NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

SHAUKAT ALI, 

Plaintiff,

v. 

JOSEPH N. DIVINCENZO, JR., et al.,

Defendants.

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Hon. Dennis M. Cavanaugh

OPINION

Civil Action No. 11-cv-2528 (DMC-JAD)

DENNIS M. CAVANAUGH, U.S.D.J.

This matter comes before the Court upon the Motion of Defendants Joseph N. Divincenzo,

Jr. (“Divincenzo”), RoyL. Hendricks (“Hendricks”), Essex CountyCorrectional Facility (“ECCF”),

and Sergeant Florio (“Florio”) (collectively, “Defendants”) to Dismiss the Complaint of Plaintiff

Skaukat Ali (“Plaintiff”), pursuant toFED.R.CIV.P. 12(b)(6). ECF No.16. Pursuant to FED.R.CIV.

P. 78, no oral argument was heard. After carefully considering the submissions of the parties, and

based upon the following, it is the finding of this Court that Defendants’ Motion is granted.

I. BACKGROUND

This matter concerns Plaintiff’s attempt to visit his friend, Datala Kuldeep Singh (“Singh”),

an inmate at ECCF. Plaintiff is Pakistani American residing in JerseyCity, NJ. Compl.¶¶ 1, 9, ECF

No. 16-1. Divicenzo is the County Executive of the County of Essex, who Plaintiff states “funds 1

 The Complaint is also available on the Docket as ECF No. 1. That version, however, is 1

incomplete, and the Court therefore refers to the version attached to Defendants’ Motion. 

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the operation of [ECCF].” Compl. ¶ 2. Hendricks is the Warden of ECCF. Compl. ¶ 3. Florio is,

according to Plaintiff, the “[i]information desk supervisor” of ECCF. Compl. p. 1. 

Plaintiff alleges that on May 2, 2009, Defendants did not allow him to visit Singh. Compl.

¶ 5. Plaintiff indicates that although he had a written note from Singh stating that visiting hours were

from 11:15 a.m. to 2:45 p.m., a corrections officer informed him that visitation hours were from 3:15

p.m. to 6:45 p.m., and that he would have to wait to see Singh. Compl. ¶ 6. Plaintiff states that he

waited until 3:15 p.m., but was denied access to the elevator used for visitation hours. Compl. ¶ 7. 

Plaintiff states that he continued to wait until 4:30 p.m., but each time he sought access to the

elevator, a female employee working at the information desk “made fun of plaintiff,” and denied him

access to the elevator. Compl. ¶ 8. 

Based on this conduct, Plaintiff alleges that Defendants violated his First Amendment rights

to freedom of speech and association, and his Fourteenth Amendment rights to equal treatment. 

Compl. ¶¶ 10, 11. Plaintiff furtherstates that Defendants’ conduct caused him to suffer “emotional

injuries.” Compl. ¶ 12. The remainder of Plaintiff’s Complaint includes general allegations

concerning Defendants’ duties, the capacity in which each Defendant is sued, that Defendants were

acting under color of law, and that Defendants harbored a certain racial animus towards Plaintiff and

others. 

Plaintiff filed his Complaint with this Court on May 2, 2011, seeking relief under 42 U.S.C.

§§ 1981 and 1983, including compensatory damages, punitive damages, pre-judgment and postjudgment interest, attorneys’ fees and costs, and for such other relief as the Court may deem just and

proper. Compl. ¶ 5, p. 11. Plaintiff requested that Default be entered against Defendants on

September 22, 2011. ECF No. 10, 11. Defendants moved to Vacate Default on September 23,

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2011, and this Court granted that Motion on October 20, 2011. Defendants thereafter filed the

present Motion to Dismiss on November 4, 2011. Plaintiff filed his response on November 15,

2011. ECF No. 17. Defendants filed their Reply on December 1, 2011. ECF No. 18. The matter

is now before this Court.2

II. STANDARD OF REVIEW

In deciding a motion under Rule 12(b)(6), the district court is “required to accept as true all

factual allegations in the complaint and draw all inferences in the facts alleged in the light most

favorable to the [Plaintiff].” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). “[A]

complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations.” 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the Plaintiff’s “obligation to

provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and

a formulaic recitation of the elements of a cause of action will not do.” Id. To survive a motion to

dismiss, the complaint must state a plausible claim. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). 

Thus, assuming that the factual allegations in the complaint are true, those “[f]actual allegations must

be enough to raise a right to relief above a speculative level.” Bell Atl. Corp., 550 U.S. at 555.

III. DISCUSSION

At the outset, the Court notes that the Complaint falls well short of the pleading standards

set forth in Iqbal and Bell Atl. Corp., even granting Plaintiff significant leeway for his pro se status. 

 Plaintiff filed a Sur-Reply on December 15, 2011. ECF No. 19. In its discretion, 2

however, the Court will not consider that submission.

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Plaintiff makes no specific allegations against Divincenzo, other than to recite his official position. 

Similarly, Plaintiff provides no specific factual allegations against Hendricks or Florio. Simply put,

Plaintiff has not provided sufficient factual allegations to raise his right to relief against those

specific Defendants above a speculative level. The Complaint may therefore be dismissed against

those Defendants for failure to plead a cause of action under the standards set forth in Iqbal and Bell

Atl. Corp. 

Further, Plaintiff has not properly pled a cause of action against ECCF. As courts of this

Circuit have noted, “it is well-settled that a prison or correctional facility is not a person that is

subject to suit under federal civil rights laws.” Regan v. Upper DarbyTwp., No. 06-1686, 2009 U.S.

Dist LEXIS 19807, at *14-20 (E.D.Pa. Mar. 11, 2009). Indeed, a recent Opinion from this District

affirmed that the ECCF is not a person, and therefore not amendable to suit, under Section 1983. 

See Antoine v. Belleville Mun. Court, No. 10-1212, 2010 WL 2989991, at *4 (D.N.J. July 27, 2010)

(granting motion to dismiss). Accordingly, the Complaint may be dismissed against ECCF for

failure to state a cause of action.

Plaintiff’s failure to fulfill pleading standards and his attempt to sue an entity not

contemplated bySection 1983 are not the only reasons the Complaint will be dismissed. As has been

noted previously in this Circuit, “[i]t is doubtful that convicted prisoners or those who wish to visit

with them, including familyand spouses, have a constitutional right to visitation.” Buehl v. Lehman,

802 F.Supp. 1266, 1270 (E.D.Pa.1992)(citing Mayo v. Lane, 867 F.2d 374, 375–76 (7th Cir.1989));

see also Thorne v. Jones, 765 F.2d 1270, 1273–74 (5th Cir.1985) (holding no First Amendment

associational right to visitation); Smith v. Matthews, 793 F.Supp. 998 (D.Kan.1992) (holding no

constitutionally protected liberty interest of spouse or inmate husband to prison visitation); White

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v. Keller, 438 F.Supp. 110, 115–18 (D.Md.1977) (holding neither prisoners nor prospective visitors

have constitutional right to prison visitation), aff’d., 588 F.2d 913 (4th Cir.1978). Plaintiff’s

Complaint, at bottom, seeks redress under Section 1983 for First and Fourteenth Amendment

violations. As the above noted case law makes plain, however, Plaintiff has no constitutionally

protected interest in visiting his incarcerated friend. Accordingly, Plaintiff has not stated a cause of

action upon which relief may be granted. 

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss the Complaint is granted. 

 S/ Dennis M. Cavanaugh 

Dennis M. Cavanaugh, U.S.D.J.

Date: June 12 , 2012 

Orig.: Clerk 

cc: All Counsel of Record

Hon. Joseph A. Dickson, U.S.M.J.

File

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