Kwanzaa v. Mee
| Decision Date | 28 June 2011 |
| Docket Number | Civil No. 09-5132 (SRC) |
| Parties | CHAKA KWANZAA, Plaintiff, v. DONALD MEE, JR., et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
OPINIONAPPEARANCES:
CHAKA KWANZAA, Plaintiff pro se
#238671
Plaintiff, Chaka Kwanzaa, a convicted state inmate presently confined at the Northern State Prison in Newark, New Jersey, seeks to bring this action in forma pauperis. Based on his affidavit of indigence, and absence of three strikes under 28 U.S.C. § 1915(g), the Court will grant plaintiff's application to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) and (b), and order the Clerk of the Court to file the Complaint.
At this time, the Court must review the Complaint and amended Complaint, pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, to determine whether this action should be dismissed asfrivolous 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. For the reasons set forth below, the Court concludes that this action may proceed in part at this time.
Plaintiff, Chaka Kwanzaa ("Kwanzaa"), brings this civil action against the following defendants: Donald Mee, Jr., Administrator at East Jersey State Prison ("EJSP"); Mr. Paul, Superintendent at EJSP; R. LaForgig, Associate Administrator at EJSP; S. Pinchak, former Administrator at EJSP; T. Moore, former Administrator at EJSP; R. Swatij, former Superintendent at EJSP; G. Sheppard, Supervisor of Adjudicators for the New Jersey Department of Corrections ("NJDOC"); L. Meehan, NJDOC Adjudicator; Captain McWherter, EJSP; State Corrections Officer ("SCO") Gervasi, EJSP; Captain R. Hampe, EJSP; Sgt. W. Vessell, EJSP; Sgt. Jensen, EJSP; SCO Wilkerson, EJSP; SCO Delarossa, EJSP; SCO Shrenke, EJSP; SCO Randolph, EJSP; SCO Estcato, EJSP;
Margret Lebak, State Ombudsman at EJSP; Doctor John Does and Nurse Jane Does, employees of the University of Medicine and Dentistry of New Jersey ("UMDNJ") at EJSP; John Does, Special Investigation Division ("SID"); and John Doe supervisory defendants with the NJDOC and the UMDNJ. (Complaint, Caption and 55 9-17). The following factual allegations are taken from theComplaint, and are accepted for purposes of this screening only. The Court has made no findings as to the veracity of plaintiff's allegations.
Kwanzaa alleges that, from July 21, 2003 to the present, defendants, Mee, Paul, LaForgig, Pinchak, Moore, and Swatij, refused to correct allegedly "false, inaccurate records" in Kwanzaa's prison classification files, which affected his eligibility for parole, his maximum term date, and his status and classification determinations. Kwanzaa alleges that he received retaliatory charges on August 16, 1999, from defendants Sheppard and Meehan for filing a grievance in July 1999. Kwanzaa states that the Superior Court of New Jersey, Appellate Division reversed the NJDOC's determinations of Kwanzaa's guilt, with respect to this earlier disciplinary action, in an unpublished opinion in Kwanzaa v. DOC, A-5087-01 (App. Div. July 21, 2003). However, the 390 days of commutation credits have not been restored, and his classification files do not show that his credit has been restored. (Compl., ¶¶ 18, 19).
Kwanzaa first filed a civil complaint in federal court regarding the 1999 disciplinary action, Kwanzaa v. Morton, et al., Civil Action 98-2709 (AET), which was dismissed, pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). Kwanzaa filed another federal action in December 2005, against defendants Pinchak, Moore, Swatij, McWherter, Sheppard, Meehan, and Gervasi, but hiscase against these defendants was dismissed. Kwanzaa claims the case was dismissed unlawfully. (Compl., ¶ 19).
Kwanzaa now alleges that defendants Mee, LaForgig, and Paul have violated his constitutional right by subjecting plaintiff to denial of heat, proper ventilation, showers, unsafe drinking water with high levels of arsenic, and denial of food trays, from February 2, 2009 until October 2009 (when plaintiff filed this Complaint), in retaliation against Kwanzaa for filing grievances1 and threatening to file this lawsuit. Kwanzaa alleges that defendants failed to respond or provide a remedy with respect to his grievances. (Compl., ¶¶ 20, 21).
Kwanzaa also complains that defendants, Mee, LaForgig and Paul, were on notice of plaintiff not receiving a timely administrative segregation ("ad seg")review within 60 days as per regulation. He states that his ad seg started on January 20, 2009 and his review for a level change should have been held on March 20, 2009, but was not conducted until April 17, 2009. Kwanzaa further states that, on August 21, 2009, LaForgig reduced plaintiff's classification level from 3 to 2 in retaliation for filing a lawsuit in July 2009 on behalf of another inmate, which included the defendant Wilkerson, who also had been named inplaintiff's grievances filed in July and August 2009. (Compl., ¶ 22).
Kwanzaa next alleges that defendants, Mee, LaForgig and Paul, violated his First Amendment right to freedom of religious exercise (and the Religious Land Use and Institutionalized Persons Act ("RLUIPA") of 2000), 42 U.S.C. § 2000cc-1, and his right to equal protection under the law by discriminating against him and other Muslims in the ad seg unit. Specifically, Kwanzaa states that during Ramadan, he did not receive the same meals as non-Muslims three times a day for a total of 2200 calories, which resulted in weight loss. He also states that he did not receive his "Eid-ul-Fitr" meal after Ramadan, that his food was issued two hours before it was time so it became cold, and that the milk used for the "Sahur" morning meal was issued 13 hours in advance causing the milk to become spoiled by the time it was used. (Compl., ¶ 23).
The same defendants allegedly denied plaintiff clean sheets and pillow cases once a week and a clean blanket once every six months, as provided for prisoners in general population. His cell also had bugs, ants, bad plumbing with water running down the walls, limited hot water, and bad drinking water. (Compl., ¶¶ 24, 25).
Defendants Mee, LaForgig and Paul also allegedly placed Kwanzaa in tight handcuffs with a black box that twisted hisright wrist despite the fact that plaintiff is a disabled person with medical orders that restricts leg shackles and allows plaintiff to ambulate with a cane, which he could not do with his hands cuffed. (Compl., ¶ 26).
Kwanzaa states that he also was denied access to the courts by untrained paralegals, denial of postage stamps and pens at the canteen for a month, which allegedly cause him to miss court deadlines. He further states that legal and regular mail is not processed the next day as per regulation, and that his canteen was altered (he was given 20 bags of peanuts and sun tan lotion) in retaliation for filing an access to courts grievance. (Compl., ¶ 27).
Kwanzaa next alleges that he was denied razors so that he could shave daily and haircuts once a month. He also was limited to one phone call per week on Thursday, which allegedly restricts access to attorneys or family members. Plaintiff states that inmates may not add a new attorney to their phone list for 90 days. He does not allege that this prison rule affected him in any way. He further states that visitation was restricted at the EJSP ad seg unit to only parents, siblings, spouses and children. (Compl., ¶¶ 28-30).
Kwanzaa states that defendants are violating a court order that purportedly requires cameras to be installed in the blind spots in the ad seg unit, not just in the yard, in addition to the cameras already in place. He claims that the ad seg unitdoes not have cable antennas or movies. The canteen no longer provides cheaper televisions, but instead only offers televisions that cost $300 instead of $157.00. Plaintiff also alleges that defendants are subjecting him to potential diabetes by supplying the canteen with sugar food products (with the exception of canned tuna). (Compl., ¶¶ 31-34).
Kwanzaa further alleges that defendants Jensen and Shrenke retaliated against him for filing grievances. On July 16, 2009, Shrenke and Wilkerson denied plaintiff medical care while he was suffering an asthma attack, by refusing to call a nurse. Shrenke also violated plaintiff's rights by inquiring as to the medications that plaintiff takes. On June 13, 2009, Shrenke confiscated plaintiff's legal materials without reason. (Compl., ¶ 35).
On June 13, 2009, defendant DeLarossa denied plaintiff a food tray because plaintiff would not do his job by opening up the locked food port. The same day, DeLarossa refused to call a nurse when plaintiff experienced chest pains and an acute asthma attack. On July 31, 2009, DeLarossa drew a picture of a penis on plaintiff's cell name tag. Delarossa and Wilkerson also lit fire to toilet paper in plaintiff's cell, causing the cell to become smoke-filled and plaintiff to suffer an asthma attack. Defendants refused to call medical for plaintiff, and he did not receive medical attention until five minutes before the second shift started. (Compl., ¶¶ 36, 37).
On August 15, 2009, defendant Vessell came to investigate one of the two grievances plaintiff filed against DeLarossa, but refused to fully investigate the incident concerning the smoke. Kwanzaa had told Vessell that he had the cigarette DeLarossa used, which could be tested for his DNA, but Vessell replied that the cigarette could have come from anyone and declined to test the cigarette butt. Kwanzaa filed a criminal complaint with regard to this matter with the New Jersey Attorney General Anne Milgram, who has not responded to the complaint. Kwanzaa further asks the District Court to have the cigarette butt tested before defendants see the Complaint and take retaliatory action by transferring plaintiff or confiscating the cigarette. He also asks the Court to have federal...
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