NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

YUSEF ALLEN, :

: CIVIL ACTION NO. 11-3263 (MLC)

Plaintiff, :

:

v. : O P I N I O N

:

EDDIE EMRICH, et al., :

:

Defendants. :

 :

COOPER, District Judge

Plaintiff is a prisoner confined at New Jersey State Prison. 

He 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 and the absence of three

qualifying dismissals within 28 U.S.C. § 1915(g), the Court will

grant the application to proceed in forma pauperis pursuant to 28

U.S.C. § 1915(a) and file the Complaint. The Court must now

review the Complaint to determine whether it should be dismissed

as frivolous or malicious, for 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.

I. BACKGROUND

The following factual allegations are taken from the

Complaint and accepted as true for purposes of this review.

Plaintiff alleges that in July 2010 he was pat frisked in

prison. The unnamed officer performing the pat frisk commented,

“What you don’t like getting patted down?” Plaintiff replied,

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“Who would like for another man to be feeling on them.” Defendant

Lt. Eddie Emrich then stated to Plaintiff, “You are not special,

I am tired of you walking around here as if you are better than

everyone else. Take note that you are now on my s*** list.” 

Plaintiff alleges that when he passed Emrich in August 2010,

Emrich said, “The first chance I get I am going to take your job

from you.”

On September 9, 2010, Plaintiff was placed in Temporary

Close Custody (“TCC”), where he remained for 12 days with no

disciplinary charges being placed against him. Plaintiff alleges 1

that he was not, during that time, interviewed or informed as to

the basis for his TCC placement. Plaintiff alleges that while in

TCC, his regular cell was searched by Defendant Johnny Maze, who

confiscated personal and legal correspondence.2

Plaintiff alleges that on September 24, 2010, Emrich said to

him, “You’re done.” Plaintiff alleges that later that day Emrich

called the Unit Officer and told him to tell Plaintiff that

Plaintiff no longer had a job. On September 28, 2010, Plaintiff

received a notice from the Institutional Classification Committee

that he was “layed in” from his job assignment.

 Plaintiff alleges that New Jersey administrative rules 1

require release from TCC after 72 hours unless there are emergent

reasons for an extension.

 Plaintiff alleges that New Jersey administrative rules 2

prohibit the confiscation of documents without a court order.

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Plaintiff alleges that the defendants took these actions

against him in retaliation for his exercise of his right of free

expression in objecting to the pat down. Plaintiff also alleges

that the 12-day TCC placement violated his right to equal

protection, as he did not receive the procedural protections

afforded TCC inmates who are alleged to have committed an

institutional infraction. Plaintiff seeks declaratory relief,

compensatory damages, and punitive damages.

II. STANDARDS FOR SUA SPONTE DISMISSAL

The Court must dismiss, at the earliest practicable time,

certain in forma pauperis and prisoner 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 forma pauperis); 28 U.S.C. § 1915A

(prisoner seeks redress from governmental defendant); 42 U.S.C.

§ 1997e (prison conditions).

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 Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).

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A complaint must comply with 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; 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, see Papasan v. Allain, 478 U.S. 265, 286 . . .

(1986) (on a motion to dismiss, courts “are not bound

to accept as true a legal conclusion couched as a

factual allegation”). Factual allegations must be

enough to raise a right to relief above the speculative

level ... .

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

omitted).

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

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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.

Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008)

(citations omitted).

When assessing the sufficiency of any complaint, a court

must distinguish factual contentions -- alleging 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). 

The Court, although assuming the veracity of the facts asserted

in a complaint, 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. Thus:

[D]istrict 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

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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 contextspecific 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).

III. SECTION 1983 ACTIONS

To state a claim for relief under § 1983, a plaintiff must

allege that a person acting under color of state law committed or

caused a violation of a right secured by the Constitution or laws

of the United States. West v. Atkins, 487 U.S. 42, 48 (1988);

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

IV. ANALYSIS

A. Equal Protection Claim and Possible Due Process Claim

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. 

The Equal Protection Clause “protect[s] persons, not groups,”

Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995)

(emphasis omitted), and its 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, an equal

protection claim can in some circumstances be sustained, even if

a plaintiff has not alleged class-based discrimination, but

instead has alleged that he has been irrationally singled out as

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a “class of one.” To proceed on such a claim, a plaintiff must

allege that he has been “intentionally treated differently from

others similarly situated and that there is no rational basis for

the difference in treatment.” Village of Willowbrook v. Olech,

528 U.S. 562, 564 (2000). “[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, 239 (3d Cir. 2006).

Plaintiff here has alleged that he was treated differently

from other prisoners charged with institutional infractions by

being placed in TCC for 12 days without notice of a charge

against him, and that the difference in treatment was in

retaliation for his objection to a pat frisk. But 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). Thus, Plaintiff’s

allegation that he was treated differently in retaliation for

voicing an objection to a pat frisk fails to state an Equal

Protection claim.

The Court will also consider whether the Complaint states a

Due Process claim. A liberty interest protected by the Due

Process Clause may arise from either the Clause itself, or State

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law. See Hewitt v. Helms, 459 U.S. 460, 466 (1983); Asquith v.

Dep’t of Corrs, 186 F.3d 407, 409 (3d Cir. 1999).

As to convicted and sentenced prisoners, “[a]s long as the

conditions or degree of confinement to which the prisoner is

subjected is within the sentence imposed upon him and is not

otherwise violative of the Constitution, the Due Process Clause

does not in itself subject an inmate’s treatment by prison

authorities to judicial oversight.” Montanye v. Haymes, 427 U.S.

236, 242 (1976), quoted in Hewitt, 459 U.S. at 468, and Sandin v.

Conner, 515 U.S. 472, 480 (1995). Cf. Washington v. Harper, 494

U.S. 210, 221-22 (1990) (prisoner has liberty interest under Due

Process Clause in freedom from involuntary administration of

psychotropic drugs); Vitek v. Jones, 445 U.S. 480, 493-94 (1980)

(prisoner has liberty interest under Due Process Clause in freedom

from involuntary transfer to mental hospital coupled with

mandatory treatment for mental illness, a punishment carrying

“stigmatizing consequences” and “qualitatively different” from

punishment generally suffered by one convicted of a crime).

“Discipline by prison officials in response to a wide range

of misconduct falls within the expected parameters of the

sentence imposed by a court of law.” Sandin, 515 U.S. at 485

(upholding sentence of 30 days disciplinary segregation after

hearing at which prisoner was not permitted to produce

witnesses); see Asquith, 186 F.3d at 410-11 (no liberty interest

under Due Process Clause in remaining in halfway house).

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But states may confer on prisoners liberty interests that

are protected by the Due Process Clause. “But these interests

will be generally limited to freedom from restraint which, while

not exceeding the sentence in such an unexpected manner as to

give rise to protection by the Due Process Clause of its own

force, nonetheless imposes atypical and significant hardship on

the inmate in relation to the ordinary incidents of prison life.” 

Sandin, 515 U.S. at 484 (finding that disciplinary segregation

conditions that effectively mirrored those of administrative

segregation and protective custody were not “atypical and

significant hardships” in which a state conceivably might create

liberty interest); see Asquith, 186 F.3d at 411-12 (return to

prison from halfway house did not impose “atypical and

significant hardship” on prisoner and, thus, did not deprive him

of protected liberty interest).

Griffin v. Vaughn, 112 F.3d 703 (3d Cir. 1997), held that a

15-month confinement in administrative custody did not impose

“atypical and significant hardship,” even in the face of a state

regulation requiring release to the general population after 20

days in the absence of a misconduct charge. Id. at 709. But the

Griffin court noted that if an inmate is committed to undesirable

conditions for an atypical period of time in violation of state

law, then that is a factor to be considered in determining whether

the prisoner has been subjected to “atypical and significant

hardship” triggering due process protection. Id. at 708.

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Plaintiff’s 12 day confinement in TCC here did not expose

him to “atypical and significant hardship.” Accordingly, the

Complaint fails to state a claim for deprivation of liberty

without due process.

The Equal Protection and Due Process claims will be

dismissed with prejudice.

B. The Retaliation Claim

Plaintiff alleges that the defendants retaliated against him

for objecting to a pat frisk by placing him in TCC, taking away

his prison job, and confiscating certain documents in a search of

his cell, more specifically, grand jury transcripts and

“discovery.”

Disciplinary confinement of prisoners does not generally

implicate due process protections. Sandin, 515 U.S. at 484-86. 

But retaliation claims survive Sandin, even when the retaliatory

action does not involve a liberty interest. Allah v. Seiverling,

229 F.3d 220, 223-24 (3d Cir. 2000). “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 show

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

constitutional rights; and (3) the protected activity was a

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substantial or motivating factor in the state actor’s decision to

take adverse action. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.

2001); see Anderson v. Davila, 125 F.3d 148, 160 (3d Cir. 1997).

The facts alleged here are too minimal to raise Plaintiff’s

alleged right to relief above the speculative level. His

grumbling about the pat frisk did not expose the defendants to

any negative consequence that might motivate them to “retaliate”

against Plaintiff. Nor are the alleged retaliatory acts

sufficient to deter a person of ordinary firmness from exercising

constitutional rights. Moreover, Plaintiff has alleged no facts

that suggest that Emrich had any decision-making authority as to

the loss of Plaintiff’s institutional job, his placement in TCC,

or the search of his cell and confiscation of certain legal

documents. The facts alleged merely suggest that Emrich was

hostile to Plaintiff. Nor has Plaintiff alleged any facts that

suggest that Maze, who searched Plaintiff’s cell, even knew of

Plaintiff’s statement objecting to the pat frisk. The mere

temporal association between these events is not sufficient to

state a claim for retaliation. This claim will be dismissed with

prejudice.

C. The Deprivation of Property Claim

Plaintiff alleges that Maze confiscated transcripts and

“discovery.”

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An unauthorized deprivation of property by a state actor,

whether intentional or negligent, does not constitute a violation

of the procedural requirements of the Due Process Clause of the

Fourteenth Amendment if a meaningful post-deprivation remedy for

the loss is available. Hudson v. Palmer, 468 U.S. 517, 530-36

(1984). However, post-deprivation remedies do not satisfy the

Due Process Clause if the deprivation of property is accomplished

pursuant to established state procedure rather than through

random, unauthorized action. Logan v. Zimmerman Brush Co., 455

U.S. 422, 435-36 (1982); but see Tillman v. Lebanon Cnty. Corr’l

Fac., 221 F.3d 410, 421 n.12 (3d. Cir. 2000) (in “extraordinary

situations” such as routine deduction of fees from a prisoner’s

account even without authorization, post-deprivation remedies may

be adequate).

Plaintiff has failed to state a claim against Maze here

because New Jersey does provide a post-deprivation remedy for

unauthorized deprivation of property by public employees. See

New Jersey Tort Claims Act, N.J.S.A. § 59:1-1 et seq. Plaintiff

has alleged no facts suggesting that the defendants deprived him

of property pursuant to an established state procedure. To the

contrary, established state procedures require prison officials

to preserve personal property of inmates. See, e.g., N.J.A.C. §

10A:1-11.1 et seq. Accordingly, this claim will be dismissed

with prejudice.

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D. Pendent State Claims

A district court, upon dismissing all claims over which there

is original jurisdiction, may decline to exercise supplemental

jurisdiction over related state law claims. 28 U.S.C. §

1367(c)(3). Where all federal claims are dismissed before trial,

“the district court must decline to decide the pendent state

claims unless considerations of judicial economy, convenience,

and fairness to the parties provide an affirmative justification

for doing so.” Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000)

(citations omitted). As no such extraordinary circumstances

appear to be present, this Court will dismiss the Complaint

insofar as it may be construed to assert state law claims (“State

Claims”) without prejudice to Plaintiff to bring a new action in

the appropriate state court, asserting the State Claims only,

within 30 days. See 28 U.S.C. § 1367(d).

V. CONCLUSION

All federal claims will be dismissed pursuant to 28 U.S.C.

§§ 1915(e)(2)(B)(ii) and 1915A(b)(1) and 42 U.S.C. § 1997e, for

failure to state a claim. The Court will issue an appropriate

order and judgment.

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: March 16, 2012

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