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**NOT FOR PUBLICATION** 

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UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

JUSTICE RASIDEEN ALLAH, 

Civil Action No. 11-3153 (MAS) (TJB) 

Plaintiff, 

v; MEMORANDUM OPINION 

GREG BARTKOWSKI, et al., 

Defendants. 

This matter comes before the Court on a civil Complaint by Plaintiff Justice Rasideen Allah 

pursuanLtQ 42 U.S.C. § 1983, alleging that his constitutional rights have been violated by . ' 

Defendants due fo. his placement in the Management Control Unit e'MCU"). 1 Plaintiff asserts 

both Eighth Amendment claims regarding his conditions of confinement while in the MCU, as , 

WYll as Fourteenth Amendment due process claims regarding his initial placement, and the ~ ' '-~· .~ "~ . i ) Jj 

subsequent decision to keep him, in the MCU. Presently before the Court are two motions to 

dismiss by Defendants (the "Motions"), (ECF Nos. 81 & 83), raising substantially identical 

ar$Ulllents for dismissal. It appearing: 

. J. · The Court previously dismissed all claims with prejudice upon its sua sponte screening 

pursilant to28 U.S.C. § 1915(e)(2), finding that the Complaint failed to state a claim on which 

relief may be gra.11.ted, and that amendment would be futile. (See Memo. Op. 8, Nov. 8, 2012, ECF 

MCU is a. close custody unit to which an inmate may be assigned if the inmate "poses a 

substantial threat to the safety of others; of damage to or destruction of property; or of interrupting 

the operation of a State correctional facility." N.J. Admin. Code§ 10A:5-1.3 . .. 

Case 3:11-cv-03153-MAS-TJB Document 92 Filed 04/21/16 Page 1 of 8 PageID: 1078
No>8.) Plaintiff filed a motion for reconsideration, (ECF No. 10), which the Court denied, (Order, 

. JuJy 30, 2013, ECF.No. 13). 

'. ' \ ~~:~:; ':~: ' " : ; ' 

2.· ;Plaintiffappealed. (Notice of Appeal, ECF No. 15.) The Third Circuit vacated this Court's 

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dismissal, and remanded the case for further proceedings. (See Mandate, Aug. 11, 2014, ECF No. 

20.J,. In \ts decisio~, the Third Circuit found that (1) the Complaint alleged sufficient factual 

. al\e~atlons ... to state:Eighth Amendment conditions of confinement claims regarding Plaintiffs .,-:,_~~·~:i:·> r·: ~I + 

confine~~rit in the,MCU, (see Op. 6-7, July 18, 2014, ECF No. 20-1), and (2) the Complaint 

,··l· l 

alleged sufficientfactual allegations to state Fourteenth Amendment claims that the administrative 

hearings (placing and keeping Plaintiff in the MCU) were constitutionally defective, violating his '' ' 

: procedural due process rights, (id at 8-9). The Third Circuit noted, without deciding, that the state 

court's findings, 'in Plaintiffs appeals of the administrative decisions to place and keep Plaintiff in 

the MCU,_"may have'a preclusive effect on Allah's Fourteenth Amendment claims." (Id. at 9 n.3.) 

. 3. Upon remand, Defendants filed the instant Motions, contending that the Rooker-Feldman 

· ciJcfune pr~clud~s this Court from adjudicating Plaintiffs Fourteenth Amendment claims. To ,.,,,': 

,, ~ ~ 1 

invoke the Rooker-Feldman doctrine, Defendants must satisfy four requirements: "(l) the federal 

plaintiff lo.~t in ·state cotut; (2) the plaintiff complains of injuries caused by the state-court 

judgments; (3) those judgments were rendered before the federal suit was filed; and ( 4) the plaintiff ~ . . ""'.' ' 

. { ;.;t; r·~;y,:~.~";~:1 :. -; l ~:·~ :: .. < j •. .-: " 

: is invitin~ the district court to review and reject the state judgments." B.S. v. Somerset County, 

I 

704 F.3d:2S0,'260 '(3d Cir. 2013) (citation and quotation omitted). "Rooker-Feldman ... is a 

narrow doctrine, 1

confined to cases brought by state-court losers complaining of injuries caused by 

">. ! ::~ ;· ; ' ·-; .. ' ;' ' . 

state:.court judgments rendered before the district court proceedings commenced and inviting ~' ;'ii.:,·;, " < I "' 

.; j (~~ ·1!, ., ( ! ; ··"·':' ., ;i· 

: disttjclcourt review and rejection of those judgments." Williams v. BASF Catalyst LLC, 765 F.3d 

"' ' -. l ~ < k . ~ 

306, 315. (3:d Cir.:'2014) (quoting Lance v. Dennis, 546 U.S. 459, 464 (2006)). The doctrine 

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·, .. '.,:, 

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requir~s ili;at "the fe9eral claim was actually litigated in state-court prior to the filing of the federal ·: .. ~::·"::~A~:i.;~f;;r.'_'.<:·,~f:rr f~~~.• .. ;.·, ,, ...... '; ::~·:··:~':! ....... ~ ''" ~· 1 

ac~iQp. QI,ii .;. [that] the federal claim is inextricably intertwined with the state adjudication, meaning , , .,~~r·~:Y q·:;.: I :'1J · /~ ! ;: 

thatfederafrelie(can only be predicated upon a conviction that the state-court was wrong." Jonas • . ·f·-

v. Gold, 6'27 F. ;\.pp'x 134, 137 (3d Cir. 2015) (quoting In re Knapper, 407 F.3d 573, 580 (3d Cir. 

' \ 

. 2Q05)). ' ::·•"!, },?x:: ,.··, "," 

;,;~:\~.),p~fi;nclatl;is lirgue that the aforementioned state court decisions, affirming the initial and _ ..,, : ~·, .".: I ''-I' 

continu~d ,~lace~ent of Plaintiff in the MCU, "demonstrate[ d] that Allah's claims in this federal ~ i ' ::,n: 1:i·~l . ' I 

case mirror the claims he already had an opportunity to litigate [in state court]", and as such, "Allah 

is .~c;>t en~itled to. federal relief because there is no indication that the Appellate Division 'was • '1--

· ~()~g.'~'·, (pefs.' Br. 6-8, ECF No. 81-2.) The Court disagrees. The Court's review of both of the i ~ ; 

state couh :decisioris ·reveals that, unsurprisingly, those decisions primarily dealt with whether 

Plaintiff was correctly placed and kept in MCU confinement. See Allah v. NJ. Dep 't of Corr.' 

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· 2012 wr2345390,~~t *5 (N.J. Super. App. Div. June 21, 2012); Allah v. NJ. Dep't of Corr., 2008 ~ 1 ~-

: >' :.:.~4·: :~~> } .r'.·"·t· ·~ ~.'.' .

0 

: WL«_2245'599, a(*3 (N.J. Super. App. Div., June 3, 2008). For example, in the latest appeal, the ; ' i j 

appellate c9urt disposed of much of Plaintiffs claims regarding procedural defects by confining 

,[ :· 

the appeal ·"to the .Febr~y 24, 2011 final agency determination and the discrete issues that 

! '.:. . . . !-- ' : ' ·: 

emanate from thaf determination only." Allah, 2012 WL 2345390, at *4. Based on that 

' : ::;{). ;~;~~)If· ·. ' .;.·' 

· coiifinemetit, it held that"[a]s to appellant's rhetorical questions of 'first impression,' we do not ·. 1 .. 1 '<.{ 

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provide advisory,opinions. We will address only specific issues raised by appellant relevant to 

this appeal." Id (internal citation omitted). What little review of procedural issues the state court 

dfd reach ;~'ssenti~lly: concluded that the administrative hearings substantially complied with state 7 ~ ~~ ' 

; -;:·.:~l1~~"{,.~'-,;:-~~~:, ;·· i: J ' ' ',_;· \' ~' 

regtilatfons~: ·Id; Allah, 2008 WL 2245599, at *3 ("We are additionally convinced that, in making 

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Case 3:11-cv-03153-MAS-TJB Document 92 Filed 04/21/16 Page 3 of 8 PageID: 1080
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it~ ~ete:m:ii~~tion, the Department substantially complied with the regulations governing MCU 

' i: i:.·'.~~·*:.V;~~~~-;-.·~··" ;.~ t ·:.--±:.;!:~ ':: 

: P1~9~J;lle~ts~ 'l ·;:i 

: !'. {.!c~ !;~t'./i(:i;: . '"'. 

5. Ho~ever~f ~.~,the Third Circuit stated, here, Plaintiffs Fourteenth ~endinent claims 

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concern his procedural due process rights under federal law. In that regard, "the relevant inquiry 

; is: what process' [plaintiff] received, not whether the state court decided the case correctly." 

i ;.·:i:~'.:~}·\~: '. \'.:: :; . ' :.:;· 

S)ffi.rt}ioy/v. Co~ke., 562 U.S. 216, 222 (2011). This Court is constrained by the Third Circuit's . '"_ ~ .. ~,.:±;-_·~-~'r.:·:~·n :·:.! ~· .. , . :.\"1 .. _ 

finding ¢.~{, t~<:{. (:.<;>,mplaint has facially stated valid procedural due process claims based on . ~ .; c;'!·:r ' . . ' ' 

Plaintiffs extensive allegations of defects that occurred at his administrative hearings. (See Op. 

8f:}μJy 1:8, .2014.) ;, What limited review the state court may have conducted on Plaintiffs ~·. . ~' i' . i ,_ 

,: -~ ·'.:.:,t-:t;·::. ·,:;: 

proc~diirat due pro~ess claims were too narrow in scope to encompass the entirety of Plaintiffs 

·-; ···- ') '.'.. ! ~·_:>I:;_. , .i.:~- :; t,_, 1 

claims her~ in ~s ¢ourt.' See Vitek v. Jones, 445 U.S. 480, 491 (1980) (holding that procedural . : ' ~ 

du~ process protection is "a matter of federal law, [and is] not diminished by the fact that the State 

m~f 'hav{ specitled jts own procedures that it may deem adequate"). In other words, a finding of 

, idhilify 6~:'p1~~tiff s Fourteenth Amendment claims would not be logically inconsistent with the 

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state court'~judgμ}~rits; the state court's determination, that Plaintiffs placemeb.t in the MCU was 

i 

proper, may have been entirely correct irrespective of the alleged procedural defects. As such, the 

· c6ilit·~~ds thatRooker-Feldman does not apply.2 

2 Defendants''. reliance on Barnes v. Domitrovich, 184 F. App'x 164 · (3d Cir. 2006) is 

inapplicable here. The Third Circuit upheld the district court's dismissal based on the RookerFeldman doctrine because it concluded that "Barnes' claims were either actually litigated in the 

state.court~ and/or are so inextricably intertwined with the state court adjudication of his parental 

. rights'." 1d: at 166 .. The Court does not reach that conclusion in this case. Similarly, Defendants' 

aj'~ent~ iJ;J. their r~ply briefs regarding preclusion are equally unpersuasive. The Court does not 

(HspufB'DefendarttS' ·assertion that "the Appellate Division considered the evidence and claims 

raised by· Allah. durhJ.g. both appeals, and found that his initial and continued confinement to the 

MCU was supported by substantial, credible evidence[.]" (Defs.' Reply 4, ECFNo. 88.) However, 

as stated ~bove,. this Court does not concern itself with the validity of Plaintiffs confinement in 

the MCU. The inquiry squarely before this Court is whether Plaintiff received adequate procedural 

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· . ··, ::,6~ ,< Jo ',the e~tent Defendants are arguing that the state court reviews served as separate , :r~ :: ::t:t~}f:'.:·~~ ~ · ~ ,;; .. :'":: ~t~;: "~: "''. ·· " · 

pt~~sU~~j,Qf P~~~tiffs procedural due process rights, independent of the administrative , : -~, .. : """ ! ~<,~£: -.'. 'l •! 

hearings-. ~d; ~~Uf~~ cured any potential defects in those hearings-Defendants cite to no 

p .:··· 

au~o~ty,-and th~ C~urt finds none, to support that argument. There is case law suggesting that a :'; 

. s\lb~~qQ.e\lt qe navo :review might ~ure a constitutionally defective administrative proceeding. See 

: ~ ~~~r~:~:.l~\E~>. ';'.,.~: : ~F :r · · · . , Spe.ncer:v..~{J.S.: l);ep·'t of Agric., 142 F.3d 436 (6th Cir. 1998); Haskell v. U.S. Dep't of Agric., 930 

':.:•·!{'' •;: : 

F .2d 816, 820 ( lp~;~~ir. 1991 ). Here, however, as the state court pointed out in its ruling, Plaintiff 

I 

did not received~ novo review at the state court level. See Allah, 2012 WL 2345390, at *5 ("The 

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scope of OUJ:' review in an appeal from a final decision of a state administrative agency is strictly 

: limited.").· :'.This Court is bound by the Third Circuit's finding with regard to the administrative - .,, <!, ', 

hearings allegatidns·, and Plaintiffs limited review on appeal did not cure those alleged defects. 

Accordingly, the Court denies the Motions on the Fourteenth Amendment claims. 

i vr::f ::· Firiruly, Def~ndants Greg Bartkowski and Michele R. Ricci move to dismiss all claims ,·i;..',j,' ;·, '.· . ; 

; ;!t::~!;:t .~ii,:;''-~~'.~.;.,) ' .)~ I' ·',_ .'._ '.' ·> . ' ~ 

· ~gIJfisP tlielli, arg~ihg 'that those claims are impermissibly premised on a supervisory liability 

theory .. fo a§ 19S3:claim, "[g]overnment officials may not be held liable for the unconstitutional 

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con9.uct of their subordinates[.]" Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). "[A] plaintiff must 

1 J' . ·::"·· :._ ',; ... ~ ~. ~ -h 

plea~fthat each Government-official defendant, through the official's own individual actions, has 

;i~~J,'-~ ~.;. ":::: .. H . . r~; .. . . violated the 1 Constifution." Id. While affirmative action by a supervisory official is not required 

acquiesced in the subordinate's unconstitutional conduct." Barkes v. First Corr. Med Inc., 766 

ii . : ., 

; ~,~,{·:·t~.~'. :::·;'~1·.:<,'.";_ ·~.: '' . ·.,1,·· .• ' 

protectfon <;furirig' the' administrative hearings, regardless of outcome. As the Court finds above, 

the proced~a~ i~~ues .have not been fully decided by the state court. If there ,are specific issues 

that Defendants' believe may be precluded from litigation in federal court, they may file the 

appropriate pretrial motions to limit the issues at trial. <;, 

5 

I 

I ; 

Case 3:11-cv-03153-MAS-TJB Document 92 Filed 04/21/16 Page 5 of 8 PageID: 1082
: F}p}0?,;~16 (3~ 9r. 2014) (rev'd on other grounds); see Evancho v. Fisher, 423 F.3d 347, 353 

·;. ~· ~·:··!~,~·~1'~~,~:~r~~ t .:·;;: -~· {-~-~ ~ .'~~~:!~~lH~ ·: ;1.;~ t~ - ~ ~ ·< • 

, (~c;l .~ir~ 700.5) ("J>~rsonal involvement can be shown through allegations of personal direction or ~-· ~ ... -. ~._~"\ ;.n;r~- t t~;t·~~~:-~ ~;· ~- .:'.}L:.>'.-1~ 

of actual krf~wl¢~g~ cind acquiescence."). "[A]llegations [that] .... merely assert their involvement "¥. ' ~ ' , . :: ~ '.. ·; t fi k , ~ , ' ' 

~-!'' ~ ;: ~; ; .. 

in the post-incident grievance process" are insufficient to establish liability. Alexander v. 4 )•, 

G:~tzhari~ii·1441n App'x 924, 925 (3d Cir. 2005). "Merely responding to or reviewing an inmate 

· ·, ~~:~,1~··}e'"t' ·.:· · ' · .·. f i · .,: . ; · · : 

. gtj~yajl.Q~; 4,oes :qo~: rise to the level of personal involvement necessary to allege an Eighth -. · '.' .. ; .. ' ... ,;li ·~ ... · ·iT · <: 

Amendment deliberateindifference claim." Tenon v. Dreibelbis, 606 F. App'x 681, 688 (3d Cir. " ··JT .. ( .. , 

2015) .. 

:"\".a. ·, Hbwever, there is case law suggesting that repeated written complaints to a supervisory 

; ~.<t'4;··.,,,:· . ' ' ~ d.e:fencfuril .of an .ongoing constitutional violation may be sufficient to establish the deliberate ·. i:f;-. ,,·, ,_, 

r1 . , :.i . 

indifference· by ~{rcμinstantial evidence. See, e.g., Cardona v. Warden - MDC: Facility, No. 12- ~1 ·: + 

7161, 2013 WL 16446999, at *5 (D.N.J. Dec. 6, 2013) (holding that plaintiff has stated a valid 

; cleniat;o1

f'riiedicai services claim against the prison warden because plaintiff alleged an ongoing "'.:' )"• ~, :.;!.:f' ;". \ i ' "' 

: i l;.;~/1, >>) {! ,.·. \ ,, 

: ccmstitut1pnftl violation, and alleged that the warden was made aware of the ongoing violation 

' ' . ' 1 ' '~.}}. > ' I 

through repeate~ ;written requests); Carter v. Smith, No. 08-279, 2009 WL 3088428, at *6 (E.D. 

Pa. ~ept. 23, 2009) ("Where a grievance alleges an ongoing constitutional violation, a supervisory 

.,. t. .. >·,1

, ~--".' ."·'+: ; i~ l ~i. ~ 

' d,efe.ndanf who reviews it is personally involved in that violation because he is confronted with a 

i '. ~/~~r:t: n ; : . " . . 

situation :h~ can 'remedy directly.") (quoting Harnett v. Barr, 538 F. Supp. 2d 511, 524-25 

(N.D.N.Y; ioo8')f ~hhese cases require the plaintiff to establish an ongoing violation that can be 

remedied by the : supervisory official. Grievances of past violations will not do because the 

' ; ~,! ·.,. :'- '. t.:.~~ '.\. \~ ·.t" ~ ~· -

_; sup~~iso?s actibns~:.or lack thereof, would not have caused the plaintiff additional injury. See . ·"'·< ;;v,._, ... ,,.,,_;,·. ; . ; 

'~~;M4 ::,~f\:l .:·L .~1. <: .. 

Robinson v~i Rice~, No.· 08-2023, 2012 WL 1067909, at *10 (D.N.J. Mar. 29, 2012) (finding no 

. . . . . , .. L ;.;:;:,!r 1,,.,: ·; .. · . , 1 

personal involvement when· a: supervisory official was made aware of a constitutional violation 

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Case 3:11-cv-03153-MAS-TJB Document 92 Filed 04/21/16 Page 6 of 8 PageID: 1083
. :·;'~t~,~~~~~~;':v~l,;~,~~;._?ccw:r~d!; Carter, 2009 WL 3088428, at *6 (distinguishing allegations of ·; ~ : •! - -• • ' ,; 

: ongoing Y~Q~atiOJ18 from those that already occurred). - ~ ·-. ·;·<"j.'; ~·:.1.::ie.: y·· ,; :_::. ~' ... ~-. ~ 

9. ~~r~, th~)C~mplaint details the numerous attempts by Plaintiff to notify Bartowski and 

·:.zp ·-'t; ,,' I 

Ricci ,of both his allegedly unconstitutional placement in the MCU and the deplorable conditions ,;· ,1: \ ' 

, pf·Af~.:;~9@!1em~n(~(Compl. 26-28, 31, 33, ECF No. 1.) Although Bartowski and Ricci were ~-·~r;~-~:;.~~\:::t~~\I"_·:..: .. -~ :'..'_,· -: >:'.·_(. ·; ·-· . · . ~·''f1r,·-~· __ :"' ' .'.::. ". '. "': '. ' '. ', ' '.. , 

: alwaysJnvolved iri the grievance review process, Plaintiff nevertheless alleges that they at times '',·; ''"'·1 ·, • ,-:.'. f'' r 

. -,•/ 

ignored the app~~~)1e filed, and at other times simply passed over many of the arguments he made 

J:!, ... ; 

in *e appeals~ The Court acknowledges that Plaintiffs claims against Bartowski and Ricci are 

' .. ~.orC:Ierline-:-:on tile Qne hand, merely responding to grievances does not rise to the level of personal !.:.L,f··.:: : . . 

lrivolvem~!ltnecessary to state an Eighth Amendment violation, but on the other hand, deliberately 

ignoring 'issu~s·tiii~~d by Plaintiff of an obvious ongoing violation, even during grievance review 

pfoyess, does suggest knowledge and acquiescence. At this stage of the case, the Court cannot say 

· ~afPlaiilttffsdaims are facially meritless; indeed, ifBartowski and Ricci, in reviewing Plaintiffs 

: ;~. ;~kt·~ .<:.~. l·~i·•:q .. ,: , ;. ; ··: . . 

appeals~ mtentiorially addressed some arguments but ignored others, that could potentially serve ., 

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as circumstantiaj 'evidence showing they were deliberately indifferent to Plaintiffs due process 

rights, See Abrante v. Guarini, No. 12-6860, 2014 WL 5795596, at *5 (E.D. Pa. Nov. 7, 2014) 

· (f~dirig'th~t.plafuti:ff had sufficient stated a supervisory claim where "Defendants received and 

'. '. jh~;';~; , :~;;, f :i,-. :: i · • T . . . . . 

read the mtiltipl~ ·general request forms he submitted on these issues, but ignored or discarded 

" , ! r ,t:f, ! :i ·· . 

them, rejected· them without explanation, or inaccurately responded that [he] had refused 

treatment"). Plaintiff also alleges that his placement in the MCU may have been an act of . ' ,'.t._ 

• ( ,, -!·. ~. '"":. : ' ,:. ·,. " '-:: :- ' - ~ ' ' , 

. }~~liltio~:bY ruici because he assisted another inmate on legal matters, (id. at 12), which, if true, 

i ··f~1~J:~~, ,~:~i.?!Jt:b< . 

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";,' 

, ·t~W.4,~~:.~ydelll<e~fmotive for Ricci to intentionally ignore Plaintiff's grievances.3 Tue Court •t ., ~: ~. ,J, ', _, " - - , - • ' 

finds· that· the Complaint has sufficiently alleged personal involvement by Bartowski and Ricci in 

depriving Plaiiltifr~ 'constitutional rights to survive dismissal, and therefore the Motions on these 

!llt!L# 

Michael A. Shiptif.S.D.J. 

Date: 

3 The Court makes clear it does not find that Plaintiff has asserted an independent claim of 

retaliation. ·· Inmates cannot state claims of retaliations based on their assistance of other inmates 

in legal matters. :se'.e Shaw v. Murphy, 532 U.S. 223, 225 (2001) (finding that "prisoners [do not] 

possess a First Amendment right to provide legal assistance [to other inmates] that enhances the 

prot~ctiOJ?.S other,wise available'~). ' • . l • 0

! ;/e ,\j'.'. ;.,"t :; 

':-'"'·'-: _, 8 ·:: ..... ~ '.; 

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