NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

 :

DAVID HOHSFIELD, :

 :

Plaintiff, :

 :

v. :

 :

WILLIAM POLHEMUS, et al., : 

 :

Defendants. :

 :

Civil No. 11-3007 (FLW)

OPINION

APPEARANCES:

DAVID HOHSFIELD, Plaintiff pro se

# 567841-A

Adult Diagnostic & Treatment Center

8 Production Way

P.O. Box 190 8-L

Avenel, New Jersey 07001

WOLFSON, District Judge

Plaintiff, David Hohsfield, a state inmate confined at the

Adult Diagnostic & Treatment Center in Avenel, New Jersey, at the

time he submitted the above-captioned Complaint for filing, seeks

to bring this action in forma pauperis. Based on his affidavit

of indigence, the Court will grant plaintiff’s application to

proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)

(1998) and order the Clerk of the Court to file the Complaint. 

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

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

pleading should be dismissed as frivolous or malicious, for

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

because it seeks monetary relief from a defendant who is immune

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

concludes that this action should be dismissed with prejudice.

I. BACKGROUND

Plaintiff, David Hohsfield (“Plaintiff” or “Hohsfield”),

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

the following defendants: William Polhemus, Sheriff of Ocean

County; Theodore Hutler, Warden of the Ocean County Jail; John

Does 1-5, Ocean County Freeholders; and Jane Roes 1-5, Ocean

County officials. (Complaint, Caption and ¶¶ 5b-c). 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.

Plaintiff alleges that the defendants have violated his

constitutional rights guaranteed under the Fourth, Fifth, Eighth

and Fourteenth Amendments, by levying and collecting fees from

him as an inmate housed at the Ocean County Jail for housing

costs without affording him due process or a hearing prior to the

alleged “seizure” of his funds. (Compl., ¶ 8).

Plaintiff seeks the return of all confiscated funds, as well

as compensatory and punitive damages in the amount of $250.00 per

day for every day that he was confined at the Ocean County Jail. 

(Compl., ¶ 9). He also asks for appointment of pro bono counsel

in this action. (Docket entry no. 1-3).

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II. STANDARDS FOR A SUA SPONTE DISMISSAL

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

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

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

in which a prisoner is proceeding in forma pauperis or seeks

redress against a governmental employee or entity. The Court is

required to identify cognizable claims and to sua sponte dismiss

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

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

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

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

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

§ 1915A.

In determining the sufficiency of a pro se complaint, the

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

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

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

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

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

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

reasonable inferences that can be drawn therefrom, and view them

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

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. 

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A complaint is frivolous if it “lacks an arguable basis

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

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

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

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

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

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

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

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

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

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

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

reviewed whether the complaint complied with the pleading

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

However, recently, the Supreme Court revised this standard

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

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

the Supreme Court was whether Iqbal’s civil rights complaint

adequately alleged defendants’ personal involvement in

discriminatory decisions regarding Iqbal’s treatment during

detention at the Metropolitan Detention Center which, if true,

violated his constitutional rights. Id. The Court examined Rule

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).

III. SECTION 1983 ACTIONS

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

Section 1983 provides in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory ... subjects, or causes to be subjected,

any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

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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. ANALYSIS

Plaintiff asserts that the imposition of a booking fee and a

$20.00 “housing fee” per day on pretrial detainees, such as

Plaintiff at the time he was housed at the Ocean County Jail, was

a violation of due process and his right against unreasonable

seizures.

Plaintiff objects to the “pay to stay” fee assessed against

him and other inmates housed at the Ocean County Jail to cover

the daily living expenses while confined. “User fees”, similar

to the one at issue here, have been determined to be nominal

surcharges and non-punitive, and therefore, they do not violate

due process. See Tinsley v. Del Rosso, 2008 WL 2236598, *5

(D.N.J. May 30, 2008); Fuentes v. State of New Jersey Office of

Public Defenders, 2006 WL 83108 at *8 (D.N.J. Jan. 11, 2006). In

Myrie v. Commissioner, N.J. Dep't. Of Corrections, 267 F.3d 251

(3d Cir. 2001), the Third Circuit held that N.J.S.A. 30:4-15.1,

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effective July 1998, which required all state inmates to pay a

10% surcharge on commissary purchases in order to fund the

Victims Crime Compensation Board (“V.C.C.B.”), was valid. The

court found that the surcharge was not so punitive in purpose or

effect to constitute “punishment” in violation of the Double

Jeopardy Clause, the Ex Post Facto Clause or Bill of Attainder

provision of the Constitution. The surcharge was not excessive

and was rationally related to legitimate governmental interest of

“bridging the funding gap for the crime victims compensation

program,” and did not offend constitutional due process

guarantees. Myrie, 267 F.3d at 255-263.

More significantly, the Third Circuit considered a similar

challenge, as made by Plaintiff here, in Tillman v. Lebanon

County Correctional Facility, 221 F.3d 410 (3d Cir. 2000). Like

Plaintiff, the plaintiff in Tillman challenged the legality and

constitutionality of a $10 per day fee for housing costs imposed

on prisoners in the Lebanon County Prison. That plaintiff

complained that the prison lacked the authority to implement a

Cost Recovery Program; however, the Third Circuit held that the

County was vested with the power to govern and manage

correctional institutions, which included the power to impose a

housing fee. Id., 221 F.3d at 423. The Tillman court stated,

“[a]lthough we have not uncovered a statute explicitly providing

for the deductions at issue here, the Cost Recovery Program was

duly promulgated, not by the state, but by the county prison

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board, which has “exclusive” authority regarding “the government

and management” of the facility.” Id. (citing 61 Pa. Cons.Stat.

§ 408(a)(1)) (current version at 61 Pa. Cons.Stat. Ann. § 1731).

That statute states in part that, “[t]he board ... shall provide

for the safekeeping, discipline and employment of inmates and the

government and management of the correctional institution.” 61

Pa. Cons.Stat. Ann. § 1731(a)(3).

Furthermore, the Third Circuit highlighted other court

decisions that upheld similar policies finding no “barriers to

the promulgation of such programs by prisons.” Tillman, 221 F.3d

at 423 (citing Reynolds v. Wagner, 128 F.3d 166, 170, 183 (3d

Cir. 1997)(upholding program that was created by county prison);

Mastrian v. Schoen, 725 F.2d 1164, 1165-66 (8th Cir. 1984)

(upholding programs instituted by correctional officials).

Accordingly the Third Circuit held that the Lebanon County Prison

Board had the authority to promulgate the Cost Recovery Program.

Here, there is broad authority granted to county boards of

chosen freeholders by the New Jersey Legislature under N.J. Stat.

Ann. §§ 30:8-19 and 30:8-23, which could include the right to 3

 N.J. Stat. Ann.. § 30:8-19 states, “[i]t shall be lawful 3

for the board of chosen freeholders of any county in this state

to assume and thereafter to exercise the custody, rule, keeping

and charge of the county jails in their respective counties, and

of the prisoners therein ...” Furthermore, N.J. Stat. Ann. §

30:8-23 states,

When the board of chosen freeholders of any county shall

have assumed the custody, rule, keeping and charge of the

county jail of such county pursuant to section 30:8-19 of

this title, such board shall prescribe rules and regulations

for the management and conduct of such jail, and the

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impose such an housing fee. Furthermore, the Tillman court

recognized the right of the Lebanon Valley Correctional Facility

to charge inmates a housing fee based on similar legislative

authority. 

Moreover, there is nothing to suggest that the user fee is

imposed as an impermissible penalty. The Third Circuit has

clearly announced that daily assessments like the one at issue

here, do not constitute a penalty, and that a cost recovery

program is more properly understood as a transfer of funds than a

way to regulate prison behavior or as a punitive measure. 

Tillman, 221 F.3d at 420. The Tillman court reasoned that: “A

prisoner’s term of incarceration cannot be extended, nor can he

be reincarcerated, for failure to pay a negative balance ... the

fees can hardly be called fines when they merely represent

partial reimbursement of the prisoner’s daily cost of

maintenance, something he or she would be expected to pay on the

outside.” Id. at 420. 

Therefore, this Court finds that the Ocean County Jail user

fee is a nominal and non-punitive charge.

This Court further concludes that imposition of the user fee

in this case does not violate any due process rights of

Plaintiff. The Fourteenth Amendment prohibits the State from

depriving “any person of life, liberty, or property, without due

employment, maintenance and keeping of the prisoners therein

...

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process of law.” U.S. Const. amend. XIV, § 1. In order to bring

a procedural due process claim, a plaintiff must allege that (1)

he was deprived of an individual interest that is encompassed

within the Fourteenth Amendment’s protection of life, liberty, or

property, and (2) the procedures available to him did not provide

due process of law. Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir.

2000). The Third Circuit has established that inmates have a

property interest in funds held in prison accounts. Reynolds v.

Wagner, 128 F.3d 166, 179 (3d Cir. 1997). “Thus, inmates are

entitled to due process with respect to any deprivation of this

money.” Id. (citing Mahers v. Halford, 76 F.3d 951, 954 (8th

Cir. 1996), cert. denied, 519 U.S. 1061 (1997)).

Thus, the Court is left to consider the adequacy of the

procedural safeguards made available to inmates in the Ocean

County Jail. In considering a due process claim, the Court must

balance the private interest, the governmental interest, and the

value of the available procedure in safeguarding against an

erroneous deprivation. Mathews v. Eldridge, 424 U.S. 319, 335

(1976). In some cases, takings of property by the State require

pre-deprivation notice and a hearing. But where the State must

take quick action, or where it is impractical to provide

meaningful pre-deprivation process, due process will be satisfied

by a meaningful post-deprivation remedy. Tillman, 221 F.3d at

422(citing Parratt v. Taylor, 451 U.S. 527, 539 (1981)).

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Here, Plaintiff states that he filed a grievance with

respect to the user fee and was provided a copy of the resolution

and policy and procedures regarding the fee collection process.

Pursuant to general state prison policy, inmates have an

opportunity to challenge the deductions from their inmate

accounts through the general internal inmate grievance procedure

provided for them. See Barney v. Camden County Bd. of Chosen

Freeholders, --- F. Supp.2d ----, 2009 WL 5103206, *7, 8 (D.N.J.

Dec 17, 2009)(NO. CIV. A. 08-4115). See also Tillman, 221 F.3d

at 422. 

In Tillman, the plaintiff challenged the adequacy of

procedural safeguards in place when the prison only provided the

opportunity for a post-deprivation hearing. In that case, the

Third Circuit stated that the procedures afforded by the prison

satisfied the constitutional requirements of due process.

Specifically, the Tillman court stated that,

It is impractical to expect the prison to provide

predeprivation proceedings under these circumstances.... The

assessments and takings pursuant to the program involve

routine matters of accounting, with a low risk of error. To

the extent that mistakes such as erroneous assessments or

incorrect takings might occur, they may be corrected through

the prison’s grievance program without any undue burden on a

prisoners’ rights. On the other hand, to require

predeprivation proceedings for what are essentially

ministerial matters would significantly increase transaction

costs and essentially frustrate an important purpose of the

program, which is to reduce the county’s costs of

incarcerating prisoners.

Id. at 422.

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Here, the Court finds that the general inmate grievance

procedure in place at Ocean County Jail also adequately protects

the rights of prisoners without creating an unfair burden on the

government. Inmates are afforded adequate notice and the

opportunity for hearing as required under the Constitution. 

Therefore, the user fee does not violate due process guarantees,

and this claim should be dismissed for failure to state a claim.

V. CONCLUSION

For the reasons set forth above, the Complaint will be

dismissed with prejudice, in its entirety, as against all named

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

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

be granted. Plaintiff’s application for appointment of counsel

(Docket entry no. 1-3) will be denied as moot. An appropriate

order follows.

 s/Freda L. Wolfson 

FREDA L. WOLFSON

United States District Judge

Dated: February 22, 2012 

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