NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

 :

DEREK JASON LECOMPTE, :

 :

Plaintiff, :

 :

v. :

 :

MICHELLE R. RICCI, et al., : 

 :

Defendants. :

 :

Civil No. 11-1639 (JAP)

OPINION

APPEARANCES:

DEREK JASON LECOMPTE, Plaintiff pro se

# 408977-985074B

New Jersey State Prison

P.O. Box 861

Trenton, New Jersey 08625-0861

PISANO, District Judge

Plaintiff, Derek Jason LeCompte, a state inmate confined at

the New Jersey State Prison in Trenton, 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. 

Plaintiff later filed an Amended Complaint, on or about May 16,

2011, with a request for appointment of counsel. (Docket entry

no. 2)

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At this time, this Court must review the Complaint and

Amended Complaint, pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and

1915A, to determine whether the pleadings should be dismissed as

frivolous or malicious, for failure to state a claim upon which

relief may be granted, or because they seek monetary relief from

a defendant who is immune from such relief. For the reasons set

forth below, the Court concludes that Plaintiff’s claims should

be dismissed.

I. BACKGROUND

Plaintiff, Derek Jason LeCompte (“Plaintiff” or “LeCompte”),

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

the following defendants: Michelle R. Ricci, Administrator at the

New Jersey State Prison (“NJSP”); Investigator Raphael Dolce,

Special Investigations Division (“SID”); Salvatore Maniscalco,

Court-Line Officer at NJSP; Greg Bartkowski, former Administrator

of NJSP; Charles Warren, Jr., current Administrator of NJSP; and

the New Jersey Department of Corrections (“NJDOC”). (Complaint,

Caption and ¶¶ 4b-f). The following factual allegations are

taken from the Complaint and Amended Complaint, and are accepted

for purposes of this screening only. The Court has made no

findings as to the veracity of plaintiff’s allegations.

Plaintiff alleges that, sometime before 2006, he and a few

other inmates decided to assist family members to start their own

Islamic non-profit organization named “Baseemah’s Ray of Hope,

Inc.” (Complaint, ¶ 6). The organization was intended to assist

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at-risk women and at-risk incarcerated women. Plaintiff helped

draft the by-laws and signed them as secretary of the

organization. Plaintiff’s mother incorporated the organization,

applied for her Federal Employer Identification Number and

planned on registering the organization with the Charities

Registration Bureau. Plaintiff began to study how to write

proposals and templates for his mother. (Id.).

In August 2006, a firearm was discovered within the security

perimeter of NJSP, and in response, a lockdown ensued and NJSP

officers conducted searches of inmate cells. SID officers found

paperwork regarding the non-profit organization and defendant

Dolce issued Plaintiff two institutional infractions, .705 and

.706. Plaintiff was placed in pre-hearing detention and another

infraction, .704, was issued against Plaintiff a few days later. 

At the same time, defendant Ricci temporarily banned Plaintiff’s

mother from all visitation. (Id.).

With his Amended Complaint, Plaintiff attaches the

institutional documents representing the disciplinary charges,

and the adjudication of the disciplinary charges. It appears

that Plaintiff was charged with violating .704, .705 and .706,

but only .704 (perpetrating a fraud) was adjudicated. In a memo

to the Institutional Hearing Officer from Investigator Dolce,

dated September 12, 2006, Dolce recites his investigation of the

fraud charges as follows:

Through the course of an investigation, information was

developed that indicated that several inmates who are or

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were housed in the recent past at New Jersey State Prison

(NJSP) initiated a business operation. The investigation

led to the discovery of a large cache of documents in the

property of inmate LeCompte. These documents indicated that

a business identified as Baseemah’s Ray of Hope Incorporated

had been established without the approval of the

administration of NJSP. The documents also showed that each

of the inmates identified had corresponding civilians

visitors/family members identified as ‘officers’ within the

corporation. Further, the inmates in concert with their

civilian counterparts had filed paperwork with both the

State of New Jersey as well as the United States government

to receive tax exempt status as well as copyright

protections for the corporation.

The inmates involved had also provided fraudulent

information through the filing of the tax documents as they

represented that they could be contacted through a post

office box in Trenton. This act was designed to conceal the

fact that these ‘principals’ were incarcerated. The inmates

additionally authored correspondence soliciting funding and

represented that they had facilities and staff to initiate

this venture.

Through the course of interviewing inmate Harris as he was

listed as the CEO of this corporation, it was determined

that the inmates involved had initiated the plan with the

full intention that they would be compensated for their

‘work.’ This was to occur through the creation of dedicated

bank accounts where by their civilian counterpart would

actually receive the compensation. These funds would then

be laundered and placed into dedicated accounts for use by

the individual inmates.

(Amended Compl., Exhibit E, Docket entry no. 2-1). A copy of a 

Disciplinary Report, dated September 11, 2006, by Dolce, was

delivered to Plaintiff on September 12, 2006. (Id., Ex. C). 

The Disciplinary Report described the infraction as follows: “An

investigation has determined that I/M LeCompte has engaged in a

pattern of fraud in concert with other inmates at NJSP. 

Specifically, this inmate along with his mother did cause a

business to be incorporated with the State and Federal

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government. This business would solicit funds that would be

laundered through family members and ultimately placed into an

account for use by the inmate.” (Id.). 

The NJDOC form E. Adjudication of Disciplinary Charge also

was attached to the Amended Complaint. (Id., Ex. D). The report

shows that a hearing date of September 12, 2006 was postponed to

allow Plaintiff to review the charges and non-confidential

evidence against him. The evidence included incorporation

documents, charitable registration forms, tax forms, development

plan, copyright work, employee contracts, solicitation letters,

the organizational by-laws, post office box application,

proposals, memos, power-of-attorney forms, and website

information that had been seized from Plaintiff’s cell during the

aforementioned cell search, as well as the inmate statement from

inmate Harris. The hearing was rescheduled and held on September

15, 2006. (Id.).

At the September 15, 2006 hearing, Plaintiff stated that the

organization was not intended to solicit money for his mother’s

non-profit, legal organization. Inmate Harris also testified

that the business was started to help a female friend. 

Plaintiff’s inmate counsel substitute Burton requested a hearing

if Plaintiff was found guilty. (Id.). At the conclusion of the

hearing, the Disciplinary Hearing Officer (“DHO”) found that

Plaintiff was guilty, and gave a summary of evidence relied upon

to reach his decision, as follows:

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HO relies on report from Inv. Dolce stating that during the

search of the property belonging to inmate LeCompte he

discovered several documents that reveals that inmate

LeCompte, Harris, Crumbley and Cooper had formed and

maintained a corporation named “Baseemah’s Ray of Hope”

without the authorization of the administration of NJSP. HO

also notes a-1, Inv. Dolce, stating that an investigation

revealed that the inmates had conspired along with civilian

counterparts to provide false and misleading information to

various State and Federal agencies while attempting to

obtain “non profit” status. The inmate involved provided a

PO box (# 5921) in Trenton, NJ in an attempt to conceal that

they were incarcerated at the time. HO notes a-1 through a24, documents seized, providing numerous communications with

each other as well as State and Federal agencies using the

PO Box at the contact locale. Additionally, the

documentation designates that salary of staff employed as

well as the establishment of pof bank accounts for the use

of those individuals listed as officers of the corporation

including inmate [LeCompte], Harris and Crumbley. The

inmate argued that the corporation was operated by his

mother, however, as described in a-11 (page 4) [inmate

LeCompte] is listed as a board member. Additionally,

contained in a-15 [inmate] LeCompte is listed as an

executive board member of that corporation.

It is also noted that in a-11 (tax forms) inmate LeCompte is

listed as a board member. Therefore, based on the evidence

presented it is reasonable to conclude that inmate LeCompte

conspired with other inmates as well as civilian

counterparts to establish a business and provide false

information to government agencies to conceal that they were

incarcerated at the time.

(Id., Ex. D). Plaintiff was sanctioned to “15 days detention

CTS, 365 days ad/seg refer to CC, 365 LOCT refer to Supt.

Confiscation.” (Id., Ex. D at ¶ 19). 

Plaintiff disputes the disciplinary reports and findings. 

He also alleges that he never met with his inmate paralegal

before the hearing, and that they only had five minutes to review

the documents taken from his cell. He further claims that he was

removed from the hearing after he asked to call his mother as a

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witness to confront Dolce. Plaintiff alleges that his inmate

paralegal signed the adjudication form without Plaintiff’s

knowledge or authorization. In addition, the inmate paralegal

did not notify Plaintiff about the sanctions until six days

later, and Plaintiff had to have someone else file his

administrative appeal. (Amended Compl., ¶ 6 at pg. 6).

Plaintiff alleges that he appealed all of the administrative

decisions, and that they were perfunctorily denied without

further hearings or fact findings. (Id.).

Plaintiff asserts the following claims: (1) that defendant

Dolce violated Plaintiff’s First Amendment right “by using my

religion of Islam as a negative act to allege a fraud that he

cannot prove I had involvement in, and using a legitimate

religious non-profit organization which is protected by the

R.L.U.I.P.A. being it complies with my religious right to help in

a cause which is charitable (Zakat), and since not based inside

the facility, prior approval is not required nor does it violate

any security perimeters”; (2) that defendant Maniscalco deprived

Plaintiff of his due process rights under the Fourteenth

Amendment by not giving Plaintiff ample time to spend with his

inmate counsel substitute before the hearing, by not allowing

Plaintiff to call his mother as a witness to confront Dolce, and

by allowing the counsel substitute to sign the adjudication form

without Plaintiff’s authorization; (3) that Maniscalco violated

Plaintiff’s rights under the First, Fifth, Eighth and Fourteenth

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Amendments by relying solely on Dolce’s opinion rather than the

evidence itself; (4) that defendant Ricci violated Plaintiff’s

rights under the First, Fifth, Eighth and Fourteenth Amendments

by perfunctorily denying Plaintiff’s appeal from the DHO decision

without conducting an independent investigation, and by enacting

a “permanent” visitation ban on Plaintiff’s mother; (5) that

Dolce violated Plaintiff’s Fifth and Fourteenth Amendment rights

by not interviewing Plaintiff in Dolce’s investigation of the

charges, and by verbally harassing Plaintiff’s mother in an

interview, which caused her to walk out of the interview; (6)

that defendant Warren violated Plaintiff’s rights under the

First, Eighth and Fourteenth Amendments by perfunctorily denying

Plaintiff’s letter of appeal from the visitation ban against

Plaintiff’s mother without proof of her involvement; (7) that

Bartkowski violated Plaintiff’s rights under the First, Eighth

and Fourteenth Amendments by upholding the visitation ban against

Plaintiff’s mother after the matter was remanded; and (8) that

the NJSP Administration violated Plaintiff’s rights under the

First, Fifth, Eighth and Fourteenth Amendments and the provisions

of R.L.I.U.P.A. by adjudicating a legitimate Islamic non-profit

organization as a fraud based on allegedly “specious”

allegations. (Amended Compl., pp. 10-11).

Plaintiff seeks an adjudication of his innocence with regard

to the fraud disciplinary charge and asks that his prison record

in this regard be expunged. He also seeks to have his mother’s

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visitation privileges reinstated. Finally, he seeks compensatory

and punitive damages in excess of $100,000.00. (Amended Compl.,

¶ 7, pp. 8-9).

II. STANDARDS FOR A SUA SPONTE DISMISSAL

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

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

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

in which a prisoner is proceeding in forma pauperis or seeks

redress against a governmental employee or entity. The Court is

required to identify cognizable claims and to sua sponte dismiss

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

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

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

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

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

§ 1915A.

In determining the sufficiency of a pro se complaint, the

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

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

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

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

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

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

reasonable inferences that can be drawn therefrom, and view them

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

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

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

or “legal conclusions.” Id. 

A complaint is frivolous if it “lacks an arguable basis

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

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

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

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

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

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

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

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

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

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

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

reviewed whether the complaint complied with the pleading

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

However, recently, the Supreme Court revised this standard

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

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

the Supreme Court was whether Iqbal’s civil rights complaint

adequately alleged defendants’ personal involvement in

discriminatory decisions regarding Iqbal’s treatment during

detention at the Metropolitan Detention Center which, if true,

violated his constitutional rights. Id. The Court examined Rule

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

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

claim showing that the pleader is entitled to relief.” 

Fed.R.Civ.P. 8(a)(2). Citing its recent opinion in Bell 1

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

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

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

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

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

working principles underlying the failure to state a claim

standard:

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

allegations contained in a complaint is inapplicable to

legal conclusions. Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do

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

discovery for a plaintiff armed with nothing more than

conclusions. Second, only a complaint that states a

plausible claim for relief survives a motion to dismiss. 

Determining whether a complaint states a plausible claim for

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

reviewing court to draw on its judicial experience and

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

permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged-but it has not

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

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

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

The Court further explained that

a court considering a motion to dismiss can choose to begin

by identifying pleadings that, because they are no more than

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

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

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

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conclusions, are not entitled to the assumption of truth.

While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations.

When there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they

plausibly give rise to an entitlement to relief.

Iqbal, 129 S.Ct. at 1950.

Thus, to prevent a summary dismissal, civil complaints must

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

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

reasonable inference that the defendant is liable for the

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

Iqbal emphasizes that a plaintiff must demonstrate that the

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

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

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

Consequently, the Third Circuit observed that Iqbal provides

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

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

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

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other words, a complaint must do more than allege the

plaintiff’s entitlement to relief. A complaint has to

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

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

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

court to infer more than the mere possibility of misconduct,

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

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

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

context-specific task that requires the reviewing court to

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

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

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

pro se pleading must be construed liberally in favor of

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

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

prejudice for failure to state a claim without granting leave to

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

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

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

2000).

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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).

Here, Plaintiff names the NJDOC as a defendant in this

matter. However, the NJDOC must be dismissed from this action

pursuant to the Eleventh Amendment. The Eleventh Amendment to

the United States Constitution provides that, “The Judicial power

of the United States shall not be construed to extend to any suit

in law or equity, commenced or prosecuted against one of the

United States by citizens of another State, or by Citizens or

Subjects of any Foreign State.” As a general proposition, a suit

by private parties seeking to impose a liability which must be

paid from public funds in a state treasury is barred from federal

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court by the Eleventh Amendment, unless Eleventh Amendment

immunity is waived by the state itself or by federal statute. 

See, e.g., Edelman v. Jordan, 415 U.S. 651, 663 (1974). The

Eleventh Amendment protects states and their agencies and

departments from suit in federal court regardless of the type of

relief sought. Pennhurst State School and Hospital v. Halderman,

465 U.S. 89, 100 (1984). Similarly, absent consent by a state,

the Eleventh Amendment bars federal court suits for money damages

against state officers in their official capacities. See

Kentucky v. Graham, 473 U.S. 159, 169 (1985). Section 1983 does

not override a state’s Eleventh Amendment immunity. Quern v.

Jordan, 440 U.S. 332 (1979). 

Additionally, the NJDOC and the NJSP must be dismissed from

this lawsuit because they are not a “persons” subject to

liability under § 1983. See Grabow v. Southern State

Correctional Facility, 726 F. Supp. 537, 538-39 (D.N.J.

1989)(correctional facility is not a person under § 1983).;

Mitchell v. Chester County Farms Prison, 426 F. Supp. 271, 274

(D.C. Pa. 1976).

IV. ANALYSIS

A. First Amendment and RLUIPA Claims

Plaintiff generally alleges that defendants violated his

First Amendment rights and his rights under the Religious Land

Use and Institutionalized Persons Act (“RLUIPA”), by punishing

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him for his limited involvement with an Islamic non-profit

organization, and by banning visitation with his mother.

1. Religious Exercise Claim

The First Amendment, made applicable to the states by the

Fourteenth Amendment, Cantwell v. Connecticut, 310 U.S. 296, 303

(1940), provides that “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the press; or

the right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.” Here, Plaintiff

appears to claim that the disciplinary charge of fraud and

resulting sanctions violate his right to free exercise of

religion. 

To establish a denial of religious freedom claim in this

instance, Plaintiff must demonstrate that the restriction on

religious practice was not reasonably related to a legitimate,

penological interest. O’Lone v. Estate of Shabazz, 482 U.S. 342,

349-50 (1987); Turner v. Safley, 482 U.S. 78, 89 (1987). This

reasonableness standard involves the examination of the following

four factors: (1) whether the regulation or practice in question

furthers a legitimate governmental interest unrelated to the

suppression of expression; (2) whether there are alternative

means of exercising First Amendment rights that remain open to

prison inmates; (3) whether the right can be exercised only at

the cost of less liberty and safety for guards and other

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prisoners; and (4) whether an alternative exists which would

fully accommodate the prisoners’ rights at de minimis cost to

valid penological interests. See Thornburgh v. Abbott, 490 U.S.

401, 415-18 (1989); Turner, 482 U.S. at 89-91.

In this case, Plaintiff’s bare allegations are not

sufficient to state a First Amendment free exercise claim. He

fails to allege that he was restricted from participation in a

legitimate religious practice or from practicing his faith. 

Rather, his allegations pertain to a non-profit organization,

which he inconsistently claims he was involved in for purposes of

this claim but was not involved in for purposes of denying the

charges against him. Additionally, Plaintiff baldly alleges,

without any factual support, that defendants used the Islamic

religion as a negative act to allege a fraud by Plaintiff. Such 

bare allegations must be dismissed because they are no more than

threadbare legal conclusions not entitled to the assumption of

truth. Iqbal, 129 S.Ct. at 1949-50. Therefore, this bald

allegation of a First Amendment violation regarding free exercise

of religion does not rise to the level of a violation of

constitutional dimension, and the claim will be dismissed with

prejudice accordingly for failure to state a claim upon which

relief may be granted.

2. RLUIPA Claim

Next, Plaintiff asserts that defendants’ actions in

punishing him with regard to an allegedly legitimate Islamic non17

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profit organization violates the provisions of RLUIPA. RLUIPA

governs the religious rights of incarcerated individuals at

federally funded prisons. RLUIPA bars federally funded prisons

from “impos[ing] a substantial burden on the religious exercise

of a person ... unless the government demonstrates that

imposition of the burden on that person ... (A) is in furtherance

of a compelling governmental interest; and (B) is the least

restrictive means of furthering that compelling interest.” 42

U.S.C. § 2000cc-1(a). To state a claim under RLUIPA, a prisoner

must establish that his religious exercise has been

“substantially burdened.” Once a claimant satisfies this

element, the burden shifts to the government to show that the

burden on the prisoner’s religious exercise furthers a

“compelling governmental interest” and “is the least restrictive

means of achieving that interest.” Washington v. Klem, 497 F.3d

272, 277 (3d Cir. 2007).

In order to be considered a “substantial burden”, the

plaintiff must demonstrate that the government’s action pressured

him to commit an act forbidden by his religion or prevented him

from engaging in conduct or having a religious experience

mandated by his faith. Muhammed v. City of New York Dep’t of

Corrections, 904 F. Supp. 161, 188 (S.D.N.Y. 1995)(citations

omitted). The burden must be more than an inconvenience; it must

be substantially interfere with a tenet or belief that is central

to the religious doctrine. Id. (citations omitted); see also

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Jones v. Shabazz, 2009 WL 3682569, at *2 (5th Cir. 2009)(holding

that a government action or regulation only creates a

“substantial burden” on a religious exercise if it truly

pressures an adherent to significantly modify his religious

behavior and significantly violate his religious beliefs). 

Here, the Complaint fails to allege sufficient facts to

support a claim that defendants’ actions substantially burdened

his Islamic religious practices. Plaintiff’s allegations that

defendants used his Islamic religion in a negative way to allege

a fraud against him are simply conclusory and unsupported by

specific facts. Therefore, the Court finds that the allegations

of the Complaint are inadequate to state a claim for relief under

RLUIPA that is plausible on its face, and his claim will be

dismissed with prejudice.

3. Visitation Claim

“In the First Amendment context, ... a prison inmate retains

those First Amendment rights [of freedom of speech and

association] that are not inconsistent with his status as a

prisoner or with the legitimate penological objectives of the

corrections system. Pell v. Procunier, 417 U.S. 817, 822 (1974)

(evaluating constitutionality of limiting one channel of

communication with those outside of prison through review of

adequacy of alternative channels of communication). See also

Thornburgh v. Abbott, 490 U.S. 401 (1989) (evaluating regulations

governing receipt of subscription publications by federal prison

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inmates). Cf., Kentucky Dept. of Corrections v. Thompson, 490

U.S. 454, 460 (1989) (there is no substantive due process right

to “unfettered visitation”); Neumeyer v. Beard, 301 F. Supp.2d

349, 351 (M.D. Pa. 2004), aff’d, 421 F.3d 210 (3d Cir. 2005)

(convicted prisoners and their families and spouses have no

“absolute constitutional right to visitation” other than with

legal counsel); Young v. Vaughn, No. CIV. A. 98-4630, 2000 WL

1056444 (E.D. Pa. Aug. 1, 2000); Flanagan v. Shively, 783 F.

Supp. 922, 934 (M.D. Pa. 1992)(“Inmates have no constitutional

right to visitation. Prison authorities have discretion to

curtail or deny visitation if they deem appropriate, and no due

process right is implicated in the exercise of that discretion”),

aff’d, 980 F.2d 722 (3d Cir. 1992), cert. denied, 510 U.S. 829

(1993).

Thus, to the extent not inconsistent with their status as

prisoners or with legitimate penological objectives, inmates have

a First Amendment right to communicate with “friends, relatives,

attorneys, and public officials by means of visits,

correspondence, and telephone calls.” Owens-El v. Robinson, 442

F. Supp. 1368, 1386 (W.D. Pa.) (citation omitted). Moreover,

free citizens possess a coextensive First Amendment right to

reach out to those who are incarcerated. Thornburgh, 490 U.S. at

410 n. 9; Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999). 

However, the institution may place limits on visitation if such

limits are necessary to meet legitimate penological objectives,

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such as rehabilitation and the maintenance of security and order.

 See Overton v. Bazzetta, 539 U.S. 126 (2003)(withdrawing

visitation privileges for a period of time to effect prison

discipline “is not a dramatic departure from accepted standards

for conditions of confinement”). When a prison regulation or

practice impinges on inmates’ or free citizens’ speech and

association rights, “the regulation is valid if it is reasonably

related to legitimate penological interests.” Turner v. Safley,

482 U.S. 78, 89 (1987). The reasonableness standard is applied,

using the four factors as set forth in Turner:

(1) There must be a “valid, rational connection” between the

prison regulation and the legitimate governmental interest

put forward to justify it. A regulation cannot be sustained

where the logical connection between the regulation and the

asserted goal is so remote as to render the policy arbitrary

or irrational. Moreover, the governmental objective must be

a legitimate and neutral one. 

(2) Whether there are alternative means of exercising the

right that remain open to prison inmates. 

(3) The impact accommodation of the asserted constitutional

right will have on guards and other inmates, and on the

allocation of prison resources generally. 

(4) The absence of ready alternatives is evidence of the 

reasonableness of a prison regulation. By the same token,

the existence of obvious, easy alternatives may be evidence

that the regulation is not reasonable, but is an

“exaggerated response” to prison concerns. This is not a

“least restrictive alternative” test.

Turner, 482 U.S. at 89-90 (citations omitted).

Here, Plaintiff alleges that the permanent ban on visitation

by his mother is unconstitutional in violation of his First

Amendment rights. However, Plaintiff provides documentation that

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plainly contradicts his allegations. In a memo dated February 2,

2011, from Administrator Bartkowski to Plaintiff, Bartkowski

addresses Plaintiff’s request for restoration of visiting

privileges with Plaintiff’s mother. Bartkowski stated the

following reasons for upholding the visitation ban: (1)

Plaintiff’s mother was identified by the NJSP SID as the

corporation registered agent of the fraudulent business; (2)

Plaintiff’s mother had declined to cooperate with the SID

investigation after an initial interview and thus, SID could not

evaluate the totality of her involvement in the unauthorized

business; (3), (4) and (5) Plaintiff’s visiting privileges were

not suspended or terminated permanently under N.J.A.C. 10A:4-

5.1(g)(7); rather, his mother’s visitation privileges were

suspended pursuant to N.J.A.C. 10A:18-6.3(c), because it was 2

determined that she posed a substantial risk to the safety and

security of NJSP based on her actions in conjunction with

Plaintiff as shown in the confidential SID report and the

substantial documentary evidence provided; and (6) finally, the

ban on visitation by Plaintiff’s mother “does not impact on

[Plaintiff’s] ability to maintain community ties with her through

 Section 10A:18-6.3(c) provides that “persons determined, 2

by substantial evidence, to have a harmful influence upon the

inmate or to constitute a threat to the security of the

correctional facility shall be banned from visiting an inmate

committed to the custody of the Department of Corrections for a

minimum of 365 days and the visitor shall be required to apply in

writing to the Administrator for approval/disapproval of the

reinstatement of visit privileges.”

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letters and phone calls. In addition, the loss of the

aforementioned visiting privileges does not affect the visiting

privileges for the remainder of [Plaintiff’s] family and

community ties to include” Plaintiff’s father, stepmother,

sister, two aunts, five cousins, and three friends. Further,

Bartkowski advised Plaintiff that his mother could take the

following steps to have her visiting privileges restored, namely,

to reschedule an interview with the NJSP SID and cooperate in

their evaluation of her role in the unauthorized business, and to

thereafter reapply for reinstatement of visitation. (Amended

Compl., Ex. J). 

Based on these admitted facts, Plaintiff has not established

any of the four Turner factors, as set forth above, necessary to

show that the restriction on his mother’s visitation was

unreasonable or unrelated to a legitimate penological interests. 

Turner, 482 U.S. at 89. Specifically, based on the February 2,

2011 Bartkowski memo, defendants have shown a “valid, rational

connection” between the visitation ban against Plaintiff’s mother

and the security needs of the NJSP, given the evidence of her

involvement as a corporate officer in the unauthorized business

for which Plaintiff was disciplined. Plaintiff also has

alternative means of maintaining his ties with his mother through

written correspondence and telephone calls. Likewise, there are

no visitation restrictions with his other, numerous family

members and friends. Additionally, there is no ready alternative

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to the visitation restriction to address the NJSP’s security

concerns, as the restriction has a minimal impact on its staff

and allocation of prison resources without unduly harming

Plaintiff’s ties with his mother. 

Therefore, this Court finds no constitutional violation

under these circumstances, and Plaintiff’s First Amendment claim

regarding visitation privileges will be dismissed with prejudice,

as against all named defendants, for failure to state a claim.

B. Due Process Claims

The Due Process Clause of the Fifth and Fourteenth

Amendments provides that liberty interests of a constitutional

dimension may not be rescinded without certain procedural

protections. U.S. CONST. amend. XIV. In Wolff v. McDonnell, 418

U.S. 539 (1974), the Supreme Court set forth the requirements of

due process in prison disciplinary hearings. An inmate is

entitled to (1) written notice of the charges and no less than 24

hours to marshal the facts and prepare a defense for an

appearance at the disciplinary hearing; (2) a written statement

by the fact finder as to the evidence relied on and the reasons

for the disciplinary action; and (3) an opportunity "to call

witnesses and present documentary evidence in his defense when to

do so will not be unduly hazardous to institutional safety or

correctional goals." Wolff, 418 U.S. at 563-71. An inmate is

also entitled to an inmate representative in some cases, and a

written decision by the factfinder as to evidence relied upon and

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findings. See Von Kahl v. Brennan, 855 F. Supp. 1413, 1418 (M.D.

Pa. 1994)(citing Wolff, 418 U.S. at 563-72). However, in Wolff,

the Supreme Court held that, while prisoners retain certain basic

constitutional rights, including procedural due process

protections, prison disciplinary hearings are not part of

criminal prosecution, and an inmate’s rights at such hearings may

be curtailed by the demands and realities of the prison

environment. Id. at 556-57; Young v. Kann, 926 F.2d 1396, 1399

(3d Cir. 1991). 

Here, Plaintiff alleges that his right to due process under

the Fourteenth Amendment was denied when defendant Maniscalco

would not allow Plaintiff “ample time to spend with [his] Counsel

Substitute Ian Burton and have ample time to go through the 200+

documents he requested to review.” Plaintiff also contends that

he was denied his Fifth Amendment right to confront witnesses

against him when Maniscalco would not allow Plaintiff to call his

mother as a witness at his disciplinary hearing. Finally,

Plaintiff claims that Maniscalco deprived Plaintiff of his due

process rights by allowing Burton to sign the adjudication form

without Plaintiff’s knowledge and permission. (Amended Compl.,

Claim 2).

This Court finds no due process violations under Wolff on

the facts as alleged by Plaintiff. As to his first claim that he

did not have ample time to review the documents before the

hearing, the Court observes that these documents were Plaintiff’s

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own documents seized from his cell. Consequently, he was

familiar with their contents. As to his claim that he could not

call his mother as a witness, the Court finds no constitutional

deprivation. Plaintiff’s mother was not a witness against him,

thus there was no violation of the Fifth Amendment’s

confrontation clause. Moreover, the testimony of Plaintiff’s

mother would have been cumulative if she did indeed intend to

testify as Plaintiff did; namely, that the business was a nonprofit organization. 

Finally, there is no indication on the adjudication form

that Plaintiff refused to sign it, or that he did not authorize

Burton to sign it. Burton was Plaintiff’s Counsel Substitute,

and his signature on the form merely acknowledges what took place

at the disciplinary hearing, and was not an acquiescence of

guilt. Moreover, this allegation is not an enumerated due

process requirement under Wolff.

Plaintiff also asserts a deprivation of due process claim

against defendant Raphael Dolce, the SID investigator who

reported and investigated the disciplinary charges. Plaintiff

alleges that Dolce violated his due process rights by not

interviewing Plaintiff to obtain the facts of the case, and by

verbally harassing Plaintiff’s mother in an interview during the

investigation. 

The Court finds no due process violations based on these

allegations against Dolce. There is no requirement that

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Plaintiff first be interviewed before his hearing. He had the

opportunity to challenge the disciplinary charges and refute any

allegations at the hearing. Further, the allegation that Dolce

verbally harassed Plaintiff’s mother in an interview such that

her Fifth Amendment rights were violated is not a constitutional

deprivation with regard to Plaintiff. Therefore, Plaintiff’s due

process claims against Maniscalco and Dolce will be dismissed

with prejudice for failure to state a claim.

Lastly, Plaintiff appears to be challenging the disciplinary

finding itself by claiming that Maniscalco relied “solely on

Investigator Dolce’s opinion rather than the evidence itself and

did not investigate the evidence, as he stated was complex,

independently. He did not meet the burden of proof to find

guilty of fraud because he did not show first the intent, and

second the action.” (Amended Compl., Claim 3). The Court finds 

Plaintiff’s purported claim for damages is subject to dismissal

because Plaintiff is actually challenging the result of the

disciplinary proceeding.

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

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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,

i.e., 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). 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

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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 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.

Later, in Edwards v. Balisok, 510 U.S. 641 (1997), the

Supreme Court applied the lessons of Preiser and Heck to a state

prisoner action, seeking compensatory and punitive damages,

challenging the constitutionality of procedures used in a prison

disciplinary proceeding that resulted in the loss of good-time

credits, but not necessarily challenging the result and not

seeking the restoration of the good-time credits. The Court

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

favorable outcome would necessarily imply the invalidity of the

challenged judgment, which in that case was the disciplinary

finding and punishment. 520 U.S. at 646-8. 

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Here, Plaintiff plainly is challenging the disciplinary

finding itself, and thus, this claim is barred under Heck and

Balisok because a favorable outcome in this case would

necessarily imply the invalidity of his prison disciplinary

finding. Plaintiff’s sole federal remedy in this instance would

be a writ of habeas corpus.

To the extent that Plaintiff is challenging the result of

the disciplinary proceedings, such claim must be dismissed. 

Plaintiff has not exhausted his administrative and state court

remedies challenging the disciplinary finding. In fact,

Plaintiff admits that the matter is currently pending on appeal

in state court. Therefore, he is precluded at this time from

asserting such a claim here. Accordingly, Plaintiff’s claim

challenging the results of his disciplinary proceedings must be

dismissed without prejudice at this time. 

V. CONCLUSION

For the reasons set forth above, the Complaint will be

dismissed with prejudice, in its entirety, as against defendants,

NJDOC and NJSP, 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. In addition, Plaintiff’s First Amendment free

religious exercise and visitation claims, his RLUIPA claim, and

his Fourteenth Amendment denial of due process claim under Wolff

v. McDonnell, supra, will be dismissed with prejudice as against

all named defendants, for failure to state a claim. Finally,

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Plaintiff’s due process claim challenging the results of his

disciplinary hearing will be dismissed without prejudice for

failure to state a claim at this time. Plaintiff’s application

for appointment of counsel (Docket entry no. 2-3) will be denied

as moot. An appropriate order follows.

 /s/ JOEL A. PISANO 

JOEL A. PISANO

United States District Judge

Dated: December 7, 2011 

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