NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

 :

JOSEPH P. SCHIMMINGER, :

 :

Plaintiff, :

 :

v. :

 :

CAMDEN COUNTY CORRECTIONAL :

FACILITY’S CSLS PROGRAM, :

et al., : 

 :

Defendants. :

 :

Civil No. 10-6765 (RMB)

OPINION

APPEARANCES:

JOSEPH P. SCHIMMINGER, Plaintiff pro se

401 e. Gibbsboro Road

Apt. 604

Lindenwold, New Jersey 08012

BUMB, District Judge

Plaintiff, Joseph P. Schimminger, a state inmate confined at

the Camden County Correctional Facility in Camden, New Jersey, at

the time he submitted the above-captioned Complaint for filing,

seeks to bring this action in forma pauperis. Based on his

affidavit of indigence, the Court will grant plaintiff’s

application to proceed in forma pauperis (“IFP”) pursuant to 28

U.S.C. § 1915(a) (1998) and order the Clerk of the Court to file

the Complaint.

 At this time, this Court must review the Complaint, pursuant

to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, to determine whether the

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Complaint should be dismissed as frivolous or malicious, for

failure to state a claim upon which relief may be granted, or

because it seeks monetary relief from a defendant who is immune

from such relief. For the reasons set forth below, the Court

concludes that the Complaint should be dismissed without

prejudice.

I. BACKGROUND

Plaintiff, Joseph P. Schimminger (“Schimminger”), brings

this civil action, pursuant to 42 U.S.C. § 1983, against the

following defendants: the Camden County Correctional Facility

(“CCCF”) CSLS Program; Lieutenant V. Hilton; Officer Accardo; and

Officer Boardley. (Complaint, Caption and ¶¶ 4.b through 4.c). 

The following factual allegations are taken from the Complaint,

and are accepted for purposes of this screening only. The Court

has made no findings as to the veracity of plaintiff’s

allegations.

Schimminger alleges that the defendants have violated his

Eight and Fourteenth Amendment rights by causing plaintiff to be

held without due process and “intentionally subjecting

[plaintiff] to cruel and unusual punishment for [his] unlawful

detainment.” (Compl., ¶ 4b). Plaintiff states that, on January

24, 2010, he was sentenced to serve a 365 day sentence, which was

to be served pursuant to the CSLS Program.1

 Consequently, he was

1 Plaintiff does not identify what the acronym “CSLS”

means. 

2

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permitted to serve his sentence on weekends only, and he began

service of his sentence on February 13, 2010. On June 3, 2010,

plaintiff states that he was seriously injured on his job and was

taken to the hospital in Berlin, New Jersey. He had x-rays taken

that revealed plaintiff had sustained a broken collar bone. The

doctor ordered that plaintiff’s arm be immobilized with a special

sling, and he was given prescription medication and a medical

note upon his release from the hospital on June 4, 2010. 

Plaintiff reported in person to the CSLS Program and showed

Officer Boardley his medical note and injury. Boardley allegedly

instructed plaintiff to call out each day that plaintiff was to

report to serve his sentence under the CSLS Program. Plaintiff

further alleges that Boardley told him that he was excused from

the CSLS Program and told to go home. (Compl., ¶ 6).

Schimminger states that he followed the instructions he

received and called out each weekend (both Saturday and Sunday)

for the next six weeks while he recovered from his injury. 

Plaintiff returned to the CSLS Program on July 24, 2010, stating

that, while his arm still hurt, he could perform his duties. 

Plaintiff signed in at 8:00 a.m. and put on his work vest and

waited until the work crews were assigned. About one hour after

plaintiff had reported to the CSLS Program, Officers Hinton and

Accardo approached plaintiff and placed him in handcuffs. 

Schimminger was then brought to the CCCF, where he was processed

and placed in a seven-day lock down. He states that he had asked

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about seeing a judge and was told that he would see one. On July

28, 2010, plaintiff was placed in general population at CCCF. 

Schimminger states that he wrote repeated requests for

reinstatement into the CSLS Program, but did not receive any

response until August 4, 2010. (Compl., ¶ 6).

On August 4, 2010, Lt. Hinton wrote to plaintiff, stating

that plaintiff had been informed in May 2010 to report his

medical condition to Judge Pugliese so that his CSLS obligation

could be properly suspended. Hinton further informed plaintiff

that he should have his counsel present all documentation with

his request for reinstatement to the CSLS Program in a letter to

Judge Pugliese. Finally, Hilton told plaintiff that he would not

be in his predicament if he had followed her instructions

initially. (Compl., ¶ 6).

Schimminger states that he began to write letters to the

courts and he began to speak to a private attorney about what to

do. Plaintiff also wrote to the Camden County Public Defender’s

Office and the Gloucester County Public Defender’s Office. He

wrote to Judge Pugliese as well. Schimminger alleges that he has

not had any response to his letters. Accordingly, Schimminger

filed a grievance against the CSLS Program for violating him. He

also wrote to the American Civil Liberties Union (“ACLU”) on

October 29, 2010. On November 8, 2010, plaintiff received a

letter from Judge Randall Freeman, which letter stated that

plaintiff’s case is in the jurisdiction of Camden County. 

4

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Plaintiff sent the letter from Judge Freeman to Lt. Hilton. 

(Compl., ¶ 6).

On January 14, 2011, Schimminger wrote to this Court asking

that he be permitted to assert new grounds against the defendant

CCCF CSLS Program. Plaintiff states that, on October 30, 2010,

he was called to go to the sergeant in admissions at CCCF, who

offered to reinstate plaintiff in the CSLS Program. Schimminger

readily agreed and went back to his cell block. When plaintiff

did not hear from Sergeant Boyd, he tried to contact him.

Schimminger found out that Boyd told his family that he never

made any such offer. On December 30, 2010, plaintiff again was

called down to admissions and again was questioned about whether

he wanted to be reinstated in the CSLS Program. An officer from

the CSLS Program allegedly asked plaintiff about the days he had

missed without calling out. Plaintiff apologized and asked to be

reinstated. After he failed to hear from the CSLS Program for

two weeks, Schimminger’s family contacted Sgt. Boyd, who stated

that he had no knowledge of any offer for plaintiff to be

reinstated in the CSLS Program. Schimminger contends that these

two incidents constitute cruel and unusual punishment. (Docket

entry no. 3).

Plaintiff seeks to be released from CCCF and reinstated in

the CSLS Program. He also asks to be compensated for the time

that he was confined from July 24, 2010 to the present. (Compl.,

¶ 7).

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On April 8, 2011, plaintiff wrote to the Court to advise

that he was to be released from the CCCF in several days. 

(Docket entry no. 4).

II. STANDARDS FOR A SUA SPONTE DISMISSAL

The Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-

134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996),

requires a district court to review a complaint in a civil action

in which a prisoner is proceeding in forma pauperis or seeks

redress against a governmental employee or entity. The Court is

required to identify cognizable claims and to sua sponte dismiss

any claim that is frivolous, malicious, fails to state a claim

upon which relief may be granted, or seeks monetary relief from a

defendant who is immune from such relief. 28 U.S.C. §§

1915(e)(2)(B) and 1915A. This action is subject to sua sponte

screening for dismissal under both 28 U.S.C. § 1915(e)(2)(B) an 

§ 1915A.

In determining the sufficiency of a pro se complaint, the

Court must be mindful to construe it liberally in favor of the

plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94

(2007)(following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and

Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). See also United

States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court must

“accept as true all of the allegations in the complaint and all

reasonable inferences that can be drawn therefrom, and view them

in the light most favorable to the plaintiff.” Morse v. Lower

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Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). The Court

need not, however, credit a pro se plaintiff’s “bald assertions”

or “legal conclusions.” Id.

A complaint is frivolous if it “lacks an arguable basis

either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,

325 (1989) (interpreting the predecessor of § 1915(e)(2), the

former § 1915(d)). The standard for evaluating whether a

complaint is “frivolous” is an objective one. Deutsch v. United

States, 67 F.3d 1080, 1086-87 (3d Cir. 1995).

A pro se complaint may be dismissed for failure to state a

claim only if it appears “‘beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle

him to relief.’” Haines, 404 U.S. at 521 (quoting Conley v.

Gibson, 355 U.S. 41, 45-46 (1957)). See also Erickson, 551 U.S.

at 93-94 (In a pro se prisoner civil rights complaint, the Court

reviewed whether the complaint complied with the pleading

requirements of Rule 8(a)(2)).

However, recently, the Supreme Court revised this standard

for summary dismissal of a Complaint that fails to state a claim

in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). The issue before

the Supreme Court was whether Iqbal’s civil rights complaint

adequately alleged defendants’ personal involvement in

discriminatory decisions regarding Iqbal’s treatment during

detention at the Metropolitan Detention Center which, if true,

violated his constitutional rights. Id. The Court examined Rule

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8(a)(2) of the Federal Rules of Civil Procedure which provides

that a complaint must contain “a short and plain statement of the

claim showing that the pleader is entitled to relief.” 

Fed.R.Civ.P. 8(a)(2).2 Citing its recent opinion in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), for the

proposition that “[a] pleading that offers ‘labels and

conclusions' or ‘a formulaic recitation of the elements of a

cause of action will not do,’ “Iqbal, 129 S.Ct. at 1949 (quoting

Twombly, 550 U.S. at 555), the Supreme Court identified two

working principles underlying the failure to state a claim

standard:

First, the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to

legal conclusions. Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do

not suffice ... . Rule 8 ... does not unlock the doors of

discovery for a plaintiff armed with nothing more than

conclusions. Second, only a complaint that states a

plausible claim for relief survives a motion to dismiss. 

Determining whether a complaint states a plausible claim for

relief will ... be a context-specific task that requires the

reviewing court to draw on its judicial experience and

common sense. But where the well-pleaded facts do not

permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged-but it has not

“show[n]”-“that the pleader is entitled to relief.” Fed.

Rule Civ. Proc. 8(a)(2).

Iqbal, 129 S.Ct. at 1949-1950 (citations omitted).

The Court further explained that

2 Rule 8(d)(1) provides that “[e]ach allegation must be

simple, concise, and direct. No technical form is required.”

Fed.R.Civ.P. 8(d).

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a court considering a motion to dismiss can choose to begin

by identifying pleadings that, because they are no more than

conclusions, are not entitled to the assumption of truth.

While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations.

When there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they

plausibly give rise to an entitlement to relief.

Iqbal, 129 S.Ct. at 1950.

Thus, to prevent a summary dismissal, civil complaints must

now allege “sufficient factual matter” to show that a claim is

facially plausible. This then “allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Id. at 1948. The Supreme Court’s ruling in

Iqbal emphasizes that a plaintiff must demonstrate that the

allegations of his complaint are plausible. Id. at 1949-50; see

also Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC Shadyside,

578 F.3d 203, 210(3d Cir. 2009).

Consequently, the Third Circuit observed that Iqbal provides

the “final nail-in-the-coffin for the ‘no set of facts’ standard”

set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),3 that

applied to federal complaints before Twombly. Fowler, 578 F.3d

at 210. The Third Circuit now requires that a district court

3

 In Conley, as stated above, a district court was

permitted to summarily dismiss a complaint for failure to state a

claim only if “it appear[ed] beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle

him to relief. Id., 355 U.S. at 45-46. Under this “no set of

facts” standard, a complaint could effectively survive a motion

to dismiss so long as it contained a bare recitation of the

claim’s legal elements.

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must conduct the two-part analysis set forth in Iqbal when

presented with a motion to dismiss:

First, the factual and legal elements of a claim should be

separated. The District Court must accept all of the

complaint’s well-pleaded facts as true, but may disregard

any legal conclusions. [Iqbal, 129 S.Ct. at 1949-50]. 

Second, a District Court must then determine whether the

facts alleged in the complaint are sufficient to show that

the plaintiff has a “plausible claim for relief.” [Id.] In

other words, a complaint must do more than allege the

plaintiff’s entitlement to relief. A complaint has to

“show” such an entitlement with its facts. See Phillips,

515 F.3d at 234-35. As the Supreme Court instructed in

Iqbal, “[w]here the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct,

the complaint has alleged-but it has not ‘show [n]’-‘that

the pleader is entitled to relief.’” Iqbal, [129 S.Ct. at

1949-50]. This “plausibility” determination will be “a

context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.” Id.

Fowler, 578 F.3d at 210-211.

 This Court is mindful, however, that the sufficiency of this

pro se pleading must be construed liberally in favor of

Plaintiff, even after Iqbal. See Erickson v. Pardus, 551 U.S. 89

(2007). Moreover, a court should not dismiss a complaint with

prejudice for failure to state a claim without granting leave to

amend, unless it finds bad faith, undue delay, prejudice or

futility. See Grayson v. Mayview State Hosp., 293 F.3d 103, 110-

111 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 117 (3d Cir.

2000).

III. SECTION 1983 ACTIONS

Plaintiff appears to bring this action pursuant to 42 U.S.C.

§ 1983. Section 1983 provides in relevant part:

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Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory ... subjects, or causes to be subjected,

any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress ... .

Thus, to state a claim for relief under § 1983, a plaintiff must

allege, first, the violation of a right secured by the

Constitution or laws of the United States and, second, that the

alleged deprivation was committed or caused by a person acting

under color of state law. West v. Atkins, 487 U.S. 42, 48

(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.

1994).

IV. ANALYSIS

In a series of cases beginning with Preiser v. Rodriguez,

411 U.S. 475 (1973), the Supreme Court has analyzed the

intersection of 42 U.S.C. § 1983 and the federal habeas corpus

statute, 28 U.S.C. § 2254. In Preiser, state prisoners who had

been deprived of good-conduct-time credits by the New York State

Department of Correctional Services as a result of disciplinary

proceedings brought a § 1983 action seeking injunctive relief to

compel restoration of the credits, which would have resulted in

their immediate release. 411 U.S. at 476. The prisoners did not

seek compensatory damages for the loss of their credits. 411

U.S. at 494. The Court held that “when a state prisoner is

challenging the very fact or duration of his physical

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imprisonment, and the relief he seeks is a determination that he

is entitled to immediate release or a speedier release from that

imprisonment, his sole federal remedy is a writ of habeas

corpus.” Id. at 500. See also Heck v. Humphrey, 512 U.S. 477

(1994)(prisoner can not challenge the constitutionality of his

conviction in a suit for damages only under § 1983, a form of

relief not available through a habeas corpus proceeding).

In Edwards v. Balisok, 520 U.S. 641 (1997), the Supreme

Court applied the lessons of Preiser and its progeny to a state

prisoner action, seeking compensatory and punitive damages,

challenging the constitutionality of procedures used in a prison

disciplinary proceeding that resulted in the loss of good-time

credits, but not necessarily challenging the result and not

seeking the restoration of the good-time credits. Again, the

Court emphasized that such a claim is not cognizable under § 1983

if a favorable outcome would necessarily imply the invalidity of

the challenged judgment, there the disciplinary finding and

punishment. 520 U.S. at 646–8.

In Wilkinson v. Dotson, 544 U.S. 74 (2005), the Supreme

Court applied these principles to hold that claims challenging

the validity of general parole procedures are cognizable under §

1983, so long as the prisoner does not seek injunctive relief

ordering his immediate or speedier release into the community,

but rather seeks merely a new eligibility review or parole

hearing.

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“Considering Heck [v. Humphrey, 512 U.S. 477 (1994)] and

summarizing the interplay between habeas and § 1983 claims, the

Supreme Court recently explained that, ‘a state prisoner’s § 1983

action is barred (absent prior invalidation)—no matter the relief

sought (damages or equitable relief), no matter the target of the

prisoner’s suit (state conduct leading to conviction or internal

prison proceedings)— if success in that action would necessarily

demonstrate the invalidity of the confinement or its duration.’”

Williams v. Consovoy, 453 F.3d 173, 177 (3d Cir. 2006)(quoting

Wilkinson, 544 U.S. at 81–82)(emphasis in original).

Here, Schimminger plainly seeks his release from the CCCF

and reinstatement in the CSLS Program. He also seeks damages for

the time that he was incarcerated as a result of the revocation

of his participation in the CSLS program (for failure to report

his hospitalization and injury to the court and the CSLS Program

as required. These claims are barred by Preiser and Heck. See,

e.g., Harris v. Milgram, 2010 WL 760584 (D.N.J. Mar. 2,

2010)(Kugler, J .)(“[Plaintiff’s] claim that his parole was

revoked in violation of his constitutional rights is precisely

the type of claim for damages barred by the Preiser/Heck/Balisok

line of cases. A determination that he was deprived of liberty

without due process would necessarily imply the invalidity of the

parole revocation.”). Schimminger cannot obtain the relief he

seeks in a § 1983 action. Further, any claim challenging his

incarceration or seeking his release from jail must be brought as

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a petition for writ of habeas corpus under 28 U.S.C. § 2254

following exhaustion of his state court remedies regarding his

alleged wrongful expulsion from the CSLS Program.

Therefore, this Complaint will be dismissed, without

prejudice, at this time. Alternatively, it would appear that

plaintiff’s claim for release is rendered moot by his release

from jail and his reinstatement in the CSLS Program.

IV. CONCLUSION

For the reasons set forth above, the Complaint will be

dismissed without prejudice, in its entirety, as against all

named defendants, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and

1915A(b)(1), for failure to state a claim upon which relief may

be granted. An appropriate order follows.

s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

Dated: July 19, 2011 

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