NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

WILLIAM D. ANDERSON, : 

 : Civil Action No. 10-5835 (PGS)

Plaintiff, : 

 :

 :

v. : OPINION

 :

DAVID DACOSTA, et al., :

 :

Defendants. :

APPEARANCES:

WILLIAM D. ANDERSON, Plaintiff pro se

#179

East Jersey State Prison, Special Treatment Unit

CN 905, 8 Production Way

Avenel, New Jersey 07001

HOCHBERG, District Judge

Plaintiff, William D. Anderson, an involuntarily committed

person pursuant to the Sexually Violent Predator Act (“SVPA”),

N.J.S.A. 30:4-27.24, et seq., 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, the Court must review the Complaint, pursuant

to 28 U.S.C. § 1915(e)(2), to determine whether the action should

be dismissed as frivolous or malicious, for failure to state a

claim upon which relief may be granted, or because it seeks

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monetary relief from a defendant who is immune from such relief. 

For the reasons set forth below, the Court concludes that this

action should be dismissed for failure to state a claim at this

time.

I. BACKGROUND

Plaintiff, William D. Anderson (“Anderson”), brings this

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

following defendants: David DaCosta, Deputy Attorney General for

the State of New Jersey; John Main, Chief Director of the New

Jersey Department of Human Services (“NJDHS”) at the Ann Klein

Forensic Center in Trenton, New Jersey; Dr. Merril Main, Clinical

Director at East Jersey State Prison-Special Treatment Unit

(“EJSP-STU”); Jennifer Velez, Commissioner of the NJDHS; Steve

Johnson, Assistant Superintendent at EJSP-STU; and Shantay Brame

Adams, Assistant Unit Director at the EJSP-STU. (Complaint,

Caption and ¶¶ 4b-4g). 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.

In his Complaint, Anderson alleges that defendants have

either authorized or condoned the New Jersey Department of

Corrections (“NJDOC”) to place plaintiff, a civilly committed

resident, on prison grounds, confined to one unit, and under

prison policy and guidelines in violation of his constitutional

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rights and his patients’ bill of rights. (Compl., ¶¶ 4b-4g). 

Anderson further complains that defendants have authorized the

NJDOC to conduct or dictate how therapy sessions are run. 

(Compl., ¶¶ 4b-4g).

Specifically, Anderson alleges that, on May 18, 2010,

defendant Johnson was made aware that the residents at EJSP-STU

were being treated like prisoners by the EJSP correctional

officers. (Compl., ¶ 6). Also on that day, it had rained and

water dripped from the ceiling leaving a white foam substance on

the ceiling and water spots on the floor where it had puddled. 

(Id.).

On May 19, 2010, Anderson allegedly observed the NJDHS staff

psychiatrists, psychologists and social workers moving their

office supplies off grounds to a location in Edison, New Jersey,

leaving plaintiff with no on-site psychiatrist after 4:00 p.m. 

(Id.). On May 21, 2010, Assistant Administrator Conway allegedly

came on plaintiff’s unit at EJSP-STU and told Anderson and other

residents how therapy groups would be run and that plaintiff

might be taken out of some therapy sessions. (Id.).

On May 27, 2010, as Anderson was returning from the yard, he

was pat searched and finger scanned (Ion scan) by Internal

Affairs for the STU. Anderson states that the pat search and

finger scan was watched and conducted by first shift correctional

officer, Lt. Morrison. (Id.).

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Anderson next alleges that, on June 1, 2010, residents were

banned from going to the law library at the EJSP. The ban has

continued through July 26, 2010. (Id.). Further, Anderson

complains that his mail is going to an address in Avenel, New

Jersey, rather than where he is confined at EJSP-STU in Rahway,

New Jersey. (Id.).

Anderson makes general allegations that therapy groups are

conducted by the NJDOC “movements”, causing plaintiff to be taken

out of therapy groups that he had attended previously when he was

confined at the Kearny facility. He states that therapy groups

are held “in a caged in boarded up fence,’ and that his open

recreation is limited. Anderson complains that these actions

make him feel like he is a “problem prisoner” and not a civilly

committed resident, and that he feels “mentally humiliated and

degraded.” (Id.).

On October 30, 2010, Anderson states that yard recreation

was allowed for only 30 minutes. On October 28, 2010, the NJDOC

allegedly is making the therapy groups “extremely limited” by

fitting the groups to their schedule and sometimes terminating

the group sessions before the allotted time is over. (Id.).

Anderson next alleges that, on November 1, 2010, he received

a memo that his electronics would no longer be permitted. He

states that he was told that if he complained, his electronic

equipment would be confiscated for a year with an appeal. He

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provides a copy of the memo, which includes memory sticks, flash

drives, thumb drives, detachable or external drives, data storage

devices, X-Box Elite, PS 3 (Play Station 3), Wii, and remote

controls with digital read-out or viewing screens. The memo

states that these electronic devices compromise the security and

orderly running of the institution. The memo further states that

any resident who “attempts to circumvent the electronics policy

... will lose electronic privileges permanently with an appeal

after one year.” (See November 1, 2010 Interoffice Communication

Memo attached to Complaint). Anderson states that these

electronic devices were permitted at the Kearny facility.

In a letter dated November 29, 2010, Anderson submitted an

addendum to his Complaint. (“Addendum” at Docket entry no. 2). 

He reiterates some of the same allegations set forth in his

Complaint, but adds several new allegations. First, Anderson

states that, on October 8, 2010, bed bug exterminators came in to

spray the facility due to a bed bug outbreak. Anderson states

that the exterminators come every weekday to fumigate. He

complained to the administrators about the bed bug problem, and

filed a grievance, but nothing was done. (Addendum at pp. 1-2).

On October 22, 2010, plaintiff asked Sgt. Smith who was

authorizing cell searches, and was told that the searches came

from the NJDOC, “making [Anderson] feel more like a prisoner than

a resident in a civilly-committed treatment facility.” (Addendum

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at pg. 3). Also on October 22, 2010, defendant Adams came to the

EJSP-STU and overlooked Sgt. Smith and other correctional

officers allegedly confiscating personal belongings and verbally

harassing plaintiff. (Id. at pg. 4).

On November 4, 2010, a therapy group session was cancelled

by Sgt. Smith for no reason. (Id.). On November 20, 2010, tape

was placed on the floor during visits and Anderson generally

alleges that his visit was harassed. When he complained, he was

told to put it in a grievance, making him feel like a prisoner. 

(Id. at pg. 5).

On September 16, 2010, Anderson states that Psychology

Director Brian Friedman allegedly told plaintiff that the EJSPSTU was not a therapeutic environment because of the prison

setting and because the NJDHS and NJDOC do not have funds to give

the residents proper treatment and housing. (Id. at pg. 6). On

November 27, 2010, after plaintiff’s afternoon visit, he was

stopped and searched by a NJDOC officer. When Anderson stated

that he was a resident, the officer responded that he was subject

to prison rules. (Id.).

Anderson asks to be placed in a federally funded treatment

facility. He also seeks monetary compensation for being placed

in a prison environment where he has suffered mental anguish,

harassment, and discrimination. (Compl., ¶ 7). 

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II. STANDARDS FOR A SUA SPONTE DISMISSAL

A district court is required to review a complaint in a

civil action where the litigant is proceeding in forma pauperis. 

Specifically, 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,

pursuant to 28 U.S.C. § 1915(e)(2)(B). Accordingly, because

Anderson is proceeding in forma pauperis in this matter, this

action is subject to sua sponte screening for dismissal under 28

U.S.C. § 1915(e)(2)(B).

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,

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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

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.” 

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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

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.

 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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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 2

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]. 

 In Conley, as stated above, a district court was 2

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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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

(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

Anderson 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).

IV. THE NEW JERSEY SEXUALLY VIOLENT PREDATOR ACT

The New Jersey SVPA, N.J.S.A. 30:4-27.24 et seq., provides

for the custody, care and treatment of involuntarily committed

persons who are deemed to be sexually violent predators (“SVP”). 

N.J.S.A. 30:4-27.26. The New Jersey Department of Corrections

(“DOC”) operates the facilities designated for SVPs, N.J.S.A.

30:4-27.34(a); and the New Jersey Department of Human Services

(“DHS”) provides for their treatment. N.J.S.A. 30:4-27.34(b). 

The SVPA was amended in 2003 to require that regulations be

promulgated jointly by the DOC and the DHS, in consultation with 

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of the Attorney General, taking “into consideration the rights of

the patients as set forth in section ten of P.L. 1965, c. 59 (C.

30:4-24.2) ... [to] specifically address the differing needs and

specific characteristics of, and treatment protocols related to,

sexually violent predators.” N.J.S.A. 30:4-27.34(d). 

In passing the SVPA, the New Jersey Legislature made

specific findings regarding SVPs. N.J.S.A. 30:4-27.25. The

Legislature noted that it was necessary to modify the previous

civil commitment framework and additionally separate SVPs from

other persons who have been civilly committed. Id. The SVPA

defines a SVP as:

... a person who has been convicted, adjudicated delinquent

or found not guilty by reason of insanity for commission of

a sexually violent offense, or has been charged with a

sexually violent offense but found to be incompetent to

stand trial, and suffers from a mental abnormality or

personality disorder that makes the person likely to engage

in acts of sexual violence if not confined in a secure

facility for control, care and treatment.

N.J.S.A. 30:4-27.26(b).

Those persons committed under the SVPA shall receive annual

review hearings. N.J.S.A. 30:4-27.35. A SVP may be released

from involuntary civil commitment upon recommendation of the DHS

or by the SVP’s own petition for discharge. N.J.S.A. 30:4-27.36. 

V. ANALYSIS

A. Transfer to Prison Facility Claim

Anderson’s main argument appears to claim that his transfer

to a prison facility, as a civilly committed person under the

SVPA, is unconstitutional because he is subject to the prison

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policies in place for the orderly operation and security of a

prison facility. 

In Kansas v. Hendricks, 521 U.S. 346 (1997), the Supreme

Court examined the conditions of confinement provided by Kansas’

Sexually Violent Predator Act. The Act called for the

confinement of sexually violent predators in a secure facility

because they were dangerous to the community. Id., 521 U.S. at

363-64. Pertinent here, the Supreme Court was aware that the

sexually violent predators in Kansas were to be held in a

segregated unit within the prison system. However, the Court

noted that the conditions within the unit were essentially the

same as conditions for other involuntarily committed persons in

mental hospitals. Moreover, confinement under the Act was not

necessarily indefinite in duration, and the Act provided for

treatment. Id., 521 U.S. at 363, 364, 365-368. Thus, the

Supreme Court held that involuntary confinement under Kansas’

SVPA was not unconstitutional so long as such civilly-confined

persons are segregated from the general prison population and

afforded the same status as others who have been civilly

committed. Id., 521 U.S. at 368-69. See also Seling v. Young,

531 U.S. 250, 261062 (2001)(holding same with respect to the

State of Washington’s SVPA). 

Here, the New Jersey SVPA is essentially the same as the

Kansas and Washington SVP statutes that were examined and upheld

as constitutional by the Supreme Court in Hendricks and Seling,

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respectively. See Bagarozy v. Goodwin, Civil Action No. 08-468 3

(SRC), 2008 WL 4416455, *7-8 (D.N.J. Sept. 23, 2008); In re

Commitment of W.Z., 173 N.J. 109, 801 A.2d 205, 211 (2002). 

Therefore, this Court finds that Anderson’s placement and

confinement in a Special Treatment Unit for SVP residents that is

a segregated unit in the East Jersey State Prison, does not, in

and of itself, violate the U.S. Constitution’s Due Process Clause

or the Eighth Amendment’s prohibition against cruel and unusual

punishment. Accordingly, Anderson’s claim that his continued

confinement in a segregated unit within a prison facility is

unconstitutional must be dismissed for failure to state a

cognizable claim of a constitutional deprivation.

B. Conditions of Confinement Claim

Although plaintiff’s placement in a segregated unit within a

prison facility is not, in and of itself, a constitutional

violation, Anderson makes additional allegations concerning the

conditions of confinement at the EJSP facility. For instance, he

complains that he is housed in a prison facility subject to

restrictions. See Youngberg v. Romeo, 457 U.S. 307, 321-22

(1982)(“Persons who have been involuntarily committed are

 Recently, the Supreme Court held constitutional under the 3

Necessary and Proper Clause, a federal statute that allowed a

district court to order the civil commitment of a sexually

dangerous federal prisoner beyond the date the prisoner would

otherwise be released. United States v. Comstock, No. 08-1224,

__ U.S. __, 130 S.Ct. 1949 (May 17, 2010). Although these

civilly committed persons remained confined at a federal prison,

namely, FCI Butner, the Court did not address their place of

civil confinement as being unconstitutional. 

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entitled to more considerate treatment and conditions of

confinement than criminals whose conditions of confinement are

designed to punish.”).

Generally, the Fourteenth Amendment requires that civilly

committed persons not be subjected to conditions that amount to

punishment, Bell v. Wolfish, 441 U.S. 520, 536 (1979), within 4

the bounds of professional discretion, Youngberg, 457 U.S. at

321-22. Specifically, in Youngberg, the Supreme Court held that

civilly committed persons do have constitutionally protected

interests, but that these rights must be balanced against the

reasons put forth by the State for restricting their liberties. 

Id. at 307. The Constitution is not concerned with de minimis

restrictions on patients’ liberties. Id. at 320. Moreover, “due

process requires that the conditions and duration of confinement

[for civilly confined persons] bear some reasonable relation to

the purpose for which persons are committed.” Seling, 531 U.S.

at 265. While the nature of an SVP’s confinement may factor in

this balance of what is reasonable, it is clearly established

that the substantive due process protections of the Fourteenth

Amendment apply to SVPs. See Andrews v. Neer, 253 F.3d 1052, 1061

(8 Cir. 2001)(applying the Fourteenth Amendment’s “objective th

 In Bell v. Wolfish, the Supreme Court held that whether a 4

condition of confinement of pretrial detainees violated their

constitutional rights turns on whether the disability is imposed

for the purpose of punishment or whether it is but an incident of

some other legitimate government purpose. 441 U.S. 520, 535-39, 

(1979).

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reasonableness” standard to excessive force claims brought by

civilly committed SVPs).

Anderson’s main allegation with respect to the conditions of

his confinement relates to his contention that he is now housed

in a prison facility and has been treated like a prisoner and

subjected to prison rules. For instance, Anderson complains that

he was subjected to a pat search and finger scan after he came in

from the yard, and on another occasion, he was searched after a

visitation. Movement to group sessions are controlled by the

prison staff, mail is sent to a different location, and

electronic equipment is no longer permitted. Anderson also

alleges that yard recreation is limited, the ceiling leaked when

it rained all day on May 18, 2010, and there is a bed bug

outbreak in the EJSP-STU.

The Third Circuit has held that placement of a civilly

committed SVP in segregated confinement does not violate due

process unless the deprivation of liberty is in some way extreme. 

See Deavers v. Santiago, 243 Fed. Appx. 719, 721 (3d Cir.

2007)(applying Sandin v. Conner, 515 U.S. 472 (1995), to 5

segregated confinement of civilly committed SVPs). See also

Thielman v. Leean, 282 F.3d 478 (7 Cir. 2002)(likewise th

 In Sandin, the Supreme Court held that there was no 5

cognizable liberty interest in freedom from additional restraint

in a prison setting. See 515 U.S. at 486 (“We hold that [the

prisoner’s] discipline in segregated confinement did not present

the type of atypical, significant deprivation in which a State

might conceivably create a liberty interest.”).

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extending Sandin to civil commitment settings). Thus, Anderson’s

general allegation that group movement is monitored and

restricted, without more, fails to articulate a cognizable claim

of constitutional magnitude, in light of Deavers. Anderson fails

to allege any facts to show that group movements within the EJSP

facility are unduly extreme and unrelated to the purposes for

which such restrictions are imposed.

Additionally, for the following reasons, this Court finds

that Anderson’s complaints about the mail restrictions, pat and

cell searches, a leaking ceiling and bed bug infestation, and the

confiscation of electronic equipment, are not extreme conditions

of plaintiff’s confinement as a civilly committed person, and

thus, do not violate due process.

1. Unlawful Search Claim

Anderson alleges that residents are subjected to“pat down”

searches when leaving/returning to the STU at EJSP for yard

recreation, or when they return from a visit. In particular,

Anderson alleges that he was pat searched and finger scanned on

one occasion after returning from the yard, and on one occasion

after an afternoon visit. He asserts that as a civilly committed

person, such searches are unconstitutional and violate his rights

under the Fourth Amendment.

The Fourth Amendment protects “[t]he right of the people to

be secure in their persons ... against unreasonable searches and

seizures.” U.S. CONST. amend. IV. Reasonableness under the

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Fourth Amendment “depends on all of the circumstances surrounding

the search or seizure and the nature of the search or seizure

itself.” Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602,

618 (1988)(quoting United States v. Montoya de Hernandez, 473

U.S. 531, 537 (1985)). “Thus, the permissibility of a particular

practice is judged by balancing its intrusion on the individual’s

Fourth Amendment interests against its promotion of legitimate

governmental interests.” Id. at 619 (quotation marks and

internal citation omitted).

In Hudson v. Palmer, 468 U.S. 517, 530 (1984), a prisoner

argued that a cell search conducted to harass him was

unreasonable because a prisoner has a reasonable expectation of

privacy not to have his cell, locker, personal effects, person

invaded for such a purpose. Id. at 529. The Supreme Court

rejected the claim because “prisoners have no legitimate

expectation of privacy.” Id. at 530. The Court observed that:

A right of privacy in traditional Fourth Amendment terms is

fundamentally incompatible with the close and continual

surveillance of inmates and their cells required to ensure

institutional security and internal order.... [S]ociety

would insist that the prisoner’s expectation of privacy

always yield to what must be considered the paramount

interest in institutional security.... [I]t is accepted by

our society that loss of freedom of choice and privacy are

inherent incidents of confinement.

Id. at 527-28 (footnotes, citations and internal quotation marks

omitted). The same conclusion was reached with respect to

pretrial detainees other than convicted prisoners. See Bell v.

Wolfish, 441 U.S. 520, 558-560 (1979)(finding that a body cavity

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searches of pretrial detainees do not violate the Fourth

Amendment).6

Consequently, involuntarily committed patients and SVPs,

like pretrial detainees, are entitled to some protection under

the Fourth Amendment, but they do not have an expectation of

privacy equal to an individual in society generally. See Serna

v. Goodno, 567 F.3d 944, 948 (8th Cir. 2009)(noting that pretrial

detainees are kept in custody because there is cause to believe

they are dangerous; similarly, commitment under Minnesota law as

a sexually dangerous person requires a finding of dangerousness),

cert. denied, 130 S.Ct. 465 (2009); Allison v. Snyder, 332 F.3d

1076-79 (7th Cir. 2003)(SVPs may be subjected to conditions that

advance goals such as preventing escape and assuring the safety

of others, even though they may not technically be “punished”),

cert. denied, 540 U.S. 985 (2003); Aiken v. Nixon, 236 F. Supp.2d

211, 233 (N.D.N.Y. 2002), aff’d 80 Fed. Appx. 146 (2d Cir. 2003);

see also, Jennings v. New York State Office of Mental Health, 786

 In Bell v. Wolfish, the United States Supreme Court, in 6

determining the constitutionality of post-visitation body cavity

searches, held that a reasonableness test should be employed when

examining the constitutionality of a search that encroaches upon

the personal privacy of an inmate and the integrity of the

inmate’s body. In other words, courts must balance the need for

the particular search against the invasion of personal rights

that the search entails. Courts must consider the scope of the

particular intrusion, the manner in which it is conducted, the

justification for initiating it, and the place in which it is

conducted. 441 U.S. 520, 559 (1979); see also Turner v. Safley,

482 U.S. 78 (1987) (a prison regulation which infringes upon an

inmate’s constitutionally recognized right is valid only if it is

reasonably related to a legitimate penological interest).

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F. Supp. 376, 382, 384 (S.D.N.Y. 1992), aff’d, 977 F.2d 731 (2d

Cir. 1992).

Similarly, the United States Court of Appeals for the Ninth

Circuit has held that, because SVPs have been civilly committed

subsequent to criminal convictions and have been adjudged to pose

a danger to the health and safety of others, they are subject to

“[l]egitimate, non-punitive government interests” such as

“maintaining jail security, and effective management of [the]

detention facility.” Jones v. Blanas, 393 F.3d 918, 932 (9 Cir. th

2004). Thus, the reasonableness of a particular search or

seizure is determined by reference to the detention context and

is a fact-intensive inquiry. Id. 

Here, with respect to his Fourth Amendment claim, Anderson’s

primary argument appears to be that any prison actions that did

not specifically take into account his classification as a SVP is

per se a constitutional violation. Applying the balancing test

employed by Wolfish, this Court finds that general pat searches

conducted on residents entering the yard or returning to the unit

from yard time or from a visit are plainly reasonable and do not

violate plaintiff’s Fourth Amendment rights. See Semler v.

Ludeman, 2010 WL 145275, *19, D. Minn. Jan. 8, 2010)(finding no

Fourth Amendment violation where plaintiffs were required to

submit to pat searches following gym use and kitchen work

assignments that included removal of socks and shoes, opening

their mouths, showing their zippers, showing behind their ears

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and running their fingers through their hair; search was “not

highly intrusive” and was “not unlike the scope of searches of

the general public at airport security checkpoints). See also

Serna v. Goodno, 567 F.3d 944, 955-56 (upholding reasonableness

of a facility-wide visual body cavity search after a cell phone

case (cell phones considered contraband) was found, because,

while invasive, the searches were conducted privately, safely,

and professionally, and the facility was reacting to a recurring

problem involving contraband cell phones), cert. denied, 130 S.

Ct. 465 (Oct. 20, 2009).

Moreover, there are no allegations that the guards conducted

any pat search in a menacing or degrading manner. Anderson does

not allege that there was physical force used or that the search

was done in a menacing manner. See Kitchens v. Mims, 2010 WL

1240980 (E.D.Cal. March 25, 2010). Furthermore, there is no

allegation or evidence to show that the pat search was conducted

solely for punitive purposes. 

Therefore, based on all of these factors, this Court will

dismiss Anderson’s Fourth Amendment unlawful search claim,

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure to state a

cognizable claim under § 1983.

2. Interference With Mail

Next, Anderson seems to complain that his mail must be sent

to Avenel rather than directly to the EJSP unit where he is

confined. The Court perceives this claim as asserting a

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violation of plaintiff’s First Amendment rights. However,

Anderson does not indicate that he has not received mail or

packages, or that his mail has been opened outside his presence.

As a general rule, inmates have a limited liberty interest

in their mail under the First and Fourteenth Amendments. Jones

v. Brown, 461 F.3d 353, 358 (3d Cir. 2006), cert. denied, 549

U.S. 1286 (2007). However, an inmate’s constitutional right to 7

send and receive mail may be restricted for legitimate

penological interests. See Thornburgh v. Abbott, 490 U.S. 401,

407 (1989); Turner v. Safley, 482 U.S. 78, 89 (1987). In Turner,

the Supreme Court of the United States found that a prison

regulation infringing on an inmate’s constitutional rights is

valid so long as it is reasonably related to a legitimate

penological interest. Id. at 89. The Court established a

 In Jones v. Brown, the United States Court of Appeals for 7

the Third Circuit held that the legal mail policy of state prison

in opening legal mail outside the presence of the inmate violated

the inmate’s First Amendment right to freedom of speech, and was

not reasonably related to prison’s legitimate penological

interest in protecting health and safety of prisoners and staff. 

461 F.3d at 358. The Third Circuit also has held that “a pattern

and practice of opening properly marked incoming court mail

outside an inmate’s presence infringes communication protected by

the right to free speech. Such a practice chills protected

expression and may inhibit the inmate’s ability to speak,

protest, and complain openly, directly, and without reservation

with the court.” Bieregu v. Reno, 59 F.3d 1445, 1452 (3d Cir.

1995) (applying the Turner analysis), implied overruling on other

grounds recognized in Oliver v. Fauver, 118 F.3d 175, 177-78 (3d

Cir. 1997). Thus, the assertion that legal mail is intentionally

opened and read, delayed for an inordinate period of time, or

stolen may state a First Amendment claim. See, e.g., Antonelli

v. Sheahan, 81 F.3d 1422, 1431-32 (7th Cir. 1996); Castillo v.

Cook County Mail Room Dep’t, 990 F.2d 304 (7th Cir. 1993). 

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balancing test pursuant to which courts analyze prohibitions on

prisoners’ exercise of their constitutional rights by considering

the following four factors: (1) whether prohibiting an inmate

from exercising a constitutional right is rationally related to a

legitimate governmental interest; (2) whether there are

alternative means of exercising that right; (3) what effect

accommodation of the interest would have on guards, other

inmates, and the allocation of prison resources; and (4) whether

there are ready alternatives available that continue to serve the

prison’s interest without impinging constitutional rights. 

Turner, 482 U.S. at 89-91. The Court also recognized that

deference should be given to the decisions of prison

administrators, especially when those decisions deal with issues

of prison safety and security. Id.

The United States Court of Appeals for the Third Circuit has

applied Turner in analyzing constitutional claims by civilly

committed SVPs. See Rivera v. Rogers, 224 Fed. Appx. 148, 2007

WL 934413 (3d Cir. March 29, 2007)(applying Turner in analyzing

claims of SVPs that opening of their packages violated their

First Amendment rights). Other courts likewise have applied

Turner when analyzing claims brought by civilly committed SVPs

alleging First Amendment violations. See Willis v. Smith, 2005 8

 Essentially, the First Amendment analysis under Turner 8

mirrors the due process analysis under Youngberg; in both

instances, courts must balance the constitutional interests of

confined persons against the legitimate interests of the staterun institution in which they reside. See Beaulieu v. Ludeman,

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WL 550528 (N.D. Iowa Feb. 28, 2005)(noting that status of SVPs

was substantially similar to that of prisoners and applying

Turner to SVP claims concerning mail handling procedures); Ivey

v. Mooney, 2008 WL 4527792, at *4 n. 7 (D. Minn. Sept. 30,

2008)(applying Turner, but noting that a civil confinement is

significantly different from a criminal confinement); Francis v.

Watson, 2006 WL 2716452, at *3 (D.S.C. Sept. 22, 2006)(citing

cases that have applied Turner in cases involving civilly

confined persons); Marsh v. Liberty Behavioral Health Care, Inc.,

2008 WL 821623, at *5 (M.D. Fla. Mar. 27, 2008), aff’d 330 Fed.

Appx. 179 (11 Cir. 2009); Beaulieu v. Ludeman, 2008 WL 2498241, th

at *20 (D. Minn. June 18, 2008).

In Rivera, the Third Circuit affirmed the district court’s

ruling that a facility housing civilly committed SVPs has a

legitimate interest in both the safety of its facility and the

rehabilitation of its patients. Rivera, 224 Fed. Appx. at 151

(citing Waterman v. Farmer, 183 F.3d 208, 215 (3d Cir.

1999)(“[I]t is beyond dispute that New Jersey has a legitimate

penological interest in rehabilitating its most dangerous and

compulsive sex offenders.”)). Specifically, the court upheld as

constitutional the STU’s policy that allows staff to open

packages not marked as “legal mail” to assure that the packages

2008 WL 2498241, at *20 n. 15 (finding Turner to be consistent

with Youngberg because “it will not allow a Program detainee’s

right to be restricted unless there is a valid institutional

reason for doing so”).

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do not contain contraband (i.e., items either harmful to staff

and residents, or detrimental to rehabilitation). The court

found that plaintiff was free to send and receive mail so long as

the content of his mail was not sexually explicit. Moreover, the

Third Circuit found no error in the district court’s conclusion

that there were no ready alternatives to mail security and that

the STU’s policy appeared to be the only viable alternative, thus

supporting the reasonableness of the mail policy. Rivera, 224

Fed. Appx. at 151.

Here, this Court likewise finds that it is beyond dispute

that the staff at EJSP, where plaintiff and other SVP residents

are newly housed, has a legitimate interest in both the safety of

its facility and rehabilitating its patients. As noted above,

these civilly committed persons are convicted sexual predators,

which makes safety at EJSP a very important concern. The staff

clearly must determine if any items coming through the mail pose

a threat to the safety of the staff or the other residents. They

also must decide if any of the materials passing through the mail

could be detrimental to a resident’s therapy. Consequently, as

set forth by the Supreme Court and the Third Circuit, the Court

must defer to the prison officials when it comes to issues of

managing a safe and operational prison facility. In this case,

delivery of letters and packages at the Avenel facility located

close by, where the staff is trained with respect to SVP issues

unlike the general NJDOC staff at EJSP, assures that harmful

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materials are not being passed through the mail, but also allows

for specialized treatment regarding SVP residents. This new

policy, which appears to be preliminarily instituted because of

the recent transfer of the SVP residents to EJSP, clearly bears a

rational relationship to both interests discussed above. 

Moreover, in his interference with the mail claim, Anderson

alleges no actual incident of interference with his mail. Courts

have held that a single interference with the delivery of an

inmate’s personal mail, without more, does not rise to the level

of a constitutional deprivation. Morgan v. Montayne, 516 F.2d

1367 (2d Cir. 1975), cert. denied, 424 U.S. 973 (1976). Thus,

the only continuing complaint seems to be that his mail is sent

to another facility instead of EJSP where he now resides. 

Anderson does not articulate a claim that prison officials are

intentionally delaying or opening his mail. Accordingly, this

claim will be dismissed for failure to state a cognizable federal

constitutional deprivation.

3. Confiscation of Electronic Devices

Anderson also complains about a new policy memo issued on

November 1, 2010 that restricts certain electronic equipment

(memory sticks; flash drives; thumb drives; detachable or

external drives; data storage devices; X-box Elite, Play Station

3 and Wii game systems; and remote controls with digital read out

or viewing screens) for SVP residents in the EJSP STU. He

complains that anyone in possession of such electronic devices

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will have such equipment confiscated in violation of his

constitutional rights. It would appear that plaintiff is

asserting a deprivation of property claim and/or a First

Amendment violation.

This Court finds that a First Amendment claim, if asserted,

is governed by the standard in Turner v. Safely, supra, which

sets out the standard for challenges to regulations that restrict

a prisoner’s fundamental constitutional rights. Although the

courts have not defined the contours of a civilly detained

person’s right to free speech, Anderson’ rights are at least coextensive with the rights of prisoners with respect to

institutional regulations that curtail First Amendment rights.

E.g., City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239,

244 (1983)(“[T]he due process rights of a [pretrial detainee or

other persons in state custody] are at least as great as the

Eighth Amendment protections available to a convicted prisoner”).

Thus, a Turner analysis is applicable here despite the fact that

plaintiff is not a prisoner. See e.g., Bell v. Wolfish, 441 U.S.

at 545-46 (“A detainee simply does not possess the full range of

freedoms of an unincarcerated individual” because “[t]he fact of

confinement as well as the legitimate goals and policies” of the

institution limit constitutional rights.); Allison v. Snyder, 332

F.3d 1076, 1079 (7th Cir. 2002)(persons confined as sexually

violent “may be subjected to the ordinary conditions of

confinement”).

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In the prison setting, regulations that restrict a

prisoner’s access to use and own electronic equipment are “valid

[if they] are reasonably related to legitimate penological

interests.” Thornburgh v. Abbott, 490 U.S. 401, 413 (1989)

(citing Turner, 482 U.S. at 89). Applying the Turner rule to an

institutional setting such as EJSP, institution regulations that

restrict a patient’s First Amendment rights are valid if they are

reasonably related to a legitimate institutional interests, such

as maintaining security, preserving internal order and

rehabilitation. McKune v. Lile, 536 U.S. 24, 36 (2002)

(“[R]ehabilitation is a legitimate penological interest that must

be weighed against the exercise of an inmate’s liberty.”);

Turner, 482 U.S. at 91 (rehabilitation and maintaining security

are legitimate penological interests); Allison, 332 F.3d at 1079

(preventing escape and assuring safety of others are legitimate

institutional interests).

Here, this Court finds that the first Turner factor is

satisfied because the EJSP STU new rule prohibiting these

delineated electronic devices are reasonably related to the

legitimate institutional interests of security and the orderly

running of the EJSP. The November 1, 2010 memo regarding the new

rule, which was attached by plaintiff to his Complaint, expressly

states that security and orderly operation of the facility is the

purpose of the rule change. Indeed, this Court finds that EJSP

STU has a legitimate interest in maintaining security of its

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facility by preventing residents from improperly using computers

to engage in fraud, extortion and other criminal activity and

preventing discord that could occur between residents owning the

electronic equipment targeted with those who do not. See Semler

v. Ludeman, 2010 WL 145275, *9-16 (D. Minn. Jan. 8, 2010)

(institution rules governing media, mail, personal property,

telephone access and association between patients confined as

sexually violent persons are valid under Turner because they are

reasonably related to legitimate security and rehabilitative

interests); Spicer v. Richards, 2008 WL 3540182, *7-8 (W.D. Wash.

Aug. 11, 2008)(state facility for civil detainee’s “ban on the

possession of electronic devices is reasonably related to the

security and safety risks posed to [its] residents, staff,

visitors, and the public,” and therefore not violative of civil

detainee’s constitutional rights). In addition, the EJSP STU has

an interest in promoting rehabilitation and a therapeutic

environment by preventing patients from accessing pornography,

contacting their victims, viewing movies that may reinforce

cognitive distortions or sexual deviance and playing video games

that may encourage anti-social or obsessive behavior. See

Hedgespeth v. Bartow, 2010 WL 2990897 at *6-7 (W.D. Wisc. July

27, 2010).

Moreover, defendants have a legitimate security interest in

making uniform rules regarding property ownership and media

restrictions to prevent discord, extortion and unauthorized

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property exchanges among patients, as well as legitimate security

and rehabilitative interests in keeping potential damaging

materials out of the institution altogether. See Allison, 332

F.3d at 1079 (security is legitimate institutional interest);

Hedgespeth, 2010 WL 2990897 at *8. 

The third Turner factor also weighs heavily in favor of the

defendants’ new electronic restrictions. Allowing residents to

own digital storage devices, video game systems and the other

listed electronic devices would be a security, treatment and

administrative nightmare. Security staff would need to screen

each resident’s electronic equipment for unauthorized content

regularly and frequently. Additionally, because it is relatively

easy to hide and transfer digital files by these restricted

devices, some residents likely would succeed in caching and

accessing unlawful or counter-therapeutic data. Thus,

unrestricted access to the internet and video games at EJSP STU

likely would interfere with the efforts to treat the patients and

operate the facility in a secure and orderly manner. Hedgespeth,

supra.

Finally, this Court notes that Anderson has failed to

articulate any reason or alternative that would refute the

clearly expressed security need for the new restriction on

electronic devices. He simply states a legal claim that his

constitutional rights will be violated without any factual

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support. Such claim does not pass muster for statement of a

claim under the Iqbal standard.

Facilities that house and deal with residents who have been

involuntarily committed for sexual disorders are “‘volatile’

environments whose day-to-day operations cannot be managed from

on high.” Thielman v. Leean, 282 F.3d 478, 483 (7th Cir. 2002).

Courts must presume that the judgment exercised by the

appropriate professionals in these facilities is reasonable. Id.

(citing Youngberg v. Romeo, 457 U.S. 307, 312-24 (1982)

(extending “professional judgment” standard to substantive due

process claim brought by involuntarily committed mental patient

and noting that such a presumption was “necessary to enable

institutions of this type-often, unfortunately, overcrowded and

understaffed-to continue to function”); see also Hedgespeth, 2010

WL 2990897 at *9. Accordingly, this Court finds that Anderson

has failed to state a claim of constitutional magnitude in this

regard.

Finally, to the extent that plaintiff is raising a

deprivation of property claim, his claim must be dismissed for

failure to state a claim. The Fourteenth Amendment provides, in

pertinent part here, that the State may not “deprive any person

of life, liberty, or property, without due process of law[.]” 

The “due process of law” essentially requires that the government

provide a person notice and opportunity to be heard in connection

with the deprivation of life, liberty or property. Zappan v.

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Pennsylvania Board of Probation and Parole, 152 Fed. Appx. 211,

220 (3d Cir. 2005)(“The essential requirements of any procedural

due process claim are notice and the opportunity to be heard.”). 

Hence, to establish a prima facie case of a procedural due

process violation, a plaintiff must establish: (1) a deprivation

of a constitutionally protected liberty or property interest, (2)

state action, and (3) constitutionally inadequate process. See

Rusnak v. Williams, 44 Fed. Appx. 555, 558 (3d Cir. 2002)

(“Procedural due process claims, to be valid, must allege state

sponsored-deprivation of a protected interest in life, liberty or

property. If such an interest has been or will be deprived,

procedural due process requires that the governmental unit

provide the individual with notice and a reasonable opportunity

to be heard.”)(citation omitted).

To have a property interest, Anderson must demonstrate “more

than an abstract need or desire for it. ... He must, instead,

have a legitimate claim of entitlement to it” under state or

federal law. Board of Regents v. Roth, 408 U.S. 564, 577 (1972). 

For present purposes, a procedural due process analysis involves

a two step inquiry: the first question to be asked is whether the

complaining party has a protected liberty or property interest

within the contemplation of the Due Process clause of which he

has been deprived and, if so, the second question is whether the

process afforded the complaining party to deprive him of that

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interest comported with constitutional requirements. Shoats v.

Horn, 213 F.3d 140, 143 (3d Cir. 2000).

Here, as demonstrated above, the restrictions on electronic

devices are neither arbitrary or capricious, but plainly were

implemented in order to address the security and operational

concerns of a prison facility, which also houses civilly

committed sex offenders. Anderson has not demonstrated a

constitutionally-recognized property interest in the continued

possession of unrestricted electronic devices necessary to

satisfy the threshold requirement of a deprivation of property

interest. See Semler v. Ludeman, 2010 WL 145275, *25 (D. Minn.

Jan. 8, 2010). 

Furthermore, to the extent that Anderson may have electronic

equipment confiscated, as alleged (although he does not

articulate that he actually possesses these restricted items), he

has a post-deprivation remedy. Property loss caused by the

intentional acts of government officials does not give rise to a

procedural due process claim under § 1983 where a postdeprivation remedy satisfying minimum procedural due process

requirements is available under state law. See Parratt v.

Taylor, 451 U.S. 527 (1981) (overruled in part on other grounds

by Daniels v. Williams, 474 U.S. 327 (1986)); see also Zinermon

v. Burch, 494 U.S. 113, 115 (1990); Hudson v. Palmer, 468 U.S.

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517 (1984); Holman, 712 F.2d at 856. The New Jersey Tort Claims 9

Act (“NJTCA”), N.J. STAT. ANN. § 59:1-1 et seq., provides a postdeprivation judicial remedy to persons who believe they were

deprived of property at the hands of the State or local

government. See Holman, 712 F.2d at 857; Asquith v. Volunteers

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

407 (3d Cir. 1999).

 Therefore, any deprivation of property claim asserted by

Anderson here will be dismissed with prejudice for failure to

state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). 

4. Unsanitary Conditions

Anderson next alleges that his unit has leaking ceilings

when it rains, which leave white spots on the floor when the

water dries. He also complains about a bed bug infestation, but

admits that extermination services have been contracted on a

weekly basis to address and remedy the problem. He does not

contend that these conditions are intended as punishment, or that

he has suffered adversely from these alleged conditions. Based

on these general allegations, even if true, the Court finds no

 In Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982), the 9

Supreme Court explained, however, that post-deprivation remedies

do not satisfy the Due Process Clause if the deprivation of

property is accomplished pursuant to established state procedure

rather than through random, unauthorized action. 455 U.S. at

435-36. But see Tillman v. Lebanon Co. Correctional Facility,

221 F.3d 410, 421 n.12 (3d. Cir. 2000)(citing United States v.

James Daneil Good Real Property, 510 U.S. 43, 53 (1993))(in

“extraordinary situations” such as routine deduction of fees from

a prisoner’s account even without authorization, post-deprivation

remedies may be adequate). 

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atypical or significant deprivation that would rise to the level

of a constitutional violation at this time.

5. Denial of Yard Recreation Claim

Finally, Anderson appears to be alleging that he has been

denied yard recreation. He alleges only one incident where his

yard recreation time was cut short to 30 minutes. Anderson’s

bald allegation does not demonstrate that he or other residents

at the EJSP-STU have been denied any meaningful opportunity to

exercise or have yard time. This singular incident, which merely

states that yard recreation was shortened to a half-hour on one

occasion, fails to rise to the level of any constitutional

deprivation. 

Therefore, with respect to his conditions claims as alleged,

this Court finds that Anderson has failed to state a cognizable

claim in this regard at this time, and the alleged conditions of

confinement claims will be dismissed without prejudice. To the

extent that Anderson can allege additional facts to show that

unconstitutional conditions of confinement exist, he may seek

leave to re-open this case and file an amended pleading. 

10

 Should plaintiff so choose to amend his Complaint to 10

cure the deficiencies noted herein, pursuant to Federal Rule of

Civil Procedure 15, Anderson should note that when an amended

complaint is filed, the original complaint no longer performs any

function in the case and “cannot be utilized to cure defects in

the amended [complaint], unless the relevant portion is

specifically incorporated in the new [complaint].” 6 Wright,

Miller & Kane, Federal Practice and Procedure § 1476 (2d ed.

1990) (footnotes omitted). An amended complaint may adopt some

or all of the allegations in the original complaint, but the

identification of the particular allegations to be adopted must

be clear and explicit. Id. To avoid confusion, the safer course

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C. Access to Law Library Claim

This Court next considers plaintiff’s allegations that he

has been denied access to the courts (via denial of access to the

law library) in violation of his First and Fourteenth Amendment

rights. Courts have recognized different constitutional sources

for the right of access to the courts. Principally, the right of

access derives from the First Amendment’s right to petition and

the due process clauses of the Fifth and Fourteenth Amendments.11

The right of access to the courts requires that “adequate,

effective, and meaningful” access must be provided inmates who

wish to challenge their criminal charge, conviction, or

conditions of confinement. Bounds v. Smith, 430 U.S. 817, 822

(1977). In other words, prison officials must “give prisoners a

reasonably adequate opportunity to present claimed violations of

is to file an amended complaint that is complete in itself. Id.

 The right of access to the courts is an aspect of the 11

First Amendment right to petition. McDonald v. Smith, 472 U.S.

479, 482 (1985); Bill Johnson’s Restaurants, Inc. v. NLRB, 461

U.S. 731, 741 (1983); Milhouse v. Carlson, 652 F.2d 371, 373 (3d

Cir. 1981). The Supreme Court also found that “[t]he

constitutional guarantee of due process of law has as a corollary

the requirement that prisoners be afforded access to the courts

in order to challenge unlawful convictions and to seek redress

for violations of their constitutional rights.” Procunier v.

Martinez, 416 U.S. 396, 419 (1974), overruled on other grounds,

Thornburgh v. Abbott, 490 U.S. 401, 413-14 (1989). See also,

Hudson v. Palmer, 468 U.S. 517, 523 (1984)(“prisoners have the

constitutional right to petition the Government for redress of

their grievances, which includes a reasonable right of access to

the courts”); Bounds v. Smith, 430 U.S. 817 (1977); Wolff v.

McDonnell, 418 U.S. 539, 576 (1974). The right of access to the

courts might also arise under the Sixth Amendment’s right to

counsel; however, under the circumstances of the present case,

the Sixth Amendment clearly is not implicated.

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fundamental constitutional rights to the Courts.” Id. at 825. 

“‘[T]he touchstone ... is meaningful access to the courts.’”

Peterkin v. Jeffes, 855 F.2d 1021, 1037 (3d Cir. 1988)(quoting

Bounds, 430 U.S. at 823)(internal quotation omitted).

In Bounds, the Supreme Court held that “the fundamental

constitutional right of access to the courts requires prison

authorities to assist inmates in the preparation and filing of

meaningful legal papers by providing prisoners with adequate law

libraries or adequate assistance from persons trained in the

law.” The right of access to the courts is not, however,

unlimited. “The tools [that Bounds] requires to be provided are

those that the inmates need in order to attack their sentences,

directly or collaterally, and in order to challenge the

conditions of their confinement. Impairment of any other

litigating capacity is simply one of the incidental (and

perfectly constitutional) consequences of conviction and

incarceration.” Lewis v. Casey, 518 U.S. 343, 355 (1996)

(emphasis in original). Similarly, a pretrial detainee has a

right of access to the courts with respect to legal assistance

and participation in one’s own defense against pending criminal

charges. See, e.g., May v. Sheahan, 226 F.3d 876, 883-84 (7th

Cir. 2000); Caldwell v. Hall, 2000 WL 343229 (E.D. Pa. March 31,

2000). But see United States v. Byrd, 208 F.3d 592, 593 (7th

Cir. 2000) (pretrial detainee who rejects an offer of courtappointed counsel in satisfaction of the Sixth Amendment right to

counsel has no alternative right to access to a law library);

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Wilson v. Blankenship, 163 F.3d 1284, 1290-91 (11th Cir. 1998)

(same); United States v. Walker, 129 F.3d 1266, 1997 WL 720385,

**4 (6th Cir. 1997) (same).

Moreover, a prisoner alleging a violation of his right of

access must show that prison officials caused him past or

imminent “actual injury” by hindering his efforts to pursue such

a claim or defense. See Lewis, 518 U.S. at 348-51, 354-55

(1996); Oliver v. Fauver, 118 F.3d 175, 177-78 (3d Cir. 1997). 

“He might show, for example, that a complaint he prepared was

dismissed for failure to satisfy some technical requirement

which, because of deficiencies in the prison’s legal assistance

facilities, he could not have known. Or that he had suffered

arguably actionable harm that he wished to bring before the

courts, but was so stymied by inadequacies of the law library

that he was unable to file even a complaint.” Lewis, 518 U.S. at

351.

Here, Anderson fails to allege any actual injury as a result

of the alleged denial of access to the law library. He does not

allege that he was unable to file this or any other complaint in

the courts, and in fact, he has not been limited in filing the

instant action in this federal court. Consequently, the

allegations in the Complaint are too conclusory to show a denial

of court access sufficient to rise to the level of a

constitutional deprivation under the Iqbal pleading standard. 

“[T]he pleading standard Rule 8 announces does not require

detailed factual allegations, but it demands more than an

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unadorned, the-defendant-unlawfully-harmed-me accusation .... Nor

does a complaint suffice if it tenders naked assertions devoid of

further factual enhancement.” Iqbal, 129 S.Ct. at 1949

(citations and internal quotation marks omitted). 

Furthermore, Anderson does not articulate how the alleged

denial of access to the law library has hindered his efforts to

either pursue this claim or defend himself in any pending state

proceedings. Therefore, his claim alleging denial of access to

the courts based on an alleged failure to provide access to the

law library will be dismissed for failure to state a claim at

this time.

D. Denial of Treatment Claim 

Anderson also generally asserts that his therapy/treatment

sessions have been disrupted or denied because of the prison

setting and control by NJDOC officials over movement schedules

and conduct of the residents in the EJSP-STU. More specifically,

Anderson alleges that, in May 2010, he was told that he may be

taken out of some therapy sessions. He also observed the NJDHS

staff move their office supplies off ground to another location,

leaving plaintiff with no on-site psychiatrist after 4:00 p.m. 

Anderson further complains that therapy groups are held “in a

caged [] boarded up fence.” On November 4, 2010, his therapy

session was cancelled for no reason. Anderson notes that the

Psychology Director Brian Friedman allegedly had told him that

the EJSP-STU is not a therapeutic environment and that the NJDOC

and NJDHS have no funds to give the residents proper treatment

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and housing. Thus, Anderson appears to argue that he is denied

the right to adequate treatment and reasonable care applicable to

civilly committed SVPs, in violation of the Fourteenth Amendment.

The Fourteenth Amendment to the United States Constitution,

§ 1, guarantees that “[n]o State shall ... deprive any person of

life, liberty, or property, without due process of law.” This

due process guarantee has been interpreted to have both

procedural and substantive components, the latter which protects

fundamental rights that are so “implicit in the concept of

ordered liberty” that “neither liberty nor justice would exist if

they were sacrificed.” Palko v. Conn., 302 U.S. 319, 325 (1937). 

These fundamental rights include those guaranteed by the Bill of

Rights, as well as certain liberty and privacy interests

implicitly protected by the Due Process Clause, such as the right

to marry. Washington v. Glucksberg, 521 U.S. 702, 720 (1997). 

Substantive due process also protects against government conduct

that is so egregious that it “shocks the conscience,” even where

the conduct does not implicate any specific fundamental right. 

See United States v. Salerno, 481 U.S. 739, 746 (1987).

Laws disturbing fundamental rights receive strict scrutiny

and will be upheld if they are “narrowly tailored to serve a

compelling state interest.” Reno v. Flores, 507 U.S. 292, 302

(1993). However, regulations not implicating fundamental rights

(in other words, those claims attacking particularly egregious or

arbitrary governmental actions) are analyzed under the

deferential standard referred to as the rational basis review,

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and will generally succeed only if the government action shocks

the conscience. See Glucksberg, 521 U.S. at 728.

With respect to Anderson’s claim, it appears that he is

asserting that he has a fundamental right to adequate treatment

as a civilly committed sex offender, and that as a result of the

prison setting he is not being afforded adequate treatment. The

Supreme Court established that there exists a constitutionally

protected right of mentally retarded persons confined at a state

institution to minimally adequate treatment. Specifically, the

Supreme Court held that there is a constitutional right of

mentally disabled persons confined at a state institution to

“minimally adequate habilitation”, self-care treatment or

training to the extent necessary to protect their recognized

fundamental rights to safety and freedom from physical

restraints. Youngberg, 457 U.S. at 316, 319 and 322.

The Supreme Court further held that, where a fundamental

right is at issue, a district court must balance “the liberty of

the individual and the demands of an organized society” to

determine whether such right has been violated. Youngberg, 457

U.S. at 320. Although restrictions burdening a fundamental right

generally receive strict scrutiny, in Youngberg, the Supreme

Court found that this sort of rigorous analysis would unduly

burden the ability of states, specifically their professional

employees, to administer mental health institutions. Id. at 322. 

Consequently, the Court concluded that “the Constitution only

requires that the courts make certain that professional judgment

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was in fact exercised,” because “[i]t is not appropriate for the

courts to specify which of several professionally acceptable

choices should have been made.” Id. at 321 (internal quotation

and citation omitted). Thus, a decision, “if made by a

professional, is presumptively valid; liability may be imposed

only when the decision by the professional is such a substantial

departure from accepted professional judgment, practice, or

standards as to demonstrate that the person responsible actually

did not base the decision on such judgment.” Id. at 323.

In Leamer v. Fauver, 288 F.3d 532 (3d Cir. 2002), the United

States Court of Appeals for the Third Circuit held that New

Jersey’s unique former statutory scheme for sex offenders that

predicated the term of sentence on a prisoner’s response to

treatment and created a right to treatment created a fundamental

and cognizable liberty interest in treatment, for purposes of

both procedural and substantive due process analyses. 288 F.3d

at 545. Leamer was not a civilly committed sex offender like

plaintiff here. Rather, Leamer was a convicted sex offender

whose confinement and treatment were inextricably linked pursuant

to statute. The sentencing court had classified Leamer as having

a “mental aberration” and in need of “specialized treatment,”

which automatically subjected Leamer to the maximum incarceration

permitted by law unless he is cured prior to that point. Leamer

could not reduce his sentence through good behavior credits,

parole policies or other credits. Instead, he could only shorten

his incarceration through successful therapy, which was an

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“inherent and integral element” of the statutory scheme. 

Consequently, the Third Circuit found that deprivation of

treatment would be a grievous loss not emanating from the

sentence. Leamer, 288 F.3d at 544.

Apart from that recognized in Youngberg to prevent the

violation of recognized fundamental rights to safety and freedom

from physical restraints, this Court finds the Third Circuit’s

holding in Leamer to clearly extend to an involuntarily committed

sex offender under New Jersey’s SVPA. Like Leamer, the length of

Anderson’s confinement under the SVPA is predicated on his

response to treatment. Indeed, the provisions of the SVPA

explicitly recognize New Jersey’s obligation to provide treatment

to SVPs for their eventual release based on successful therapy. 

See N.J.S.A. 30:4-27.32(a)(“If the court finds by clear and

convincing evidence that the person needs continued involuntary

commitment as a sexually violent predator, it shall issue an

order authorizing the involuntary commitment of the person to a

facility designated for the custody, care and treatment of

sexually violent predators”)(emphasis added); N.J.S.A. 30:4-

34(b)(“The Division of Mental Health Services in the Department

of Human Services shall provide or arrange for treatment for a

person committed pursuant to this act. Such treatment shall be

appropriately tailored to address the specific needs of sexually

violent predators.”); N.J.S.A. 30:4-27.36(a)(At any time during

the involuntary commitment of a person under this act, if the

person’s treatment team determines that the person’s mental

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condition has so changed that the person is not likely to engage

in acts of sexual violence if released, the treatment team shall

recommend that the Department of Human Services authorize the

person to petition the court for discharge from involuntary

commitment status”); see also Kansas v. Hendricks, 521 U.S. 346,

367 (1997)(concluding from similarly-worded provisions of Kansas

SVP Act that “the State has a statutory obligation to provide

‘care and treatment for [persons adjudged sexually dangerous]

designed to effect recovery ....”)(alterations in

original)(internal citations omitted). 

Therefore, based on Youngberg and Leamer, this Court

concludes that Anderson may have a fundamental liberty interest

in treatment, but has not stated a cognizable claim at this time

for purposes of both procedural and substantive due process

analyses. See Bailey v. Gardebring, 940 F.2d 1150, 1154 (8th

Cir. 1991), cert. denied, 503 U.S. 952 (1992)(where the Eighth

Circuit noted that Youngberg did not establish a right for the

civilly committed to treatment per se; the Supreme Court only

“held that the Constitution required only such ‘minimally

adequate training ... as may be reasonable in light of [the]

liberty interest[ ] in safety and freedom from unreasonable

restraints.’”)(quoting Youngberg, 457 U.S. at 322). In Bailey,

the Eighth Circuit concluded that plaintiff had no right to

“psychiatric treatment to overcome a ‘sexual offender condition’” 

because he “was neither in danger during his civil commitment nor

was he subject to any restraints beyond the ordinary incidents of

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any involuntary confinement.” Id. at 1153, 1154. Citing Bailey,

district courts in the Eighth Circuit have since concluded that

civilly committed sexual predators have no substantive due

process right to mental health treatment, adequate or otherwise. 

See Semler v. Ludeman, 2010 WL 145275, at *26 (D. Minn. Jan. 8,

2010)(“Because this Court has not recognized a constitutional

right to effective ‘treatment’ in the context of civilly

committed sex offenders, Plaintiffs [alleging substantive due

process violations through ineffective treatment] have failed to

allege a due process claim ....”)(citing Nicolaison v. Ludeman,

2008 WL 508549, at *8 (D. Minn. Feb. 11, 2008)(finding, in

ultimately concluding that involuntarily committed sex offender’s

right to treatment is not “clearly established” for purposes of

28 U.S.C. § 2254(d)(1), that Youngberg “only recognized a right

to ‘minimally adequate’ treatment that reduces the need for

restraints,” and not a “comparable right to treatment that

facilitates release”)).

Indeed, based on the allegations and admissions by plaintiff

in his Complaint, Anderson fails to show any procedural or

substantive due process violations at this time. He does not

demonstrate a categorical denial of therapy and treatment

sessions due to the prison setting in which he receives his

treatment. Rather, his complaints more aptly demonstrate his

personal dissatisfaction with being in a prison setting, and

having group movements monitored and directed by the NJDOC. He

alleges only one incident where a therapy group session was

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cancelled. Thus, there simply is no evidence that Anderson has

been denied therapy sufficient to give rise to a claim of

constitutional magnitude. 

 In Leamer, the Third Circuit, relying on Sandin, found that

Leamer would face “significant obstacles” in establishing a

procedural due process claim based on his placement on RAP

(restricted activities program) status because the mere fact of

placement in administrative segregation is not in and of itself

enough to implicate a liberty interest. Leamer, 288 F.3d at 546. 

Similarly, in the instant case, although Anderson and other

disruptive and agitative residents may be placed in MAP status in

response to their behavior or uncooperation, there is no

indication from the allegations here that these residents have

been or will be denied treatment.

Indeed, there are no factual allegations of an absolute

denial of treatment. Anderson merely alleges that prison staff

regulate movement and conduct searches and other policy measures

for the orderly running and security of the EJSP facility as a

whole, which Anderson feels affects his access to the treatment

sessions of his choice. He does not allege that he has been

denied treatment altogether. Further, Anderson recites legal

conclusions in his complaint about being made to feel like a

“prisoner” rather than a civilly committed person rather than

allege any facts to support a claim that he has been denied

treatment. Indeed, he seems mostly fixated on the idea of being

in a “prison setting” and does not allege any real disruption or

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interference with his treatment, other than controlled movements

in the EJSP facility, which on its own, does not curtail group

therapy. 

This Court likewise finds no substantive due process

violation at this time. Substantive due process prevents the

government from engaging in conduct that “shocks the conscience,”

or interferes with rights “implicit in the concept of ordered

liberty.” Glucksberg, 521 U.S. at 721. Under this standard,

Defendants’ actions in denying Anderson his statutory right to

treatment will be found unconstitutional under the Fourteenth

Amendment if they were so arbitrary or egregious as to shock the

conscience. See Leamer, 288 F.3d at 546-47 (substantive due

process claim alleging inadequate treatment for committed sex

offender “must focus on the challenged abuse of power by

officials in denying [the plaintiff] the treatment regimen that

was statutorily mandated and was necessary in order for his

condition to improve, and thus for him to advance toward

release”).

Here, as demonstrated above, defendants have not

categorically declined to provide any mental health treatment to

Anderson. Thus, this Court cannot readily conclude that

Defendants’ actions were conscience-shocking and in violation of

Anderson’s substantive due process rights. Indeed, plaintiff’s

allegations, as set forth above, are merely conclusory and

factually unsubstantiated. Anderson has not shown any disruption

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of treatment. Instead, he simply objects to the manner and place

in which treatment and sessions are provided.

Thus, the Court concludes that treatment has not been denied

to Anderson, as alleged because there is no demonstrated

interruption of adequate treatment that would rise to the level

of a constitutional due process deprivation as alleged. Further,

this Court concludes that the allegations asserted in Anderson’s

Complaints do not show such egregious conduct or disruption as to

render mental treatment at EJSP conscience-shockingly deficient.

Accordingly, based on the facts as alleged in the Complaint,

Anderson’s claim alleging inadequate treatment will be dismissed

for failure to state a cognizable claim of a deprivation of a

constitutional right.

E. Harassment Claim

Anderson further complains that he is being verbally

harassed by the correctional officers. Namely, on October 22,

2010, ostensibly during a cell search, Anderson generally alleges

that he was harassed. He again alleges that he was verbally

harassed on November 4, 2010, while he had a visitor. Anderson

does not state how he was allegedly harassed, but it appears that

he took offense when he was told that he was being treated like a

prisoner and subject to prison rules.

Allegations of verbal abuse or threats, unaccompanied by

injury or damage, are not cognizable under § 1983, regardless of

whether the inmate is a pretrial detainee or sentenced prisoner.

See Jean-Laurent v. Wilkerson, 438 F. Supp.2d 318, 324-25

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(S.D.N.Y. 2006)(pretrial detainee’s claim of verbal abuse not

cognizable under § 1983 because verbal intimidation did not rise

to the level of a constitutional violation); Ramirez v. Holmes,

921 F. Supp. 204, 210 (S.D.N.Y. 1996)(threats and verbal

harassment without physical injury or damage not cognizable in

claim filed by sentenced inmate under § 1983). See also Price v.

Lighthart, 2010 WL 1741385 (W.D. Mich. Apr. 28, 2010); Glenn v.

Hayman, 2007 WL 894213, *10 (D.N.J. Mar. 21, 2007); Stepney v.

Gilliard, 2005 WL 3338370 (D.N.J. Dec. 8, 2005)(“[V]erbal

harassment and taunting is neither ‘sufficiently serious’ nor ‘an

unnecessary and wanton infliction of pain’ under the common

meaning of those terms. ‘Verbal harassment or profanity alone ...

no matter how inappropriate, unprofessional, or reprehensible it

might seem,’ does not constitute the violation of any federally

protected right and therefore is not actionable under [Section]

1983”) (quoting Aziz Zarif Shabazz v. Pico, 994 F. Supp. 460, 474

(S.D.N.Y. 1998), and citing Collins v. Graham, 377 F. Supp.2d

241, 244 (D.Me. 2005)). See also Moore v. Morris, 116 Fed. Appx.

203, 205 (10th Cir. 2004)(mere verbal harassment does not give

rise to a constitutional violation, even if it is inexcusable and

offensive, it does not establish liability under section 1983),

cert. denied, 544 U.S. 925 (2005); Collins v. Cundy, 603 F.2d

825, 827 (10th Cir. 1979) (dismissing prisoner’s claim that

defendant laughed at prisoner and threatened to hang him);

Prisoners’ Legal Ass’n v. Roberson, 822 F. Supp. 185, 187-89

(D.N.J. 1993)); Abuhouran v. Acker, 2005 WL 1532496 (E.D. Pa.

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June 29, 2005)(“It is well established ... that ... verbal

harassment, ... standing alone, do[es] not state a constitutional

claim”)(citing Dewalt v. Carter, 224 F.3d 607, 612 (7th Cir.

1999); Williams v. Bramer, 180 F.3d 699, 706 (5th Cir. 1999);

Maclean v. Secor, 876 F. Supp. 695, 698 (E.D.Pa. 1995)). See

also Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987)

(holding that verbal harassment and abuse are not recoverable

under § 1983); Patton v. Przybylski, 822 F.2d 697, 700 (7th Cir.

1987)(holding that racially derogatory remarks, although

“unprofessional and inexcusable,” are not “a deprivation of

liberty within the meaning of the due process clause”).

Here, Anderson does not allege an accompanying violation

that might allow the unidentified verbal harassment to state a

separate due process violation or equal protection claim. At

most, Anderson alleges that he was humiliated and made to feel

like a prisoner, causing him to be “mentally humiliated and 

degraded” as a result of the verbal harassment. These general

allegations of “injury” are nothing more than the mere recitation

of a legal conclusion without factual allegations sufficient at

this time to support a claim that the defendants were verbally

harassing plaintiff as a form of punishment. Consequently,

because the alleged verbal harassment of Anderson was not

accompanied by any injurious actions - or physical actions of any

kind - by the correction officials, Anderson fails to state a

cognizable § 1983 claim for a violation of his Fourteenth

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Amendment due process or Fourteenth Amendment equal protection

rights, and his claim will be dismissed accordingly.

V. CONCLUSION

For the reasons set forth above, plaintiff’s Complaint will

be dismissed without prejudice, in its entirety as against all

named defendants, for failure to state a claim at this time,

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff may seek

leave to re-open this case to file an amended pleading to the

extent he can allege facts to cure the deficiencies noted herein. 

An appropriate order follows.

s/Peter G. Sheridan 

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

June 1, 2011

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