NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

_______________________________

 :

LIONELL G. MILLER, :

 : Civil Action 

Plaintiff, : 11-0859 (FLW)

 :

v. : O P I N I O N 

 :

MICHELLE R. RICCI, et al., :

 :

Defendants. :

_______________________________:

 

Wolfson, District Judge:

Plaintiff, who appears to be a convicted prisoner currently

confined at the New Jersey State Prison, Trenton, New Jersey,

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 and the absence of three

qualifying dismissals within 28 U.S.C. § 1915(g), the Court will

grant Plaintiff's application to proceed in forma pauperis,

pursuant to 28 U.S.C. § 1915(a), and will order the Clerk 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

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

is immune from such relief.

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I. BACKGROUND

A. Allegations Stated in the Complaint

The facts of Plaintiff’s Complaint are presented in a

narrative detailing the events that took place for a number of

years before they culminated in an altercation of February 24,

2009. See Docket Entry No. 1. 

According to the Complaint, Plaintiff was involved, at one

point in time, with a certain woman who eventually entered in a

relationship with a correctional officer. See id. at 12. Upon

learning of that relationship, Plaintiff ceased his contacts with

this woman. See id. The Complaint alleges that Plaintiff’s

election to cease his contacts with this woman caused animosity

between Plaintiff and the correctional officers employed at the

New Jersey State Prison. See id. According to the Complaint,

the correctional officers began harassing Plaintiff; such

harassment started, seemingly, years before the events of

February 2009. See id.

The Complaint asserts that, as part of their harassment

campaign, correctional officers tried to recruit inmates to

assault Plaintiff. See id. However, since the Complaint is

silent as to any such attacks, the Court presumes that these

officers’ efforts were unsuccessful, and so Plaintiff was not

harmed by any inmate recruited by the officers. See generally,

Docket Entry No. 1. 

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Plaintiff also asserts that, during this alleged multi-year

harassment campaign, Plaintiff’s personal property was stolen or

destroyed by correctional officers, and he was wrongly designated

as a member of the “Bloods Gang,” as a result of which his mail

was systemically detoured to a Newark office in charge of

monitoring gang activities. See id. at 12.

Plaintiff alleges that he submitted an inmate remedy form to

the warden of the New Jersey State Prison, Defendant Ricci,

informing her about the aforesaid acts of harassment, and

Plaintiff’s sister sent numerous letters to Defendant Ricci and

other officials at the New Jersey Department of Corrections 

expressing her concern. See id. at 12-13. According to the

Complaint, Plaintiff’s grievance and his sister’s letters did not

produce a response. See id. The Complaint is silent as to when

Plaintiff submitted his grievance and Plaintiff’s sister sent her

letters, but the context of Plaintiff’s narrative unambiguously

indicates that these events took place long before February 24,

2009.

Plaintiff alleges that, on February 24, 2009, Plaintiff was

first asked to go through the metal detector twice and, later

that day, stopped for a pat-search on his way to the mess hall. 

See id. at 5. According to the Complaint, during this patsearch, Defendant Officer Nagy made a verbal statement, which

Plaintiff found disrespectful and to which Plaintiff replied that

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he did not wish to be talked to by correctional officers. See

id. Plaintiff maintains that his response caused another

Officer, Defendant Fry, to twist Plaintiff’s wrist, and –- right

thereafter –- Plaintiff was pushed to the floor and assaulted by

Officers Fry, Nagy, Perez, Tyson and Wojciechowski, each of whom 

was kicking and beating Plaintiff. See id. at 5-8. According to

the Complaint, as a result of such altercation, Plaintiff’s

forehead and left eye suffered substantial swelling, and his

mouth was “burst open.” See id. at 8. 1

On February 25, 2009, that is, the day following the

altercation, Plaintiff received five disciplinary charges;

Plaintiff asserts that he was charged with assaulting the

Officers, refusing to submit to a pat-search and acting in a

disruptive manner. See id. at 9. According to the Complaint,

Plaintiff’s disciplinary hearing was initially scheduled for

February 27, 2009, but then was postponed. See id. During this

postponement period, Plaintiff requested to view the surveillance

tape, which request was granted. See id. at 9-10. 

Plaintiff further asserts that, on March 5, 2009, he was

transferred from the New Jersey State Prison to the East Jersey

State prison, where he was housed in a segregated unit. See id.

at 10. On March 10, 2009, Plaintiff was, allegedly, informed

 The Court is not entirely clear as to the meaning of the 1

“burst open” expression. The Court presumes that Plaintiff

intended to assert that his mouth suffered a physical injury.

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that he was sanctioned without any disciplinary hearing; the

sanctions imposed included a brief loss of recreational time,

prolonged housing in an administrative segregation unit and loss

of good-conduct credits. See id.

The Complaint further asserts that a paralegal at the New

Jersey State Prison submitted, without Plaintiff’s permission or

knowledge, an appeal as to Plaintiff’s sanctions. See id. at 11. 

That appeal was denied by Superintendent Drumm, who affirmed both

the charges and sanctions imposed. See id. According to the

Complaint, Plaintiff too submitted an appeal; that appeal was not

responded to. See id. at 10-11.

Plaintiff seeks monetary damages from: (a) the Officers

involved in the February 24, 2009, altercation; (b) the officers

who imposed sanctions against Plaintiff; (c) the warden and

Superintendent Drumm. See id. at 14. Plaintiff also requests

transfer to the prison’s general population, restoration of lost

good-conduct credits and declaratory relief. See id. at 14-16. 

As part of his challenges, Plaintiff asserts that administrative

due process was denied to him because he was sanctioned without a

hearing. 

B. State Court’s Determination

Plaintiff appealed the alleged denial of administrative due

process to the state courts. His claims were denied at both the

Law Division and Appellate Division levels, and the Supreme Court

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of New Jersey denied him certification. See Miller v. NJ Dep’t

of Corrections, 203 N.J. 606 (2010). 

Describing Plaintiff’s challenges, the Appellate Division

also listed the following facts revealed during Plaintiff’s state

proceedings:

[Plaintiff] appeals . . . a hearing officer's finding that

he committed . . . two acts of assault, . . . refusal to

submit to a search, . . . and conduct which disrupts or

interferes with security or orderly running of the

correctional facility . . . . [Plaintiff] argues he was

denied his rights of due process. . . . On February 24,

2009, [Plaintiff] was housed at Trenton State Prison. While

moving from the prison's rotunda area to the mess hall, . .

. Officer . . . Perez pulled [Plaintiff] from the line and

requested him to produce his identification card. According

to [Plaintiff], Perez had pulled him from line earlier that

same morning. [Plaintiff] was then told to keep his hands

raised while Perez performed a pat search. When Perez

started the pat down, [Plaintiff] dropped his hands and

began arguing with him. [Officer] Fry came to Perez's

assistance. When Fry observed [Plaintiff]’s hands going

into his pockets, he grabbed [Plaintiff’s] left hand and

ordered him to place his hands behind his back. [Plaintiff]

refused, said “fuck you,” and stood in a fighting position. 

[Plaintiff] then punched Fry in the head and struck Perez. 

[Plaintiff] resisted the efforts of several [Officers] to

subdue him. During this struggle, [Plaintiff] also punched

[Officer] Nagy in the face. Finally, [Plaintiff] was pushed

to the ground and placed in handcuffs and leg irons. 

[Plaintiff’s] conduct caused the initiation of an emergency,

Code *33. All institutional personnel were required to stop

until [Plaintiff] was subdued. Once order was restored,

[Officers] Perez, Nagy and Fry reported to the medical

department to assess their injuries. All three were taken

to Robert Wood Johnson Hospital for evaluation and

treatment. The disciplinary review hearing began on

February 27, 2009. [Plaintiff] pled not guilty. His request

for counsel substitute was granted. He was then granted an

adjournment to review the surveillance video, provided to

him that day. [Plaintiff] objected, as the video did not

include “Perez harassing him” earlier that morning. A

different hearing officer resumed the hearing on March 2,

2009. After considering all the testimonial and documentary

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evidence submitted, the hearing officer found [Plaintiff]

guilty of all infractions and recommended [such] sanctions

[as] fifteen days detention, . . . 365 days loss of

commutation time, 365 days of administrative segregation and

thirty-eight days loss of recreation privileges [etc.] On

March 5, 2009, [Plaintiff] was transferred to the

administrative segregation unit of East Jersey State prison. 

He maintains he was never informed of the March 2 hearing. 

[Plaintiff] filed an institutional appeal from the hearing

officer's adverse decision. On March 13, 2009, Assistant

Superintendent J. Drumm upheld the hearing officer's

determination and sanctions. 

. . . 

[Plaintiff’s] multifaceted argument suggests he was not

provided a written statement of the charges against him, was

not permitted to attend the hearing, and did not request the

counsel substitute who appeared on his behalf at the final

hearing. Further, he suggests his review of the video was

inconclusive as to the charges as it does not show him

dropping his hands or placing them in his pockets, and that

there is no evidence of assault, yet he was found guilty of

assaulting two [Officers] although three submitted reports. 

[Plaintiff] asserts he has been a target of harassment and

retaliation by the [Officers] since 2006. We reject

[Plaintiff’s] suggestion that documents obtained following

the hearing, if considered, would have proven he was a

victim of harassment. This issue may not be raised for the

first time on appeal, and otherwise, the claim lacks merit. 

. . . Regarding [Plaintiff’s] procedural due process

challenges, we agree these proceedings must afford prisoners

certain procedural due process rights, including written

notice of the charges twenty-four hours before the hearing,

an impartial tribunal, a limited right to call witnesses,

present documentary evidence and to confront and

cross-examine witnesses where necessary for an adequate

presentation of the evidence, and a written statement of the

evidence relied upon and the reasons for the sanctions

imposed. However, contrary to [Plaintiff’s] suggestion,

prison disciplinary proceedings are not part of a criminal

prosecution and thus the full panoply of rights due a

defendant in such a proceeding does not apply. The record

reflects [Plaintiff] received notice of the charges, was

granted counsel substitute and provided a review of the

evidence, including the various reports and the videotape. 

In fact, the final report concurs with counsel substitute's

position that the video alone is inconclusive of the assault

charges. Together, [Plaintiff] and his counsel substitute

reviewed the videotape. During the final hearing, counsel

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substitute appeared and offered [Plaintiff’s] defense. No

witnesses were called and [Plaintiff] declined to confront

the DOC's witnesses. Contrary to [Plaintiff’s] contention,

his counsel substitute prepared and presented his defense

after consultation and review of all the records considered

by the hearing officer. Finally, the hearing officer

provided a detailed statement of reasons based upon the

evidence reviewed. Following our review of the record, we

conclude the adjudication of the infractions was supported

by substantial credible evidence. We also conclude that the

disciplinary proceedings were conducted in accordance with

all applicable due process requirements. [Plaintiff’s]

argument that he was deprived of his due process rights are

belied by the record, and the DOC's decision was not

arbitrary, capricious, or unreasonable. 

Miller v. NJ Dep’t of Corrections, 2010 WL 1929827 (N.J. Super.

Ct. App. Div., May 07, 2010) (citations and quotation marks

omitted).

II. STANDARD OF REVIEW

 In determining the sufficiency of a complaint, the Court

must be mindful to construe the facts stated in the complaint

liberally in favor of the plaintiff. See Erickson v. Pardus, 551

U.S. 89 (2007); Haines v. Kerner, 404 U.S. 519 (1972); United

States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). Indeed, it is

long established that a court should “accept as true all of the

[factual] allegations in the complaint and 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). However, while a court will

accept well-pled allegations as true, it will not accept bald

assertions, unsupported conclusions, unwarranted inferences, or

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sweeping legal conclusions cast in the form of factual

allegations. See id. 

Addressing the clarifications as to the litigant's pleading

requirement stated in the United States Supreme Court in Bell

Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the Court of Appeals

for the Third Circuit provided the courts in this Circuit with

detailed and careful guidance as to what kind of allegations

qualify as pleadings sufficient to pass muster under the Rule 8

standard. See Phillips v. County of Allegheny, 515 F.3d 224,

230-34 (3d Cir. 2008). Specifically, the Court of Appeals

observed as follows:

“While a complaint . . . does not need detailed

factual allegations, a plaintiff's obligation [is] to

provide the 'grounds' of his 'entitle[ment] to relief'

[by stating] more than labels and conclusions, and a

formulaic recitation of the elements of a cause of

action . . . ." Twombly, 127 S. Ct. at 1964-65 . . .

Rule 8 “requires a 'showing,' rather than a blanket

assertion, of entitlement to relief." Id. at 1965

n.3. . . . “[T]he threshold requirement of Rule

8(a)(2) [is] that the 'plain statement [must] possess

enough heft to 'sho[w] that the pleader is entitled to

relief.'" Id. at 1966. [Hence] “factual allegations

must be enough to raise a right to relief above the

speculative level.” Id. at 1965 & n.3. . . . [Indeed,

it is not] sufficient to allege mere elements of a

cause of action; instead “a complaint must allege

facts suggestive of the proscribed conduct." Id.

Id. at 230-34 (original brackets removed). 

This pleading standard was further refined by the United

States Supreme Court in Ashcroft v. Iqbal, 129 S. Ct. 1937

(2009), where the Court observed:

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[In any civil action, t]he pleading standard . . .

demands more than an unadorned [“]the-defendantunlawfully-harmed-me[”] accusation. [Twombly, 550

U.S.] at 555 . . . . A pleading that offers “labels

and conclusions” or “a formulaic recitation of the

elements of a cause of action will not do.” [Id.] at

555. Nor does a complaint suffice if it tenders

“naked assertion[s]” devoid of “further factual

enhancement." Id. at 557. . . . A claim has facial

plausibility [only] when the plaintiff pleads factual

content . . . . Id. at 556. [Moreover,] the

plausibility standard . . . asks for more than a sheer

possibility that a defendant has acted unlawfully. 

Id. [Indeed, even w]here a complaint pleads facts that

are “merely consistent with” a defendant's liability,

[the so-alleging complaint still] “stops short of

[showing] plausibility of 'entitlement to relief.'” 

Id. at 557 (brackets omitted). [A fortiori,] the tenet

that a court must accept as true all of the

allegations contained in a complaint is inapplicable

to legal conclusions [or to t]hreadbare recitals of

the elements of a cause of action, supported by mere

conclusory statements [,i.e., by] legal conclusion[s]

couched as a factual allegation [e.g.,] the

plaintiffs' assertion of an unlawful agreement [or]

that [defendants] adopted a policy “'because of,' not

merely 'in spite of,' its adverse effects upon an

identifiable group.” . . . . [W]e do not reject these

bald allegations on the ground that they are

unrealistic or nonsensical. . . . It is the

conclusory nature of [these] allegations, rather than

their extravagantly fanciful nature, that disentitles

them to the presumption of truth. . . . [Finally,] the

question [of sufficiency of] pleadings does not turn .

. . the discovery process. Twombly, 550 U.S.] at 559

. . . . [The plaintiff] is not entitled to discovery

[where the complaint alleges any of the elements]

“generally," [i.e., as] a conclusory allegation

[since] Rule 8 does not [allow] pleading the bare

elements of [the] cause of action [and] affix[ing] the

label “general allegation" [in hope to develop facts

through discovery].

Iqbal, 129 S. Ct. at 1949-54.

III. SECTION 1983 ACTIONS

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

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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. See West v. Atkins, 487 U.S. 42, 48

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

1994).

IV. DISCUSSION

A. Rooker-Feldman Doctrine

“The Rooker-Feldman doctrine deprives a federal district

court of jurisdiction to review, directly or indirectly, a state

court adjudication.” Judge v. Canada, 208 Fed. App’x 106, 107

(3d Cir. 2006) (citing D.C. Court of Appeals v. Feldman, 460 U.S.

462 (1983), and Rooker v. Fidelity Trust Co., 263 U.S. 413

(1923)). This doctrine even precludes federal courts from

evaluating “constitutional claims that are inextricably

intertwined with the state court's decision in a judicial

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proceeding.” FOCUS v. Allegheny County Court of Common Pleas, 75

F.3d 834, 840 (3d Cir. 1996) (internal quotations omitted). 

A federal claim is “inextricably intertwined” with a state

court's decision if the “claim succeeds only to the extent that 

the state court wrongly decided the issues before it. In other

words, Rooker-Feldman precludes a federal action if the relief

requested in the federal action would effectively reverse the

state decision or void its ruling.” Id. (quoting Charchenko v.

City of Stillwater, 47 F.3d 981, 983 (8th Cir. 1995)). The

Rooker-Feldman doctrine applies when a plaintiff seeks relief

that would require the federal court to determine that the state

court judgment was erroneously entered or must take action that

would render that judgment ineffectual. See Gulla v. North

Strabane Twp., 146 F.3d 168, 172 (3d Cir. 1998); see also Exxon

Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 291-92

(2005) (explaining that 28 U.S.C. § 1257 has long been

interpreted as vesting authority to review a state court's

judgment solely in the Supreme Court).

B. Plaintiff’s Claims Subject to Sua Sponte Dismissal

1. Claims Associated with Disciplinary Proceedings

a. Due Process Challenges

Here, Plaintiff raises due process challenges to his

disciplinary proceedings. However, under the Rooker-Feldman

doctrine, this Court is without jurisdiction to address these

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challenges in light of the state courts’ adjudication of that

claim on merits. Correspondingly, the Court is constrained to

dismiss these challenges for lack of jurisdiction.

b. Claims Based on Loss-of-Recreation Sanction

Moreover, under the Rooker-Feldman doctrine, this Court is

without jurisdiction to address Plaintiff’s challenges based on

temporary loss of recreation privileges, since these challenges,

too, were adjudicated on the merits by the state courts.

Alternatively, to the degree these challenges could be

construed as a broader claim that any denial of recreation 

sanction is per se unconstitutional, Plaintiff’s allegations are

also subject to dismissal, on the grounds of failure to state a

claim upon which relief can be granted. 

Plaintiff has a protected right in being incarcerated at a

place of confinement conforming to the standards set forth by the

Eighth Amendment. The Constitution “does not mandate comfortable

prisons,” Rhodes v. Chapman, 452 U.S. 337, 349 (1981), but

neither does it permit inhumane ones, and it is now settled 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 (1993). 

In its prohibition of “cruel and unusual punishments, the Eighth

Amendment . . . imposes duties on prison officials, who must

provide humane conditions of confinement.” Hudson v. Palmer, 468

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U.S. 517, 526-527 (1984); see also Helling, 509 U.S. at 31-32;

Washington v. Harper, 494 U.S. 210, 225 (1990); Estelle v.

Gamble, 429 U.S. 97, 103 (1976). The Eighth Amendment prohibits

conditions which involve the unnecessary and wanton infliction of

pain or are grossly disproportionate to the severity of the crime

warranting imprisonment. See Rhodes, 452 U.S. at 346, 347. The

cruel and unusual punishment standard is not static, but is

measured by “the evolving standards of decency that mark the

progress of a maturing society.” Id. at 346 (quoting Trop v.

Dulles, 356 U.S. 86, 101 (1958)).

However, claims based on insufficient recreation may survive

sua sponte dismissal only if the inmate asserts facts showing

that denial of recreation was such that it actually caused injury

to the inmate's ability to control his/her muscular functions or

maintain his/her range of physical motions. See Cary v. Rose,

902 F.2d 37 (7th Cir. 1990) (where detainees alleged that they

were denied adequate exercise and recreation but admitted that

they had room in their cells and in the hallway to run in place

or perform calisthenics, their allegations could not amount to a

constitutional claim because, unless extreme, lack of exercise

could not be equated to a medically-threatening situation); see

also Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996)

(affirming dismissal of detainee's claims because “[l]ack of

exercise may rise to a constitutional violation in extreme and

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prolonged situations where movement is denied to the point that

the inmate's health is threatened”); Ellis v. Crowe, 2009 U.S.

Dist. LEXIS 125154, at *36 (E.D. La. Dec. 18, 2009) (detainee's

claim should be dismissed if the facts he alleges do not show

that he was so deprived of recreation for a significant time

period to suffer a physical injury, such as muscle atrophy or

loss of range of motion, as a result of the alleged limitations

on exercise). 

Here, Plaintiff’s Complaint asserts no facts suggesting that

Plaintiff suffered a physical injury as a result of loss of

recreational time. Rather, the Complaint reflects only

Plaintiff’s disappointment with the loss of pleasure he was/is

deriving from recreational activities. Such pleasure, however,

is not a constitutionally protected right. Therefore,

Plaintiff’s challenges based on temporary loss of recreational

time is subject to dismissal with prejudice. 

c. Claims Based on Loss-of-Credit Sanction 

Federal law provides two avenues of relief to prisoners: a

petition for habeas corpus and a civil rights complaint. See

Muhammad v. Close, 540 U.S. 749, 750 (2004). “Challenges to the

validity of any confinement or to particulars affecting its

duration are the province of habeas corpus . . . [while] requests

for relief turning on circumstances of confinement [fall within

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the realm of] a § 1983 action.” Id. The Court of Appeals for 2

the Third Circuit explained the distinction between the

availability of civil rights relief and the availability of

habeas relief as follows:

[W]henever the challenge ultimately attacks the "core of

habeas" - the validity of the continued conviction or the

fact or length of the sentence - a challenge, however

denominated and regardless of the relief sought, must be

brought by way of a habeas corpus petition. Conversely, when

the challenge is to a condition of confinement such that a

finding in plaintiff's favor would not alter his sentence or

undo his conviction, an action under § 1983 is appropriate.

Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002).

Therefore, a prisoner could be entitled to a writ of habeas

corpus if he “seek[s] to invalidate the duration of [his]

confinement - either directly through an injunction compelling 

speedier release or indirectly through a judicial determination

that necessarily implies the unlawfulness of the [government's]

custody.” See Wilkinson v. Dotson, 544 U.S. 74, 81 (2005). In

contrast, if a judgment in the prisoner's favor would not affect

 In a series of cases beginning with Preiser v. Rodriguez, 2

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

of civil rights and habeas corpus. In Preiser, state prisoners,

who had lost 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 or speedier release. See id. at 476. The

prisoners did not seek compensatory damages for the loss of their

credits. See id. at 494. Assessing the prisoners' challenge,

the Supreme Court held that a prisoner must bring a suit for

equitable relief that, effectively, challenges “the fact or

duration of confinement” as a habeas corpus petition. See id. at

500.

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the fact or duration of the prisoner's incarceration, habeas

relief is unavailable and a civil complaint is the appropriate

form of remedy. See, e.g., Ganim v. Federal Bureau of Prisons,

235 Fed. App’x 882 (3rd Cir. 2007) (holding that district court

lacks habeas jurisdiction to entertain prisoner's challenge to

his transfer between federal prisons); Bronson v. Demming, 56

Fed. App’x 551, 553-54 (3rd Cir. 2002) (habeas relief is

unavailable to inmate seeking release from disciplinary

segregation to general population).

Here, the closing lines in the Complaint indicate that

Plaintiff might be interested in seeking restoration of his lost

good-conduct credit. Construed as a habeas claim, these

challenges are not barred by the Rooker-Feldman doctrine: “[t]he

writ of habeas corpus is a major exception to the doctrine of res

judicata, as it allows relitigation of a final state-court

judgment disposing of precisely the same claim.” Lehman v.

Lycoming County Children's Services Agency, 458 U.S. 502, 512

(1982). However, so construed, these challenges are subject to

dismissal in this action for lack of jurisdiction; such dismissal

will be without prejudice to Plaintiff raising these claims in a

habeas matter.3

 No statement made in this Opinion or in the Order filed 3

herewith shall be construed as expressing this Court’s position

as to substantive or procedural validity or invalidity of such

Plaintiff’s habeas action, if such action is commenced. 

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2. Claims Based on Housing Arrangements

In addition to his claims associated with disciplinary

proceedings, Plaintiff also asserts challenges based on his 

transfer from the New Jersey State Prison to the East Jersey

State Prison, and also based on him being housed in a segregated

unit rather than within the prison’s general population.

Plaintiff, however, has no due process right in choosing the

geographical locale or even the unit of his confinement. See,

e.g., Olim v. Wakinekona, 461 U.S. 238, 245-46 (1983) (inmates

have no due process right to choose their specific place of

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

(same); Acevedo v. CFG Health Sys. Staff, 2010 U.S. Dist. LEXIS

120136, at *22 (D.N.J. Nov. 12, 2010) (“Plaintiff has no due

process right in being housed at the unit . . . of his choice”)’

see also Sandin v. Conner, 515 U.S. 472 (1995) (placing an inmate

in a solitary confinement does not, generally, constitute a

significant, gross departure from the normal prison environment). 

Thus, this line of Plaintiff’s challenges is facially without

merit and will be dismissed with prejudice for failure to state a

claim upon which relief can be granted. 

3. Claims Based on Lack of Response to Grievance

Plaintiff also asserts challenges based on the warden’s lack

of response to Plaintiff’s grievance and on the lack of responses

to the letters Plaintiff’s sister sent to the Department of

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Corrections officials.

However, the Fourteenth Amendment does not guarantee inmates

a right to an investigation or a response from prison officials

as to administrative grievances (or to any replies by prison

officials to inmates' other complaints or demands of a grievance

nature). See, e.g., Wilson v. Horn, 971 F. Supp. 943, 947 (E.D.

Pa. 1997), aff'd, 142 F.3d 430 (3d Cir. 1998); McGuire v. Forr,

1996 U.S. Dist. LEXIS 3418 at *2, n.1 (E.D. Pa. Mar. 21, 1996),

aff'd, 101 F.3d 691 (3d Cir. 1996); see also Adams v. Rice, 40

F.3d 72, 75 (4th Cir. 1994), cert. denied, 514 U.S. 1022 (1995);

Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991); Mann v. Adams,

855 F.2d 639, 640 (9th Cir. 1988); Brown v. G. P. Dodson, 863 F.

Supp. 284, 285 (W.D. Va. 1994). Furthermore, if construed as a

First Amendment allegation -- rather than a Fourteenth Amendment

one -- an assertion that an official failed to respond to an

inmate's grievance fails to state a cognizable claim. See

Minnesota State Bd. for Community Colleges v. Knight, 465 U.S.

271, 285 (1984). “Nothing in the First Amendment or in . . . case

law interpreting it suggests that the rights to speak, associate,

and petition require government policymakers to listen or respond

to individuals communications.” Id.; see also Foraker v.

Chaffinch, 501 F.3d 231, 237 (3d Cir. 2007) (pointing out that

the courts “have never held . . . that a report of a . . .

misconduct . . . constitutes 'petitioning activity'” and citing

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Hill v. Borough of Kutztown, 455 F.3d 225, 230-32 (3d Cir.

2006)); Bieregu v. Reno, 59 F.3d 1445, 1453 n.3 (3d Cir. 1995)

(noting that, “at the founding, the Petition Clause also implied

a congressional duty to respond . . . . In the Civil War era,

however, Congress enacted rules abolishing the duty to respond, a

change later sanctioned by the Supreme Court,” and citing, inter

alia, Smith v. Arkansas State Highway Employees, 441 U.S. 463,

465 (1979) (per curiam) (constitution does not require government

“to listen or to respond” to citizen petition), and Minnesota

State Bd.). 

Plaintiff’s allegations that the Department of Corrections

officials failed to respond to Plaintiff’s sister are, too,

subject to dismissal: on the aforesaid First Amendment grounds

or, alternatively, in light of Plaintiff’s lack of standing to

raise these challenges on behalf of his sister. See Whitmore v.

Arkansas, 495 U.S. 149, 154-64 (1990) (detailing the test for jus

tertii representation, one element of which is the injured

party’s lack of capacity to bring his/her own challenges).

Therefore, Plaintiff’s challenges based on lack of responses

from prison/Department of Corrections officials will be dismissed

with prejudice. 

4. Claims Associated with Plaintiff’s Grievance 

Two of Plaintiff’s claims are indirectly associated with

Plaintiff’s filing his grievance. One of this claims asserts

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that the warden is liable to Plaintiff because she failed to

prevent the altercation between Plaintiff and the Officers on

February 24, 2009. Another claim asserts that the February 24,

2009 incident was a result of the Officer’s retaliation for

Plaintiff’s filing of the grievance. None of these claims,

however, can survives sua sponte review.

a. Failure-to-Protect Claim

Prison officials have a duty to protect prisoners from

violence at the hands of others. See Farmer v. Brennan, 511 U.S.

825, 833 (1994). Prison officials and employees may be liable

for failure to protect an inmate from the use of excessive force

if they are deliberately indifferent to a substantial risk of

serious harm to the inmate. See id. at 834. To plead an Eighth

Amendment failure to protect claim a plaintiff must plead facts

raising a plausible inference of: (1) a substantial risk of

serious harm; (2) the defendants' deliberate indifference to that

particular risk of harm; and (3) causation. See Hamilton v.

Leavy, 117 F.3d 742, 747 (3d Cir. 1997); see also Beers-Capitol,

256 F.3d at 134 (citing Sample v. Diecks, 885 F.2d 1099, 1118 (3d

Cir. 1989), for the proposition that “to make out a claim of

deliberate indifference based on direct liability (i.e., insofar

as the defendants are alleged to have known of and ignored the

particular risk that [was] posed, the plaintiffs must meet the

test from Farmer v. Brennan: They must show that the defendants

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knew or were aware of and disregarded an excessive risk to the

plaintiffs' health or safety, and they can show this by

establishing that the risk was obvious”).

Here, Plaintiff indicates that: (a) for many years prior to

the February 2009 events, prison officers were systemically

harassing him by non-violent actions, such as causing Plaintiff’s

mail to be detoured to Newark and/or by damaging Plaintiff’s

property; and (b) during these years, Plaintiff once wrote a

grievance about that form of harassment to the warden. In light

of these allegations, the Court has no basis to conclude that the

content of Plaintiff’s alleged grievance could apprise the warden

about the danger of Plaintiff having a physical altercation with

the Officers on February 24, 2009. Therefore, the warden could

not have been deliberately indifferent to the risk of such

altercation, and Plaintiff’s failure-to-protect challenges have

to be dismissed for failure to state a claim for which relief can

be granted.

b. Retaliation Claim

Plaintiff’s retaliation claim is also subject to dismissal. 

To prevail on a retaliation claim, a plaintiff must

demonstrate that: (1) he engaged in constitutionally-protected

activity; (2) he suffered, at the hands of a state actor, adverse

action “sufficient to deter a person of ordinary firmness from

exercising his [constitutional] rights;” and (3) the protected

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activity was a substantial or motivating factor in the state

actor's decision to take adverse action. See Rauser v. Horn, 241

F.3d 330 (3d Cir. 2001); Anderson v. Davila, 125 F.3d 148, 160

(3d Cir. 1997) (citing Mt. Healthy City Sch. Dist. Bd. of Educ.

v. Doyle, 429 U.S. 274 (1977)).

Here, Plaintiff conflates two qualitatively different

activities. One such activity is Plaintiff’s personal

involvement with a certain woman; that activity seemingly ended

long before the February 24, 2009, events, i.e., when the prison

officers began harassing Plaintiff in retaliation for Plaintiff’s

decision to cease contacts with this woman. However, befriending

or being romantically involved with someone, or breaking up such

a relationship is not a constitutionally protected activity upon

which a retaliation claim could be based.

Alternatively, Plaintiff asserts that the February 24, 2009,

altercation was a result of the Officers’ retaliation against

Plaintiff for filing, long ago, a grievance which the warden. 

However, if Plaintiff is asserting that his personal romantic

affairs resulted in a steady animosity between him and the

Officers, and that animosity long preceded Plaintiff’s filing of

his grievance and sustained unchanged long after such filing,

Plaintiff cannot establish causation between the incident that

took place in the afternoon of February 24, 2009, and his

protected activity in the form of filing a grievance long before

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the altercation. Therefore, Plaintiff’s retaliation challenges

will be dismissed for failure to state a claim upon which relief

can be granted. 

5. Other Time-Barred Claims 

In addition to the above-discussed challenges, Plaintiff’s

Complaint also lists numerous other claims based on such events

as the Officers’ unsuccessful efforts to recruit other inmates to

assault Plaintiff, the Officer’s expropriation or destruction of

Plaintiff’s personal property, etc. However, these challenges

are without merit and, in addition, they are time-barred. 4

 Claims based on a hypothetical injury from other inmates 4

that could but did not happened are not actionable, see, e.g.,

Dawson v. Frias, 2010 U.S. Dist. LEXIS 30513 at *8 (D.N.J. Mar.

30, 2010) (“speculation as to what might or might not happen in

the future” cannot serve as a basis for a valid claim) (citing

Rouse v. Pauliilo, 2006 U.S. Dist. LEXIS 17225 (D.N.J. Apr. 5,

2006) (dismissing speculative claim and citing Kirby v.

Siegelman, 195 F.3d 1285 (11th Cir. 1999)); Pilkey v. Lappin,

2006 U.S. Dist. LEXIS 44418, at *45 (D.N.J. June 26, 2006)

(“Plaintiff's [anxiety paraphrased as his claim of] fail[s] to

state a claim upon which relief may be granted”); Patterson v.

Lilley, 2003 U.S. Dist. LEXIS 11097 (S.D.N.Y. June 20, 2003)

(defendants could only be found indifferent to an existing

condition, not to a speculative future injury)), just as any

claim based on alleged injuries to the inmate’s personal property

is bared by the New Jersey Tort Claim Act. The New Jersey Tort

Claims Act (“NJTCA”), N.J. Stat. Ann. § 59:1-1 et seq., provides

all the process that is due, since it provides an adequate

post-deprivation judicial remedy to persons, including inmates

such as Plaintiff, who believe they were wrongfully deprived of

property at the hands of prison officials. See Holman v. Hilton,

712 F.2d 854, 857 (3d Cir. 1983); Asquith v. Volunteers of

America, 1 F. Supp.2d 405, 419 (D.N.J. 1998), aff'd 186 F.3d 407

(3d Cir. 1999). Because the NJTCA is an available remedy

providing all the process which is due, Plaintiff's due process

claim regarding confiscation of –- or injuries to –- his property

is subject to dismissal with prejudice. See id.

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For purposes of the statute of limitations, Section 1983

claims are characterized as personal injury actions. See Wilson

v. Garcia, 471 U.S. 261, 275 (1983). Accordingly, New Jersey's

two-year limitations period on personal injury actions, N.J.

Stat. Ann. § 2A:14-2, governs Plaintiff's claims. See Montgomery

v. DeSimone, 159 F.3d 120, 126 & n.4 (3d Cir. 1998); Cito v.

Bridgewater Township Police Dept., 892 F.2d 23, 25 (3d Cir.

1989). Under N.J. Stat. Ann. § 2A:14-2, an action for an injury

to the person caused by a wrongful act, neglect, or default must

be commenced within two years of accrual of the cause of action. 

See Cito, 892 F.2d at 25; accord Brown v. Foley, 810 F.2d 55, 56

(3d Cir. 1987). 

“[A] federal cause of action accrues when the plaintiff

discovers, or with due diligence should have discovered, the

injury that forms the basis for the claim.” Disabled in Action

of Pennsylvania v. Southeastern Pennsylvania Transp. Authority,

539 F.3d 199, 209 (3d Cir. 2008).

Here, Plaintiff’s altercation with the Officers occurred on

February 24, 2009, while the alleged harassment activities took

place many months or even years prior. Moreover, Plaintiff’s

Complaint was received on February 15, 2011, and –- being signed

on February 9, 2011 -- could not have been handed to Plaintiff’s

prison officials for mailing to the Court prior to that February

9, 2011, date. In other words, Plaintiff’s Complaint was

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submitted within two weeks of Plaintiff’s period of limitation

running out for the purposes of challenging the events of

February 24, 2009. That, in turn, means that all Plaintiff’s

claims based on the events that took place prior to February 9,

2009, are time-barred. Granted Plaintiff’s extensive

administrative challenges and challenges in the state courts

during the years 2009 and 2010, Plaintiff’s claims based on the

events that took place before February 9, 2009, cannot be subject

to equitable tolling. Therefore, all Plaintiff’s claims based 5

 When the statute of limitations defense is obvious from 5

the face of the complaint and no development of the factual

record is required to determine whether dismissal is appropriate,

sua sponte dismissal under 28 U.S.C. § 1915 is permissible. See

Smith v. Delaware Cnty. Court, 260 Fed. App'x 454, 455 (3d Cir.

Jan. 10, 2008). “Equitable tolling functions to stop the statute

of limitations from running where the claim's accrual date has

already passed.” Oshiver v. Levin, 38 F.3d 1380, 1387 (3d Cir.

1994). “Generally, a litigant seeking equitable tolling bears

the burden of establishing two elements: (1) that he has been

pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S.

408, 125 S. Ct. 1807, 1814, 161 L. Ed. 2d 669 (2005). The Third

Circuit instructs that equitable tolling is appropriate when “a

[plaintiff] faces extraordinary circumstances that prevent him

from filing a timely [complaint] and the [plaintiff] has

exercised reasonable diligence in attempting to investigate and

bring his claims.” LaCava v. Kyler, 398 F.3d 271, 275-276 (3d

Cir. 2005). Mere excusable neglect is not sufficient. See id.;

Merritt v. Blaine, 326 F.3d 157, 168 (3d Cir. 2003); Jones v.

Morton, 195 F.3d 153, 159 (3d Cir. 1999). Extraordinary

circumstances have been found where: (1) the defendant has

actively misled the plaintiff; (2) the plaintiff has in some

extraordinary way been prevented from asserting his rights; (3)

the plaintiff has timely asserted his rights mistakenly in the

wrong forum, or (4) the court has misled a party regarding the

steps that the party needs to take to preserve a claim. See id.;

see also Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005).

Here, Plaintiff's extensive administrative challenges and state

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on the alleged harassment actions by correctional officers are

subject to dismissal, as untimely.

6. Excessive Force Claim

There is, however, one claim in the Complaint that is

neither time-barred nor facially meritless, nor subject to the

bar posed by the Rooker-Feldman doctrine. That claim is composed

of Plaintiff’s allegations that, during his February 24, 2009,

altercation with the Officers, Plaintiff was subjected to

excessive force.

The landmark Supreme Court case in the Eighth Amendment

excessive force area is Hudson v. McMillian, 503 U.S. 1 (1992). 

The Hudson Court held that “whenever prison officials stand

accused of using excessive physical force in violation of the

Cruel and Unusual Punishments Clause, the core judicial inquiry

is that set out in Whitley [475 U.S. 312 (1986)]: whether force

was applied in a good-faith effort to maintain or restore

discipline, or maliciously and sadistically to cause harm.” Id.

at 6-7. In doing so, the Court jettisoned the traditional

objective prong inquiry for establishing an Eighth Amendment

claim. See id. at 22-23 (“In the context of claims alleging the

excessive use of physical force, the Court then asserts, the

serious deprivation requirement is satisfied by no serious

actions indicate that Plaintiff experienced no extraordinary

circumstances warranting a consideration of equitable tolling.

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deprivation at all. When prison officials maliciously and

sadistically use force to cause harm, contemporary standards of

decency always are violated. . . . Ascertaining prison

officials' state of mind, in other words, is the only relevant

inquiry in deciding whether such cases involve cruel and unusual

punishment. . . . The sum and substance of an Eighth Amendment

violation, the Court asserts, is the unnecessary and wanton

infliction of pain. This formulation has the advantage, from the

Court's perspective, of eliminating the objective component”)

(citations and quotation marks omitted); Brooks v. Kyler, 204

F.3d 102, 108 (3d Cir. 2000) (“In Hudson, the Court distinguished

between prisoner conditions-of-confinement . . . claims, on the

one hand, and wanton use of unnecessary force claims on the

other. Although the former kind of claim cannot survive without

evidence that a deprivation was 'harmful enough' . . ., the

latter kind of claim has no such requirement”). 

Consequently, under the Eighth Amendment, the Court must

examine, subjectively, “whether force was applied in a good faith

effort to maintain or restore discipline or maliciously and

sadistically for the very purpose of causing harm.” Whitley v. 6

6

It shall be noted that the de minimis use of force, which is

itself not repugnant to human decency, cannot state an Eighth

Amendment claim of excessive force. See, e.g., Hudson, 503 U.S. at

9-10 (“The Eighth Amendment's prohibition of cruel and unusual'

punishments necessarily excludes from constitutional recognition de

minimis uses of physical force, provided that the use of force is

not of a sort ‘repugnant to the conscience of mankind’”) (internal

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Albers, 475 U.S. 312, 320-21, 106 S. Ct. 1078 (1986) (citation

omitted). Here, taking Plaintiff’s allegations as true, this

Court finds that Plaintiff’s Eighth Amendment claim appears

plausible, within the meaning of Iqbal, and should not be

dismissed at the sua sponte screening stage. 

V. CONCLUSION

For the foregoing reasons, the Court will grant Plaintiff's

application to file the Complaint without prepayment of the

filing fee. 

The Court will proceed Plaintiff’s Eighth Amendment

excessive force challenges against Officers Fry, Nagy, Perez,

citation and quotation marks omitted). This is not to say that a

fact-finder at trial will disregard the extent of the injuries

suffered by a plaintiff. As the Supreme Court observed in Hudson:

Under the Whitley approach, the extent of injury suffered by

an inmate is one factor that may suggest “whether the use of

force could plausibly have been thought necessary” in a

particular situation, “or instead evinced such wantonness with

respect to the unjustified infliction of harm as is tantamount

to a knowing willingness that it occur.” 475 U.S. 312, 321.

In determining whether the use of force was wanton and

unnecessary, it may also be proper to evaluate the need for

application of force, the relationship between that need and

the amount of force used, the threat “reasonably perceived by

the responsible officials,” and “any efforts made to temper

the severity of a forceful response.” Id. The absence of

serious injury is therefore relevant to the Eighth Amendment

inquiry, but does not end it.

Hudson, 503 U.S. at 7.

The Court finds that at this juncture it is premature to

determine whether Plaintiff’s injuries – a swollen forehead and a

swollen eye – were such to indicate, as a matter of law, that the

use of force was, in fact, de minimis. 

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Tyson and Wojciechowski past the sua sponte dismissal stage. 

Plaintiff’s habeas challenges will be dismissed without

prejudice to initiation of an appropriate habeas action. 

The remainder of Plaintiff’s challenges will be dismissed

with prejudice. 

An appropriate Order accompanies this Opinion.

 s/Freda L. Wolfson 

FREDA L. WOLFSON,

United States District Judge

Dated: April 28, 2011

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