NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOHN BRANDT, :

: Civil Action No. 11-2627 (FLW)

Plaintiff, :

:

v. : OPINION

:

LAWRENCE ROSSI, et al., :

:

Defendants. :

APPEARANCES:

Plaintiff pro se

John Brandt

Anne Klein Forensic Center

West Trenton, NJ 08628

WOLFSON, District Judge

Plaintiff John Brandt, a civilly-committed mental patient

confined at Anne Klein Forensic Center in West Trenton, New

Jersey, seeks to bring this action in forma pauperis pursuant to

42 U.S.C. § 1983, alleging violations of his constitutional

rights. Based on his affidavit of indigence, this Court will

grant Plaintiff’s application to proceed in forma pauperis

pursuant to 28 U.S.C. § 1915(a) and order the Clerk of the Court

to file the Complaint.

At this time, the Court must review the Amended Complaint to

determine whether it should be dismissed as frivolous or

malicious, for failure to state a claim upon which relief may be

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granted, or because it seeks monetary relief from a defendant who

is immune from such relief.

I. BACKGROUND

The following factual allegations are taken from Plaintiff’s

Complaint, or from sources of which this Court may take judicial

notice, and are accepted as true for purposes of this review. 1

In 2001, Plaintiff was charged, in two indictments, with

burglary, criminal mischief, and criminal trespass. He was

subsequently diagnosed with bipolar disorder, manic type with

psychotic features, and with an antisocial personality disorder. 

In 2003, the trial judge found him competent to stand trial on

both indictments and not guilty by reason of insanity. 

Thereafter, he was involuntarily committed and placed on Krol2

status. He remains committed and on Krol status as the result of

 This Court will take judicial notice of the dockets of 1

this and other courts in cases related to this Amended Complaint. 

See Fed.R.Evid. 201; Southern Cross Overseas Agencies, Inc. v.

Wah Kwong Shipping Group Ltd., 181 F.3d 410, 426-27 (3d Cir.

1999) (federal court, on a motion to dismiss, may take judicial

notice of another court’s opinion, not for the truth of the facts

recited therein, but for the existence of the opinion, which is

not subject to reasonable dispute over its authenticity).

 See State v. Krol, 68 N.J. 236, 344 A.2d 289 (1975) 2

(detailing periodic review procedures for persons found not

guilty by reason of insanity and committed for mental health

treatment); N.J.S.A. 2C:4-8(b)(3) (“If the court finds that the

defendant cannot be released with or without supervision or

conditions without posing a danger to the community or to

himself, it shall commit the defendant to a mental health

facility approved for this purpose by the Commissioner of Human

Services to be treated as a person civilly committed.”).

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the required periodic reviews. See generally Brandt v. McQuaide,

2010 WL 5343233 (D.N.J. Dec. 20, 2010) and In the Matter of the

Commitment of J.B., 2009 WL 1658494 (N.J.Super.App.Div. June 16,

2009).

Before this Court, Plaintiff alleges that he was transferred

to Trenton Psychiatric Hospital on November 30, 2010, and was

placed on the Raycroft-E2 unit, under the supervision of

Defendant Program Coordinator Jacqueline Porter Stewart. 

Plaintiff alleges that Defendant Stewart did not want Plaintiff

on her unit, because of his prior civil rights litigation.

Plaintiff alleges that, on December 22, 2010, Defendant

Maria Bella Sanchez, a housekeeper, told two other patients,

Wiley Smith and Mack Tyler, that Plaintiff had “snitched” on her

about selling narcotics to them. Plaintiff alleges that

Defendant Sanchez told Smith and Tyler that she wanted something

done to Plaintiff and to have him moved off the unit. Plaintiff

alleges that a third patient, James Edwards, told him about this

conversation at approximately 11:00 a.m. on December 22nd, after

which Plaintiff informed Defendant Sanchez that he had not

“snitched” on her and that she should stop trying to get Smith

and Tyler to attack him. Thereafter, Tyler and Smith directly

threatened Plaintiff.

Plaintiff alleges that he immediately told Defendant Stewart

that Tyler and Smith were planning to attack him because of the

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false allegations made by Defendant Sanchez. Plaintiff alleges

that this conversation was witnessed by the Treatment Team social

worker Nadine Klass. Plaintiff alleges that Defendant Stewart

notified administrative officials of the threats by e-mail, but 3

took no other measures to protect Plaintiff. Plaintiff describes

that the two threatening patients, Smith and Tyler, had a long

history of violence and assaults on other patients.

Plaintiff alleges that at 7:00 p.m. the same day, the two

threatening patients, Smith and Tyler, told the duty nurse

Defendant Ms. Sucharitha Ready that they were going to attack

Plaintiff if he was not taken off the unit. Ms. Ready informed

the nursing supervisors Defendants Pierre Nigil and Kephe Carter,

and the on-call psychiatrist Defendant Dr. Waverly Andrews of the

threats. Plaintiff alleges that these four Defendants failed to

take any action to protect Plaintiff.

Plaintiff alleges that at 8:00 p.m. that same evening, the

patients Tyler and Smith entered his room. Plaintiff alleges

that another patient restrained Smith, but that Tyler attacked

Plaintiff, injuring him and breaking his finger.

 Specifically, Plaintiff alleges that Defendant Stewart e- 3

mailed Defendants Medical Director Lawrence Rossi, Chief

Psychiatrist Evan Feibusch, Chief Executive Officer Teresa

McQuaide, Building Administrator Lee Acuff, Building

Administrator Maria Champagne, and Nursing Supervisor Dawn

Amentie, but that they failed to take any action, or took

inadequate action, to protect him.

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Plaintiff asserts that he has been treated differently from

other patients because of his litigation history. Plaintiff

seeks compensatory damages as well as declaratory and injunctive

relief.

II. STANDARDS FOR A SUA SPONTE DISMISSAL

This Court must dismiss, at the earliest practicable time,

certain in forma pauperis actions that are frivolous, malicious,

fail to state a claim, or seek monetary relief from a defendant

who is immune from such relief. See 28 U.S.C. § 1915(e)(2).

In determining the sufficiency of a pro se complaint, the

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

plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); 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).

In addition, any complaint must comply with the pleading

requirements of the Federal Rules of Civil Procedure.

Rule 8(a)(2) requires that a complaint contain “a short and

plain statement of the claim showing that the pleader is entitled

to relief.” A complaint must plead facts sufficient at least to

“suggest” a basis for liability. Spruill v. Gillis, 372 F.3d

218, 236 n.12 (3d Cir. 2004). “Specific facts are not necessary;

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the statement need only ‘give the defendant fair notice of what

the ... claim is and the grounds upon which it rests.’” Erickson

v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).

While a complaint ... does not need detailed factual

allegations, a 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 ... . Factual allegations must be enough to

raise a right to relief above the speculative level

... .

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citations omitted).

The Court of Appeals for the Third Circuit has held that the

Twombly pleading standard applies in § 1983 civil rights actions. 

See Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir.

2008).

Context matters in notice pleading. Fair notice under

Rule 8(a)(2) depends on the type of case -- some

complaints will require at least some factual

allegations to make out a “showing that the pleader is

entitled to relief, in order to give the defendant fair

notice of what the ... claim is and the grounds upon

which it rests.” Indeed, taking Twombly and the

Court’s contemporaneous opinion in Erickson v. Pardus,

127 S.Ct. 2197 (2007), together, we understand the

Court to instruct that a situation may arise where, at

some point, the factual detail in a complaint is so

undeveloped that it does not provide a defendant the

type of notice of claim which is contemplated by

Rule 8. Put another way, in light of Twombly, Rule

8(a)(2) requires a “showing” rather than a blanket

assertion of an entitlement to relief. We caution that

without some factual allegation in the complaint, a

claimant cannot satisfy the requirement that he or she

provide not only “fair notice,” but also the “grounds”

on which the claim rests.

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Phillips, 515 F.3d at 232 (citations omitted).

More recently, the Supreme Court has emphasized that, when

assessing the sufficiency of any civil complaint, a court must

distinguish factual contentions -- which allege behavior on the

part of the defendant that, if true, would satisfy one or more

elements of the claim asserted -- and “[t]hreadbare recitals of

the elements of a cause of action, supported by mere conclusory

statements.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). 

Although the Court must assume the veracity of the facts asserted

in the complaint, it is “not bound to accept as true a legal

conclusion couched as a factual allegation.” Id. at 1950. Thus,

“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.” Id.

Therefore, after Iqbal, when presented with a

motion to dismiss for failure to state a claim,

district courts should conduct a two-part analysis. 

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. 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.” 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.’” 

This “plausibility” determination will be “a

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context-specific task that requires the reviewing court

to draw on its judicial experience and common sense.”

Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009)

(citations omitted).

Where a complaint can be remedied by an amendment, a

district court may not dismiss the complaint with prejudice, but

must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34

(1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d

Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane

v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal

pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg

County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).

III. SECTION 1983 ACTIONS

A plaintiff may have a cause of action under 42 U.S.C.

§ 1983 for certain violations of his constitutional rights. 

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

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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

A. The Failure-to-Protect Claim

Plaintiff alleges that all defendants violated his

Fourteenth Amendment right not to be deprived of liberty without

due process when they acted with willful disregard for his

safety.

"Due process requires that the nature of commitment bear

some reasonable relation to the purpose for which the individual

is committed." Foucha v. Louisiana, 504 U.S. 71, 79 (1992)

(citing Jones v. United States, 463 U.S. 354, 368 (1983); Jackson

v. Indiana, 406 U.S. 715, 738 (1972)). See also Youngberg v.

Romeo, 457 U.S. 307, 324 (1982) and Jackson v. Indiana, 406 U.S.

715, 738 (1972)).

In Youngberg v. Romeo, 457 U.S. 307 (1982) the Supreme Court

evaluated the substantive Fourteenth Amendment liberty interests

retained by civilly-committed mental patients. The Court held

that involuntarily-committed mentally retarded persons retain

substantive liberty interests in adequate food, shelter,

clothing, and medical care, Youngberg, 457 U.S. at 315, as well

as in safety, freedom of movement, minimally adequate or

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reasonable training to ensure safety, and freedom from undue

restraint, id. at 317-19. 

These interests, however, are not absolute. Youngberg, 457

U.S. at 319-20. "In determining whether a substantive right

protected by the Due Process Clause has been violated, it is

necessary to balance "the liberty of the individual" and "the

demands of an organized society." Id. at 320 (quoting Poe v.

Ullman, 367 U.S. 497, 542 (1961)(Harlan, J., dissenting)). In

seeking this balance, a court must weigh "the individual’s

interest in liberty against the State’s asserted reasons for

restraining individual liberty." Id. In Youngberg, balancing

the interests of the State against the rights of involuntarily

committed mentally retarded persons to reasonable conditions of

safety and freedom from unreasonable restraints, the Court

adopted the standard advocated by a concurring judge, below, that

"the Constitution only requires that the courts make certain that

professional judgment in fact was exercised. It is not

appropriate for the courts to specify which of several

professionally acceptable choices should have been made." 487

U.S. at 321 (quoting 644 F.2d 147, 178 (3d Cir. 1980) (Seitz,

C.J., concurring)). Thus, even when treatment decisions violate

a protected liberty interest, such decisions made by a qualified

professional are presumptively valid;

liability may be imposed only when the decision by the

professional is such a substantial departure from

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accepted professional judgment, practice, or standards

as to demonstrate that the person responsible actually

did not base the decision on such a judgment. In an

action for damages against a professional in his

individual capacity, however, the professional will not

be liable if he was unable to satisfy his normal

professional standards because of budgetary

constraints; in such a situation, good-faith immunity

would bar liability.

457 U.S. at 323 (footnote omitted). 

a. The Claim Against Maria Bella Sanchez

The due process claim against housekeeper Maria Bella

Sanchez is based upon her allegedly false statement to patients

Smith and Tyler, that Plaintiff had “snitched” on her, and her

request that they do “something” to Plaintiff.

The Court of Appeals for the Third Circuit has held that,

even after Youngberg, nonprofessional employees who provide care

for involuntarily institutionalized mentally retarded persons are

subject only to a "deliberate indifference" standard. Shaw v.

Stackhouse, 920 F.2d 1135, 1147 (3d Cir. 1990). “The deliberate

indifference standard requires a showing, in cases alleging that

a state actor failed to provide adequate protection, that the

state actor was recklessly indifferent, grossly negligent, or

deliberately or intentionally indifferent.” Id. at 1145

(citations omitted).

The allegations of the Amended Complaint are sufficient to

permit this claim to proceed.

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b. The Claim Against All Other Defendants

The claim against all other defendants, all of whom are

described as mental health professionals, is based upon their

failure to take any action to protect Plaintiff against threats

made by other patients with a history of violent behavior. 

Plaintiff alleges that this failure to act was a violation of the

institution’s own policies.

The allegation of complete failure to protect Plaintiff in

the face of credible threats of violence is sufficient to state a

claim.

B. The Retaliation Claim

Plaintiff alleges that Defendant Jacqueline Porter Stewart

retaliated against him, because of his litigation history, by

failing to protect him and by failing to take any remedial

actions against the patients who assaulted him.

“Retaliation for the exercise of constitutionally protected

rights is itself a violation of rights secured by the

Constitution ... .” White v. Napoleon, 897 F.2d 103, 111-12 (3d

Cir. 1990). To prevail on a retaliation claim, a plaintiff must

demonstrate that (1) he engaged in constitutionally-protected

activity; (2) he suffered, at the hands of a state actor, adverse

action “sufficient to deter a person of ordinary firmness from

exercising his [constitutional] rights;” and (3) the protected

activity was a substantial or motivating factor in the state

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actor’s decision to take adverse action. Rauser v. Horn, 2001 WL

185120 (3d Cir. 2001) (quoting Allah, 229 F.3d at 225). See also

Anderson v. Davila, 125 F.3d 148, 160 (3d Cir. 1997) (citing Mt.

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274

(1977)); Thaddeus-X v. Blatter, 175 F.3d 378, 386-99 (6th Cir.

1999), cited with approval in Allah, 229 F.3d at 225.

All citizens have a right under the First Amendment to

petition the courts for redress of grievances; retaliation for

exercise of that right is an actionable constitutional tort. 

See, e.g., Peterkin v. Jeffes, 855 F.2d 1021, 1036 (3d Cir.

1988); Goldhaber v. Higgins, 576 F.Supp.2d 694 (W.D.Pa. 2007). 

Thus, Plaintiff has adequately alleged that he engaged in a

protected activity. 

In addition, the Amended Complaint adequately alleges that

Plaintiff’s litigation history was a motivating factor in

Defendant Stewart’s behavior toward him. However, with respect

to the element of a retaliation claim that the plaintiff must

have suffered adverse action sufficient to deter a person of

ordinary firmness from exercising his rights, the Amended

Complaint states a claim only with respect to Defendant Stewart’s

actions in exposing Plaintiff to the risk of assault. To the

extent Plaintiff rests his retaliation claim on Defendant

Stewart’s failure to take action against Smith and Tyler after

the assault, it cannot be said that such behavior would be

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sufficient to deter a person of ordinary firmness from exercising

his rights. Accordingly, this claim may proceed only on the

theory that Defendant Stewart retaliated against Plaintiff by

knowingly exposing him to the risk of assault.

C. The Equal Protection Claim

Finally, Plaintiff alleges that Defendant Stewart violated

his Fourteenth Amendment right to equal protection by treating

him differently from other similarly situated patients because of

his litigation history.

The Fourteenth Amendment’s Equal Protection Clause provides

that no State shall “deny to any person within its jurisdiction

the equal protection of the laws.” U.S. Const. Amend. XIV, § 1.

It is well settled that the Equal Protection Clause

“protect[s] persons, not groups,” Adarand Constructors, Inc. v.

Pena, 515 U.S. 200 (1995) (emphasis omitted), and that the

Clause’s protections apply to administrative as well as

legislative acts, see, e.g., Raymond v. Chicago Union Traction

Co., 207 U.S. 20, 35-36 (1907). Thus, in Village of Willowbrook

v. Olech, 528 U.S. 562, 564 (2000), the Supreme Court recognized

that an equal protection claim can in some circumstances be

sustained, even if the plaintiff has not alleged class-based

discrimination, but instead has alleged that he has been

irrationally singled out as a “class of one.” To proceed on such

a claim, the plaintiff must allege that he has been

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“intentionally treated differently from others similarly situated

and that there is no rational basis for the difference in

treatment.” Id. “[A]t the very least, to state a claim under

that theory, a plaintiff must allege that (1) the defendant

treated him differently from others similarly situated, (2) the

defendant did so intentionally, and (3) there was no rational

basis for the difference in treatment.” Hill v. Borough of

Kutztown, 455 F.3d 225 (3d Cir. 2006).

However, the Court of Appeals for the Third Circuit has held

that “‘[a] pure or generic retaliation claim [] simply does not

implicate the Equal Protection Clause.’” Thomas v. Independence

Twp., 463 F.3d 285, 298 n.6 (3d Cir. 2006) (citations omitted). 

Plaintiff’s claim here is a pure, generic retaliation claim, and

thus fails to state a claim for violation of the Equal Protection

Clause.

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V. CONCLUSION

For the reasons set forth above, the Amended Complaint may

proceed in part. The failure to protect claims under the

Fourteenth Amendment may proceed against all defendants.

Plaintiff’s retaliation claim will be dismissed in part, with

prejudice, and Plaintiff’s Equal Protection Claim will be

dismissed, with prejudice, for failure to state a claim. It does

not appear that Plaintiff could cure the defects in the dismissed

claims. Accordingly, he will not be granted leave to further

amend. 

An appropriate order follows.

s/Freda L. Wolfson 

Freda L. Wolfson

United States District Judge

Dated: February 2, 2012

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