NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ROBERT ANDREW MCGARREY, :

: Civil Action No. 11-1123 (FSH)

Plaintiff, :

:

v. : OPINION

:

MR. S. JOHNSON, et al., :

:

Defendants. :

APPEARANCES:

Plaintiff pro se

Robert Andrew McGarrey

#00072

Special Treatment Unit Annex

Adult Diagnostic Treatment Center

T.L.R. #2

30-35 Hackensack Ave., CN - 905

Avenel, NJ 07001

HOCHBERG, District Judge

Plaintiff Robert Andrew McGarrey, seeks to bring this action

in forma pauperis pursuant to 42 U.S.C. § 1983, alleging

violations of his constitutional rights. Based on his affidavit

of indigence, the Court will grant Plaintiff’s application to

proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) and

order the Clerk of the Court to file the Complaint.

At this time, the Court must review the Complaint to

determine whether it should be dismissed as frivolous or

malicious, for failure to state a claim upon which relief may be

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granted, or because it seeks monetary relief from a defendant who

is immune from such relief.

I. BACKGROUND

The following factual allegations are taken from Plaintiff’s

Complaint and are accepted as true for purposes of this review. 

Plaintiff claims that his constitutional rights were violated

when he was put in segregation on January 12, 2011 for alleged

threatening statements. He further states that on January 14,

2011 he was placed on “Map status” and certain privileges were

revoked. The allegedly revoked privileges include privileges

regarding phone (including calls to a lawyer), receipt of

packages, work, entertainment (television, DVDs, game system),

and access to a law library or legal materials. As to the

alleged revocation of privileges, Plaintiff does not allege any

specific instances or frequencies. 

II. STANDARDS FOR A SUA SPONTE DISMISSAL

This Court must dismiss, at the earliest practicable time,

certain in forma pauperis and prisoner actions that are

frivolous, malicious, fail to state a claim, or seek monetary

relief from a defendant who is immune from such relief. See 28

U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C.

§ 1915A (actions in which prisoner seeks redress from a

governmental defendant); 42 U.S.C. § 1997e (prisoner actions

brought with respect to prison conditions).

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In determining the sufficiency of a pro se complaint, the

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

plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); 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

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

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).

In addition, any complaint must comply with the pleading

requirements of the Federal Rules of Civil Procedure.

Rule 8(a)(2) requires that a complaint contain “a short and

plain statement of the claim showing that the pleader is entitled

to relief.” A complaint must plead facts sufficient at least to

“suggest” a basis for liability. Spruill v. Gillis, 372 F.3d

218, 236 n.12 (3d Cir. 2004). “Specific facts are not necessary;

the statement need only ‘give the defendant fair notice of what

the ... claim is and the grounds upon which it rests.’” Erickson

v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).

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While a complaint ... does not need detailed factual

allegations, a plaintiff’s obligation to provide the

“grounds” of his “entitle[ment] to relief” requires

more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will

not do, see Papasan v. Allain, 478 U.S. 265, 286, 106

S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to

dismiss, courts “are not bound to accept as true a

legal conclusion couched as a factual allegation”). 

Factual allegations must be enough to raise a right to

relief above the speculative level ... .

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citations omitted).

The Supreme Court has demonstrated the application of these

general standards to a Sherman Act conspiracy claim.

In applying these general standards to a § 1

[conspiracy] claim, we hold that stating such a claim

requires a complaint with enough factual matter (taken

as true) to suggest that an agreement was made. Asking

for plausible grounds to infer an agreement does not

impose a probability requirement at the pleading stage;

it simply calls for enough fact to raise a reasonable

expectation that discovery will reveal evidence of

illegal agreement. And, of course, a well-pleaded

complaint may proceed even if it strikes a savvy judge

that actual proof of those facts is improbable, and

“that a recovery is very remote and unlikely.” ... It

makes sense to say, therefore, that an allegation of

parallel conduct and a bare assertion of conspiracy

will not suffice. Without more, parallel conduct does

not suggest conspiracy, and a conclusory allegation of

agreement at some unidentified point does not supply

facts adequate to show illegality. Hence, when

allegations of parallel conduct are set out in order to

make a § 1 claim, they must be placed in a context that

raises a suggestion of a preceding agreement, not

merely parallel conduct that could just as well be

independent action.

The need at the pleading stage for allegations

plausibly suggesting (not merely consistent with)

agreement reflects the threshold requirement of Rule

8(a)(2) that the “plain statement” possess enough heft

to “sho[w] that the pleader is entitled to relief.” A

statement of parallel conduct, even conduct consciously

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undertaken, needs some setting suggesting the agreement

necessary to make out a § 1 claim; without that further

circumstance pointing toward a meeting of the minds, an

account of a defendant’s commercial efforts stays in

neutral territory. ...

Twombly, 550 U.S. at 556-57 (citations and footnotes omitted).

The Court of Appeals for the Third Circuit has held, in the

context of a § 1983 civil rights action, that the Twombly

pleading standard applies outside the § 1 antitrust context in

which it was decided. See Phillips v. County of Allegheny, 515

F.3d 224, 234 (3d Cir. 2008) (“we decline at this point to read

Twombly so narrowly as to limit its holding on plausibility to

the antitrust context”).

Context matters in notice pleading. Fair notice under

Rule 8(a)(2) depends on the type of case -- some

complaints will require at least some factual

allegations to make out a “showing that the pleader is

entitled to relief, in order to give the defendant fair

notice of what the ... claim is and the grounds upon

which it rests.” Indeed, taking Twombly and the

Court’s contemporaneous opinion in Erickson v. Pardus,

127 S.Ct. 2197 (2007), together, we understand the

Court to instruct that a situation may arise where, at

some point, the factual detail in a complaint is so

undeveloped that it does not provide a defendant the

type of notice of claim which is contemplated by

Rule 8. Put another way, in light of Twombly, Rule

8(a)(2) requires a “showing” rather than a blanket

assertion of an entitlement to relief. We caution that

without some factual allegation in the complaint, a

claimant cannot satisfy the requirement that he or she

provide not only “fair notice,” but also the “grounds”

on which the claim rests.

Phillips, 515 F.3d at 232 (citations omitted).

More recently, the Supreme Court has emphasized that, when

assessing the sufficiency of any civil complaint, a court must

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distinguish factual contentions -- which allege behavior on the

part of the defendant that, if true, would satisfy one or more

elements of the claim asserted -- and “[t]hreadbare recitals of

the elements of a cause of action, supported by mere conclusory

statements.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). 

Although the Court must assume the veracity of the facts asserted

in the complaint, it is “not bound to accept as true a legal

conclusion couched as a factual allegation.” Id. at 1950. Thus,

“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.” Id.

Therefore, after Iqbal, when presented with a

motion to dismiss for failure to state a claim,

district courts should conduct a two-part analysis. 

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. 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.” 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.’” 

This “plausibility” determination will be “a

context-specific task that requires the reviewing court

to draw on its judicial experience and common sense.”

Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009)

(citations omitted).

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Where a complaint can be remedied by an amendment, a

district court may not dismiss the complaint with prejudice, but

must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34

(1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d

Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane

v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal

pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg

County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).

III. SECTION 1983 ACTIONS

A plaintiff may have a cause of action under 42 U.S.C.

§ 1983 for certain violations of his constitutional rights. 

Section 1983 provides in relevant part:

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).

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IV. ANALYSIS

A. Claims Regarding Placement in Segregated Population

Plaintiff alleges that his due process liberty interest

rights were violated because he was transferred to the Special

Treatment Unit and as a result, he was denied privileges related

to phone, mail, work, and entertainment.

A liberty interest protected by the Due Process Clause may

arise from either of two sources: the Due Process Clause itself

or State law. See Hewitt v. Helms, 459 U.S. 460, 466 (1983);

Asquith v. Department of Corrections, 186 F.3d 407, 409 (3d Cir.

1999).

With respect to convicted and sentenced prisoners, “[a]s

long as the conditions or degree of confinement to which the

prisoner is subjected is within the sentence imposed upon him and

is not otherwise violative of the Constitution, the Due Process

Clause does not in itself subject an inmate’s treatment by prison

authorities to judicial oversight.” Montanye v. Haymes, 427 U.S.

236, 242 (1976), quoted in Hewitt, 459 U.S. at 468 and Sandin v.

Conner, 515 U.S. 472, 480 (1995). 

States, however, may confer on prisoners liberty interests

that are protected by the Due Process Clause. “But these

interests will be generally limited to freedom from restraint

which, while not exceeding the sentence in such an unexpected

manner as to give rise to protection by the Due Process Clause of

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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 (finding that disciplinary

segregation conditions which effectively mirrored those of

administrative segregation and protective custody were not

“atypical and significant hardships” in which a state conceivably

might create liberty interest). See also Asquith, 186 F.3d at

411-12 (return to prison from halfway house did not impose

“atypical and significant hardship” on prisoner and, thus, did

not deprive him of protected liberty interest). In Griffin v.

Vaughn, 112 F.3d 703, 708-09 (3d Cir. 1997), the Court of Appeals

for the Third Circuit held that a 15-month confinement in

administrative custody did not impose “atypical and significant

hardship,” even in the face of state regulation requiring release

to the general population after 20 days in the absence of a

misconduct charge. The Court of Appeals did note, however, that

if an inmate is committed to undesirable conditions for an

atypical period of time in violation of state law, that is a

factor to be considered in determining whether the prisoner has

been subjected to “atypical and significant hardship” triggering

due process protection. Id.

It is well established that a prisoner possesses no liberty

interest arising from the Due Process Clause in a particular

custody level or place of confinement. See, e.g., Olim v

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Wakinekona, 461 U.S. 238, 245-46 (1983); Hewitt, 459 U.S. at 466-

67; Meachum v. Fano, 427 U.S. 215, 224-25 (1976); Montanye, 427

U.S. at 242.

Here, Plaintiff has failed to allege any facts suggesting

that being transferred into the Special Treatment Unit amounted

to “atypical and significant hardship.” Accordingly, Plaintiff

has failed to state a claim for a constitutional violation based

upon his classification.

Plaintiff has alleged denial of phone privileges, though has

cited no specific instances. Inmates have a right protected

under the First Amendment to communicate with their family and

friends by reasonable access to the telephone. Owens-El v.

Robinson, 422 F. Supp 1368, 1386 (W.D. Pa. 1978). It is

established that a prisoner “has no right to unlimited telephone

use.” Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir.

1994)(quoting Benzel v. Grammar, 869 F.2d 1105, 1108 (8th Cir.),

cert. denied, 493 U.S. 895 (1989)). An inmate’s telephone access

is “subject to rational limitations in the face of legitimate

security interests of the penal institution.” Id. (quoting

Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir. 1986)).

Further, Plaintiff has alleged denial of right to call his

lawyer. Inmates’ rights to communicate, even with legal counsel,

are not unlimited. See Aswegan v. Henry, 981 F.2d 313 (8th Cir.

1992). Prison officials can limit communications, particularly

10

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telephone communications, to ensure safety, security, and the

orderly operation of their institution. Griffen-El v. MCI

Telecommunications Corp., 835 F.Supp. 1114, 1122-23 (E.D. Mo.

1993), aff’d, 43 F.3d 1476 (8th Cir. 1994). 

Plaintiff also states that his mail privileges were

restricted, though provided no facts regarding any alleged

restriction. Inmates have a limited liberty interest in their

mail under the First and Fourteenth Amendments; thus, an inmate’s

constitutional right to send and receive mail may be restricted

only for legitimate penological interests. See Thornburgh v.

Abbott, 490 U.S. 401, 407 (1989); Turner v. Safely, 482 U.S. 78,

89 (1987). 

Here, the Court finds no constitutional deprivation related

to alleged denial of certain privileges based on Plaintiff’s

limited and vague assertions regarding the alleged violations. 

Plaintiff has made conclusory statements of liability with no

factual support to meet the pleading threshold as set forth in

Iqbal, 129 S.Ct. At 1949-50. Thus, Plaintiff’s claims must be

dismissed for failure to state a claim. 

B. Claims Regarding Access to Courts

Plaintiff claims that he was denied access to the courts

because he allegedly denied access to a law library or legal

materials. 

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The constitutional right of access to the courts is an

aspect of the First Amendment right to petition the government

for redress of grievances. Bill Johnson’s Restaurants, Inc. v.

NLRB, 461 U.S. 731, 741 (1983). In addition, the constitutional

guarantee of due process of law has as a corollary the

requirement that prisoners be afforded access to the courts in

order to challenge unlawful convictions and to seek redress for

violations of their constitutional rights. Procunier v.

Martinez, 416 U.S. 396, 419 (1974), overruled on other grounds,

Thornburgh v. Abbott, 490 U.S. 401, 413-14 (1989). See also

Peterkin v. Jeffes, 855 F.2d 1021, 1036 n.18 (3d Cir. 1988)

(chronicling various constitutional sources of the right of

access to the courts).

In Bounds v. Smith, 430 U.S. 817, 828 (1977), the Supreme

Court held that “the fundamental constitutional right of access

to the courts requires prison authorities to assist inmates in

the preparation and filing of meaningful legal papers by

providing prisoners with adequate law libraries or adequate

assistance from persons trained in the law.” The right of access

to the courts is not, however, unlimited. “The tools [that

Bounds] requires to be provided are those that the inmates need

in order to attack their sentences, directly or collaterally, and

in order to challenge the conditions of their confinement. 

Impairment of any other litigating capacity is simply one of the

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incidental (and perfectly constitutional) consequences of

conviction and incarceration.” Lewis v. Casey, 518 U.S. 343, 355

(1996) (emphasis in original).

There is no “abstract, freestanding right to a law library

or legal assistance, [and] an inmate cannot establish relevant

actual injury simply by establishing that his prison’s law

library or legal assistance program is subpar in some theoretical

sense. ... [T]he inmate therefore must go one step further and

demonstrate that the alleged shortcomings in the library or legal

assistance program hindered his efforts to pursue a [nonfrivolous] legal claim. He might show, for example, that a

complaint he prepared was dismissed for failure to satisfy some

technical requirement which, because of deficiencies in the

prison’s legal assistance facilities, he could not have known. 

Or that he had suffered arguably actionable harm that he wished

to bring before the courts, but was so stymied by inadequacies of

the law library that he was unable to file even a complaint.” 

Lewis, 518 U.S. at 351.

In describing the scope of services which must be provided

by the state to indigent prisoners, the Supreme Court has stated,

“[i]t is indisputable that indigent inmates must be provided at

state expense with paper and pen to draft legal documents, with

notarial services to authenticate them, and with stamps to mail

them. ... This is not to say that economic factors may not be

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considered, for example, in choosing the methods used to provide

meaningful access. But the cost of protecting a constitutional

right cannot justify its total denial.” Bounds, 430 U.S. at 824-

25, clarified on other grounds, Lewis v. Casey, 518 U.S. 343. 

Thus, “there is no First Amendment right to subsidized mail or

photocopying. [Instead], the inmates must point to evidence of

actual or imminent interference with access to the courts.” 

Reynolds v. Wagner, 128 F.3d 166, 183 (3d Cir. 1997).

Moreover, a prisoner alleging a violation of his right of

access must show that prison officials caused him past or

imminent “actual injury.” See Lewis, 518 U.S. at 348-55 and n.3

(1996); Oliver v. Fauver, 118 F.3d 175, 177-78 (3d Cir. 1997).

Here, Plaintiff claims due process rights violations

stemming from denial of access to a law library or legal

materials but has not alleged the “actual injury” required to

sustain such a claim. Plaintiff does not have an abstract right

to access to a law library and has failed to allege any facts

indicating that his lack of access to a law library has caused

him actual injury with respect to any of the narrow class of

claims protected by the constitutional right of access to courts. 

Accordingly, since Plaintiff has not alleged that he was thwarted

in pursuing a non-frivolous case, he has failed to state a claim

for a constitutional violation based upon denial of access to the

courts.

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V. CONCLUSION

For the reasons set forth above, the Complaint will be

dismissed for failure to state a claim. Because it is 1

conceivable that Plaintiff could file an amended complaint

sufficient to overcome certain deficiencies noted herein, he will

be granted leave to move to reopen. Any such motion must be

accompanied by a proposed amended complaint. An appropriate 2

order follows.

s/ Faith S. Hochberg 

Faith S. Hochberg

United States District Judge

Dated: August 31, 2011 

 The Court notes that “‘[g]enerally, an order which 1

dismisses a complaint without prejudice is neither final nor

appealable because the deficiency may be corrected by the

plaintiff without affecting the cause of action.’ ... The

dispositive inquiry is whether the district court’s order finally

resolved the case.” Martin v. Brown, 63 F.3d 1252, 1257-58 (3d

Cir. 1995) (quoting Borelli v. City of Reading, 532 F.2d 950, 951

(3d Cir. 1976)) (other citations omitted). In this case, if

Plaintiff can correct the deficiencies of his Complaint, he may

file a motion to re-open these claims in accordance with the

court rules.

 Plaintiff should note that when an amended complaint is 2

filed, the original complaint no longer performs any function in

the case and “cannot be utilized to cure defects in the amended

[complaint], unless the relevant portion is specifically

incorporated in the new [complaint].” 6 Wright, Miller & Kane,

Federal Practice and Procedure § 1476 (2d ed. 1990) (footnotes

omitted). An amended complaint may adopt some or all of the

allegations in the original complaint, but the identification of

the particular allegations to be adopted must be clear and

explicit. Id. To avoid confusion, the safer course is to file

an amended complaint that is complete in itself. Id.

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