NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

 :

LAWRENCE J. COHEN, :

 :

Plaintiff, :

 :

v. :

 :

NJ PAROLE BOARD, et al., : 

 :

Defendants. :

 :

Civil No. 11-1924 (PGS)

OPINION

APPEARANCES:

LAWRENCE J. COHEN, Plaintiff pro se

Monmouth County Correctional Institution

One Waterworks Road

Freehold, New Jersey 07728

SHERIDAN, District Judge

Plaintiff, Lawrence J. Cohen, a state inmate confined at the

Monmouth County Correctional Institution in Freehold, New Jersey,

at the time he submitted the above-captioned Complaint for

filing, seeks to bring this action in forma pauperis. Based on

his affidavit of indigence, the Court will grant plaintiff’s

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

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

the Complaint.

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

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

Complaint should be dismissed as frivolous or malicious, for

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

because it seeks monetary relief from a defendant who is immune

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

concludes that the Complaint should be dismissed without

prejudice.

I. BACKGROUND

Plaintiff, Lawrence J. Cohen (“Cohen”), brings this civil

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

defendants: the New Jersey State Parole Board (“NJSPB”) and

Julienne Sirico, District Parole Supervisor. (Complaint, Caption

and ¶ 4b). The following factual allegations are taken from the

Complaint, and are accepted for purposes of this screening only. 

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

allegations.

Cohen alleges that he has been subject to “Community

Supervision for Life”, pursuant to N.J.S.A. 2C:43-6.4, since his 1

release from prison on January 9, 2006. Cohen alleges that, on

November 28, 2007, defendant Sirico “dictated” that Cohen “cannot

use the Internet for legal purposes, and (2) on June 26, 2008,

that [Cohen] cannot attend [his] own ‘book signings, speaking

engagements, interviews, etc., as related to sales, distribution,

and/or marketing of any of [his] published works.’” (Compl., ¶

4b). Cohen further alleges that, on June 26, 2008, the NJSPB

 N.J.S.A. 2C:43-6.4 governs the special sentence of 1

community supervision for life imposed on persons convicted of

certain sexual offenses. Under 2C:43-6.4(b), the 

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imposed restrictions preventing Cohen from “‘initiating and/or

soliciting any contact with the public, including but not limited

to book signings, speaking engagements, interviews, etc., as it

related to the sales, distribution, and/or marketing, of any of

[his] published works.’” (Compl., ¶ 6). Cohen attaches to his

Complaint the two letters from the NJSPB, sent by defendant

Sirico, which recites the above restrictions or conditions.

The first letter reciting the November 28, 2007 conditions

(signed by Cohen on January 31, 2008), actually reads: “This new

supervision condition prohibits you from accessing the Internet

for the purpose of social networking.” In particular, the

condition provides:

I shall refrain from using any computer and/or device to

create any social networking profile or to access any social

networking service or chat room (including but not limited

to MySpace, Facebook, Match.com, Yahoo 360) in my own name

or any other name for any reason unless expressly authorized

by the District Parole Supervisor.

The Internet condition does not restrict plaintiff from use of

the Internet for legal purposes as alleged in his Complaint.

Further, the second letter, dated June 26, 2008, as attached

to the Complaint, reads:

You are to refrain from initiating and/or soliciting any

contact with the public, including but not limited to, “book

signings,” speaking engagements, interviews, etc., as it

related to the sales, distribution and/or marketing of any

of your published works that may be geared towards children.

(Emphasis added). The Court notes that this second condition

restricts only plaintiff’s published works that may be geared

towards children.

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Cohen also attaches a letter, dated March 25, 2011,

addressed to Judge Scully, Superior Court of New Jersey, Monmouth

County, in which he complains about allegedly tampered evidence

involving a computer used by him at the public library, and

alleged lies by the prosecutors before the courts and grand jury

concerning the tier level of plaintiff’s registered sex offender

designation. 

Finally, in his Complaint, Cohen alleges that these

restrictions or conditions “prevents [him] from earning a living

as a writer of fiction novels, which is [his] profession.” 

(Compl., ¶ 6). He seeks to have the state law N.J.S.A. 2C:43-6.4

declared unconstitutional, as a violation of his First Amendment

rights. (Id.).

II. STANDARDS FOR A SUA SPONTE DISMISSAL

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

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

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

in which a prisoner is proceeding in forma pauperis or seeks

redress against a governmental employee or entity. The Court is

required to identify cognizable claims and to sua sponte dismiss

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

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

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

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

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

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§ 1915A.

In determining the sufficiency of a pro se complaint, the

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

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

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

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

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

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

reasonable inferences that can be drawn therefrom, and view them

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

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

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

or “legal conclusions.” Id. 

A complaint is frivolous if it “lacks an arguable basis

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

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

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

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

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

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

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

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

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

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

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

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reviewed whether the complaint complied with the pleading

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

However, recently, the Supreme Court revised this standard

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

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

the Supreme Court was whether Iqbal’s civil rights complaint

adequately alleged defendants’ personal involvement in

discriminatory decisions regarding Iqbal’s treatment during

detention at the Metropolitan Detention Center which, if true,

violated his constitutional rights. Id. The Court examined Rule

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

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

claim showing that the pleader is entitled to relief.” 

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

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

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

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

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

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

working principles underlying the failure to state a claim

standard:

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

allegations contained in a complaint is inapplicable to

legal conclusions. Threadbare recitals of the elements of a

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

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

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

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cause of action, supported by mere conclusory statements, do

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

discovery for a plaintiff armed with nothing more than

conclusions. Second, only a complaint that states a

plausible claim for relief survives a motion to dismiss. 

Determining whether a complaint states a plausible claim for

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

reviewing court to draw on its judicial experience and

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

permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged-but it has not

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

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

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

The Court further explained that

a court considering a motion to dismiss can choose to begin

by identifying pleadings that, because they are no more than

conclusions, are not entitled to the assumption of truth.

While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations.

When there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they

plausibly give rise to an entitlement to relief.

Iqbal, 129 S.Ct. at 1950.

Thus, to prevent a summary dismissal, civil complaints must

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

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

reasonable inference that the defendant is liable for the

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

Iqbal emphasizes that a plaintiff must demonstrate that the

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

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

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

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Consequently, the Third Circuit observed that Iqbal provides

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

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

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

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

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

presented with a motion to dismiss:

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

separated. The District Court must accept all of the

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

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

Second, a District Court must then determine whether the

facts alleged in the complaint are sufficient to show that

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

other words, a complaint must do more than allege the

plaintiff’s entitlement to relief. A complaint has to

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

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

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

court to infer more than the mere possibility of misconduct,

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

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

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

context-specific task that requires the reviewing court to

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

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

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

pro se pleading must be construed liberally in favor of

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

 In Conley, as stated above, a district court was 3

permitted to summarily dismiss a complaint for failure to state a

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

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

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

facts” standard, a complaint could effectively survive a motion

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

claim’s legal elements.

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

prejudice for failure to state a claim without granting leave to

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

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

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

2000).

III. SECTION 1983 ACTIONS

Plaintiff brings this action pursuant to 42 U.S.C. § 1983. 

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

Cohen challenges the defendants’ “ability to create new

conditions at will,” which prevents him from “accessing the

Internet for lawful purposes,” and prevents him from attending

his own book signings, engagements or otherwise marketing his own

works as a “professional author of fiction,” in violation of his

First Amendment rights. 

Cohen admittedly is a convicted sex offender who was

sentenced to community supervision for life under N.J.S.A. 2C:43-

6.4. This statute provides, in pertinent part:

2C:43-6.4. Special sentence of community supervision for

life imposed on persons convicted of certain sexual offense

a. Notwithstanding any provision of law to the contrary, a

judge imposing sentence on a person who has been convicted

of aggravated sexual assault, sexual assault, aggravated

criminal sexual contact, kidnapping pursuant to paragraph

(2) of subsection c. of N.J.S. 2C:13-1, endangering the

welfare of a child by engaging in sexual conduct which would

impair or debauch the morals of the child pursuant to

subsection a. of N.J.S. 2C:24-4, endangering the welfare of

a child pursuant to paragraph (3) of subsection b. of N.J.S.

2C:24-4, luring or an attempt to commit any of these

offenses shall include, in addition to any sentence

authorized by this Code, a special sentence of parole

supervision for life.

b. The special sentence of parole supervision for life

required by this section shall commence immediately upon the

defendant’s release from incarceration. If the defendant is

serving a sentence of incarceration for another offense at

the time he completes the custodial portion of the sentence

imposed on the present offense, the special sentence of

parole supervision for life shall not commence until the

defendant is actually released from incarceration for the

other offense. Persons serving a special sentence of parole

supervision for life shall remain in the legal custody of

the Commissioner of Corrections, shall be supervised by the

Division of Parole of the State Parole Board, shall be

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subject to the provisions and conditions set forth in

subsection c. of section 3 of P.L. 1997, c. 117 (C.30:4-

123.51b) and sections 15 through 19 and 21 of P.L. 1979, c.

441 (C.30:4-123.59 through 30:4-123.63 and 30:4-123.65), and

shall be subject to conditions appropriate to protect the

public and foster rehabilitation. Such conditions may

include the requirement that the person comply with the

conditions set forth in subsection f. of this section

concerning use of a computer or other device with access to

the Internet. If the defendant violates a condition of a

special sentence of parole supervision for life, the

defendant shall be subject to the provisions of sections 16

through 19 and 21 of P.L.1979, c. 441 (C.30:4-123.60 through

30:4-123.63 and 30:4-123.65), and for the purpose of

calculating the limitation on time served pursuant to

section 21 of P.L.1979, c. 441 (C.30:4-123.65) the custodial

term imposed upon the defendant related to the special

sentence of parole supervision for life shall be deemed to

be a term of life imprisonment. When the court suspends the

imposition of sentence on a defendant who has been convicted

of any offense enumerated in subsection a. of this section,

the court may not suspend imposition of the special sentence

of parole supervision for life, which shall commence

immediately, with the Division of Parole of the State Parole

Board maintaining supervision over that defendant, including

the defendant’s compliance with any conditions imposed by

the court pursuant to N.J.S.2C:45-1, in accordance with the

provisions of this subsection. Nothing contained in this

subsection shall prevent the court from at any time

proceeding under the provisions of N.J.S.2C:45-1 through

2C:45-4 against any such defendant for a violation of any

conditions imposed by the court when it suspended imposition

of sentence, or prevent the Division of Parole from

proceeding under the provisions of sections 16 through 19

and 21 of P.L.1979, c. 441 (C. 30:4-123.60 through 30:4-

123.63 and C.30:4-123.65) against any such defendant for a

violation of any conditions of the special sentence of

parole supervision for life, including the conditions

imposed by the court pursuant to N.J.S.2C:45-1.

In any such proceeding by the Division of Parole, the

provisions of subsection c. of section 3 of P.L.1997, c. 117

(C.30:4-123.51b) authorizing revocation and return to prison

shall be applicable to such a defendant, notwithstanding

that the defendant may not have been sentenced to or served

any portion of a custodial term for conviction of an offense

enumerated in subsection a. of this section.

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c. A person sentenced to a term of parole supervision for

life may petition the Superior Court for release from that

parole supervision. The judge may grant a petition for

release from a special sentence of parole supervision for

life only upon proof by clear and convincing evidence that

the person has not committed a crime for 15 years since the

last conviction or release from incarceration, whichever is

later, and that the person is not likely to pose a threat to

the safety of others if released from parole supervision.

Notwithstanding the provisions of section 22 of P.L.1979, c.

441 (C.30:4-123.66), a person sentenced to a term of parole

supervision for life may be released from that parole

supervision term only by court order as provided in this

subsection.

d. A person who violates a condition of a special sentence

imposed pursuant to this section without good cause is

guilty of a crime of the fourth degree. Notwithstanding any

other law to the contrary, a person sentenced pursuant to

this subsection shall be sentenced to a term of

imprisonment, unless the court is clearly convinced that the

interests of justice so far outweigh the need to deter this

conduct and the interest in public safety that a sentence to

imprisonment would be a manifest injustice. Nothing in this

subsection shall preclude subjecting a person who violates

any condition of a special sentence of parole supervision

for life to the provisions of sections 16 through 19 and 21

of P.L.1979, c. 441 (C.30:4-123.60 through 30:4-123.63 and

C.30:4-123.65) pursuant to the provisions of subsection c.

of section 3 of P.L.1997, c. 117 (C.30:4-123.51b).

e. A person who, while serving a special sentence of parole

supervision for life imposed pursuant to this section,

commits a violation of N.J.S.2C:11-3, N.J.S.2C:11-4,

N.J.S.2C:11-5, subsection b. of N.J.S.2C:12-1, N.J.S.2C:13-

1, section 1 of P.L.1983, c.291 (C.2C:13-6), N.J.S.2C:14-2,

N.J.S.2C:14-3, N.J.S.2C:24-4, N. J.S.2C:18-2 when the

offense is a crime of the second degree, or subsection a. of

N.J.S.2C:39-4 shall be sentenced to an extended term of

imprisonment as set forth in N.J.S.2C:43-7, which term

shall, notwithstanding the provisions of N.J.S.2C:43-7 or

any other law, be served in its entirety prior to the

person’s resumption of the term of parole supervision for

life.

f. The special sentence of parole supervision for life

required by this section may include any of the following

Internet access conditions:

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(1) Prohibit the person from accessing or using a computer

or any other device with Internet capability without the

prior written approval of the court except the person may

use a computer or any other device with Internet capability

in connection with that person’s employment or search for

employment with the prior approval of the person’s parole

officer;

(2) Require the person to submit to periodic unannounced

examinations of the person’s computer or any other device

with Internet capability by a parole officer, law

enforcement officer or assigned computer or information

technology specialist, including the retrieval and copying

of all data from the computer or device and any internal or

external peripherals and removal of such information,

equipment or device to conduct a more thorough inspection;

(3) Require the person to submit to the installation on the

person’s computer or device with Internet capability, at the

person’s expense, one or more hardware or software systems

to monitor the Internet use; and

(4) Require the person to submit to any other appropriate

restrictions concerning the person’s use or access of a

computer or any other device with Internet capability.

N.J.S.A. 2C:43-6.4(a) through (f).

Cohen essentially claims that his First Amendment rights

under the United States Constitution were violated by defendants’

special condition restricting Internet access “for lawful

purposes.” However, it is clear that the condition limits only

plaintiff’s Internet access to social networking, such as

Facebook, MySpace, Match.com, etc. Cohen does not indicate the

length of time that this condition of limited Internet access has

been imposed.

The Superior Court of New Jersey, Appellate Division, has

held that a convicted sex offender on supervised release, such as

Cohen, does not have a First Amendment right to access and

participate in a chat room or social networking service, or to

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access pornographic web sites showing underage girls. See James

v. New Jersey State Parole Bd., 2011 WL 3629193, * 3 (N. J.

Super. A.D. Aug. 19, 2011); Griffin v. Wisconsin, 483 U.S. 868,

874 (1987). See also United States v. Maurer, 639 F.3d 72, 85

(3d Cir. 2011)(upholding restriction on internet because it

“shares a nexus to the goals of deterrence and protection of the

public and does not involve a greater deprivation of liberty than

is necessary in this case”); Morrissey v. Brewer, 408 U.S . 471,

480 (1972)(a person serving a sentence of parole does not have

“absolute liberty to which every citizen is entitled, but only

... the conditional liberty properly dependent on observance of

special parole restrictions”). Thus, the condition imposed upon

Cohen here is not an overbroad prohibition of all access to the

Internet. See, e.g., United States v. Heckman, 592 F.3d 400,

408–09 (3d Cir. 2010)(holding that a condition of supervised

release prohibiting defendant from access to any Internet service

provider or other computer network for life was too broad);

United States v. Albertson, 645 F.3d 191, 198 (3d Cir. 2011)

(holding that a 20-year ban on any Internet access unless

approved by probation, was “sweepingly broad and, indeed, too

broad unless the defendant has used the internet as an instrument

of harm”), cert. denied, 131 S.Ct. 3045 (June 20, 2011). But

see, e.g., United States v. Love, 593 F.3d 1, 11–13 (C.A.D.C.

Jan. 22, 2010)(“Consensus is emerging among our sister circuits

that Internet bans, while perhaps unreasonably broad for

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defendants who possess or distribute child pornography, may be

appropriate for those who use the Internet to ‘initiate or

facilitate the victimization of children.’” (citing United States

v. Holm, 326 F.3d 872, 878 (7 Cir.), cert. denied, 540 U.S. 894 th

(2003); United States v. Thielemann, 575 F.3d 265, 278 (3d Cir.

2009), cert. denied, 130 S.Ct. 1109 (Jan. 11, 2010); United

States v. Johnson, 446 F.3d 272, 283 (2d Cir.), cert. denied, 549

U.S. 953 (2006); United States v. Boston, 494 F.3d 660, 668 (8th

Cir. 2007); United States v. Paul, 274 F.3d 155, 169 (5th Cir.

2001), cert. denied, 535 U.S. 1002 (2002)).

Here, the restriction of access to social networking

services on the Internet is limited in scope and appears to be

geared to the nature of defendant’s sex offender conviction. 

Thus, it does not appear to be unconstitutionally broad or vague,

nor is it violative of plaintiff’s First Amendment rights. A

complete or total ban on any Internet access has not been

imposed. In addition, the restrictions on his attendance at book

signings, speaking engagements and marketing of plaintiff’s own

published works is limited to published works that may be geared

towards children. 

Thus, there is no absolute ban on Internet access for lawful

purposes, as alleged by Cohen. Moreover, Cohen’s assertion that

the ban on speaking engagements, etc., prevents him from “earning

a living as a writer of fiction novels” is belied by the actual

condition imposed, as it operates only to preclude contact with

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the public with respect to published works that may be geared

towards children. 

Therefore, the Complaint fails to state a cognizable claim

of a First Amendment violation at this time, and it will be

dismissed without prejudice.

V. CONCLUSION

For the reasons set forth above, the Complaint will be

dismissed without prejudice, in its entirety, as against all

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

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

be granted at this time. An appropriate order follows.

s/Peter G. Sheridan 

PETER G. SHERIDAN, U.S.D.J. 

May 3, 2012

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