NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

________________________________

 :

MARK CREVELING, :

 : Civil Action No. 11-667 (SDW)

Plaintiff, :

 :

v. : O P I N I O N

 :

STEVE JOHNSON, et al., :

 :

Defendants. :

 :

________________________________

APPEARANCES:

Mark Creveling, Plaintiff pro se

161 

Adult Diagnostic and Treatment Center

8 Production Way, trl, #2

Special Treatment Unit, CN - 905 

Avenel, New Jersey 07001 

WIGENTON, District Judge

Plaintiff, Mark Creveling (“Plaintiff”), an involuntarily

committed person pursuant to the Sexually Violent Predator Act (an

“SVP”), 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

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 complaint, pursuant to

28 U.S.C. §§ 1915(e)(2)(B), to determine whether it should be

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

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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 the complaint

should proceed in part.

I. BACKGROUND

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

1983, against Steve Johnson, Assistant Superintendent of the Adult

Diagnostic and Treatment Center; Brian Friedman, Director of

Psychology of the Special Treatment Unit (“STU”); Merril Main,

Clinical Director of the STU; and Layfette Davis, Food Services

Supervisor of the STU. 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.

With regard to Defendant Steve Johnson, Plaintiff makes the

following allegations. Plaintiff alleges that when his family

visits, they are forced to go through metal detectors, be patted

down and take off clothing, which makes his mother and sister feel

“violated.” His family would like to see him more than three days

per week and would like something to eat and drink when they visit. 

Plaintiff further alleges that a lot of the sinks and toilets

in the STU do not work and the pipes leak when it rains. The

toilet seat are cold when he sits on them and he is forced to get

his food from a serving line that runs under a ledge where dirt and

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cigarette ash can fall into it. 

Plaintiff further alleges that there is no exercise equipment

on his wing and he has to go to the “yard” if he wants to use

equipment. Further, the equipment in the yard is old and rusty. 

He is only permitted to go the yard three times per day. 

Plaintiff further alleges that the medical department is

“bad.” When the SVP’s have medical issues, the doctors and nurses

minimize the problem. When SVP’s are sent to the hospital, they

are sent to a prison hospital. Plaintiff alleges that he has a

bulging disk and “they can’t seem to help it.” 

Plaintiff further alleges that the officers violate the SVPs’

rights by not allowing them to go to the yard, the law library and

the right of free movement. The officers bang on the cell four

times per night, making it so the SVPs cannot get nine hours of

sleep. 

Plaintiff further alleges that he has been denied access to

dietary health supplements such as whey protein and creatine and

that there are not enough phones and they are always being used. 

Plaintiff further alleges that the Patient Bill of Rights is not

being followed and the SVPs are not allowed to mingle with the

opposite sex and he would like to “learn how to talk with women.” 

Plaintiff further alleges that he is only permitted to go to

church once every two-three weeks when he is supposed to be

permitted to go every Sunday. 

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Plaintiff further alleges that they are “locked in” for

“counts” two to three times per day and they should not be locked

in for counts even at night. 

Finally, Plaintiff alleges that the laundry is “slow”,

sometimes taking a couple of days to get done. 

With regard to Defendant Main and Freeman, Plaintiff alleges

that he does not have any privacy to use the bathroom because the

doors are open all day long. Plaintiff further alleges that the

therapy is “bad” and the therapists do not care about them.

Finally, Plaintiff alleges that he was supposed to be released

“soon through the t.c.” He states that his “Phase 4" was taken

away and now he has “nothing.” 

With regard to Defendant Lafayette, Plaintiff alleges that

“the food is bad [and] it don’t taste good.” Most of the time the

food is undercooked and cold. 

In relief, Plaintiff requests a declaration stating that

Defendants violated his rights and an injunction for the following: 

requiring Plaintiff’s visitors to be treated like those in other

civilly committed centers; to fix all plumbing, create a dining

room for food, reinstate the previous food distribution plan;

requiring yard recreation both day and night; to investigate and

repair the medical department and get him to a “cyropractor”; to

remove all current officers and replace with new ones; allowing

Plaintiff to buy vitamins and supplements; instituting a cell phone

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purchase program; requiring SVPs to be covered under the Patient

Bill of Rights; to create a program to allow Plaintiff to interact

with the opposite sex; telling Defendant Johnson to run a weekly

catholic service; requiring laundry to be done seven days a week;

to create a hearing for possible “map” status; to fix all doors and

windows to create privacy; to provide Plaintiff with adequate

treatment; to hire a dietician; to create a civilian oversight

committee; to appoint a special master to oversee all the of

requested injunctions; to allow personal computers; and to fix all

600 fire code violations.

II. DISCUSSION

A. Legal Standard

1. Standards for a Sua Sponte Dismissal

The Prison Litigation Reform Act, 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. See 28 U.S.C. §§ 1915(e)(2)(B). This

action is subject to sua sponte screening for dismissal under 28

U.S.C. §§ 1915(e)(2) (B) because Plaintiff is proceeding as an

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indigent.

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). 

Recently, the Supreme Court refined the standard for summary

dismissal of a complaint that fails to state a claim in Ashcroft v.

Iqbal, 129 S.Ct. 1937 (2009). 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.” Fed.R.Civ.P.

8(a)(2). Citing its opinion in Bell 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 held that, to

prevent a summary dismissal, a civil complaint must now allege

“sufficient factual matter” to show that the claim is facially

plausible. This then “allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” 

See id. at 1948. The Supreme Court's ruling in Iqbal emphasizes

that a plaintiff must demonstrate that the allegations of his

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complaint are plausible. See id. at 1949-50; see also Twombly, 505

U.S. at 555, & n. 3; Fowler v. UPMC Shadyside, 578 F.3d 203 (3d

Cir. 2009).

2. 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 under color

of state law. See West v. Atkins, 487 U.S. 42, 48 (1988);

Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994).

3. The New Jersey Sexually Violent Predator Act

The New Jersey Sexually Violent Predator Act, N.J.S.A.

30:4–27.24 et seq. (“SVPA”), provides for the custody, care and

treatment of involuntarily committed persons who are deemed to be

sexually violent predators. N.J.S.A. 30:4–27.26. The New Jersey

Department of Corrections (“DOC”) operates the facilities

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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 the Attorney General, taking “into consideration

the rights of the patients as set forth in section ten of P.L.1965,

c. 53 (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 an 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. An 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.

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B. Analysis

1. Conditions of Confinement Claim

Plaintiff's placement in a segregated unit within a prison

facility is not, in and of itself, a constitutional violation,1

however Plaintiff makes additional, general allegations concerning

the conditions of confinement at the Adult Diagnostic and Treatment

Center. 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 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 the 2

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

See Bagarozy v. Goodwin, Civil Action No. 08–468(SRC), 2008 WL

1

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) (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, respectively).

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

2

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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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 v. Young, 531 U.S. 250, 265

(2001). 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 (8th

Cir.2001) (applying the Fourteenth Amendment's “objective

reasonableness” standard to excessive force claims brought by

civilly committed SVPs).

Plaintiff's allegations with respect to the conditions of his

confinement relate to his contention that he is being treated like

a prisoner and subjected to prison rules. For instance, Plaintiff

complains that the ceilings and toilets leak; that the toilet seats

are cold; that the guards bang on the doors so the SVP’s cannot get

nine hours of sleep; that he is denied access to dietary

supplements; that there are not enough phones; that he is not able

to interact with women; that there are multiple “counts” per day;

that the laundry is “slow”; that the food is “bad” and does not

taste good; and that there are no doors on the bathroom but only

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curtains.

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 segregated 3

confinement of civilly committed SVPs); see also Thielman v. Leean,

282 F.3d 478 (7th Cir. 2002) (likewise extending Sandin to civil

commitment settings). Plaintiff 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 atypical or

significant deprivation that would rise to the level of a

constitutional violation at this time. As such, these claims will

be dismissed without prejudice. 

2. Unlawful Search Claim

Plaintiff’s claim regarding an unlawful search relates to the

search of his visitors when they come to visit him. He alleges

that when his family visits, they are forced to go through metal

detectors, be patted down and take off clothing, which makes his

mother and sister feel “violated.” His family would like to see

In Sandin, the Supreme Court held that there was no cognizable liberty

3

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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him more than three days per week and would like something to eat

and drink when they visit. However, Plaintiff has no standing to

challenge these policies because “a litigant may only assert his

own constitutional rights and immunities.” Glasshofer v.

Thornburgh, 514 F.Supp. 1242, 1246 (E.D.Pa. 1981), quoting United

States v. Raines, 362 U.S. 17, 22 (1960); Glenn v. Hayman, 2007 WL

894213, at *5, n.5 (D.N.J. March 21, 2007). Therefore, pursuant to

28 U.S.C. § 1915(e)(2)(B)(ii), this claim will be dismissed for

failure to state a cognizable claim under § 1983.

3. Limited Yard Time Claim

Plaintiff asserts that his rights are violated by the

restriction limiting his recreational time in the yard. However,

as stated above, the Third Circuit has held that placement of a

civilly committed SVP in an enclosed confinement does not violate

due process unless it results in a deprivation which is unrelated

to a legitimate penological purposes and, in addition, amounting to

a genuine privation. See Deavers, 243 Fed. App'x at 721 (applying

Sandin, 515 U.S. at 472 to segregated confinement of civilly

committed SVPs) ; see also Hubbard v. Taylor, 538 F.3d 229, 235 (3d 4

Cir. 2008) (holding that conditions-of-confinement claims by

pretrial detainees must be assessed in light of the totality of the

In Sandin, the Supreme Court held that there was no cognizable liberty

4

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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circumstances existing within the institution in order to determine

whether the challenges condition amounts to a genuine privation).

Since Plaintiff's claim asserting limited yard time does not

indicate that Plaintiff is subjected to a genuine privation as a

result of him being limited to yard access only three times a day,

such allegations fail to state a claim and will be dismissed

without prejudice. 

4. Medical Care Claim

Since Plaintiff is a civil detainee, the Fourteenth Amendment

is applicable to his medical claim. See City of Revere v.

Massachusetts General Hospital, 463 U.S. 239, 243-45 (1983)

(holding that the Due Process Clause of the Fourteenth Amendment,

rather than the Eighth Amendment, controls the issue of whether

prison officials must provide medical care to those confined in

jail awaiting trial); Hubbard, 399 F.3d at 158; Fuentes v. Wagner,

206 F.3d 335, 341 n. 9 (3d Cir. 2000); Monmouth Cnty. Corr. Inst.

Inmates v. Lanzaro, 834 F.2d 326, 346 n .31 (3d Cir. 1987); see

also Montgomery v. Ray, 2005 WL 1995084 (3d Cir. 2005)(“the proper

standard for examining such claims is the standard set forth in

Bell v. Wolfish, ...; i.e. whether the conditions of confinement

(or here, inadequate medical treatment) amounted to punishment

prior to adjudication of guilt ....”) (citing Hubbard, 399 F.3d at

158). In Hubbard, the Third Circuit clarified that the Eighth

Amendment standard only acts as a floor for due process inquiries

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into medical and non-medical conditions of pretrial detainees. 399

F.3d at 165-67.

In the instant case, Plaintiff alleges that “the medical dept.

is bad...It takes sometimes weeks to see the doctor. I went to the

hospital and asked about my nose and they said, they could not take

care of it because it was a cosmetic issue. Also I have a bulging

disk and they can’t seem to help it.” Plaintiff has not alleged

with any specificity, any inadequate medical treatment which would

amount to punishment. In fact, it appears from the statements in

the complaint that Plaintiff was given medical care, but he simply

disagrees with the treatment, which is not a viable constitutional

claim. As such, this claim will be dismissed without prejudice. 

5. Denial of Free Religious Exercise Clause

Next, Plaintiff alleges that he is denied access to religious

services on a regular and consistent basis. Specifically, he

alleges that he is supposed to have church every Sunday, rosaries

every day, bible study once a week and confession every week. 

However, he has only been getting church once every two-three

weeks. It appears from his request for relief that he practices

Catholicism. 

The First Amendment, made applicable to the states by the

Fourteenth Amendment, Cantwell v. Connecticut, 310 U.S. 296, 303

(1940), provides that “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise

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thereof; or abridging the freedom of speech, or of the press; or

the right of the people peaceably to assemble, and to petition the

Government for a redress of grievances.” As stated above,

conditions of confinement claims arise under the due process clause

of the Fourteenth Amendment for pretrial detainees or civil

detainees, such as those who have been committed to a state

facility. See Youngberg, 457 U.S. at 312. In evaluating the

constitutionality of conditions or restrictions of detention, the

inquiry is whether the conditions amount to punishment of the

detainee. Bell, 441 U.S. at 536. “[T]he fact that detention

interferes with the detainee's understandable desire to live as

comfortably as possible and with as little restraint as possible

during confinement does not convert the conditions or restrictions

of detention into punishment.” Id. Prison administrators “should

be accorded wide-ranging deference in the adoption and execution of

policies and practices that in their judgment are needed to

preserve internal order and discipline and maintain institutional

security.” Id. at 547. Thus, to state a First Amendment claim, an

inmate must establish allegations that indicate a constitutional

violation and show that the government has no legitimate

penological interest in the restrictions it imposes. See Lewis v.

Casey, 518 U.S. 343, 361 (1996); Bell, 441 U.S. at 551-52.

To establish his denial of religion claim, Plaintiff must

demonstrate that the restriction on religious practice was not

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reasonably related to a legitimate, penological interest. O'Lone

v. Estate of Shabazz, 482 U.S. 342, 349-50 (1987); Turner v.

Safley, 482 U.S. 78, 89 (1987). This reasonableness standard

involves the examination of the following four factors: (1) whether

the regulation or practice in question furthers a legitimate

governmental interest unrelated to the suppression of expression;

(2) whether there are alternative means of exercising First

Amendment rights that remain open to prison inmates; (3) whether

the right can be exercised only at the cost of less liberty and

safety for guards and other prisoners; and (4) whether an

alternative exists which would fully accommodate the prisoners'

rights at de minimis cost to valid penological interests. See

Thornburgh v. Abbott, 490 U.S. 401, 415-18 (1989); Turner, 482 U.S.

at 89-91.

At this early juncture of the case, the Court finds that

Plaintiff has alleged sufficient facts to permit his free exercise

claim to proceed. 

6. “MAP” Status Claim

Plaintiff alleges that he got “locked up” for saying that “Dr.

Enright is gay” during a group therapy session. He states that he

does not collect any pay when he is on MAP. He further states that

he only gets yard once a day when he is on MAP and he is only

allowed to have minimal property. He further states that he was

placed on MAP without any due process and he was denied toiletries

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while on MAP. 

It appears that the “MAP” status Plaintiff refers to is the

Modified Activities Program (“MAP”), which is a behavior

modification program implemented by the NJDOC and NJDHS. MAP is

designed to “prepare civilly committed sexual predators to safely

return to the community” and focuses on “stabilizing disruptive and

dangerous behaviors.” Fournier v. Corzine, 2007 WL 2159584, at *8,

n.11 (D.N.J. July 26, 2007) (citing M.X.L. v. New Jersey Dept. Of

Human Services/New Jersey Dept. Of Corrections, 379 N.J.Super. 37,

45 (App.Div. 2005). MAP consists of four levels, proportionate to

the apparent danger or instability reflected by the resident. Id.

A resident committed to the most restricted level is prohibited

from movement on the tier and is restricted to his room, even

during meals. However, the resident may have visitors, make and

receive phone calls, and is allowed to move in his separate yard.

All restrictive MAP rooms have a toilet and sink. Id.

As stated above, 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. Deavers, 243 Fed. Appx. at 721 (“Put another way, unless

the deprivation of liberty is in some way extreme, then the

Constitution does not require that a prisoner be afforded any

process at all prior to deprivations beyond that incident to normal

prison life. Our Court later extended Sandin's foreclosure of

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procedural due process protections to a situation like that

presented here-a plaintiff civilly committed in New Jersey claiming

a procedural due process violation by his wrongful placement in the

RAP”); see also Thielman, 282 F.3d at 478 (likewise extending

Sandin to civil commitment settings). 

Thus, Plaintiff’s allegations that he was placed on MAP status

for disruption during group and that general movement is monitored

and restricted, without more, fails to articulate a cognizable

claim of constitutional magnitude, in light of Deavers. Though he

alleges that he was without soap for a period of time, this

allegation, without more, does not arise to an extreme deprivation. 

As such, this claim will be dismissed without prejudice

7. Denial of Treatment Claim

Plaintiff also alleges that the therapy he is receiving is

“bad.” He states that the therapists do not care about the SVP’s

He states that the therapists have been heard saying that they are

only there for the money. He states that the therapists are very

rigid and that the therapists have no empathy for them. Thus,

Plaintiff 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

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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, and will generally

succeed only if the government action shocks the conscience. See

Glucksberg, 521 U.S. at 728.

With respect to Plaintiff's claim, it appears that he is

asserting that he has a fundamental right to adequate treatment as

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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 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

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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 “inherent

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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 has found that the Third

Circuit's holding in Leamer clearly extends to an involuntarily

committed sex offender under New Jersey's SVPA. See, e.g. Belton

v. Singer, 2011 WL 2690595 (D.N.J. July 08, 2011); Graham v. Sharp,

2011 WL 2491347 (D.N.J. June 20, 2011); Barber v. Sharp, 2011 WL

2223651 (D.N.J. June 02, 2011); Anderson v. DaCosta, 2011 WL

2223713 (D.N.J. June 01, 2011). Like Leamer, the length of

Plaintiff'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

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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 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 Plaintiff 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)(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]

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liberty interest[ ] in safety and freedom from unreasonable

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

Indeed, Plaintiff's complaint fails to show any procedural or

substantive due process violations to date. Plaintiff does not

demonstrate a categorical denial of therapy and treatment sessions

due to the prison setting in which he receives his treatment. He

fails to allege even one instance where his therapy group session

was cancelled. Thus, there simply is no evidence that Plaintiff

has been denied therapy sufficient to give rise to a claim of

constitutional magnitude.

The complaint contains no factual allegations of an absolute

denial of treatment. Rather, Plaintiff merely alleges that the

therapists do not seem to “care” about the SVP’s. He does not

allege that he has been denied treatment altogether. 

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 Plaintiff 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. Leamer,

288 F.3d at 546–47 (substantive due process claim alleging

inadequate treatment for committed sex offender “must focus on the

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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 Plaintiff. Thus,

this Court cannot readily conclude that Defendants' actions were

conscience-shocking and in violation of Plaintiff's substantive due

process rights. Indeed, Plaintiff's allegations, as set forth

above, are merely conclusory. Plaintiff has not shown any

disruption of treatment. Instead, he simply objects to the manner

in which treatment and sessions are provided.

Thus, the Court concludes that there is no demonstrated

interruption of adequate treatment that would rise to the level of

a constitutional due process deprivation. Further, this Court

concludes that the allegations asserted in by Plaintiff do not show

such egregious conduct or disruption as to render his mental

treatment conscience-shockingly deficient.

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

Plaintiff's claim alleging inadequate treatment will be dismissed

without prejudice for failure to state a cognizable claim of a

deprivation of a constitutional right.

V. CONCLUSION

For the reasons set forth above, Plaintiff's conditions of

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confinement claim, unlawful search claim, limited yard time claim,

medical care claim, “MAP” status claim and denial of treatment

claim will be dismissed without prejudice for failure to state a

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

move to file an amended complaint to correct the deficiencies, and

to allege sufficient facts to demonstrate the plausibility of the

dismissed claims, as outlined in Iqbal, and in accordance with this

Opinion. Plaintiff's motion to amend must adhere to the court

rules. Plaintiff’s free exercise claim will be permitted to 5

proceed at this time. An appropriate order follows.

Dated: August 4, 2011

s/Susan D. Wigenton 

SUSAN D. WIGENTON

UNITED STATES DISTRICT JUDGE

To the extent that Plaintiff chooses to amend his Complaint to cure

5

the deficiencies noted herein, pursuant to Federal Rule of Civil Procedure 15,

Plaintiff 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 is to

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

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