NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

LOUIS WATLEY, :

: Civil Action No. 10-3869 (SDW)

Plaintiff, :

:

v. : OPINION

:

OSCAR DOYLE, et al., :

:

Defendants. :

APPEARANCES:

Plaintiff pro se

Louis Watley

East Jersey State Prison

Rahway, NJ 07065

WIGENTON, District Judge

Plaintiff Louis Watley, a prisoner confined at East Jersey

State Prison in Rahway, 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

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, as well as other public records, and are accepted as 1

true for purposes of this review.

Plaintiff was convicted of first-degree aggravated sexual

assault, second-degree kidnapping, third-degree terroristic

threats, and fourth-degree sexual contact. He was sentenced to

an aggregate term of eighteen years’ imprisonment. See Watley v.

Mee, Civil No. 09-4358, 2010 WL 3834671 (D.N.J. Sept. 24, 2010).

Plaintiff alleges that a parole hearing was convened on May

18, 2006. At this hearing, Adult Panel members Oscar Doyle and

Charles Jones issued a decision to deny parole to Plaintiff. 

That decision was affirmed by the full Parole Board on January

16, 2007. Plaintiff appealed that decision to the Superior Court

of New Jersey, Appellate Division. The Appellate Division

vacated and remanded the decision of the Parole Board.

The first two reasons for denial cited by the

Parole panel, (1) “nature of criminal record

 This Court will take judicial notice of the dockets of 1

other courts in cases related to this Petition. See Fed.R.Evid.

201; Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping

Group Ltd., 181 F.3d 410, 426-27 (3d Cir. 1999) (federal court,

on a motion to dismiss, may take judicial notice of another

court’s opinion, not for the truth of the facts recited therein,

but for the existence of the opinion, which is not subject to

reasonable dispute over its authenticity).

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increasingly more serious” and (2) “prior

incarcerations did not deter criminal behavior” are

supported in the record. ...

The panel’s third and final reason, “insufficient

problem(s) resolution,” is somewhat problematic. The

three specific references listed under this reason -

(1) “no insight,” (2) “no focus on victim,” and (3)

“blames State for his incarceration” - are not in

themselves reasons to deny parole. They may only be

considered if they are used as factors in determining

that there is, by a preponderance of the evidence, “a

substantial likelihood that the inmate will commit a

crime” if released on parole. ... “[P]unishment and

“rehabilitation” may only be considered as parole

factors to the extent they bear on the issue of

recidivism.

We are unable to ascertain from the record before

us how the three factors mentioned above were used in

making the Board’s determination, i.e., whether they

were used properly in weighing the likelihood of

another offense or improperly for some other

consideration, such as whether Watley has been

sufficiently punished. ...

Consequently, because it is “not clear that there

was sufficient evidence and adequate findings of fact

to support the denial of parole”, we vacate the

decision of the Board and remand for reconsideration of

parole eligibility in light of this opinion. In the

event the Board reaches the conclusion that there is a

“substantial likelihood” that Watley will commit

another crime if released on parole, we direct that the

Board’s decision be clearly and specifically

articulated as to its factual and legal basis.

Watley v. New Jersey State Parole Board, 2008 WL 2511753, *4-*5

(N.J.Super. App.Div. June 25, 2008) (citation omitted).

Thereafter, on July 25, 2008, the same two Adult Panel

members reconsidered Plaintiff’s eligibility for parole on the

2006 record, and again denied parole. The full Parole Board

affirmed. Plaintiff appealed and the Appellate Division affirmed

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the denial of parole. See Watley v. New Jersey State Parole

Board, 2010 WL 2471147 (N.J.Super. App.Div. June 16, 2010).

Here, Plaintiff seeks a declaratory judgment that Defendants

Oscar Doyle and Charles Jones violated N.J.A.C. 10A:71-1.5(b) by 2

participating in the remand reconsideration of the 2006 denial of

parole. Plaintiff asserts that this violated his right to due

process under the Fourteenth Amendment to the U.S. Constitution. 

He asks this Court to vacate the July 25, 2008, decision and

remand this matter back to the Parole Board.

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).

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

 N.J.A.C. 10A:71-1.5 provides: “A Board member shall not 2

participate in any Board or Board panel disposition of the

member’s initial decision, nor shall any Board member who acted

as a hearing officer on a particular case participate in any

Board or Board panel disposition of such case.”

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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).

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).

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).

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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

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

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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

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

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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).

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

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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).

Finally, a § 1983 action brought against a person in his or

her official capacity “generally represent[s] only another way of

pleading an action against an entity of which an officer is an

agent.” Monell, 436 U.S. at 690 n.55. “[I]n an officialcapacity action, ... a governmental entity is liable under § 1983

only when the entity itself is a ‘moving force’ behind the

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deprivation; thus, in an official capacity suit the entity’s

‘policy or custom’ must have played a part in the violation of

federal law.” Kentucky v. Graham, 473 U.S. 159, 166 (1985)

(internal quotation marks and citations omitted).

IV. ANALYSIS

Here, Plaintiff alleges that Defendants Doyle and Jones

violated N.J.A.C. 10A:71-1.5(b), by acting on his parole

eligibility following remand by the Appellate Division, and that

they thereby violated his right to due process under the

Fourteenth Amendment to the U.S. Constitution.

There is no federal constitutional right to parole; states,

however, may create a parole entitlement protected by the Due

Process Clause. See Greenholtz v. Inmates of Nebraska Penal &

Correctional Complex, 442 U.S. 1, 7 (1979). See also Board of

Pardons v. Allen, 482 U.S. 369 (1987); Prevard v. Fauver, 47

F.Supp.2d 539, 545 (D.N.J.), aff’d, 202 F.3d 254 (3d Cir. 1999).

Because Plaintiff’s underlying offenses were committed in

April 1997, Plaintiff’s parole eligibility is governed by the

original provision of the Parole Act of 1979 (L. 1979, c. 441). 

In pertinent part, the governing version of N.J.S.A. 30:4-

123.531, provides as follows:

An adult inmate shall be released on parole at the time

of parole eligibility, unless information supplied in

the report filed pursuant to section 10 of this act or

developed or produced at a hearing held pursuant to

section 11 of this act indicates by a preponderance of

the evidence that there is a substantial likelihood

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that the inmate will commit a crime under the laws of

this State if released on parole at such time. In

reaching such determination, the board panel or board

shall state on the record the reasons therefor.

See Watley v. New Jersey State Parole Board, 2008 WL 2511753, *3

(N.J.Super. App.Div. June 25, 2008).

Both federal and state courts have held that the New Jersey

parole statute contains language creating an expectation of

parole eligibility entitled to some measure of due process

protections. See Williams v. New Jersey State Parole Board, 1992

WL 32329, *2 (D.N.J. Feb. 4, 1992), aff’d, 975 F.2d 1553 (3d Cir.

1992); New Jersey State Parole Board v. Byrne, 93 N.J. 192, 203

(1983). Judge Lifland of this Court has held that these cases

remain good law even after taking into account the rule announced

by the Supreme Court in Sandin v. Conner, 515 U.S. 472, 484

(1995) (citations omitted), that liberty interests created by

state law “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

its own force, nonetheless imposes atypical and significant

hardship on the inmate in relation to the ordinary incidents of

prison life.” See Watson v. DiSabato, 933 F.Supp. 390, 392-93

(D.N.J. 1996) (prisoner has liberty interest in parole decisions,

including notice of determination, statement by the government,

and opportunity for prisoner to submit written response).

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The question remains what process is due. The Supreme Court

of New Jersey has stated that

Only a few basic procedures are required to deal with

the risks of erroneous or arbitrary determinations in

this context. We conclude that the process required is

notice of the pendency of the parole disposition, a

statement by the objecting judge or prosecutor of the

reasons why the punitive aspects of the sentence have

not been fulfilled, and the opportunity for the

prisoner to respond in writing to that statement of

reasons. No hearing, confrontation, or counsel issues

are implicated here.

Byrne, 93 N.J. at 211. In addition, “a preponderance of the

credible evidence in the record [must support] the Parole Board’s

determination that there is a substantial likelihood that [the

prisoner] will commit a crime if he is released on parole.” See

Trantino v. New Jersey State Parole Board, 166 N.J. 113, 126

(2001), modified as to halfway house placement, 167 N.J. 619

(2001).

Similarly, Judge Thompson of this Court has held that due

process does not require that a hearing be held in exact

accordance with the time period specified by the applicable New

Jersey statutes. See Burgos v. New Jersey State Parole Board,

2000 WL 33722126, *8 (D.N.J. Aug. 7, 2000). In addition, while

delay for an extended period of time may violate a prisoner’s due

process rights, “procedural errors are generally cured by holding

a new hearing in compliance with due process requirements.” Id.

at *8-9. See also Johnson v. Paparozzi, 219 F.Supp.2d 635, 642

(D.N.J. 2002).

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This is not to say that every allegation of constitutional

violations in parole proceedings is the proper subject for an

action under § 1983. 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 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.

In Heck v. Humphrey, 512 U.S. 477 (1994), the Court

addressed a corollary question to that presented in Preiser,

whether a prisoner could 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. Again,

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the Court rejected § 1983 as a vehicle to challenge the

lawfulness of a criminal judgment.

[I]n order to recover damages for allegedly

unconstitutional conviction or imprisonment, or for

other harm caused by actions whose unlawfulness would

render a conviction or sentence invalid, a § 1983

plaintiff must prove that the conviction or sentence

has been reversed on direct appeal, expunged by

executive order, declared invalid by a state tribunal

authorized to make such determination, or called into

question by a federal court’s issuance of a writ of

habeas corpus, 28 U.S.C. § 2254. A claim for damages

bearing that relationship to a conviction or sentence

that has not been so invalidated is not cognizable

under § 1983.

512 U.S. at 486-87 (footnote omitted). The Court further

instructed district courts, in determining whether a complaint

states a claim under § 1983, to evaluate whether a favorable

outcome would necessarily imply the invalidity of a criminal

judgment.

Thus, when a state prisoner seeks damages in a § 1983

suit, the district court must consider whether a

judgment in favor of the plaintiff would necessarily

imply the invalidity of his conviction or sentence; if

it would, the complaint must be dismissed unless the

plaintiff can demonstrate that the conviction or

sentence has already been invalidated. But if the

district court determines that the plaintiff’s action,

even if successful, will not demonstrate the invalidity

of any outstanding criminal judgment against the

plaintiff, the action should be allowed to proceed, in

the absence of some other bar to the suit.

512 U.S. at 487 (footnotes omitted). The Court further held that

“a § 1983 cause of action for damages attributable to an

unconstitutional conviction or sentence does not accrue until the

conviction or sentence has been invalidated.” Id. at 489-90.

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More recently, 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.

Thus, for example, when a dispute “goes only to the manner

in which the Board has considered plaintiff’s parole, and [when]

plaintiff does not claim that the review process must actually

lead to his parole or to an earlier parole eligibility date,

plaintiff’s claim may proceed under 42 U.S.C. § 1983.” Johnson

v. Fauver, 786 F.Supp. 442, 445 (D.N.J.) (emphasis added), aff’d,

970 F.2d 899 (3d Cir. 1992); see also Georgevich v. Strauss, 772

F.2d 1078, 1086 (3d Cir. 1985), cert. denied, 475 U.S. 1028

(1986) (suit properly brought under § 1983 when it sought only

the equal application of statutory furlough eligibility criteria,

not plaintiff’s release from incarceration); Salaam v. Consovoy,

No. 99-cv-5692, 2000 WL 33679670, *2 (D.N.J. April 14, 2000) (a

claim properly may be brought as a § 1983 action when the

plaintiff is neither seeking an earlier parole eligibility date,

nor challenging the parole board’s calculation of his eligibility

date).

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Here, Plaintiff’s challenge is to the manner in which his

parole decision was reached and is properly brought under § 1983. 

However, the participation of Defendants Oscar Doyle and Charles

Jones in the remand hearing was neither contrary to N.J.A.C.

10A:71-1.5(b), which merely prohibits a Board member from acting

as an appellate reviewer of his or her own lower-level decision,

nor to the requirements of the Due Process Clause, as delineated

in various state and federal decisions. There is nothing

inherently improper in a decisionmaker revisiting his decision

following remand by an administrative or judicial reviewer. 

Accordingly, the Complaint will be dismissed for failure to state

a claim.

V. CONCLUSION

For the reasons set forth above, the Complaint will be

dismissed with prejudice, pursuant to 28 U.S.C.

§§ 1915(e)(2)(B)(ii) and 1915A(b)(1), for failure to state a

claim. It does not appear that Plaintiff could cure the defects

of his Complaint by amendment. 

An appropriate order follows.

s/Susan D. Wigenton 

Susan D. Wigenton

United States District Judge

Dated: October 6, 2011 

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