants Brown and Plantier actually violated the Fourteenth Amendment. Therefore, Title II of the ADA does not abrogate state sovereign immunity in this matter because
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Defendants’ conduct does not independently constitute an actual violation of the Fourteenth Amendment and Plaintiffs’ ADA claim is barred by the Eleventh Amendment.
POINT X
Plaintiffs Have Not Established a Prima Facie Showing of an Americans with Disabilities Act Violation. Even if, arguendo, Plaintiffs’ ADA claim were not barred by the Eleventh Amendment, Plaintiffs’ claim under the ADA must still be dismissed because Plaintiffs cannot show they have been discriminated against. Plaintiffs allege that Defendants Brown and Plantier have failed to provide a safe and secure environment in which Plaintiffs may exercise their constitutional rights of access to medical treatment on the basis of their predisposition to compulsively and repetitively commit sexual offenses. The ADA prohibits discrimination of disabled persons by denying any benefit or service offered by a public entity due to a person’s disability. See, 42 U.S.C. §§ 12131, et seq. Specifically, § 12132 states: Subject to the provisions of this title, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. To establish violation of Title II of the ADA plaintiff must show: (1) that he or she is qualified individual with disability,
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(2) that he or she was either excluded from participation in or denied benefits of some public entity's services, programs, or activities, or was otherwise discriminated against by a public entity; and (3) that such exclusion, denial of benefits, or discrimination was by reason of plaintiff's disability. See, 42 U.S.C. 12131, et seq.; See also, Tyler v City of Manhattan 849 F. Supp. 1429 (D.C. Kan. 1994).
a. Plaintiffs are Not “Disabled” Pursuant to the ADA.
The Supreme Court has held that the ADA extends to disability discrimination against state prison inmates. Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212; 213 (1998). Thus, pursuant to the holding in Yeskey, as inmates, Plaintiffs are considered a “qualified individuals.” However, as a prerequisite to an ADA claim, Plaintiffs must show not only that they are qualified individuals, but also that they suffer from a disability. Mahon v. Crowell, 295 F.3d 585, 589 (6th Cir. 2002).
As defined in § 12102(2), a “disability” is: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.
The phrase "substantially limits" means “considerably” or “to a large degree.” Toyota Motor Manuf., Kentucky, Inc. v. Williams, 534 U.S. 184, 196 (2002). Major life activities are those "of
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central importance to daily life." Id. They include such functions as "caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Id. at 195. The predisposition to compulsively and repetitively commit sexual offenses is not a disability under the ADA.
Therefore, Plaintiffs do not have a disability under the definition of the ADA and cannot succeed on the merits of their ADA claim.
b. Plaintiffs Were Not Denied Meaningful Access to Any Program, Benefit or Service
Plaintiffs have failed to satisfy the second prong of a violation of Title II of the ADA because they have not shown that they were excluded from participation in or denied benefits of any services, programs or activities offered by Defendants Brown and Plantier or that they were otherwise discriminated against by the State Defendants. See, 42 U.S.C. 12131, et seq.; see also, Tyler v City of Manhattan, supra. In fact, Defendants Brown and Plantier have continually provided Plaintiffs with safe transports to and from medical appointments and court appearances. Therefore, Plaintiffs are not being discriminated against.
-38-

Case 2:06-cv-00331-DRD -ES Document 37-1 Filed 08/17/06 Page 47 of 47 PageID: 2132

CONCLUSION

Because Plaintiffs did not state a claim upon which relief can

be granted, the Court should dismiss the suit.

Respectfully submitted,

ZULIMA V. FARBER ATTORNEY GENERAL OF NEW JERSEY

By: s/ S usan M . S cott
Susan M. Scott Deputy Attorney General

Date:

August 17, 2006

-39-

 
 Case 2:06-cv-00331-DRD -ES Document 47 Filed 11/17/06 Page 1 of 1 PageID: 2392

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

GEORGE RILEY, et al
Plaintiff, v. DEVON BROWN, et al
Defendant.

Civil Action No. 06-331 (DRD)
ORDER OF REFERENCE TO MEDIATION

It appearing by way of letter from counsel for State Defendants that the necessary approval to engage in mediation has been obtained;
It is on this 15'h day of November, 2007 ORDERED THAT: 1. This civil action be, and it hereby is, referred to mediation; 2. Eric Max, Esq. is appointed as mediator, free of charge; 3. All proceedings in this action shall be stayed for 60 days;

,/?J:i:R ,)j~
DICKINSON R. DEBEVOISE U.S.S.D.J.

 
 Case 2:06-cv-00331-DRD -ES Document 53 Filed 09/21/07 Page 1 of 2 PageID: 2400

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

GEORGE RILEY, JAMES J. KRIVACSKA, PAUL CORNWELL, VINCENT MACRINA, WILLIAM VANSCIVER, RICHARD A. GIBBS, PETER BRAUN and others similarly situated,

Civ. No. 06-0331 (DRD) (ES)

Plaintiffs,
v.

STIPULATION AND ORDER OF DISMISSAL WITHOUT PREJUDICE

DEVON BROWN, WILLIAM PLANTIER, JOHN and JANE DOES I - 10 UNNAMED, sued in their official capacities,

Defendants.

It appearing that counsel for the parties consent to the entry of this Order as indicated by
their signatures below; and no class having been certified in this matter pursuant to Federal Rule
of Civil Procedure 23; and good cause appearing
-l IT IS on this 2( day of September 2007;
ORDERED that, pursuant to Federal Rule of Civil Procedure 4l(a) this matter is hereby

Hon. Dickinson R. Debevoise, U.S.D.J.

#!224565 Y! 07!988-57677

Case 2:06-cv-00331-DRD -ES Document 53 Filed 09/21/07 Page 2 of 2 PageID: 2401

CONSENTED TO BY:

GIBBONS, P.C.
By:LLt:h
E. Evans Wohl rt , Jr., Esq. One Gateway C ter Newark, NJ 0 02 (973) 596-4879 Counsel for plaintiffs Riley, Krivascka, Cornwell, Macrina, Vansciver, Gibbs, and Braun

ANNE MILGRAM,
ATTORNEY GENERAL OF NEW
JERSEY
.,SJIJ..., ~
Susan . Scott, Deputy Attorney Genei'al Counsel for defendants Devon Brown and William Plantier in their official capacities

#1224565 vl

2

071988-57677

 
 Case 2:06-cv-00331-DRD -ES Document 30 Filed 06/21/06 Page 1 of 29 PageID: 1896

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

------------------------------------------------------

:

George Riley, et. al,

:

:

Plaintiffs,

:

Civ. No. 06-0331 (DRD)

:

v.

:

:

Devon Brown, et. al,

:

O P I N I O N

:

Defendants.

:

:

------------------------------------------------------

George Riley James J. Krivacska Paul Cornwell Vincent Macrina William F. Vansciver Richard A. Gibbs Peter Braun ADULT DIAGNOSTIC & TREATMENT CENTER 8 Production Way Avenel, NJ 07001
Pro se Plaintiffs

Zulima V. Farber Attorney General of New Jersey Victoria L. Kuhn Deputy Attorney General Susan M. Scott Deputy Attorney General R.J. Hughes Justice Complex P.O. Box 112 Trenton, New Jersey 08625
Attorneys for State Defendants Devon Brown and William Plantier
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DEBEVOISE, Senior District Judge Plaintiffs, George Riley, James J. Krivacska, Paul Cornwell, Vincent Macrina, William F.
Vansciver, Richard A. Gibbs, and Peter Braun, who are state inmates currently housed in the Adult Diagnostic and Treatment Center (“ADTC”) in Avenel, New Jersey, filed a complaint against Defendants, Devon Brown, Commissioner of the New Jersey Department of Corrections (“DOC”), William Plantier, Director of Operations for the DOC, and various John Does, employees of the DOC, claiming that Defendants denied them certain constitutional rights and unlawfully discriminated against them by failing to protect them from other state inmates during visits to other facilities for medical treatment and legal proceedings.
Specifically, Plaintiffs’ complaint lists the following counts: (1) violation of the Fourteenth Amendment right to substantive and procedural due process; (2) violation of the Fourteenth Amendment right of equal protection; (3) violation of the First Amendment right to seek redress and to have access to the courts; (4) violation the New Jersey Law Against Discrimination and the Americans with Disabilities Act; and (5) violation of the Eighth Amendment protection against cruel and unusual punishment. Plaintiffs sought a temporary restraining order or, in the alternative, a preliminary injunction.
In an opinion dated March 16, 2006, the court determined that Plaintiffs had demonstrated: a likelihood of success on the merits as to their Eighth Amendment claim of cruel and unusual punishment; a likelihood of suffering irreparable injury; that the harm the preliminary injunction would impose on the Defendants did not outweigh the harm to the Plaintiffs; and, that it is in the public’s interest to protect Plaintiffs from the alleged violations.
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Thus, in a contemporaneous order, the court issued a preliminary injunction compelling
Defendants to employ certain measures to safeguard Plaintiffs’ constitutional rights. That order
provided, in part, the following:
When inmates are removed from the Adult Diagnostic and Treatment Center (“ADTC”) in Avenel, New Jersey, (the “Avenel Inmates”) and held or transported with inmates from other correctional institutions: i) they shall not be identified as inmates of Avenel; ii) inmates from other correctional institutions shall not be confined either in a vehicle or holding area so as to have physical access to the Avenel Inmates unless a guard is present who is able to prevent the Avenel Inmates from being subjected to violence from other inmates; iii) guards and other prison officials shall be directed to halt forthwith any verbal or physical assaults made by inmates upon Avenel Inmates; iv) prison authorities shall investigate and promptly report upon any violence committed against any Avenel Inmates.
The following motions are presently before the court: Defendants’ motion to terminate, or
in the alternative, modify the preliminary injunction; Defendants’ motion to seal various
confidential documents; Plaintiffs’ motion for a second preliminary injunction;1 and Plaintiffs’
motion to postpone the automatic stay of the current preliminary injunction.2
1 The Prison Litigation Reform Act, 18 U.S.C. § 3626(a)(2) (“PLRA”), states that “[p]reliminary injunctive relief [with respect to prison conditions] shall automatically expire on the date that is 90 days after its entry, unless the court makes the findings required . . . for the entry of prospective relief and makes the order final before the expiration of the 90-day period.” As such, the preliminary injunction that was issued on March 16, 2006 automatically expired on June 14, 2006. Thus, Defendants’ motion to dissolve that preliminary injunction is moot. Plaintiffs filed their motion for a second preliminary injunction to take effect upon expiration of the first preliminary injunction.
2 Under the PLRA, § 3626(e)(2)(A), the filing of a motion to terminate a preliminary injunction, such as the one presently before the court triggers the running of a 30 day period after which the preliminary injunction is automatically stayed pending a final order ruling on the motion. As Defendants’ motion to terminate was filed on May 1, 2006 the injunction was automatically stayed on May 31, 2006. Plaintiffs’ filed their motion to postpone the automatic stay pursuant to 18 U.S.C. § 3626(e)(3). Under that subsection, “[t]he court may postpone the effective date of an automatic stay specified in subsection (e)(2)(A) for not more than 60 days for
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For the reasons set forth below, Plaintiffs’ motion for a second preliminary injunction will be granted. Plaintiffs motion to postpone the automatic stay will be dismissed as moot. Defendants’ motion to dissolve the preliminary injunction will be dismissed as moot. Defendants’ motion to seal various confidential documents will be addressed in a separate opinion.
I. BACKGROUND The ADTC is a facility operated by the DOC for the detention and treatment of inmates who have been convicted of sexual offenses and found to be compulsive and repetitive in their offending behavior. Plaintiffs allege that prisoners such as themselves, who have been convicted of sexual offenses, are the most despised and reviled inmates in the prison system. As such, Plaintiffs allege that they are harassed and physically assaulted by other state inmates whenever they are exposed to those inmates, such as when they are transported to and detained in other facilities (e.g., when they seek medical care at another prison or attend a legal proceeding). As Plaintiffs wish to represent a class of inmates they state that each member of the class has suffered from the violations alleged in the complaint and they include factual allegations that pertain to inmates other than those who are named as Plaintiffs in the present case. With their original motion for a preliminary injunction, filed on January 18, 2006, Plaintiffs submitted affidavits to support the factual allegations in their complaint. At the time, those allegations were not denied by counter-affidavits. As to the present motions, both sides have submitted affidavits to support and/or contest the various factual allegations.
good cause.” However, as the court will issue a second preliminary injunction, Plaintiffs’ motion to postpone the automatic stay is moot.
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Claims of Plaintiff Paul Cornwell Mr. Cornwell alleges that he was transported from ADTC to the New Jersey State Prison
(“NJSP”) on May 24, 2005 to receive physical therapy for a herniated disc. After receiving medical treatment he was transported to the Garden State Correctional Facility and placed in a holding area with another ADTC inmate, Zhi-men Chen, and approximately twelve other state prisoners for a period of about three hours.
Mr. Cornwell alleges that when he and Mr. Chen were placed in the holding area, one of the two corrections officers announced to the other prisoners that Mr. Cornwell and Mr. Chen were from Avenel, implying that they were sex offenders. The two officers then allegedly stood outside a Plexiglass window and observed the events that followed.
According to Mr. Cornwell, the other inmates began asking him and Mr. Chen questions. They first asked Mr. Chen where he was from and Mr. Chen responded that he was from ADTC. To that, another inmate said, “I know that place; that’s where all the rapists go.” After several other questions another inmate allegedly asked Mr. Cornwell, “what did you do, rape a little girl?” The inmate then allegedly stood up and began yelling, accusing Mr. Cornwell of raping a little girl. The inmate then allegedly sat down next to Mr. Cornwell and punched him in the chest. He then allegedly demanded the gold chain and cross that Mr. Cornwell was wearing. Mr. Cornwell says that he replied, “I’m not giving you my fucking chain.”
The inmate then allegedly stood up and offered Mr. Cornwell an outstreched hand, saying “I’m sorry.” When Mr. Cornwell shook the inmate’s hand, the inmate allegedly pulled Mr. Cornwell forward and punched him in the left temple, knocking him to the floor and knocking
5

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him unconscious. Mr. Cornwell alleges that he was assaulted while he was unconscious and that when he
awoke he had a large abrasion on his right arm and that the officers, still standing on the other side of the Plexiglass, had not responded. Mr. Cornwell alleges that Mr. Chen gave a statement in which he said that after Mr. Cornwell was knocked out, the assault continued for several minutes and that Mr. Cornwell was “pummeled with fists and kicked with feet about his body while he was unconscious and defenseless” and yet the officers did nothing to stop the assault. Mr. Cornwell was then allegedly taken to the infirmary and given a bag of ice for his head.
After returning to ADTC Mr. Cornwell allegedly reported the incident to Sergeant Collins and was then examined by a nurse. Mr. Cornwell alleges that his injuries included head injuries leading to dizziness and loss of consciousness, severe swelling in his face, and injuries to his right arm that eventually required surgery. He says he was hospitalized for a total of 55 days and has a permanent scar on his right arm because of the assault. He further alleges that he suffered severe psychological symptoms and that he was diagnosed as having post-traumatic stress disorder resulting from the assault.
Mr. Cornwell further alleges that since the attack he has declined medical treatment because he is afraid of suffering another attack. He says he filed a grievance with the DOC regarding the May 24th incident but that the DOC rejected it. He also says that he filed a Tort Claim Notice against the DOC but that it was denied. As such, he says the DOC has been deliberately indifferent to the risk of future attacks.
Defendants admit that Mr. Cornwell was assaulted and that he “suffered a contusion to
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his left eye, reddened area of [sic] the back of his head, a bloody nose and an abrasion to his right elbow.” (Pl.’s Br. in Support of Mot. to Terminate at 11). However, they argue that the corrections officer did not tell the other inmates that Mr. Cornwell was from ADTC. Rather, Defendants state that the other inmates learned of Mr. Cornwell’s origin because Mr. Cornwell told them where he was from. Defendants rely on Mr. Cornewll’s statement following the incident in which he said that another state inmate asked him where he was from, that he told the other inmate he was from ADTC, and that the other inmate then began hitting him. But that statement is not inconsistent with Mr. Cornwell’s account of the incident in his affidavit in which he says the corrections officer announced that Mr. Cornwell was from Avenel and other inmates subsequently questioned him and Mr. Chen.
Additionally, Defendants argue that in waiting to stop the assault the corrections officers were following procedure. DOC procedure provides that when an officer witnesses an altercation between inmates the official is to notify Central Control of a “Code 33,” thus letting Central Control know that there is an emergency and the officer needs assistance. The emergency is then announced over the public address system and via radio. A minimum of one sergeant and five officers will respond. Moreover, the observing officer is instructed to wait for other officers to arrive before entering the holding cell to break up a fight.
Plaintiffs point out that approximately 12 minutes passed between the time the fight began and the time that officers entered the holding cell.3
3 Sergeant Claudius Bryant’s Incident Report indicates that the time of the incident was 4:28 pm. (Mathews Aff. Ex. B). According to the reports submitted by officers who responded to the scene, 4:40 pm is the earliest that any of them arrived on the scene to stop the attack. (See e.g., Sergeant Eric Wallenburg’s Special Report, Mathews Aff. Ex. B).
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Claims of Plaintiff Peter Braun Plaintiff, Peter Braun, alleges that he was assaulted by a state inmate from another facility
when he was returning from a court hearing at the Union County Courthouse on December 13, 2005. Specifically, Mr. Braun alleges that he was driven past the ADTC facility in Avenel to Bordentown, in Mercer County, where he was transferred to a van in the parking lot of the Garden State Youth Correctional Facility. Mr. Braun further states that he was placed in the back seat of the van next to two state inmates from another facility, even though the front row of seats in the van’s inmate compartment was empty.
Mr. Braun alleges that for the next hour and forty minutes, while the van drove to Northern State Prison in Newark, he was “subjected to a barrage of harassment, intimidation, physical assault and psychological torture.” (Compl. ¶ 142). Specifically, Mr. Braun alleges that one of the other prisoners grabbed him, shoved his fist at him, threatened to punch and shank him, and pulled on his collar and sleeves looking for jewelry and a watch. Mr. Braun alleges that the inmate told him that the “‘cops ain’t going to help you, they set you up and told us to have fun with you.’” (Compl. ¶ 144). In addition, the other inmate allegedly told Mr. Braun that the DOC officers told the inmates that he was from ADTC and was a convicted sex offender. Mr. Braun further states that the two other inmates then threatened to torture, kill and rape him. Finally, Mr. Braun says the DOC officers could see and hear everything that occurred and that they were laughing and making jokes about the threats and harassment.
Mr. Braun states that he requires frequent transport for both medical treatment and court hearings. He says the assault on December 13th left him severely distraught and afraid of making future trips in DOC custody.
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Mr. Braun alleges that he filed an ARF on December 22, 2005, asking to be segregated on future trips. He says that he has not received any response to the ARF.
Defendants do not dispute those allegations. Claims of Plaintiff George Riley
Plaintiff, George Riley, alleges the following: He is Chairman of the ADTC Legal Subcommittee to the Inmate Resident Committee. In that capacity, and on his own behalf, he wrote to Grace Rogers, ADTC Administrator, to request that procedures be put in place to protect ADTC inmates from other state prisoners when they are transported. Bernard Goodwin, Associate Administrator, responded with a letter telling Mr. Riley that only the DOC Central Office, not ADTC, had authority to change the procedures in question. Thus, Mr. Riley wrote to Defendant, William Plantier, Director of Operations for the DOC, and repeated his request. He has not received a response from Mr. Plantier.
Mr. Riley does not allege that he has ever been personally assaulted by other state inmates. However, he says he is aware of such assaults on ADTC inmates and fears that Defendants’ failure to prevent such attacks presents an imminent risk to his health and safety as he will need the DOC to transport him for court appearances and medical treatment in the near future.
Defendants do not dispute those allegations. Claims of Plaintiff James J. Krivacska
Plaintiff, James J. Krivacska, like Mr. Riley, does not allege that he has ever been personally assaulted by other state inmates. On the contrary, Mr. Krivacska describes his May
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31, 2005 visit to NJSP that transpired without incident. Presumably, his account serves as an example of how Plaintiffs wish to be transported as Mr. Krivacska describes being segregated from other inmates at all times and says that DOC officers protected him from other inmates and took precautions to conceal his identity as an ADTC inmate.
Despite that positive experience, Mr. Krivacska alleges that he is afraid of future trips, either for medical care or court proceedings, because of what happened to Mr. Cornwell on May 24, 2005. Mr. Krivacska alleges that he filed an Administrative Remedy Form (“ARF”) expressing his concern regarding the assault on Mr. Cornwell and indicating his fear of making future trips for medical care and court proceedings.
Mr. Goodwin allegedly responded to the ARF with the same explanation he gave to Mr. Riley, i.e., that ADTC had no authority to change transport procedures. Mr. Krivacska alleges that he appealed Mr. Goodwin’s decision to no avail.
Defendants do not dispute those allegations. Claims of Plaintiff Vincent Macrina
Plaintiff, Vincent Macrina, does not claim to have been assaulted but says that on one occasion he was placed in a large holding cell with other state inmates while awaiting medical treatment. As he alleges that he suffers from several serious medical conditions he says he needs frequent medical attention but turns it down because he is afraid of being assaulted by other state inmates during the transport process.
Defendants do not dispute those allegations. Claims of Plaintiff William F. Vansciver
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Plaintiff, William F. Vansciver, does not claim to have been assaulted but says that on various occasions, when being transported for medical purposes, DOC officers identified him as an ADTC inmate to other state inmates, thereby putting him at risk of assault. Mr. Vansciver alleges that he suffers from serious medical conditions and needs frequent medical attention. However, he states that he has declined medical attention because of the risk involved in seeking such attention.
Defendants do not dispute those allegations. Claims of Plaintiff Richard Gibbs
Plaintiff, Richard Gibbs, does not claim to have been assaulted but says he is aware of the attack on Mr. Cornwell and assault of Mr. Braun. Although he wishes to attend court hearings connected with his post-conviction relief hearing, he says he is afraid to attend because of the risk involved in being transported to the hearings.
Defendants do not dispute those allegations. Assault of Todd Becka
In addition to the above allegations Plaintiffs describe an attack on a former ADTC inmate, Todd Becka that allegedly occurred on July 20, 2004. Mr. Becka, according to Plaintiffs’ allegations, was threatened and attacked by an inmate from another facility while in transport to receive medical attention. The details of Plaintiffs’ allegations are drawn from a complaint that Mr. Becka filed with the ADTC administration. Plaintiffs state that Mr. Becka was struck in the head and subjected to repeated threats of violence and that the DOC officers who were present at the time did nothing to protect him.
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Defendants acknowledge that Mr. Becka reported being kicked in the head. However, they state that all inmates in the vehicle were secured in leg restraints and were under constant supervision. Moreover, the supervising officer stated that he did not observe any altercation that verified Mr. Becka’s claims. Nonetheless, Mr. Becka was taken to the medical department and the physician noted that Mr. Becka’s head appeared normal. Other Allegations
In addition to those that were submitted with the original motion for preliminary relief Plaintiffs have filed numerous affidavits to supplement the record. Plaintiff Krivacska, as well as inmates Ramoncito Ramos, Robert Pilkington, John Thomas, Paul Bechold, Randall Venzie, Michael Davidson, William Dean, Phillip Disabella, and Keith Gardner, filed affidavits describing recent trips to other facilities. For the most part, those affidavits allege various instances in which the ADTC inmates were placed on transport vehicles and in holding cells along with inmates from other prisons, their identity as ADTC inmates was revealed, and they were subjected to verbal harassment and/or threats of physical violence and death.
Additionally, Mr. Gardner alleges that On May 5, 2006 he was held in the Garden State Youth Correctional Facility (“GSYCF”) while en route to ADTC, after appearing in Middlesex County Court. He states that he was placed in a holding tank with about 15 or 20 other inmates. He alleges that he was asked where he was from and responded that he was from ADTC. He states that he was then verbally harassed and eventually, two inmates attempted to attack him. He alleges that a brief physical altercation ensued and that officers responded about five minutes later and separated him from the rest of the inmates. He does not provide any details as to the physical altercation.
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Defendants contend that Mr. Gardner was never taken to the GSYCF on May 5, 2006. While Mr. Gardner was taken to Middlesex County Court on that date, his trip ticket indicates that he was brought directly back to ADTC after his court appearance. Moreover, Defendants note that Mr. Gardner’s name does not appear on the GSYCF holding cell log book for May 5, 2006. They contend that his name would be in that book if he was held there on that day.
Plaintiffs dispute the accuracy and reliability of both the trip ticket and cell log, noting several inconsistences and missing entries. Thus, as to Mr. Gardner’s allegations, there are factual questions that remain. The circumstances warrant further investigation.
II. DISCUSSION Standard of Review for a Preliminary Injunction
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). Moreover, “[a] preliminary injunction cannot be issued when there are disputed issues of fact. Hunterdon Transformer Co. v. Cook, No. 89-3132, 1990 U.S. Dist. LEXIS 1382, at *4 (D.N.J. Feb. 6, 1990).
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.
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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)).
Under the PLRA, a “court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A).4 Moreover, “[t]he court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” 18 U.S.C. § 3626(a)(1)(A). 1. Likelihood of success on the merits
Plaintiff’s original motion for a preliminary injunction was granted because Plaintiffs demonstrated a reasonable likelihood of succeeding in their Eighth Amendment claim by showing that Defendants’ alleged practice of identifying them as sex offenders and refusing to separate them from other state inmates creates an unreasonable risk that they will be assaulted and additionally prevents them from seeking necessary medical care.
Defendants argue that the preliminary injunction should be terminated and that a second preliminary injunction should not be issued because the assaults on Mr. Cornwell, Mr. Braun, and Mr. Becka were isolated incidents and do not demonstrate a pattern of violence.
4 Prospective relief is defined as “all relief other than compensatory monetary damages” and thus includes injunctive relief. 18 U.S.C. § 3626(g)(7).
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Specifically, Defendants state that between January, 2004 and January, 2006 a total of 1,749 inmate transports involving ADTC inmates were performed and all but three of them were completed without incident. Thus, Defendants contend, they safely transported ADTC inmates 99.83% of the time.
But as Plaintiffs point out, that analysis is flawed. Defendants attempt to show that the preliminary injunction is unnecessary because transport conditions are generally safe. But in evaluating the need for a preliminary injunction not all of the 1,749 trips are relevant because many of them do not involve the circumstances and conditions that the preliminary injunction is intended to remedy. As the preliminary injunction is intended to protect ADTC inmates from being assaulted by other state inmates, an evaluation of the need for that injunction should only include those instances when ADTC inmates were held in close proximity to other state inmates. Defendants’ analysis is too broad because some of the 1,749 transports didn’t even involve ADTC inmates and others involved ADTC inmates who were segregated from other inmates during transport.
For example, some of the trips include new admissions to ADTC involving inmates from other jails. Those prisoners are not yet ADTC inmates and are therefore less likely to be targeted. Additionally, ADTC services halfway-house inmates who are not at risk of assault.
Of the remaining trips, i.e., those that actually involved ADTC inmates, many did not put the inmates at risk because the ADTC inmates were never placed in holding cells with other inmates. For example, Plaintiffs contend they have never been segregated from other inmates when they have been held at the GSYCF but have almost always been segregated when held at the NJSP. Thus, the incident rate at the GSYCF is likely to be higher than the incident rate at the
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NJSP. Moreover, Defendants assume that the assaults on Mr. Cornwell, Mr. Braun, and Mr.
Becka are the only assaults that have occurred over the last two years. But that conclusion is presumptuous as the number of reported incidents does not necessarily equal the number of actual incidents.
Regardless, a low incident rate does not necessarily preclude finding in Plaintiffs’ favor. Plaintiffs can satisfy their burden by simply presenting “evidence that . . . harm . . . occurred on numerous occasions.” Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989). In Liles, 225 F. Supp. at 462, two inmates brought a cruel and unusual punishment claim against DOC supervisors and employees alleging that the defendants’ policy of having some inmates sleep on mattresses on the floor of their cells, near the toilet, such that they were splashed with urine when other inmates used the toilet, led to several fights breaking out between inmates. Plaintiffs alleged that the condition led to one of the plaintiffs having a fight with another inmate on one occasion and the other plaintiff having fights on at least two occasions. Id. The court said that those “incidents establish[ed] a pattern of violence . . . .” Id.
Finally, although there have only been two undisputed physical assaults,5 many other inmates allege that they have been verbally harassed and threatened with violence and even death, thus bolstering Plaintiffs’ claim that the risk of future harm is great.
Therefore, despite Defendants recently submitted affidavits and their argument that most transports are safe, Plaintiffs have demonstrated a likelihood of success on the merits.
5 The assaults on Mr. Cornwell and Mr. Brown are undisputed. There remain questions of fact as to the assaults on Mr. Becka and Mr. Gardner.
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With regard to the present motions Defendants also argue, for the first time, that Plaintiffs complaint should be dismissed because they have failed to fully exhaust their administrative remedies. 42 U.S.C. § 1997e(a) provides that “[n]o action shall be brought with respect to prison conditions under section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983), or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”
Defendants cite Rivera v. Whitman, 161 F. Supp. 2d 337, 341 (D.N.J. 2001) for the proposition that § 1997e(a) requires total exhaustion of all claims before Plaintiffs may file a complaint with this court. Defendants argue that Plaintiffs have failed to meet that requirement because only two of the Plaintiffs have filed ARFs that relate to the present complaint and those ARFs did not include some of the allegations that are in the complaint.
Thus, Defendants are essentially arguing that the state never had the opportunity to remedy many of the violations in the current complaint. As such, they contend that the entire complaint should be dismissed because Plaintiffs have not fully exhausted their administrative remedies.
But in the present case the response that Mr. Krivacska received regarding his ARF made it clear that any further attempt for administrative relief by any of the Plaintiffs would have been futile as that response indicated that ADTC did not have the authority to remedy the alleged violations.
Mr. Riley received a similar response when he wrote a letter to the ADTC Administrator, Grace Rogers, detailing his safety concerns. From Mr. Krivacska’s ARF and Mr. Riley’s letter
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the ADTC administration was notified of the alleged dangerous condition and was given an opportunity to remedy the situation. Despite their apparent lack of authority to change transportation procedures the ADTC administration has an obligation to protect its inmates and could have worked with the DOC to devise a solution.
Additionally, upon hearing that ADTC could not remedy the situation, Mr. Riley wrote to Defendant, Mr. Plantier, Director of Operations for the DOC. Mr. Riley has not received any response to that letter.
For this court to dismiss the complaint and require each Plaintiff to file an ARF so that each of them may receive the same response, or non-response, that Mr. Krivacska and Mr. Riley received before allowing them to continue with the present suit would be nothing more than a waste of time for everyone involved. Plaintiffs attempted to resolve their concerns at the administrative level and Defendants had sufficient opportunity to address the situation themselves. Thus, Plaintiffs have sufficiently exhausted their administrative remedies.
Additionally, Defendants argue that Plaintiffs claims are barred as a matter of law because a § 1983 claim cannot be premised upon a theory of respondeat superior liability. They contend that Plaintiffs have not shown that Defendants Brown and Plantier had actual knowledge of the alleged violations. This issue was thoroughly discussed in the March 16, 2006 opinion. As such, it need not be discussed at length here.
In general, Plaintiffs satisfied their burden for proving a supervisor-centered claim by showing that numerous prison officials had actual knowledge of the unreasonable risk created by the DOC’s policies and practices. Riley v. Brown, No. 06-331, slip op. at 12-15 (D.N.J. Mar. 16,
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2006).

Finally, Defendants argue that “Plaintiffs claims seeking damages against the State Defendants in their official capacities are barred by the Eleventh Amendment” (Defs.’ Br. in Opp. to the Mot. for a second prelim. inj. at 20). As Plaintiffs’ complaint makes no demand for damages, that argument is moot.

2. Likelihood of suffering irreparable injury

Plaintiffs’ original motion for a preliminary injunction was granted because the evidence of assaults on Mr. Cornwell, Mr. Braun, and Mr Becka; along with Plaintiffs’ allegations that ADTC inmates are targeted by other inmates because of their status as sex offenders and because the allegation that they are being placed in holding cells with other inmates such that prison guards cannot prevent potential assaults, established a likelihood that Plaintiffs would be assaulted again if an injunction was not issued, and because the likelihood of future assault posed a significant obstacle to Plaintiffs’ ability to receive necessary medical care.

Defendants argue that the preliminary injunction should be terminated because the DOC has policies and procedures in place to protect ADTC inmates and thus, they are not likely to suffer irreparable injury. Specifically, Defendants state that DOC policy requires the following:

•

Inmates are shackled during transport with leg irons, belly chains, and wrist shackles.

•

Inmates are under constant surveillance during transport and while in holding cells.

•

Officers do not identify inmates as being from a particular institution or announce to

other inmates the origin of any other inmate.

•

Wrist shackles and belly chains are removed when a prisoner is placed in a holding cell

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but leg irons are not removed.

•

When an altercation occurs between inmates in a holding cell the observing officer

notifies Central Control of a Code 33. That officer is instructed to wait for backup until

entering the cell to stop the fight.

•

Altercations between inmates are to be detailed in written reports that are submitted to the

Control Supervisor before the staff leaves the institution at the end of the shift. Those

incidents are also referred to the Special Investigations Division (“SID”) for an immediate

inquiry. If the SID finds that an inmate threatened or assaulted another inmate, the former

inmate is brought up on disciplinary charges.

But despite the above policies, ADTC inmates have been assaulted on transport vehicles and in holding cells. Additionally, many allege that they have been threatened with physical violence and are afraid to seek medical treatment because of the risk involved in seeking such treatment.

The DOC’s policy of shackling inmates and supervising them during transportation is ineffective because, according to several inmates’ statements, ADTC inmates are often seated next to or directly in front of other state inmates. Thus placing them in such close proximity that the shackles can not prevent the other inmates from grabbing or hitting the ADTC inmates. Moreover, several ADTC inmates have stated that DOC officers sit in the front of the vehicle with their backs to the prisoners and are unaware or uninterested in what transpires behind them.

As to the DOC’s policy against identifying the facility in which an inmate is housed, nearly all of the inmates who submitted affidavits in this case state that other state inmates learned of their origin one way or another. Thus, the DOC policy of concealing inmates’ origins

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fails to prevent other inmates from learning the identity of ADTC inmates. With regard to the policies relating to inmates’ confinement in holding cells: leg shackles
are not enough to keep one inmate from attacking another; a prison guard’s presence outside of a holding cell cannot stop fights between inmates until a substantial amount of time has passed; and, the reporting process, while important, is not enough to prevent some inmates from attacking others.
For the above reasons, the DOC’s policies do not sufficiently protect ADTC inmates from other state inmates.
Defendants also argue that the court’s reliance on Boone v. Brown, No. 05-750, 2005 U.S. Dist. LEXIS 18131 (D.N.J. Aug. 22, 2005), Hutto v. Finney, 437 U.S. 678 (U.S. 1978), Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974), and Helling v. McKinney, 509 U.S. 25 (U.S. 1993) is misplaced as those cases all involved conditions in which the harm to the various plaintiffs was virtually certain, unlike the present case, in which, Defendants contend, it is extremely unlikely that Plaintiffs will suffer any harm because 99.83% of prison transports are conducted without incident. But as discussed above, Defendants success rate is deceiving as it overstates the number of transports that are relevant to the present case and possibly understates the number of incidents in the last two years.
Moreover, given the assaults on Mr. Cornwell, Mr. Becka, and Mr. Braun, and the violent threats received by several other inmates, along with the animosity that other state inmates have displayed toward ADTC inmates, and the close proximity in which those inmates are placed on transport vehicles and in holding cells, future attacks are virtually certain. And as discussed in
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the March 16, 2006 opinion, the risk of suffering such an attack effectively denies ADTC inmates their right to medical treatment.
Therefore, Plaintiffs have demonstrated a likelihood of suffering irreparable injury. 3. Harm imposed on Defendants
Generally, an injunction should not be issued if it will harm the non-moving party more than the moving party would be harmed if relief was denied. Defendants contend that the injunction imposes substantial hardship on them. However, they fail explain how they are burdened or why it is difficult for them to comply with the injunction. In fact, Defendants’ reason for opposing several of the provisions in the preliminary injunction are that they already have policies in place that require them to do exactly what the injunction demands of them. To the extent that the injunction merely requires Defendants to comply with their own policies, it does not impose a substantial burden on them. To the extent that the preliminary injunction imposes additional requirements on Defendants, those requirements are minimal.
An example is provision i of the preliminary injunction, which provides that Defendants and all those operating under their direction and control are ordered that when Avenel inmates are held or transported with inmates from other correctional institutions they shall not be identified as inmates of Avenel. Defendants contend that “ADTC inmates are not identified . . . by DOC officers during transports.” (Defs.’ Br. in supp. of mot. to dissolve at 22) (emphasis in original). Thus, to the extent that the preliminary injunction prohibits Defendants and all of those under their direction and control from revealing Avenel inmates origin, Defendants argue that the preliminary injunction is unnecessary. Such an argument does not explain why the
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injunction poses a substantial burden on Defendants. Defendants also argue that they cannot prevent court officials, or the Avenel inmates
themselves, from exposing Avenel inmates’ origins. Thus, they argue, the injunction is too broad. To the extent, if any, that the injunction requires Defendants to prevent Avenel inmates and court officials from revealing the Avenel inmates’ origins, or to the extent, if any, that the preliminary injunction requires Defendants to prevent other inmates from deciphering an Avenel inmates’ origin through incidental information, such as seeing an inmate picked up from the ADTC, the injunction will be modified such that it only enjoins Defendants and those under their direction and control from expressly announcing that an inmate is from Avenel.
As to provision ii of the preliminary injunction, Defendants are enjoined from confining inmates from other correctional institutions in a vehicle or holding area such that they have physical access to Avenel inmates unless a guard is present who is able to prevent the Avenel inmates from being subjected to violence from other inmates. Defendants argue that their internal policies require officers to be present and supervise all inmates during transport and while in holding cells. They further state that there is no evidence that the DOC has failed to have an officer present in those circumstances.
As to this provision, the injunction requires Defendants to do more than what their policy dictates. The injunction not only requires Defendants to have an officer present, it requires that the officer be able to prevent Avenel inmates from being subjected to violence from other inmates. From the evidence submitted since the injunction was issued, and based on Defendants’ description of their policy of announcing a Code 33 when an altercation between inmates in a holding cell ensues, and due to the fact that the Code 33 response to the attack on Mr. Cornwell
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allowed approximately 12 minutes to pass before the attack was quelled, it is clear that Defendants’ current policy does not satisfy the requirements in the injunction because the supervising officer is not able to prevent violence against Avenel inmates until the adequate backup has arrived. Requiring the supervising officer to go into the holding cell before backup arrives would no doubt endanger the supervising officer. On the other hand, requiring Defendants to post a group of officers outside of a holding cell, so they can immediately respond to a fight in the event that one should occur, would be terribly inefficient. Thus, the only reasonable alternative that can effectively prevent violence against ADTC inmates is to hold them in separate cells. Defendants have provided no explanation as to why such a requirement is unduly burdensome.
As this provision relates to the transport of prisoners, Defendants have not explained why ADTC inmates cannot be seated apart from other inmates such that they are not next to or directly in front of other inmates.
Thus, the preliminary injunction will be modified to require Defendants to confine ADTC inmates in separate holding cells and seat them such that they are out of reach of other inmates during transport. Such requirements will not only ensure the inmates’ safety, it will reduce the likelihood of fights between inmates and thereby protect the officers who are responsible for breaking up those fights.
As to provision iii of the preliminary injunction, Defendants are required to halt all verbal and physical assaults upon ADTC inmates. Defendants once again argue that they already have policies and procedures in place that make this provision unnecessary. If that is the case, it does not impose any undue burden upon Defendants. As discussed above, the DOC policy of
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responding to inmate altercations by calling a Code 33 is an inadequate response to inmate altercations that occur in holding cells. Holding ADTC inmates in separate cells is necessary to reduce the risk of such altercations.
As applied to inmate transport, and as discussed above, the injunction will be modified such that ADTC inmates are separated from other inmates on the transport vehicles. DOC officers will be required to enforce that separation in order to ensure that other inmates do not move next to ADTC inmates such that they can harass and/or assault them. Such a policy should prevent altercations and ultimately protect DOC officers as well as inmates.
Provision iv of the preliminary injunction requires prison authorities to investigate and promptly report any violence committed against Avenel inmates. Defendants state that they already have a policy requiring such incidents to be reported and investigated. Thus, that provision of the preliminary injunction does not impose any significant burden on Defendants as it merely requires them to comply with their own procedures.
As discussed above, most of the requirements imposed by the preliminary injunction impose very little, if any, burden on Defendants. To the extent that provision i creates a requirement beyond Defendants’ control, it will be modified. To the extent that provisions ii and iii are ineffective or place prison guards at greater risk, they will be modified. 4. Public interest
As the preliminary injunction will protect ADTC inmates from cruel and unusual punishment while requiring very little from the DOC, it is in the public’s best interest to impose the injunction.
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Requirements of the Prison Litigation Reform Act Under the PLRA, a “court shall not grant or approve any prospective relief unless the
court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A).6 Moreover, “[t]he court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” 18 U.S.C. § 3626(a)(1)(A). 1. Whether the injunction is narrowly drawn and extends no further than necessary
Defendants argue that the preliminary injunction is overly broad because it grants relief not only to Plaintiffs but to the entire class of ADTC inmates, and does so even though those inmates have not been certified as a class. Such extensive relief, Defendants contend, is not justified by the record. But although the ADTC inmates have not been certified as a class, it is clear that the past harms and threat of future harms extend to all ADTC inmates, not just those named as Plaintiffs in this case. The record shows that other state inmates harass, threaten, and assault ADTC inmates without hindrance. They are not targeting specific ADTC inmates. Rather, they are targeting whichever ADTC inmates they happen to meet, solely because of their status as ADTC inmates. Thus, the preliminary injunction is not overly broad because it applies to a particular group of inmates who are likely to be targeted by other state inmates and it does not apply to any inmates that are unlikely to be targeted.
Moreover, the preliminary injunction only applies to those situations that have proven to
6 Prospective relief is defined as “all relief other than compensatory monetary damages” and thus includes injunctive relief. 18 U.S.C. § 3626(g)(7).
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pose a substantial risk to ADTC inmates’ safety, i.e., the injunction only requires additional safeguards with respect to the manner in which ADTC inmates are transported and confined in holding cells. It does not interfere with the method by which inmates are escorted from holding cells to the infirmary, the way in which they are seated and supervised in a reception area while they await medical treatment, nor the method by which they are strip-searched. There is no evidence that those procedures place inmates at risk, thus they are unaffected by the preliminary injunction. As such, the preliminary injunction is narrowly drawn and extends no further than necessary because it only applies to those inmates that are being targeted and only affects the procedures that have placed them in danger. 2. Whether the injunction is the least intrusive means necessary to correct the violation
There can hardly be a less intrusive imposition than an order that requires an entity to comply with its own policies and procedures. As discussed above, provisions i and iv of the preliminary injunction require Defendants to do nothing more than enforce their own policies.
As to provisions ii and iii of the preliminary injunction, also discussed above, the March 16, 2006 order requires that ADTC inmates be confined such that a supervising officer is able to quell any assault that may take place, and directed those officers to do so in the event that an inmate is attacked. Those provisions were intended to direct Defendants to be vigilant in their efforts to protect inmates from harm, without requiring Defendants to make any significant changes to their existing policies and procedures. However, based on Defendants’ description of their Code 33 procedure and the risk that prison guards face when they enter a holding cell to quell an altercation between inmates, those provisions cannot effectively protect ADTC inmates without placing prison guards in greater danger. Thus, the least intrusive way to correct the
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violations in this case is to require that ADTC inmates be confined in separate holding cells and seated away from other inmates during transport. Such a requirement should limit the number of altercations between inmates and thereby reduce the risk to prison officials as well.
As Defendants have offered no less intrusive method, and have not argued that such a requirement would unduly burden them, a new preliminary injunction requiring that ADTC inmates be segregated during transport and confined in separate holding cells, will be issued. Adverse impact on public safety or the operation of the criminal justice system
The preliminary injunction will not have any impact on public safety. As discussed above, it has only minimal impact on the operation of the criminal justice system.
CONCLUSION For the reasons set forth above, Plaintiffs’ motion for a second preliminary injunction is granted. Plaintiffs’ motion to postpone the stay of the original preliminary injunction is dismissed as moot. Defendants’ motion to dissolve the original preliminary injunction is dismissed as moot. Defendants’ motion to seal various confidential documents will be addressed in a separate opinion. Moreover, Defendants, Devon Brown and William Plantier and all those operating under their direction and control will be preliminarily enjoined, directed and ordered as follows: 1. When inmates are removed from ADTC and held or transported with inmates from other correctional institutions: i) Defendants and all those under their direction and control shall not identify ADTC inmates as ADTC inmates; ii) inmates from other correctional institutions shall be seated out of reach from ADTC inmates on transport vehicles and
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DOC officers will enforce the separation between them; iii) ADTC inmates will be held in separate holding cells from other state inmates; iv) guards and other prison officials shall be directed to halt forthwith any verbal or physical assaults made by inmates upon ADTC inmates; v) prison authorities shall investigate and promptly report upon any violence committed against any ADTC inmates; 2. Defendants and Plaintiffs may apply to the Court for any modification of the accompanying order that may be necessary to accommodate prison administration or may be necessary to effectuate its purpose of protecting Avenel inmates from physical and other abuse. 3. A ruling on Plaintiffs’ applications for class designation and appointment of an attorney will be deferred until it can be determined whether full relief can be effected through implementation of the accompanying order.

Dated:

June 20, 2006

/s/ Dickinson R. Debevoise DICKINSON R. DEBEVOISE, U.S.S.D.J.

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 Case 2:06-cv-00331-DRD-MCA Document 11 Filed 03/29/2006 Page 1 of 20

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

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:

George Riley, et. al,

:

:

Plaintiffs,

:

Civ. No. 06-0331 (DRD)

:

v.

:

:

Devon Brown, et. al,

:

O P I N I O N

:

Defendants.

:

:

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George Riley James J. Krivacska Paul Cornwell Vincent Macrina William F. Vansciver Richard A. Gibbs Peter Braun ADULT DIAGNOSTIC & TREATMENT CENTER 8 Production Way Avenel, NJ 07001
Pro se Plaintiffs

Zulima V. Farber Attorney General of New Jersey Victoria L. Kuhn Deputy Attorney General Susan M. Scott Deputy Attorney General R.J. Hughes Justice Complex P.O. Box 112 Trenton, New Jersey 08625
Potential Attorneys for State Defendants Devon Brown and William Plantier
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DEBEVOISE, Senior District Judge Plaintiffs, George Riley, James J. Krivacska, Paul Cornwell, Vincent Macrina, William F.
Vansciver, Richard A. Gibbs, and Peter Braun, who are state inmates currently housed in the Adult Diagnostic and Treatment Center (“ADTC”) in Avenel, New Jersey, filed a complaint against Defendants, Devon Brown, Commissioner of the New Jersey Department of Corrections (“DOC”), William Plantier, Director of Operations for the DOC, and various John Does, employees of the DOC, claiming that Defendants denied them certain constitutional rights and unlawfully discriminated against them by failing to protect them from other state inmates during visits to other facilities for medical treatment and legal proceedings. The factual allegations of the complaint are supported by affidavits which have not been denied by counter affidavits.
Specifically, Plaintiffs’ complaint lists the following counts: (1) violation of the Fourteenth Amendment right to substantive and procedural due process; (2) violation of the Fourteenth Amendment right of equal protection; (3) violation of the First Amendment right to seek redress and to have access to the courts; (4) violation the New Jersey Law Against Discrimination (“NJLAD”) and the Americans with Disabilities Act; and (5) violation of the Eighth Amendment protection against cruel and unusual punishment.
Plaintiffs assert those claims on behalf of all inmates currently held at ADTC and wish to have their complaint certified as a class action. Plaintiffs now move for a temporary restraining order and/or preliminary injunction to enjoin Defendants from engaging in any further violations. Plaintiffs also move for appointment of pro bono counsel.
I. BACKGROUND 2

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ADTC is a facility operated by the DOC for the detention and treatment of inmates who have been convicted of sexual offenses and found to be compulsive and repetitive in their offending behavior. Plaintiffs allege that prisoners such as themselves, who have been convicted of sexual offenses, are the most despised and reviled inmates in the prison system. As such, Plaintiffs allege that they are harassed and physically assaulted by other state inmates whenever they are exposed to those inmates, such as when they are transported to and detained in other facilities (e.g., when they seek medical care at another prison or attend a legal proceeding). As Plaintiffs wish to represent a class of inmates they state that each member of the class has suffered from the violations alleged in the complaint. In addition, each named Plaintiff alleges facts specific to his own experience. Claims of Plaintiff Paul Cornwell
Mr. Cornwell alleges that he was transported from ADTC to the New Jersey State Prison (“NJSP”) on May 24, 2005 to receive physical therapy for a herniated disc. After receiving medical treatment he was transported to the Garden State Correctional Facility and placed in a holding area with another ADTC inmate, Zhi-men Chen, and approximately twelve other state prisoners for a period of about three hours.
Mr. Cornwell alleges that when he and Mr. Chen were placed in the holding area, one of the two corrections officers announced to the other prisoners that Mr. Cornwell and Mr. Chen were from Avenel, implying that they were sex offenders. The two officers then allegedly stood outside a Plexiglass window and observed the events that followed.
According to Mr. Cornwell, the other inmates began asking him and Mr. Chen questions.
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They first asked Mr. Chen where he was from and Mr. Chen responded that he was from ADTC. To that, another inmate said, “I know that place; that’s where all the rapists go.” After several other questions another inmate allegedly asked Mr. Cornwell, “what did you do, rape a little girl?” The inmate then allegedly stood up and began yelling, accusing Mr. Cornwell of raping a little girl. The inmate then allegedly sat down next to Mr. Cornwell and punched him in the chest. He then allegedly demanded the gold chain and cross that Mr. Cornwell was wearing. Mr. Cornwell says that he replied, “I’m not giving you my fucking chain.”
The inmate then allegedly stood up and offered Mr. Cornwell an outstreched hand, saying “I’m sorry.” When Mr. Cornwell shook the inmate’s hand, the inmate allegedly pulled Mr. Cornwell forward and punched him in the left temple, knocking him to the floor and knocking him unconscious.
Mr. Cornwell alleges that he was assaulted while he was unconscious and that when he awoke he had a large abrasion on his right arm and that the officers, still standing on the other side of the Plexiglass, had not responded. Mr. Cornwell alleges that Mr. Chen gave a statement in which he said that after Mr. Cornwell was knocked out, the assault continued for several minutes and that Mr. Cornwell was “pummeled with fists and kicked with feet about his body while he was unconscious and defenseless” and yet the officers did nothing to stop the assault. Mr. Cornwell was then allegedly taken to the infirmary and given a bag of ice for his head.
After returning to ADTC Mr. Cornwell allegedly reported the incident to Sergeant Collins and was then examined by a nurse. Mr. Cornwell alleges that his injuries included head injuries leading to dizziness and loss of consciousness, severe swelling in his face, and injuries to his
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right arm that eventually required surgery. He says he was hospitalized for a total of 55 days and has a permanent scar on his right arm because of the assault. He further alleges that he suffered severe psychological symptoms and that he was diagnosed as having post-traumatic stress disorder resulting from the assault.
Mr. Cornwell further alleges that since the attack he has declined medical treatment because he is afraid of suffering another attack. He says he filed a grievance with the DOC regarding the May 24th incident but that the DOC rejected it. He also says that he filed a Tort Claim Notice against the DOC but that it was denied. As such, he says the DOC has been deliberately indifferent to the risk of future attacks. Claims of Plaintiff Peter Braun
Plaintiff, Peter Braun, alleges that he was assaulted by a state inmate from another facility when he was returning from a court hearing at the Union County Courthouse on December 13, 2005. Specifically, Mr. Braun alleges that he was driven past the ADTC facility in Avenel to Bordentown, in Mercer County, where he was transferred to a van in the parking lot of the Garden State Youth Correctional Facility. Mr. Braun further states that he was placed in the back seat of the van next to two state inmates from another facility, even though the front row of seats in the van’s inmate compartment was empty.
Mr. Braun alleges that for the next hour and forty minutes, while the van drove to Northern State Prison in Newark, he was “subjected to a barrage of harassment, intimidation, physical assault and psychological torture.” (Compl. ¶ 142). Specifically, Mr. Braun alleges that one of the other prisoners grabbed him, shoved his fist at him, threatened to punch and shank
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him, and pulled on his collar and sleeves looking for jewelry and a watch. Mr. Braun alleges that the inmate told him that the “‘cops ain’t going to help you, they set you up and told us to have fun with you.’” (Compl. ¶ 144). In addition, the other inmate allegedly told Mr. Braun that the DOC officers told the inmates that he was from ADTC and was a convicted sex offender. Mr. Braun further states that the two other inmates then threatened to torture, kill and rape him. Finally, Mr. Braun says the DOC officers could see and hear everything that occurred and that they were laughing and making jokes about the threats and harassment.
Mr. Braun states that he requires frequent transport for both medical treatment and court hearings. He says the assault on December 13th left him severely distraught and afraid of making future trips in DOC custody.
Mr. Braun alleges that he filed an ARF on December 22, 2005, asking to be segregated on future trips. He says that he has not received any response to the ARF. Claims of Plaintiff George Riley
Plaintiff, George Riley, alleges the following: He is Chairman of the ADTC Legal Subcommittee to the Inmate Resident Committee. In that capacity, and on his own behalf, he wrote to Grace Rogers, ADTC Administrator, to request that procedures be put in place to protect ADTC inmates from other state prisoners when they are transported. Bernard Goodwin, Associate Administrator, responded with a letter telling Mr. Riley that only the DOC Central Office, not ADTC, had authority to change the procedures in question. Thus, Mr. Riley wrote to Defendant, William Plantier, Director of Operations for the DOC, and repeated his request. He has not received a response from Mr. Plantier.
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Mr. Riley does not allege that he has ever been personally assaulted by other state inmates. However, he says he is aware of such assaults on ADTC inmates and fears that Defendants’ failure to prevent such attacks presents an imminent risk to his health and safety as he will need the DOC to transport him for court appearances and medical treatment in the near future. Claims of Plaintiff James J. Krivacska
Plaintiff, James J. Krivacska, like Mr. Riley, does not allege that he has ever been personally assaulted by other state inmates. On the contrary, Mr. Krivacska describes his May 31, 2005 visit to NJSP that transpired without incident. Presumably, his account serves as an example of how Plaintiffs wish to be transported as Mr. Krivacska describes being segregated from other inmates at all times and says that DOC officers protected him from other inmates and took precautions to conceal his identity as an ADTC inmate.
Despite that positive experience, Mr. Krivacska alleges that he is afraid of future trips, either for medical care or court proceedings, because of what happened to Mr. Cornwell on May 24, 2005. Mr. Krivacska alleges that he filed an Administrative Remedy Form (“ARF”) expressing his concern regarding the assault on Mr. Cornwell and indicating his fear of making future trips for medical care and court proceedings.
Mr. Goodwin allegedly responded to the ARF with the same explanation he gave to Mr. Riley, i.e., that ADTC had no authority to change transport procedures. Mr. Krivacska alleges that he appealed Mr. Goodwin’s decision to no avail. Claims of Plaintiff Vincent Macrina
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Plaintiff, Vincent Macrina, does not claim to have been assaulted but says that on one occasion he was placed in a large holding cell with other state inmates while awaiting medical treatment. As he alleges that he suffers from several serious medical conditions he says he needs frequent medical attention but turns it down because he is afraid of being assaulted by other state inmates during the transport process. Claims of Plaintiff William F. Vansciver
Plaintiff, William F. Vansciver, does not claim to have been assaulted but says that on various occasions, when being transported for medical purposes, DOC officers identified him as an ADTC inmate to other state inmates, thereby putting him at risk of assault. Mr. Vansciver alleges that he suffers from serious medical conditions and needs frequent medical attention. However, he states that he has declined medical attention because of the risk involved in seeking such attention. Claims of Plaintiff Richard Gibbs
Plaintiff, Richard Gibbs, does not claim to have been assaulted but says he is aware of the attack on Mr. Cornwell and assault of Mr. Braun. Although he wishes to attend court hearings connected with his post-conviction relief hearing, he says he is afraid to attend because of the risk involved in being transported to the hearings. Assault of Todd Becka
In addition to the above allegations Plaintiffs describe an attack on a former ADTC inmate, Todd Becka that allegedly occurred on July 20, 2004. Mr. Becka, according to Plaintiffs’ allegations, was threatened and attacked by an inmate from another facility while in transport to
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receive medical attention. The details of Plaintiffs’ allegations are drawn from a complaint that Mr. Becka filed with the ADTC administration. Plaintiffs state that Mr. Becka was punched in the head and subjected to repeated threats of violence and that the DOC officers who were present at the time did nothing to protect him.
Plaintiffs claim to know of other ADTC inmates who have suffered verbal and physical abuse from inmates of other facilities while on medical or court trips but do not describe any of those incidents.
II. DISCUSSION Standard of Review for a Temporary Restraining Order/Preliminary Injunction
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). Moreover, “[a] preliminary injunction cannot be issued when there are disputed issues of fact. Hunterdon Transformer Co. v. Cook, No. 89-3132, 1990 U.S. Dist. LEXIS 1382, at *4 (D.N.J. Feb. 6, 1990).
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,
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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)). 1. Likelihood of success on the merits
For a moving party to demonstrate a reasonable likelihood of ultimate success in the litigation “it is not necessary that the moving party's right to a final decision after trial be wholly without doubt; rather, the burden is on the party seeking relief to make a prima facie case showing a reasonable probability that it will prevail on the merits.” Oburn v. Shapp, 521 F.2d 142, 148 (3d Cir. 1975). Thus, for Plaintiffs to satisfy their burden they must establish a prima facie case for at least one of their claims.
A. Eighth Amendment Protection Against Cruel and Unusual Punishment The Eighth Amendment's ban on inflicting cruel and unusual punishments . . . ‘[proscribes] more than physically barbarous punishments.’ It prohibits penalties that are grossly disproportionate to the offense, as well as those that transgress today's ‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency.’” Hutto v. Finney, 437 U.S. 678, 685 (U.S. 1978). “It is undisputed that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (U.S. 1993). “‘When the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume
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some responsibility for his safety and general well being . . . .”’ Id. at 32. As such, “[t]he Eighth Amendment . . . requires that inmates be furnished with the basic human needs,” including medical care and a reasonably safe environment. Id. at 33.
The Supreme Court has further stated that prison officials have an obligation to not only protect inmates from immediate harms but to also protect them from “condition[s] of confinement that [are] sure or very likely to cause serious illness and needless suffering [in] the next week or month or year.” Id. at 33. With regard to claims of unsafe conditions, the Court said that “a prisoner need not wait until he is actually assaulted before obtaining relief.” Id. at 34 (citing Ramos v. Lamm, 639 F.2d 559, 572 (10th Cir. 1980). Thus, “the Eighth Amendment protects against sufficiently imminent dangers as well as current unnecessary and wanton infliction of pain and suffering . . . .” Id.
To prove a cause of action against a prison official for the deprivation of basic necessities a prisoner must satisfy a two prong test. First, the prisoner must show that the alleged deprivation is, “objectively, ‘sufficiently serious’[and that the] prison official's act or omission . . . result[ed] in the denial of ‘the minimal civilized measure of life's necessities[.]’ For a claim . . . based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Second, the prisoner must show that the prison official acted with “a ‘sufficiently culpable state of mind.’ In prison-conditions cases that state of mind is one of ‘deliberate indifference’ to inmate health or safety . . . .” Id. Deliberate indifference exists where a prison “official knows of and disregards an excessive risk to inmate health or safety . . . .” Id. at 837.
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Furthermore, “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and . . . must also draw the inference.” Id. However, a prisoner “need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 842.
In claims against prison supervisors, the above standard is modified, requiring an inmate to prove, in addition to the above elements, that his injury was caused by a supervisor’s failure to establish or enforce appropriate policies or practices.
Supervisor-centered claims against prison officials are analyzed under the four-prong test set forth in Sample v. Diecks, 885 F.2d 1099 (3d Cir. 1989). Under the Sample test, to hold a supervisor liable because his policies or practices led to an Eighth Amendment violation, the plaintiff must identify a specific policy or practice that the supervisor failed to employ and show that: (1) the existing policy or practice created an unreasonable risk of the Eighth Amendment injury; (2) the supervisor was aware that the unreasonable risk was created; (3) the supervisor was indifferent to that risk; and (4) the injury resulted from the policy or practice. Liles v. Camden County Dep't of Corr., 225 F. Supp. 2d 450, 463 (D.N.J. 2002). Prison supervisors may not be held responsible under a respondeat superior theory of liability. Dempsky v. Walker, No. 05-4483, 2005 U.S. Dist. LEXIS 22983, at *12 (D.N.J. Sept. 29, 2005). In the present case, Plaintiffs claim they suffered injuries and are likely to suffer further injuries due to Defendants’ failure to protect them from other state inmates. Plaintiffs allege that Defendants’ practice of identifying them as sex offenders and refusing to separate them from other state inmates when they place them in vehicles and holding cells with such inmates creates an unreasonable risk that they will be assaulted by those inmates. Moreover, Plaintiffs allege that the risk of assault has prevented them from seeking necessary medical care.
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With regard to the first element in the above test, Plaintiffs can show that Defendants’ practice created an unreasonable risk by presenting “evidence that such harm has in fact occurred on numerous occasions.” Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989). In Liles, 225 F. Supp. at 462, two inmates brought a cruel and unusual punishment claim against DOC supervisors and employees alleging that the defendants’ policy of having some inmates sleep on mattresses on the floor of their cells, near the toilet, such that they were splashed with urine when other inmates used the toilet, led to several fights breaking out between inmates. Plaintiffs alleged that the condition led to one of the plaintiffs having a fight with another inmate on one occasion and the other plaintiff having fights on at least two occasions. Id. The court said that those “incidents establish[ed] a pattern of violence” and that such allegations raised a question of fact, sufficient to survive summary judgment, as to whether the condition “constituted a threat to the health and safety of [the plaintiffs] that violated the Eighth Amendment.” Id.
In the present case, Plaintiffs allege that prison officials engage in a practice of identifying them as sex offenders, placing them in close proximity to other state inmates, and failing to protect them from assaults by those inmates. As evidence of that practice, Plaintiffs offer detailed accounts of three separate violent attacks: one on Plaintiff Cornwell, one on Plaintiff Braun, and one on former inmate Becka. Moreover, due to those assaults, Plaintiffs allege that they are afraid to seek medical care because they cannot do so without risking physical injury. Such conditions “transgress today’s ‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency.’” Hutto, 437 U.S. at 685. No member of society should be subjected to violent attack nor should anyone have to risk such an attack to receive medical care. Thus, Plaintiffs have established a pattern of violence that constitutes an unreasonable risk to
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their Eighth Amendment rights. They have therefore satisfied their burden under the first element of the above test.
With regard to the second element, Plaintiffs say they notified various prison officials of the unsafe condition. Specifically: ! Mr. Riley allegedly wrote a letter to Ms. Rogers asking for better protection during
transportation. Mr. Goodwin allegedly responded to that letter stating that ADTC administrators could not do anything to alter current procedures and that only the DOC Central Office had authority over such matters. Thus, Mr. Riley says he wrote to Mr. Plantier, Director of Operations for the DOC, requesting greater protection. Mr. Riley says he has received no response to that letter. ! Mr. Cornwell allegedly filed a grievance with the DOC and a Tort Claim Notice against the DOC regarding his alleged assault but says both were denied. In addition, Mr. Cornwell says he reported the incident to Sergeant Collins and was hospitalized for fifty five days. ! Mr. Krivacska allegedly filed an ARF expressing his concern over the assault on Mr. Cornwell but says that Mr. Goodwin responded with the same explanation he gave to Mr. Riley. ! Mr. Braun allegedly filed an ARF asking to be segregated on medical trips but says he has not received any response. ! Mr. Becka allegedly filed a complaint with the ADTC administration regarding the assault he suffered. Of the above notifications, Mr. Riley’s letter to Mr. Plantier is the only evidence that
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could prove that either of the named Defendants had actual knowledge of the alleged dangerous condition but there is no proof that Mr. Plantier actually read the letter. However, Mr. Goodwin’s responses to both Mr. Riley and Mr. Krivacska show that Mr. Goodwin had actual knowledge of the condition. Although Mr. Goodwin is not named as a defendant, Plaintiffs’ complaint alleges claims against John Does, DOC employees. Thus, Plaintiffs’ allegations are sufficient to satisfy Plaintiffs’ burden of showing that a defendant supervisor was aware of the unreasonable risk created under the existing transport procedures.
In addition, Plaintiffs’ other letters, complaints, Administrative Remedy Forms and allegation that Mr. Cornwell spent fifty five days in the hospital, which suggests that prison officials must have known of his assault, tend to show that other prison officials were also aware of the unsafe condition. As stated in Liles, “[a] defendant’s knowledge of a risk can be proved indirectly by circumstantial evidence . . . .” Id. at 463. Plaintiffs’ allegations show that other prison officials, in addition to Mr. Goodwin, likely knew of the unsafe condition as well.
As to the third element, Plaintiffs claim that prison supervisors have acted with deliberate indifference in that they have failed to correct the unsafe condition. Mr. Goodwin allegedly stated that ADTC has no authority to change the procedures by which prisoners are transported. However, that explanation does not relieve Mr. Goodwin of his duty to protect ADTC inmates when he knows they are being subjected to cruel and unusual punishment. As stated above, prison officials have an affirmative duty to protect inmates from immediate threats as well as conditions that are likely to cause harm in the future. Mr. Goodwin’s knowledge of the unsafe condition and his failure to correct it, or even attempt to correct it, show that he knew of, and disregarded an excessive risk to inmate health and safety. Thus, Plaintiffs have satisfied their
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burden for the third element. Regarding the fourth element, Plaintiffs’ past injuries and the likelihood of future injuries
arise from prison officials’ current practice of telling other state inmates that Plaintiffs are sex offenders when they put Plaintiffs in vehicles and holding cells with those inmates. Thus, Plaintiffs have satisfied their burden as to this element as well.
As Plaintiffs have satisfied their burden under all four of the above elements, they have succeeded in establishing a prima facie case showing a reasonable probability that they will prevail on the merits with regard to their claim of cruel and unusual punishment against Mr. Goodwin. As it seems likely that other prison officials were also aware of, and disregarded, the unsafe condition, it is probable that Plaintiffs will prevail in their claims against other officials as well.
In addition to their Eighth Amendment claim, Plaintiffs’ complaint lists four other causes of action. The merits of those claims need not be analyzed at the present time as Plaintiffs have shown a likelihood of success on a claim that will entitle them to the requested relief if they succeed in establishing the remaining elements in the preliminary injunction analysis. Likelihood of suffering irreparable injury
“The Third Circuit has interpreted ‘irreparable harm’ to mean ‘that which cannot be repaired, retrieved, put down again [or] atoned for.’” Monmouth County Correctional Institution Inmates v. Lanzaro, 643 F. Supp. 1217, 1228 (D.N.J. 1986). “In order to demonstrate irreparable harm the plaintiff must demonstrate potential harm [that] cannot be redressed by a legal or an equitable remedy following a trial.” Forchion v. Intensive Supervised Parole, 240 F. Supp. 2d 302, 310 (D.N.J. 2003).
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In the present case, Plaintiffs’ allegations that Mr. Cornwell, Mr. Braun, and Mr Becka, were assaulted due to the practice described above, along with their allegations that said practice still occurs, establish a likelihood that Plaintiffs will be assaulted again if an injunction is not issued. In addition, the allegation that Plaintiffs cannot, in some instances, receive medical care without risking physical injury, shows that Plaintiffs will, effectively, be denied medical care if an injunction is not issued.
In Monmouth County, the court granted the plaintiff-inmates’ application for a preliminary injunction against prison officials where the officials enforced a policy of requiring a court ordered release and refusing to provide funding (in violation of a statute) for abortions. 643 F. Supp. at 1229. In finding that the defendants’ policy substantially delayed the plaintiffs’ access to the procedure, the court stated the following:
It is well-accepted that a substantial delay in the decision to abort increases the risks associated with the procedure . . . . “The enhanced risks of an abortion delayed to the second trimester are of such nature and magnitude that, even though abortion remains lawfully available, the parent is effectively ‘denied a meaningful opportunity’ to decide whether the fetus should be aborted.” Id. at 1228. The court found that the plaintiffs had “adequately established the requisite irreparable injury.” Id. That case is similar to the present case in that Plaintiffs, like the plaintiffs in Monmouth County, are “effectively denied” access to medical care because of the risk involved in receiving such care. Thus, Plaintiffs are not, as Defendants claim, refusing to receive medical care. Rather, medical care has been effectively denied because of the risk involved. However, Defendants cite Board of Education v. New Jersey Education Ass’n., 96 N.J. Super. 371, 390-91 (N.J. Super. Ct. 1967) for the proposition that “[h]arm is not irreparable
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unless it results in a material injury for which monetary damages are inadequate.” (Def’s’ Br. 17). But the discussion in that case does not relate to physical injury. Courts have frequently found that an injunction is the appropriate remedy where a plaintiff’s health or well-being is threatened. See e.g., Boone v. Brown, No. 05-750, 2005 U.S. Dist. LEXIS 18131 (D.N.J. Aug. 22, 2005); Hutto v. Finney, 437 U.S. 678 (U.S. 1978); Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974).
Finally, Defendants argue that Plaintiffs have failed to prove irreparable harm “since four of [them] have never been so much as verbally harassed” and the others “have failed to show that . . . [injury] is ‘virtually certain.’” (Def’s’ Br. 17). But in Helling, the Supreme Court stated:
It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them . . . . [Furthermore,] a remedy for unsafe conditions need not await a tragic event. In the present case, Plaintiffs have plainly established an unsafe condition that could be life threatening in the event that one of them is brutally attacked, as was Mr. Cornwell, or effectively denied medical care for a serious illness or injury. Thus, Plaintiffs have sufficiently established a likelihood of irreparable injury. Harm imposed on Defendants Generally, an injunction should not be issued if it will harm the non-moving party more than the moving party would be harmed if relief was denied. Defendants state two specific harms that will result if Plaintiff’s motion is granted. First, they say the injunction will undermine the DOC’s discretion to establish transportation procedures. Such a harm seems insignificant when compared to the constitutional violations that Plaintiffs allege. Second, Defendants argue that granting the injunction will invalidate a state law, N.J.S.A.
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2C:47-3(h), that allows the DOC to house certain sex offenders in the same facility as other inmates. Presumably, an injunction that imposes upon the DOC an obligation to keep ADTC inmates separate from other state inmates could be read as imposing upon it an obligation to segregate all sex offenders from other state inmates. However, a properly tailored injunction could provide Plaintiffs with adequate protection without imposing such an obligation on the Defendants. Thus, Defendants’ alleged harms do not outweigh the harms allegedly imposed on Plaintiffs. Public interest
There is no doubt that society has an interest in protecting all of its members, including those incarcerated for sex-offenses, from cruel and unusual punishment. Other relief
Plaintiffs seek to proceed as a class action and for the appointment of an attorney to represent the class. A ruling on those applications will be deferred in the expectation that the prison authorities, in conformity with the preliminary injunction to be issued herewith, or as appropriately modified from time to time, will take all necessary actions to provide effective relief. Failing that, attorneys can be appointed to move for class designation and represent the class as appropriate.
CONCLUSION For the reasons set forth above, Plaintiff’s motion for a preliminary injunction is granted. Defendants, Devon Brown and William Plantier and all those operating under their direction and control will be preliminarily enjoined, directed and ordered as follows: 1. When inmates are removed from ADTC and held or transported with inmates from other
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correctional institutions: i) they shall not be identified as inmates of Avenel; ii) inmates from other correctional institutions shall not be confined either in a vehicle or holding area so as to have physical access to the Avenel inmates unless a guard is present who is able to prevent the Avenel inmates from being subjected to violence from other inmates; iii) guards and other prison officials shall be directed to halt forthwith any verbal or physical assaults made by inmates upon Avenel inmates; iv) prison authorities shall investigate and promptly report upon any violence committed against any Avenel inmates; 2. Defendants and Plaintiffs may apply to the Court for any modification of the accompanying order that may be necessary to accommodate prison administration or may be necessary to effectuate its purpose of protecting Avenel inmates from physical and other abuse. 3. A ruling on Plaintiffs’ applications for class designation and appointment of an attorney will be deferred until it can be determined whether full relief can be affected through implementation of the accompanying order.

Dated:

March 16, 2006

/s/ Dickinson R. Debevoise DICKINSON R. DEBEVOISE, U.S.S.D.J.

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 Case: 2:06-cv-331 As of: 09/27/2011 06:22 PM EDT 1 of 7
CLOSED, MEDIATION−PRIVATE
U.S. District Court District of New Jersey [LIVE] (Newark) CIVIL DOCKET FOR CASE #: 2:06−cv−00331−DRD −ES

Riley et al v. BROWN Assigned to: Judge Dickinson R. Debevoise Referred to: Magistrate Judge E Salas Cause: 42:1983 Prisoner Civil Rights Mediator ERIC R. MAX, ESQ.
Plaintiff GEORGE RILEY
Plaintiff JAMES J. KRIVACSKA
Plaintiff PAUL CORNWELL
Plaintiff VINCENT MACRINA
Plaintiff WILLIAM VANSCIVER
Plaintiff

Date Filed: 01/18/2006 Date Terminated: 09/21/2007 Jury Demand: Plaintiff Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by ERIC R. MAX COUNSEL NOT ADMITTED TO USDC−NJ BAR OFFICE OF DISPUTE SETTLEMENT RICHARD J. HUGHES JUSTICE COMPLEX 25 MARKET STREET PO BOX 850 TRENTON, NJ 08625 (609) 292−1773 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ERIC EVANS WOHLFORTH GIBBONS, P.C. ONE GATEWAY CENTER NEWARK, NJ 07102−5310 (973) 596−4729 Email: ewohlforth@gibbonslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ERIC EVANS WOHLFORTH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ERIC EVANS WOHLFORTH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ERIC EVANS WOHLFORTH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by ERIC EVANS WOHLFORTH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:06-cv-331 As of: 09/27/2011 06:22 PM EDT 2 of 7

RICHARD GIBBS

represented by ERIC EVANS WOHLFORTH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff PETER BRAUN

represented by ERIC EVANS WOHLFORTH (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant DEVON BROWN
Defendant WILLIAM F. PLANTIER

represented by SUSAN MARIE SCOTT OFFICE OF THE NJ ATTORNEY GENERAL RJ HUGHES JUSTICE COMPLEX PO BOX 112 TRENTON, NJ 08625 (609) 633−7786 Fax: (609) 777−3607 Email: susan.scott@dol.lps.state.nj.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by SUSAN MARIE SCOTT (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/18/2006
01/18/2006 01/18/2006
01/27/2006 01/27/2006 01/27/2006

# Docket Text
1 Declaration in support of pltfs' motion for appt. of counsel( Filing fee $ 150 receipt number 336287.) filed by GEORGE RILEY, JAMES J. KRIVACSKA, PAUL CORNWELL, VINCENT MACRINA, WILLIAM VANSCIVER, RICHARD GIBBS, PETER BRAUN. (Attachments are declarations in support of class action complt. &motion for preliminary injunction &temporary restraining order: # 1 CERTIFICATION# 2 DECL. OF GEORGE RILEY# 3 DECL. OF JAMES KRIVACSKA# 4 DECL. OF PAUL CORNWELL# 5 DECL. OF VINCENT MARCRINA# 6 DECL. OF WILLIAM VANSCIVER# 7 DECL. OF RICHARD GIBBS# 8 DECL. OF PETER BRAUN)(lm2, ) (Entered: 01/25/2006)
2 Application for Pro Bono Counsel by GEORGE RILEY, JAMES J. KRIVACSKA, PAUL CORNWELL, VINCENT MACRINA, WILLIAM VANSCIVER, RICHARD GIBBS, PETER BRAUN. (sr, ) (Entered: 01/26/2006)
3 APPLICATION/MOTION for temporary restraining order by GEORGE RILEY, JAMES J. KRIVACSKA, PAUL CORNWELL, VINCENT MACRINA, WILLIAM VANSCIVER, RICHARD GIBBS, PETER BRAUN. (sr, ) Additional attachment(s) added on 1/26/2006 (sr, ). (Entered: 01/26/2006)
Filing fee: $ 250, receipt number 336287/336386. (ji, ) (Entered: 01/30/2006)
4 Record of filing fee payments. (ji, ) (Entered: 01/30/2006)
5 COMPLAINT against DEVON BROWN (Filing fee $ 250.) JURY DEMAND, filed by GEORGE RILEY, JAMES J. KRIVACSKA, PAUL CORNWELL, VINCENT MACRINA, WILLIAM VANSCIVER, RICHARD GIBBS, PETER BRAUN.(mn, ) (Entered: 02/01/2006)

Case: 2:06-cv-331 As of: 09/27/2011 06:22 PM EDT 3 of 7

02/17/2006 03/01/2006 03/06/2006 03/15/2006 03/16/2006 03/29/2006 03/29/2006 04/03/2006
04/06/2006 04/12/2006 04/12/2006 04/17/2006
04/26/2006
05/01/2006
05/01/2006

6 RESPONSE TO ORDER TO SHOW CAUSE by WILLIAM F. PLANTIER, DEVON BROWN. (Attachments: # 1 Certificate of Service)(SCOTT, SUSAN) (Entered: 02/17/2006)
7 REPLY BRIEF in support of Pltf's Motion for Temporary Restraining Order filed by JAMES J. KRIVACSKA. (Attachments: # 1 Declaration of James Krivacska# 2 Declaration of Richard Gibbs# 3 Declaration of George Riley)(sr, ) Additional attachment(s) added on 3/2/2006 (sr, ). (Entered: 03/02/2006)
8 WAIVER OF SERVICE Returned Executed DEVON BROWN waiver sent on 2/4/2006, answer due 4/5/2006; WILLIAM F. PLANTIER waiver sent on 2/4/2006, answer due 4/5/2006. (sr, ) (Entered: 03/07/2006)
10 DECLARATION of James J. Krivacska in further support of 3 Application for TRO. (sr, ) (Entered: 03/16/2006)
9 ORDER that defts who are served shall file &serve a responsive pleading w/in the time specified by Fed.R.Civ.P.12. Signed by Judge Dickinson R. Debevoise on 3/15/06. (sr, ) (Entered: 03/16/2006)
11 OPINION fld.. Signed by Judge Dickinson R. Debevoise on 3/16/06. (sr, ) (Entered: 03/29/2006)
12 ORDER granting pltfs' motion for preliminary injunction; etc. Signed by Judge Dickinson R. Debevoise on 3/16/06. (sr, ) (Entered: 03/29/2006)
13 Application and Proposed Order for Clerk's Order to extend time to answer as to Devon Brown and William Plantier. Attorney SUSAN MARIE SCOTT and SUSAN MARIE SCOTT for DEVON BROWN and WILLIAM F. PLANTIER added. (Attachments: # 1 Certificate of Service)(SCOTT, SUSAN) (Entered: 04/03/2006)
Clerk's extension granted until 4/20/06 as to defts Devon Brown &William Plantier Update answer due deadline to 4/20/06 (sr, ) (Entered: 04/06/2006)
14 ORDER DISMISSING CASE w/out prejudice. Signed by Judge Dickinson R. Debevoise on 4/10/06. (sr, ) (Entered: 04/12/2006)
CLERK'S NOTE: please disregard document #14 − order relates to another matter. (sr, ) (Entered: 04/12/2006)
15 First MOTION for Extension of Time to File Answer or Otherwise Move by DEVON BROWN, WILLIAM F. PLANTIER. (Attachments: # 1 Statement that No Brief is Necessary# 2 Affidavit of Deputy Attorney General, Susan M. Scott# 3 Certificate of Service # 4 Text of Proposed Order)(SCOTT, SUSAN) (Entered: 04/17/2006)
Set Deadline as to 15 First MOTION for Extension of Time to File Answer or Otherwise Move. Motion Hearing set for 5/22/2006 before Judge Dickinson R. Debevoise. (PLEASE BE ADVISED THAT THIS MOTION WILL BE DECIDED ON THE PAPERS UNLESS OTHERWISE NOTIFIED BY THE COURT) (sr, ) (Entered: 04/26/2006)
16 First MOTION to Seal Confidential Documents that would compromise the safety and secure running of the Department of Corrections Institutions by DEVON BROWN, WILLIAM F. PLANTIER. (Attachments: # 1 Statement that No Brief is Necessary# 2 Affidavit of Deputy Attorney General, Susan M. Scott# 3 Text of Proposed Order # 4 Certificate of Service)(SCOTT, SUSAN) (Entered: 05/01/2006)
17 MOTION Dissolve, or in the alternative Modify, the Preliminary Injunction issued on March 16, 2006 re 12 Order, 11 Opinion by DEVON BROWN, WILLIAM F. PLANTIER. (Attachments: # 1 Brief # 2 Affidavit of Loretta C. Brancato# 3 Affidavit of Melissa Matthews − Part 1# 4 Affidavit of Melissa Matthews − Part 2# 5 Affidavit of Caprice L. Chavers# 6 Affidavit of Donald Mee# 7 Affidavit of John D. Hall, Jr.# 8 Text of Proposed Order # 9 Certificate of Service)(SCOTT, SUSAN) (Entered: 05/01/2006)

Case: 2:06-cv-331 As of: 09/27/2011 06:22 PM EDT 4 of 7

05/01/2006 05/02/2006
05/03/2006 05/16/2006 05/17/2006 05/23/2006 05/23/2006 05/23/2006
05/24/2006 05/24/2006 06/05/2006
06/05/2006

Setting motion heaaring as to 16 First MOTION to Seal Confidential Documents that would compromise the safety and secure running of the Department of Corrections Institutions. Motion Hearing set for 6/12/2006 before Judge Dickinson R. Debevoise. (cs, ) (Entered: 05/03/2006)
18 AMENDED DOCUMENT by DEVON BROWN, WILLIAM F. PLANTIER. Amendment to 17 MOTION Dissolve, or in the alternative Modify, the Preliminary Injunction issued on March 16, 2006 re 12 Order, 11 Opinion Amended Brief in support of Motion to Dissolve, or in the alternative Modify, the Preliminary Injunction herein submitted to replace brief submitted on May 1, 2006. State Defendants rely on all other supporting documents as submitted on May 1, 2006.. (SCOTT, SUSAN) (Entered: 05/02/2006)
Setting motion hearing as to 17 MOTION Dissolve, or in the alternative Modify, the Preliminary Injunction issued on March 16, 2006 re 12 Order, 11 Opinion. Motion Hearing set for 6/12/2006 before Judge Dickinson R. Debevoise. (cs, ) (Entered: 05/03/2006)
19 ORDER granting 15 Motion for Extension of Time to Answer w/in 30 days . Signed by Judge Dickinson R. Debevoise on 5/15/06. (sr, ) (Entered: 05/16/2006)
20 BRIEF in Opposition re 16 First MOTION to Seal Confidential Documents that would compromise the safety and secure running of the Department of Corrections Institutions filed by GEORGE RILEY. (Attachments: # 1 cert. of service# 2 cover letter)(sr, ) (Entered: 05/17/2006)
21 MOTION to postpone the stay of the Preliminary Injunction for 60 days by GEORGE RILEY. (Attachments: # 1 brief in support# 2 cover letter)(sr, ) (Entered: 05/24/2006)
22 BRIEF in Opposition re 17 MOTION Dissolve, or in the alternative Modify, the Preliminary Injunction issued on March 16, 2006 re 12 Order, 11 Opinion filed by GEORGE RILEY. (sr, ) (Entered: 05/24/2006)
23 MOTION for Second Preliminary Injunction upon expiration of the first Preliminary Injunction by GEORGE RILEY. (Attachments: # 1 brief in support# 2 cert. of service# 3 Declaration of Michael Davidson# 4 Declaration of Randall Venzie# 5 Declaration of Paul Behold# 6 Declaration of James J. Krivacska# 7 Declaration of John Thomas# 8 Declaration of Robert Pilkington# 9 Declaration of William Dean &Phillip Disabella# 10 Declaration of Ramoncito Ramos# 11 Declaration of Keith Gardner)(sr, ) (Entered: 05/24/2006)
Set Deadline as to 21 MOTION to postpone the stay of the Preliminary Injunction for 60 days. Motion Hearing set for 6/26/2006 10:00 AM before Judge Dickinson R. Debevoise. (sr, ) (Entered: 05/24/2006)
Set Deadline as to 23 MOTION for Preliminary Injunction. Motion Hearing set for 6/26/2006 10:00 AM before Judge Dickinson R. Debevoise. (sr, ) (Entered: 05/24/2006)
24 RESPONSE in Support re 17 MOTION Dissolve, or in the alternative Modify, the Preliminary Injunction issued on March 16, 2006 re 12 Order, 11 Opinion filed by DEVON BROWN, WILLIAM F. PLANTIER. (Attachments: # 1 Affidavit of Melissa Matthews, dated June 5, 2006# 2 Affidavit of Loretta C. Brancato, dated June 5, 2006# 3 Affidavit of Deputy Attorney General Susan M. Scott# 4 Affidavit of Loretta C. Brancato, dated May 1, 2006# 5 Affidavit of Melissa Matthews, dated April 28, 2006 − Part I# 6 Affidavit of Melissa Matthews, dated April 28, 2006 − Part II# 7 Affidavit of Caprice L. Chavers# 8 Affidavit of Donald Mee# 9 Affidavit of John D. Hall, Jr.# 10 Certificate of Service)(SCOTT, SUSAN) (Entered: 06/05/2006)
25 BRIEF in Support re 16 First MOTION to Seal Confidential Documents that would compromise the safety and secure running of the Department of Corrections Institutions filed by DEVON BROWN, WILLIAM F. PLANTIER. (Attachments: # 1 Affidavit of Melissa Matthews, dated June 5, 2006# 2 Affidavit of Loreeta C. Brancato, dated June 5, 2006# 3 Affidavit of Deputy Attorney General Susan M. Scott# 4 Affidavit of Loretta C. Brancato, dated May 1, 2006# 5 Affidavit of Melissa Matthews, dated April 28, 2006 − Part I# 6 Affidavit of Melissa Matthews,

Case: 2:06-cv-331 As of: 09/27/2011 06:22 PM EDT 5 of 7

06/05/2006
06/12/2006
06/12/2006 06/14/2006 06/15/2006 06/21/2006 06/21/2006 06/21/2006 06/21/2006 06/22/2006
06/26/2006 07/19/2006

dated April 28, 2006 − Part II# 7 Affidavit of Caprice L. Chavers# 8 Affidavit of Donald Mee# 9 Affidavit of John D. Hall, Jr.# 10 Certificate of Service)(SCOTT, SUSAN) (Entered: 06/05/2006)
26 BRIEF in Opposition re 21 MOTION to postbone the stay of the Preliminary Injunction for 60 days filed by DEVON BROWN, WILLIAM F. PLANTIER. (Attachments: # 1 Affidavit of Melissa Matthews, dated June 5, 2006# 2 Affidavit of Loretta C. Brancato, dated June 5, 2006# 3 Affidavit of Deputy Attorney General Susan M.Scott# 4 Affidavit of Loretta C. Brancato, dated May 1, 2006# 5 Affidavit of Melissa Matthews, dated April 28, 2006 − Part I# 6 Affidavit of Melissa Matthews, dated April 28, 2006 − Part II# 7 Affidavit of Caprice L. Chavers# 8 Affidavit of Donald Mee# 9 Affidavit of John D. Hall, Jr.# 10 Certificate of Service)(SCOTT, SUSAN) (Entered: 06/05/2006)
27 BRIEF in Opposition re 23 MOTION for Preliminary Injunction filed by DEVON BROWN, WILLIAM F. PLANTIER. (Attachments: # 1 Affidavit of Melissa Matthews, dated June 5, 2006# 2 Affidavit of Loretta C. Brancato, dated June 5, 2006# 3 Affidavit of Melissa Matthews, dated April 28, 2006 − Part I# 4 Affidavit of Melissa Matthews, dated April 28, 2006 − Part II# 5 Affidavit of Loretta C. Brancato, dated May 1, 2006# 6 Affidavit of Caprice L. Chavers# 7 Affidavit of Donald Mee# 8 Affidavit of John D. Hall, Jr.# 9 Certificate of Service)(SCOTT, SUSAN) (Entered: 06/12/2006)
28 REPLY BRIEF in Support of 21 MOTION to postbone the stay of the Preliminary Injunction for 60 days filed by JAMES J. KRIVACSKA. (sr, ) (Entered: 06/13/2006)
29 Second MOTION for Extension of Time to File Answer re 5 Complaint Reply or Otherwise Move by DEVON BROWN, WILLIAM F. PLANTIER. (Attachments: # 1 Statement that No Brief is Necesary# 2 Affidavit of Deputy Attorney General Susan M. Scott# 3 Text of Proposed Order # 4 Certificate of Service)(SCOTT, SUSAN) (Entered: 06/14/2006)
Set Deadline as to 29 Second MOTION for Extension of Time to File Answer re 5 Complaint Reply or Otherwise Move. Motion Hearing set for 7/10/2006 10:00 AM before Judge Dickinson R. Debevoise. (sr, ) (Entered: 06/15/2006)
30 OPINION fld.. Signed by Judge Dickinson R. Debevoise on 6/20/06. (sr, ) (Entered: 06/21/2006)
31 ORDER granting 23 Motion for Preliminary Injunction . Signed by Judge Dickinson R. Debevoise on 6/20/06. (sr, ) (Entered: 06/21/2006)
32 OPINION fld.. Signed by Judge Dickinson R. Debevoise on 6/20/06. (sr, ) (Entered: 06/21/2006)
33 ORDER granting 16 Motion to Seal . Signed by Judge Dickinson R. Debevoise on 6/20/06. (sr, ) (Entered: 06/21/2006)
34 Letter from Deputy Attorney General, Susan M. Scott re 24 Response in Support of Motion,,, 26 Brief in Opposition to Motion,,, 27 Brief in Opposition to Motion,,, 25 Brief in Support of Motion,,, 17 MOTION Dissolve, or in the alternative Modify, the Preliminary Injunction issued on March 16, 2006 re 12 Order, 11 Opinion. (Attachments: # 1 Exhibit A to the Affidavit of John D. Hall, Jr., dated April 28, 2006 (TO BE FILED UNDER SEAL)# 2 Exhibit A to the Affidavit of Loretta C. Brancato, dated May 1, 2006 (TO BE FILED UNDER SEAL)# 3 Exhibit R to the Affidavit of Melissa Matthews, dated April 28, 2006 (TO BE FILED UNDER SEAL)# 4 Exhibit S to the Affidavit of Melissa Matthews, dated April 28, 2006 (TO BE FILED UNDER SEAL))(SCOTT, SUSAN) (Entered: 06/22/2006)
Reset Deadlines as to 29 Second MOTION for Extension of Time to File Answer re 5 Complaint Reply or Otherwise Move. Motion Hearing set for 7/17/2006 10:00 AM before Judge Dickinson R. Debevoise. (ak, ) (Entered: 06/26/2006)
35 ORDER granting 29 Motion for Extension of Time to Answer . Signed by Judge Dickinson R. Debevoise on 7/19/06. (sr, ) (Entered: 07/19/2006)

Case: 2:06-cv-331 As of: 09/27/2011 06:22 PM EDT 6 of 7

08/17/2006
08/17/2006
08/18/2006
08/18/2006 08/28/2006 09/05/2006
09/11/2006 09/19/2006 09/21/2006 09/26/2006
10/06/2006 10/10/2006

36 MOTION to Seal Exhibit A attached to the Affidavit of Loretta C. Brancato, to be filed in support of the Defendants' Motion to Dismiss Plaintiffs' Complaint, pursuant to Fed.R.Civ.P. 12(b)(6), or in the alternative for Summary Judgment, pursuant to Fed.R.Civ.P. 56, by DEVON BROWN, WILLIAM F. PLANTIER. (Attachments: # 1 Statement that No Brief is Necessary# 2 Affidavit of Deputy Attorney General Susan M. Scott# 3 Text of Proposed Order # 4 Certificate of Service)(SCOTT, SUSAN) (Entered: 08/17/2006)
37 MOTION to Dismiss Plaintiffs' Complaint, Pursuant to Fed.R.Civ.P. 12(b)(6), or in the Alternative for Summary Judgment, Pursuant to Fed.R.Civ.P. 56, by DEVON BROWN, WILLIAM F. PLANTIER. (Attachments: # 1 Brief in Support of Defendants' Motion to Dismiss Plaintiffs' Complaint, or in the Alternative for Sumary Judgment# 2 Statement of Material Facts# 3 Affidavit of Loretta C. Brancato# 4 Affidavit of Melissa Matthews# 5 Affidavit of Caprice L. Chavers# 6 Affidavit of Donald Mee# 7 Affidavit of D. Craig Stevens# 8 Text of Proposed Order # 9 Certificate of Service)(SCOTT, SUSAN) (Entered: 08/17/2006)
Set Deadlines as to 37 MOTION to Dismiss Plaintiffs' Complaint, Pursuant to Fed.R.Civ.P. 12(b)(6), or in the Alternative for Summary Judgment, Pursuant to Fed.R.Civ.P. 56,, 36 MOTION to Seal Exhibit A attached to the Affidavit of Loretta C. Brancato, to be filed in support of the Defendants' Motion to Dismiss Plaintiffs' Complaint, pursuant to Fed.R.Civ.P. 12(b)(6), or in the alternative for Summary Judgment, p. Motion Hearing set for 9/11/2006 10:00 AM before Judge Dickinson R. Debevoise. (sr, ) (Entered: 08/18/2006)
38 NOTICE of Appearance by ERIC EVANS WOHLFORTH on behalf of all plaintiffs (WOHLFORTH, ERIC) (Entered: 08/18/2006)
39 Letter from Evans Wohlforth requesting adjournment.. (WOHLFORTH, ERIC) (Entered: 08/28/2006)
Reset Deadlines as to 37 MOTION to Dismiss Plaintiffs' Complaint, Pursuant to Fed.R.Civ.P. 12(b)(6), or in the Alternative for Summary Judgment, Pursuant to Fed.R.Civ.P. 56,, 36 MOTION to Seal Exhibit A attached to the Affidavit of Loretta C. Brancato, to be filed in support of the Defendants' Motion to Dismiss Plaintiffs' Complaint, pursuant to Fed.R.Civ.P. 12(b)(6), or in the alternative for Summary Judgment, p. Motion Hearing set for 10/10/2006 10:00 AM before Judge Dickinson R. Debevoise. (ak, ) (Entered: 09/05/2006)
40 AFFIDAVIT/Certification in support of discovery confidentiality order of Deputy Attorney General Susan M. Scott by DEVON BROWN, WILLIAM F. PLANTIER. (Attachments: # 1 Text of Proposed Order for Consent Protective Order for the release of the New Jersey Department of Corrections Central Transportation Unit's Standard Operating Procedures dated July 1, 2006# 2 Certificate of Service)(SCOTT, SUSAN) (Entered: 09/11/2006)
41 Letter from E. Evans Wohlforth, Jr. confirming adjournment of motion to dismiss. re 37 MOTION to Dismiss Plaintiffs' Complaint, Pursuant to Fed.R.Civ.P. 12(b)(6), or in the Alternative for Summary Judgment, Pursuant to Fed.R.Civ.P. 56,. (WOHLFORTH, ERIC) (Entered: 09/19/2006)
42 CONSENT PROTECTIVE ORDER fld.. Signed by Judge Dickinson R. Debevoise on 9/21/06. (sr, ) (Entered: 09/22/2006)
Reset Deadlines as to 37 MOTION to Dismiss Plaintiffs' Complaint, Pursuant to Fed.R.Civ.P. 12(b)(6), or in the Alternative for Summary Judgment, Pursuant to Fed.R.Civ.P. 56,, 36 MOTION to Seal Exhibit A attached to the Affidavit of Loretta C. Brancato, to be filed in support of the Defendants' Motion to Dismiss Plaintiffs' Complaint, pursuant to Fed.R.Civ.P. 12(b)(6), or in the alternative for Summary Judgment, p. Motion Hearing set for 10/23/2006 10:00 AM before Judge Dickinson R. Debevoise. (25, 25) (Entered: 09/26/2006)
43 Letter from E. Evans Wohlforth Jr. confirming the defendant's motion to dismiss has been adjourned to November 27, 2006. (WOHLFORTH, ERIC) (Entered: 10/06/2006)
Reset Deadlines as to 37 MOTION to Dismiss Plaintiffs' Complaint, Pursuant to Fed.R.Civ.P. 12(b)(6), or in the Alternative for Summary Judgment, Pursuant to

Case: 2:06-cv-331 As of: 09/27/2011 06:22 PM EDT 7 of 7

11/02/2006 11/02/2006 11/09/2006 11/17/2006 11/27/2006 02/01/2007 03/06/2007 03/13/2007 05/15/2007 05/23/2007 09/21/2007

Fed.R.Civ.P. 56,. Motion Hearing set for 11/27/2006 10:00 AM before Judge Dickinson R. Debevoise. (ak,) (Entered: 10/10/2006)
44 Letter from E. Evans Wohlforth, Jr. confirming instructions provided by the Court at the settlement conference regarding defendants' motion to dismiss. (WOHLFORTH, ERIC) (Entered: 11/02/2006)
45 Minute Entry for proceedings held before Judge Dickinson R. Debevoise : Settlement Conference held on 11/2/2006. (Court Reporter None.) (ak, ) (Entered: 11/06/2006)
46 Letter from Deputy Attorney General Susan M. Scott. (SCOTT, SUSAN) (Entered: 11/09/2006)
47 ORDER REFERRING CASE to Mediation., Order Appointing Mediator, ERIC R. MAX, ESQ., &staying all proceedings for 60 days . Signed by Judge Dickinson R. Debevoise on 11/15/06. (sr, ) (Entered: 11/20/2006)
Judge Esther Salas and Esther Salas added. Judge Madeline C. Arleo no longer assigned to case. (jq, ) (Entered: 11/27/2006)
48 ORDER that the Order for Mediation dated 11/15/06 shall remain in full force and effect except that all proceedings in this action shall be stayed until 3/15/07. Signed by Judge Dickinson R. Debevoise on 2/1/07. (sr, ) (Entered: 02/02/2007)
49 ORDER that the order for mediation dated 11/15/06 shall remain in full force &effect except that all proceedings in this action shall be stayed until 4/15/07. Signed by Judge Dickinson R. Debevoise on 3/6/07. (sr, ) (Entered: 03/06/2007)
50 NOTICE of Change of Address by ERIC EVANS WOHLFORTH (WOHLFORTH, ERIC) (Entered: 03/13/2007)
51 Minute Entry for proceedings held before Judge Dickinson R. Debevoise : Settlement Conference held on 5/15/2007. (Court Reporter None.) (ak, ) (Entered: 05/16/2007)
52 ORDER that parties are to report their settlement position to Eric Max w/in 30dys. All proceedings are stayed pending futher Order of the Court. Signed by Judge Dickinson R. Debevoise on 5/21/2007. (mn, ) (Entered: 05/23/2007)
53 STIPULATION/ORDER DISMISSING CASE w/out prejudice. Signed by Judge Dickinson R. Debevoise on 9/21/07. (sr, ) (Entered: 09/25/2007)