NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

:

CESAR VELAZQUEZ, :

:

Plaintiff, :

:

v. :

:

DONNA ZICKEFOOSE, et al., :

:

Defendants. :

 :

Civil No. 11-2459 (RMB)

OPINION

BUMB, District Judge:

1. Cesar Velazquez, an inmate who is confined at FCI Fort

Dix, filed a paid Complaint against the Warden and several other

officials at FCI Fort Dix. 

2. By Order and Opinion entered December 19, 2011, this

Court dismissed the Due Process deprivation of property claim

with prejudice, and dismissed the conditions of confinement claim

under the Due Process Clause and the Eighth Amendment without

prejudice to the filing of an amended complaint stating a Bivens

claim for unconstitutional conditions of confinement, contrary to

Due Process and/or the Eighth Amendment, within 30 days of the

date of the entry of the Order. 

3. Specifically, the Opinion found that Plaintiff failed to

allege facts showing the personal involvement and/or deliberate

indifference of any named defendant in the deprivation of his

Eighth Amendment and/or due process rights. 

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4. This Court’s Opinion and Order informed Plaintiff that

if he filed a timely amended complaint, then this Court would

reopen the file and screen the amended complaint for dismissal

pursuant to 28 U.S.C. § 1915A; in addition, this Court instructed

Plaintiff to “file an amended complaint that is complete in and

of itself” and to set forth all factual allegations regarding the

liability of each defendant in the amended complaint. [Dkt. 2 at

n.1.]

5. On January 29, 2012, Plaintiff executed an Amended

Complaint, which the Clerk received on February 1, 2012. [Dkt.

4.] The Amended Complaint does not cure the defects of the

Complaint. 

6. First, the Amended Complaint fails to specify what

happened to Plaintiff himself or to describe the conditions of

Plaintiff’s confinement during the relevant time period, i.e.,

February 3, 2010, through July 7, 2010. 

7. Second, the Amended Complaint states that the defendants

“did knowingly and intentionally conspire to invidiously

discriminate and to deprive Cesar Velazquez equal protection of

the laws . . by Administratively Detaining him;” defendants “each

individually and/or while aiding and abetting the other in their

personal capacity, did knowingly and intentionally without notice

and hearing cause the punishment, and atypical hardship of Cesar

Velazquez leading up to and during his Administrative Detention;”

2

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defendants “each individually and/or while aiding and abetting

the other in their personal capacity, did knowingly and

intentionally without authority/order and with deliberate

indifference cause the cruel and unusual punishment of Cesar

Velazquez.” [Dkt. 4 at 14-16.] However, these allegations are

conclusory and, as such, are not entitled to be assumed true. 

See Ashcroft v. Iqbal, 556 U.S. 662, , 129 S.Ct. 1937, 1949

(2009) (“A pleading that offers labels and conclusions or a

formulaic recitation of the elements of a cause of action will

not do. Nor does a complaint suffice if it tenders naked

assertions devoid of further factual enhancement”) (citations and

internal quotation marks omitted). 

8. Third, the Complaint does not specify facts to

substantiate these conclusions.1 See Iqbal, 129 S.Ct. at 1949.2

1 Plaintiff asserts that certain defendants signed the

Inmate Investigative Report and “toured the SHU hearing my

complaints.” [Dkt. 4 at 18-20.] However, Plaintiff does not

allege when defendants toured the SHU, or whether defendant(s)

toured the SHU at FCI Fort Dix or MDC Brooklyn, or both, or

otherwise specify facts showing how defendant(s) were aware of

the conditions of Plaintiff’s confinement at MDC Brooklyn. 

2

 As the Supreme Court explained in Iqbal, 129 S.Ct. at

1949,

To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face. A claim has

facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.

3

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Accordingly, the Complaint fails to state a cognizable claim that

defendant(s) knowingly subjected him to conditions of confinement

that were significantly more restrictive than those imposed upon

other inmates in solitary confinement in violation of due

process, see Shoats v. Horn, 213 F. 3d 140, 144 (3d Cir. 2000),

or knowingly subjected him to conditions of confinement that were

so severe that they deprived him of a basic human need, contrary

to the Eighth Amendment, see Farmer v. Brennan, 511 U.S. 825,

834, 837 (1994); Wilson v. Seiter, 501 U.S. 294, 305 (1991). 

9. This Court will dismiss the Amended Complaint for

failure to state a claim, without prejudice to the filing of a

second and final amended complaint. This Court instructs

Plaintiff to include all facts in the amended complaint (not in a

separate affidavit or memorandum). 

10. An appropriate Order accompanies this Memorandum

Opinion.

s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

Dated: March 14, 2012

4

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