Opinion
Civil No. 01-2162 (JBS).
June 16, 2003
Justin T. Loughry, Esquire, Loughry and Lindsay, LLC, Moorestown, New Jersey, Attorney for Plaintiff Walter Weaver.
Peter C. Harvey, Acting Attorney General of New Jersey, By: Ronald L. Bollheimer, Deputy Attorney General, and, David M. Ragonese, Deputy Attorney General, R.J. Hughes Justice Complex, Trenton, New Jersey, Attorneys for Defendants Clifford Corby and Donald Wiater.
OPINION
Plaintiff Walter Weaver brings this complaint alleging that defendants Henry Jacobs, Keith Brandon, Michael McKeen, Community Corrections Corporation, Clifford Corby, and Donald Wiater violated his federal and state constitutional rights by subjecting plaintiff to a saliva swab test, subsequently deemed unauthorized by the state Parole Board, while plaintiff was assigned to the "half-way" house at Tully House, of the Community Corrections Corp., and adjudicating him guilty of alcohol use based on that test and affirming upon appeal. This Court previously granted defendant Michael McKeen's motion to dismiss, finding that McKeen was entitled to qualified immunity on all of Weaver's constitutional claims. The Court also declined to exercise supplemental jurisdiction over plaintiff's state law claims alleged against McKeen, and thus dismissed plaintiff's Counts Three and Four, as alleged against McKeen.
Presently before the Court is defendants Clifford Corby and Donald Wiater's motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), Fed.R.Civ.P. Defendants argue that dismissal of plaintiff's Amended Complaint is warranted because Weaver's claims are procedurally barred under the favorable termination rule in Heck v. Humphrey and Edwards v. Balisok. In the alternative, defendants Corby and Wiater argue that plaintiff fails to state either a Fourth, Fifth, Eighth, and Fourteenth Amendment claim, and that defendants are entitled to qualified immunity on these claims. Additionally, defendants request this Court to decline to exercise supplemental jurisdiction over plaintiff's state law claims. For the reasons stated herein, defendant Corby and Wiater's motion to dismiss will be granted.
I. BACKGROUND
On or about May 7, 1999, plaintiff Walter Weaver, currently residing in Atlantic City, New Jersey, attended an authorized job interview off the Tully House premises, approximately one month prior to his parole release date. (Amended Compl. ¶¶ 9-10.) Tully House is a "half-way" house program of the Community Corrections Corp. ("CCC"), which contracts with the New Jersey Department of Corrections to house inmates in the last months of their prison sentences. (Id. ¶ 2.) Upon his return, Weaver was waiting for readmission to the house in a foyer area, along with other inmates. (Id. ¶ 10.) Plaintiff alleges that defendant Keith Brandon claimed to have detected the odor of alcohol among the group of returning inmates, and that Brandon and defendant Henry Jacobs then ordered plaintiff and others to submit to a "saliva swab" test. (Id. ¶ 11.) Although plaintiff alleges that he did not ingest any alcohol, Jacobs and Brandon found that plaintiff tested positive on the saliva swab test, and then notified Department of Corrections officers to pick up plaintiff and return him to the New Jersey State Prison system for violation of regulations forbidding alcohol use by inmates. (Id. ¶¶ 12-13.) Plaintiff alleges that defendants Jacob and Brandon never allowed plaintiff to examine the test result, failed to preserve a valid chain of custody with respect to the results, and failed to seal and properly identify the results. (Id. ¶ 13.) Plaintiff also alleges that the saliva swab test is neither authorized by New Jersey Department of Corrections regulations, by statute, nor by the New Jersey Administrative Code. (Id. ¶ 14.)
Due to the positive result from the saliva swab test, plaintiff was subject to a disciplinary hearing, and was disciplined. (Id. ¶¶ 20.) Plaintiff alleges that defendants Corby and Wiater, along with McKeen, were responsible for conducting and reviewing the outcome of any disciplinary hearing held. (Id. ¶ 19.) Plaintiff's parole date was cancelled, he was confined to punitive segregation for over two weeks, lost credited time, and remained imprisoned until May 2000. (Id. ¶ 21.) Plaintiff appealed the decision, which was affirmed. (Id. ¶ 36.) In or about February 2000, the Parole Board ruled that the saliva swab test was unauthorized, that no unfavorable or punitive sanction should have resulted from the test, and that plaintiff should have been paroled on June 1, 1999. (Id. ¶ 22.) The Parole Board directed the re-instatement of plaintiff's parole date of June 1, 1999. (Id.)
Plaintiff's Amended Complaint asserts that plaintiff remained imprisoned until May 2000, although he alleges that the Parole Board ruled that the saliva swab test was unauthorized "[i]n or about February 2001" and he was released "three months later." (Id. ¶ 22.) The Court accordingly perceives the "February 2001" date as a typographical error.
Plaintiff filed a Complaint on May 4, 2001, alleging that defendants CCC, Brandon and Jacobs violated his constitutional rights under the Eighth and Fourteenth Amendments by administering to plaintiff the saliva swab test (Count I), that this conduct by defendants CCC, Brandon and Jacobs violated plaintiff's rights under the New Jersey State Constitution (Count II), that defendants McKeen, John Doe, Jane Roe and James Roe failed to reverse the finding in the subsequent disciplinary hearing and review of his appeal despite their alleged knowledge of the unauthorized use and illegality of the saliva swab test, in violation of his federal constitutional rights (Count III), and that defendants McKeen, John Doe, Jane Roe and James Roe denied plaintiff his substantive and procedural due process rights under the State Constitution (Count IV). (Compl. ¶¶ 23-41.)
This Court granted defendant McKeen's motion to dismiss for failure to state a claim on June 25, 2002, finding that McKeen was entitled to qualified immunity on all of Weaver's federal claims against him. (Opinion, 6/25/02, at 13-21.) The federal claims having been dismissed, the Court declined to exercise supplemental jurisdiction over the state law claims, and dismissed Counts Three and Four as to defendant McKeen. (Id. at 21-22.)
Prior to the Court's issuance of the Opinion, plaintiff moved for leave to file an amended complaint to correct the spelling of Keith Brandon, who was incorrectly named as Kenneth Branton, and to add two defendants Clifford Corby and Donald Wiater as the two John Doe defendants he had previously named. Only defendant McKeen submitted opposition to the motion, arguing that amendment would be futile because the same reasoning that applied to the Court's dismissal of the claims against him would also apply to defendants Corby and Wiater. Plaintiff's motion was granted in a Memorandum Opinion on July 8, 2002. (Kugler Mem. Op. 7/8/02.) Plaintiff's Amended Complaint, which added defendants Wiatir and Corby to his claims in Counts III and IV, and corrects the spelling of Brandon's name, was filed on August 7, 2002. (Amended Compl. 8/7/02.)
In lieu of an Answer, defendants Corby and Wiater on September 20, 2002, filed this motion to dismiss plaintiff's Amended Complaint, pursuant to Rule 12(b)(6), Fed.R.Civ.P.
II. DISCUSSION
Defendants Corby and Wiater move for dismissal of plaintiff's Amended Complaint for failure to state a claim, arguing that his claims are procedurally barred under the favorable termination rule in Heck v. Humphrey and Edwards v. Belisok. In the alternative, defendants argue that Count III should be dismissed because plaintiff failed to state a claim under either the Fourth, Fifth, Eighth, and Fourteenth Amendment, and that defendants are entitled to qualified immunity from damages for those alleged violations. Lastly, defendants request that this Court decline to exercise supplemental jurisdiction over plaintiff's state law claims in Count IV of the Amended Complaint.
A. Rule 12(b)(6) Standard for Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a complaint may be dismissed "for failure to state a claim upon which relief can be granted." Rule 12(b)(6), Fed.R.Civ.P. A district court must accept as true all of the well-pleaded allegations in the complaint and any and all reasonable inferences derived from those facts. Glenside West Corp. v. Exxon Co., U.S.A., 761 F. Supp. 1100, 1107 (D.N.J. 1991);Gutman v. Howard Sav. Bank, 748 F. Supp. 254, 260 (D.N.J. 1990). Further, the court must view all allegations in the Complaint in the light most favorable to the plaintiff. See Jordan v. Fox, Rothschild, O'Brien Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). "Although the Federal Rules of Civil Procedure do not require a claimant to set forth an intricately detailed description of the asserted basis for relief, they do require that the pleadings give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 150 n. 3 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)), reh'g denied, 467 U.S. 1231 (1984).
The question before the court is not whether plaintiffs will ultimately prevail; rather, it is whether they can prove any set of facts in support of their claims that would entitle them to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984). Therefore, in deciding a motion to dismiss, a court should look to the face of the complaint and decide whether, taking all of the allegations of fact as true and construing them in a light most favorable to the non-movant, plaintiff's allegations state a legal claim. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). Motions to dismiss should be granted "only if, after accepting as true all of the facts alleged in the complaint, and drawing all reasonable inferences in plaintiff's favor, no relief could be granted under any set of facts consistent with the allegations of the complaint." Trump Hotels Casino Resorts, Inc. v. Mirage Resorts, Inc., 140 F.3d 478, 483 (3d Cir. 1998) (citing ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994)). Only the allegations in the complaint, matters of public record, orders, and exhibits attached to the complaint matter, are taken into consideration. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990).
B. Qualified Immunity
Defendants Corby and Wiater argue that they are entitled to qualified immunity because the contours of plaintiff's rights under the Fourth, Fifth, Eighth and Fourteenth Amendments were not clearly established at the time of the alleged violation. Under the doctrine of qualified immunity, government officials performing discretionary functions are "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable prison administrator would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted); Paff v. Kaltenback, 204 F.3d 425, 430 (3d Cir. 2000); see also Butz v. Economou, 438 U.S. 478, 504 (1978) (discussing immunity law under § 1983 as applicable against state officials).
Before determining whether one is entitled to qualified immunity, the court must first determine "whether the plaintiff has asserted a violation of a constitutional right at all."Siegert v. Gilley, 500 U.S. 226, 232, reh'g denied, 501 U.S. 1265 (1991); see also Paff, 204 F.3d at 430. A court presented with a qualified immunity claim must examine both "the law that was clearly established at the time of the alleged violation and the facts available to the official at the time, and must then determine, in light of both, whether a reasonable official could have believed his conduct was lawful." Paff, 204 F.3d at 431 (citing Good v. Dauphin County Soc. Servs. for Children Youth, 891 F.2d 1087, 1092 (3d Cir. 1989)). The qualified immunity issue must be resolved "`at the earliest possible stage in the litigation.'" Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir. 2002) (quoting Saucier v. Katz, 533 U.S. 194, 200 (2001)).
Here, as with defendant McKeen's previous motion to dismiss, the Court will first examine whether plaintiff has asserted a constitutional violation. The Court must then determine whether a reasonable prison administrator in Corby and Wiater's position, given the established law and the information available to them at the time of the alleged violations, could have believed his conduct was lawful.
1. Plaintiff's Fourth Amendment Claim
Defendants Corby and Wiater contend that plaintiff's Fourth Amendment claim against them should be dismissed because it fails to state a claim for which relief may be granted. The Fourth Amendment protects "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures." U.S. Const. Amend. IV. When the government seeks to obtain physical evidence from that person, the rights of an individual under the Fourth Amendment is implicated. See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616 (1989) (citing United States v. Dionisio, 410 U.S. 1, 8 (1973)). A "`compelled intrusio[n] into the body for blood to be analyzed for alcohol content'" is deemed a Fourth Amendment search. See Skinner, 489 U.S. at 616 (quoting Schmerber v. California, 384 U.S. 757, 767-68 (1966)). In addition, subjecting an individual to a breathalyzer test "implicates similar concerns about bodily integrity and . . . should also be deemed a search."Skinner, 489 U.S. at 616-17 (citations omitted).
The Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable. See Skinner, 489 U.S. at 619 (citations omitted). What is reasonable "`depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.'" Id. (quotingUnited States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985)). While a prisoner may not have a legitimate expectation of privacy in his cell, see Hudson v. Palmer, 468 U.S. 517, 530 (1984) (concluding that prisoners have no legitimate expectation of privacy and that the Fourth Amendment's prohibition on unreasonable searches does not apply in prison cells), other cases demonstrate that blood and saliva samples are considered searches of the individual's body, and are thus subject to the Fourth Amendment's prohibition against unreasonable searches and seizures. For example, testing for statutorily required blood and saliva samples has been deemed a "reasonable search and seizure" under the Fourth Amendment. See Schlicter v. Peters, 103 F.3d 940, 943 (10th Cir. 1996) (Kansas statute authorizing blood and saliva samples from felons convicted of sex offenses was not unreasonable search and seizure); see also Rise v. Oregon, 59 F.3d 1556 (9th Cir. 1995) (Oregon statute requiring DNA samples of inmates is reasonable under Fourth Amendment), cert. denied, 517 U.S. 1160 (1996); Jones v. Murray, 962 F.2d 302 (4th Cir.) (Virginia statute requiring DNA blood sampling is reasonable under Fourth Amendment), cert. denied, 506 U.S. 977 (1992). According to the above, plaintiff's saliva swab test for the presence of alcohol is likely a bodily intrusion that is subject to reasonableness under the Fourth Amendment, see Skinner, 489 U.S. at 616-17.
Considering the law at the time of the alleged violation, there is no clearly established law that plaintiff, as an inmate at the halfway-house program at Tully House, was free from a saliva swab test for the testing of alcohol use. The contours of any such right were not so well developed as to put defendants Corby and Wiater on notice that any of their actions were unlawful, with respect to plaintiff's Fourth Amendment claim, nor has plaintiff cited to any authority declaring such a test unconstitutional. Subject to the reasonableness standards of the Fourth Amendment, similar bodily intrusions, and those which present more intrusive means, have been found lawful, as discussed above. Because there was no clearly established right for an inmate in plaintiff's position to be free from a saliva swab test, nor is there any now, defendants are entitled to qualified immunity with respect to plaintiff's Fourth Amendment claim alleged against them.
Furthermore, plaintiff fails to allege any participation by defendants Corby and Wiater in conducting the saliva swab testing, to which plaintiff was subjected and on which basis he brings his Fourth Amendment claim. To recover under § 1983, plaintiff "must establish that a state actor engaged in conduct that deprived him of `rights, privileges, or immunities' secured by the constitution or laws of the United States." Wilson v. Russo, 212 F.3d 781, 786 (3d Cir. 2000) (citing Kneippe v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996)). Here, plaintiff fails to allege defendants Corby and Wiater participated in any conduct other than the disciplinary hearing and review of his appeal:
Defendant hearing officer Donald Wiater . . . allowed and ordered the imposition of penalties and punishments upon plaintiff in violation of state law and regulation, based upon an unauthorized test and upon a testing procedure that did not comport with state law and regulation nor with due process requirements. . . .
. . .
Defendant Clifford Corby, as superintendent or other administrator responsible for the conduct of said disciplinary hearings and for review of appeals therefrom and enforcement thereof, affirmed or failed to reverse the legally erroneous and unconstitutional decision of the hearing officer defendant Donald Wiater, despite the known fact that the decision and consequent sanctions depended upon an unauthorized and illegal test and therefore a breach of state regulation and law. . . .
Amended Compl. ¶¶ 35, 36. Again, as the Supreme Court has previously stated, the threshold question is "whether the facts alleged show the officer's conduct violated a constitutional right[.]" Saucier, 533 U.S. at 201 (citing Siegert, 500 U.S. at 232). Here, where plaintiff does not allege that either Corby or Wiater participated in plaintiff's saliva swab testing for alcohol use, he has not sufficiently alleged a Fourth Amendment claim against these defendants.
Accordingly, because there is no clearly established right to be free from a saliva swab test, and because plaintiff fails to allege a claim against these particular defendants, defendants Corby and Wiater are entitled to the qualified immunity defense with respect to plaintiff's Fourth Amendment claim.
2. Plaintiff's Fifth Amendment Claim
Defendants Corby and Wiater contend that they are entitled to qualified immunity because no reasonable prison official in defendants' positions could have believed that the saliva swab test violated plaintiff's privilege against self-incrimination. The Self-Incrimination Clause of the Fifth Amendment prohibits a person from being "compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. "`The prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him. . . .'"Schmerber, 384 U.S. at 763 (quoting Holt v. United States, 218 U.S. 245, 252-53 (1910)). The Supreme Court has held that a compelled blood test for alcohol content does not implicate the accused's rights under the Fifth Amendment. Schmerber, 384 U.S. at 765. The Supreme Court reasoned that "[t]he distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling `communications' or `testimony,' but that compulsion which makes a suspect or accused the source of `real or physical evidence' does not violate it."Id.; see also Baltimore City Dep't of Soc. Servs. v. Bouknight, 493 U.S. 549, 556 (1990) ("the Fifth Amendment privilege may not be invoked to resist compliance with a regulatory regime constructed to effect the State's public purposes unrelated to the enforcement of its criminal laws").
Plaintiff's claim, that his Fifth Amendment right was violated by being subjected to a saliva swab test, involves no form of communication or testimony that is cognizable under the protections of the Fifth Amendment. See, e.g., United States v. ex rel. Dunn v. Lane, No. 89-1184, 1990 WL 6873, at *1 (N.D. Ill. Jan. 4, 1990) (holding that compelled saliva sampling does not demonstrate Fifth Amendment violation); Brent v. White, 276 F. Supp. 386, 388 (E.D. La. 1967) (holding that compelled saliva samples did not constitute Fifth Amendment violation), aff'd, 398 F.2d 503 (5th Cir. 1968), cert. denied, 393 U.S. 1123 (1969). Thus, because plaintiff's claim is based upon the saliva swab test which does not implicate any rights under the Fifth Amendment, plaintiff has not sufficiently alleged a Fifth Amendment claim. Accordingly, defendants' qualified immunity defense prevails on this ground. Plaintiff's Fifth Amendment claim will be dismissed as to defendants Corby and Wiater.
3. Plaintiff's Due Process Claim Under the Fourteenth Amendment
Defendants argue that plaintiff's due process claim under the Fourteenth Amendment must be dismissed because plaintiff had no liberty or property interest in not being sanctioned with punitive segregation, loss of commutation credits, loss of participation in the half-way house program, and loss of parole, and even assuming he did, no additional process was due him. The Due Process Clause applies when government action deprives a person of liberty or property. Greenholtz v. Inmates of Nebraska Penal Corr. Complex, 442 U.S. 1, 7 (1979). "`[T]o determine whether due process requirements apply in the first place, we must look not to the "weight" but to the nature of the interest at stake.'" Id. (quoting Bd. of Regents v. Roth, 408 U.S. 564, 570-71 (1972)). Once it is determined that due process applies, the next question is what process is due. Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
With respect to parole determinations, the Supreme Court has held that
There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence. The natural desire of an individual to be released is indistinguishable from the initial resistance to being confined. But the conviction, with all its procedural safeguards, has extinguished that liberty right: "[G]iven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty."Greenholtz v. Inmates of Nebraska Penal Corr. Complex, 442 U.S. 1, 7 (1979) (quoting Meachum v. Fano, 427 U.S. 215, 224 (1976)). Nor does a prisoner have a liberty interest in remaining in a preferred facility within a state's prison system. See Asquith v. Dep't of Corr., 186 F.3d 407, 410 (3d Cir. 1999) (citing Montanye v. Haymes, 427 U.S. 236, 242 (1976)). Thus, "`[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.'" Asquith, 186 F.3d at 410 (quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983)).
States may, under certain circumstances, create liberty interests which are protected by the Due Process Clause. Sandin v. Conner, 515 U.S. 472, 473-84, 486 (1995) (holding that an inmate's discipline in 30 days segregated confinement did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest, where the record showed that disciplinary segregation mirrored conditions imposed upon inmates in administrative segregation and protective custody) (citing Bd. of Pardons v. Allen, 482 U.S. 369 (1987)). For instance, a due process liberty interest may exist when a state's statutory parole procedures prescribe that a prisoner "shall" be paroled if certain conditions are satisfied. See I.N.S. v. St. Cyr, 533 U.S. 289, 345-46 (2001) (citing Bd. of Pardons v. Allen, 482 U.S. at 370-71; Greenholtz, 442 U.S. at 12). State created interests, however, are "generally limited to freedom from restraint which, . . . nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484. Moreover, as the Third Circuit stated, "the baseline for determining what is `atypical and significant' — the `ordinary incidents of prison life' — is ascertained by what a sentenced inmate may reasonably expect to encounter as a result of his or her conviction in accordance with due process of law." Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997).
In Griffin, a state prisoner brought a procedural due process claim for being held in administrative custody for 15 months after being suspected of committing rape. After considering the relevant state regulations, the Third Circuit concluded that the conditions experienced by the prisoner in administrative custody did not impose on him "atypical and significant hardship," that he was thus not deprived of a state created liberty interest, and that the failure to give him a hearing prior to his transfer to administrative custody was not a violation of procedural due process. Id. at 706.
The New Jersey regulations relevant to this case provide that, under the Schedule of sanctions for prohibited acts, a finding of guilt "for any offense preceded by an asterisk (*) shall render the offender subject to one or more of the following sanctions, including administrative segregation for a specified time not to exceed one year, and loss of commutation time up to 365 days. N.J.A.C. 10A:4-5.1(a)(3) (a)(4). An asterisk offense can include the use of prohibited substances such as drugs or intoxicants, as well as possession of drugs or intoxicants, misuse of authorized medication, distribution or sale of drugs and intoxicants, and refusal to submit to testing for prohibited substances. See id. *204, *.215, *.216, *.258. Under Chapter 20 of the Residential Community Programs, "Major disciplinary violations charges shall result in the immediate transfer of the inmate to a correctional facility within the New Jersey Department of Corrections." N.J.S.A. 10A:20-4.19.
Thus, a New Jersey inmate could reasonably expect revocation of his commutation credits and placement in administrative segregation for the use of alcohol. Moreover, an inmate could also reasonably expect to be transferred out of a residential program to a correctional facility upon being charged of a violation. Here, plaintiff was charged and adjudicated guilty of alcohol use. Amended Compl. ¶¶ 11, 13. Considering that inmates are subject to any and all of these sanctions in the course of his or her imprisonment, it appears that plaintiff's loss of commutation time, transfer out of the halfway house program, and administrative and punitive segregation did not present such a dramatic departure from, nor such "atypical and significant hardship" than, what a sentenced inmate may reasonably expect to encounter as a result of his or her actions in the course of imprisonment. Thus, plaintiff had no state-created liberty interest in being free from these sanctions.
With respect to plaintiff's claim that he has a state-created interest in parole release at the time of eligibility, while it is possible that the state statute provides a protectible entitlement, see e.g., Greenholtz, 442 U.S. at 12 (such a determination must be decided on case-by-case basis), the facts as alleged in this case demonstrate that plaintiff was not deprived of this interest without due process of law. As alleged, plaintiff was subject to a disciplinary hearing and was disciplined based upon the test results of the saliva swab test. Amended Compl. ¶ 20. Due process for a prison disciplinary hearing requires at a minimum the following: (1) advance written notice of the charges to the defendant; (2) a written statement by the factfinder as to the evidence relied on and reasons for the disciplinary action; (3) the opportunity to call witnesses and present documentary evidence in his defense, with certain restrictions; and (4) the aid of another if complex issues are involved or the inmate is illiterate. See Wolff v. McDonnell, 418 U.S. 539, 566-70 (1974). Plaintiff does not allege that he was deprived of any of these procedural safeguards, and thus he does not sufficiently state a due process claim.
Rather, the basis of his claim is premised on the argument that prison officials illegally used a saliva swab test, in violation of his due process rights. Although plaintiff cites Arcoren v. Peters as authority for the proposition that due process requires that the State neither impose nor utilize the results of an unauthorized, illegal and unreliable alcohol test to rescind parole release, that case is inapposite. See Arcoren v. Peters, 829 F.2d 671, 677-78 (8th Cir. 1987), cert. denied, 485 U.S. 987 (1988). In Arcoren, plaintiff alleged that two Farmers Home Administration officials violated his due process rights by repossessing and selling plaintiff's cattle without giving him prior notice or an opportunity to be heard. The Eighth Circuit held that the officials were entitled to qualified immunity because they acted in the capacity of a commercial lender pursuant to a security agreement and they did not violate clearly established law in using the secured creditor's self-help remedy under state statute.
Although plaintiff in Arcoren additionally argued that the officials violated the regulations, statutes, and security agreement, the Eighth Circuit stated that such was insufficient to rise to a constitutional claim. See Arcoren, 829 F.2d at 676-77 ("A violation of a statute or a regulation does not rise to a constitutional level unless the statutory or regulatory provisions supply the basis for the claim of a constitutional right.") (citing Davis v. Scherer, 468 U.S. 183, 193-94 n. 12 (1984); Culbreath v. Block, 799 F.2d 1248, 1250 (8th Cir. 1986)). The Eighth Circuit stated, "`[w]here neither the constitutional right nor the constitutional cause of action is expressly created by the terms of a regulation or statute, officials do not forfeit qualified immunity solely by failing to comply with the provisions of that statute or regulation.'"Arcoren, 829 F.2d at 677 (citing Culbreath, 799 F.2d at 1250). In addition, the Eighth Circuit stated that there was nothing in the statutes, regulations, or security agreement that clearly establishes that FmHA officials could not exercise their discretion to determine that plaintiff was in default.
Similarly, plaintiff Weaver fails to point to a violation of a regulation or statute that creates a constitutional right in this case. To the extent that plaintiff alleges that defendants violated his due process by using a saliva swab test under N.J.A.C. 10A:20-4.20(a), there is nothing in that administrative regulation requiring a specific type of testing for alcohol use other than that it "shall be conducted in accordance with N.J.A.C. 10A:3-5.10," which states in what circumstances inmates shall be tested, but does not indicate the form that the testing must take. See N.J.A.C. 10A:3-5.10. There is further no authority for plaintiff's proposition that the saliva swab tests are less accurate than or not as scientifically reliable as those that would be obtained under a urinalysis or Breathalyzer test.
Plaintiff also contends that defendants violated subsection (d) of the administrative regulations regarding the "Collection, storage and analysis of specimens." N.J.A.C. 10A:3-5.11(d). That provision states that "[i]f the initial test result is positive, the specimen shall be subject to a confirmation test of equal or greater sensitivity than the initial test." N.J.A.C. 10A:3-5.11(d). It is clear, however, that this administrative regulation, absent a showing that it supplies the basis for the claim of a constitutional right, is not the source of a right of constitutional dimension. See Arcoren, 829 F.2d at 676-77. With respect to plaintiff's due process right, he has not alleged that he was deprived of prior notice of the hearing, a written statement regarding the evidence, the opportunity to call or cross-examine witnesses, or that he was in need of an aid or interpreter. Plaintiff's due process claim therefor fails.
In any event, defendants are entitled to qualified immunity on plaintiff's due process claim, as the established law does not demonstrate that their conduct violated "basic, unquestioned constitutional rights." Wood v. Strickland, 420 U.S. 308, 322 (1975). Qualified immunity ensures that "plainly incompetent" officials or officials who "knowingly violate the law" are held accountable, while officials who reasonably exercise their discretion may do so without fear of being sued. Harlow, supra, 457 U.S. at 813-14. The qualified immunity defense fails when the official acts in a manner that disregards undisputed constitutional guarantees. See Wood, 420 U.S. at 321-22. Although plaintiff's Amended Complaint asserts that plaintiff's right to due process of law was violated when defendant Wiater adjudicated him guilty and sanctioned him with punitive segregation, loss of commutation credits, loss of participation in the half-way house program, and loss of parole, and when defendant Corby reviewed Weaver's administrative appeal and ratified the result, defendants are entitled to qualified immunity because a reasonable person in Corby's or Wiater's position would have thought his conduct was lawful. Here, Wiater conducted the disciplinary hearing based on the positive result indicating alcohol use, and Corby reviewed Weaver's administrative appeal of the finding of guilty. It cannot be concluded that the use of a saliva swab test plainly violated plaintiff's "basic, unquestioned constitutional rights." Corby's and Wiater's discretion in finding him guilty based on such a finding and affirming that decision upon appeal did not "knowingly violate the law" in doing so. Because it was not clearly established that due process requires the use of a test for alcohol use other than a saliva swab test, defendants Corby and Wiater are entitled to qualified immunity on plaintiff's due process claim.
4. Plaintiff's Eighth Amendment Claim
Defendants argue that plaintiff's Eighth Amendment claim should be dismissed because plaintiff, in alleging that the revocation of his parole subjected him to detention beyond his minimum release date, fails to allege the requisite state of mind to make out a deliberate indifference claim against defendants. To establish a claim under § 1983, plaintiff must demonstrate a violation of a right secured by the Constitution and laws of the United States. Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993). Plaintiff must also show that the alleged deprivation was committed by a person acting under color of state law. Id. (citations omitted). Imprisonment beyond one's term constitutes punishment within the meaning of the Eighth Amendment. See Sample v. Diecks, 885 F.2d 1099, 1108 (3d Cir. 1989) ( Eighth Amendment violation occurred when an inmate was imprisoned nine months and eight days after the expiration of his sentence) (citing Hutto v. Finney, 437 U.S. 678, 685 (1978)). For a prolonged detention to be deemed "cruel and unusual," the punishment must "involve the unnecessary and wanton infliction of pain" or must be "grossly disproportionate to the severity of the crime." Sample, 885 F.2d at 1108 (citations omitted). InSample, the Third Circuit held that "there can be no eighth amendment liability in this context in the absence of a showing of deliberate indifference on the part of the defendant to whether the plaintiff suffers an unjustified deprivation of his liberty." Id. at 1110.
The Court notes that there is a significant factual distinction between Sample and this case in that Weaver was not detained after completion of the full term of his sentence, but that his anticipated release on parole, prior to completion of his term, was delayed.
In order to establish an Eighth Amendment claim, plaintiff must allege both an objective element, that the deprivation was sufficiently serious, and a subjective element, that the prison official acted with a sufficiently culpable state of mind,i.e., deliberate indifference. Nami v. Fauver, 82 F.3d 63, 67 (3d Cir. 1996) (citing Wilson v. Seiter, 501 U.S. 294 (1991));see also Moore, 986 F.2d at 686 (plaintiff must allege prison official's knowledge of risk that unwarranted punishment would be inflicted, the official's deliberate indifference, and a causal connection between the official's actions and plaintiff's unjustified detention) (citing Sample, 885 F.2d at 1110).
In this case plaintiff alleges that he was unlawfully detained beyond his parole release date, and that defendants Corby and Wiater acted with deliberate indifference in conducting the disciplinary hearing, finding him guilty of alcohol use based on the positive result of the saliva swab test, and affirming the result on appeal, thereby providing for the prolonged detention of plaintiff.
Defendants may nevertheless be shielded from liability for civil damages if their actions did not violate "`clearly established statutory or constitutional rights of which a reasonable person would have known.'" Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Harlow, supra, 457 U.S. at 818). For a constitutional right to be clearly established,
[I]ts contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.Hope, 536 U.S. at 739 (citations omitted). The relevant question is thus whether the state of the law at the time of the alleged violation gave defendants Corby and Wiater fair warning that their alleged treatment of plaintiff was unconstitutional.See id. at 741.
In Hope, the Supreme Court held that prison guards who handcuffed plaintiff inmate to a hitching post for seven hours without regular water or bathroom breaks violated the inmate's Eighth Amendment right to be free from cruel and unusual punishment. In considering the guards' qualified immunity defense, the Supreme Court held that the defendants violated clearly established law, in light of binding Eleventh Circuit precedent that handcuffing prisoners to fences for long periods of time and depriving them of water were impermissible, an Alabama Department of Corrections (ADOC) regulation authorizing the use of hitching when an inmate refuses to do work and requiring guards to complete activity logs to record the inmate's response when they provide water and bathroom breaks every 15 minutes, and a Department of Justice report informing the ADOC of the constitutional infirmity in its use of the hitching post and advising the ADOC to cease the use of the hitching post. See id. at 741-42. Thus, the guards were given "fair warning" that their actions were unconstitutional.
Although plaintiff asserts that Weaver's appeal notice placed defendant Corby on notice of his claim that standards had been violated and that a breathalyzer test rather than a saliva swab test should have been used, there is not the overwhelming evidence as in Hope demonstrating that it was clearly established that their actions in finding plaintiff guilty of alcohol use based on the saliva swab test and affirming the finding on appeal were cruel and unusual punishment within the meaning of the Eighth Amendment. Plaintiff points to no precedential case law, available at the time of the alleged violation or at any time thereafter, holding that the use of the saliva swab test, and relying on such test, is unconstitutional. While plaintiff asserts that the alleged violation of "standards" was made known to defendants Corby and Wiater, see Appeal of Disciplinary Decision, 5/12/99, Pl.'s Opp. Br. Ex. A, an alleged violation of state law does not state a claim under § 1983, see Elkin v. Fauver, 969 F.2d 48, 52 (3d Cir. 1992) (citing Kaspar v. Bd. of Election Comm'rs, 814 F.2d 332, 342 (7th Cir. 1987)), let alone does an alleged violation of an administrative regulation, as discussed above.
In addition, plaintiff requests this Court to revisit its decision in the June 25, 2002 Opinion, with respect to the section discussing defendant McKeen's lack of deliberate indifference. The Court stated that plaintiff had not raised the illegality of the swab test but had raised the appeal on the basis of his innocence alone. Plaintiff submits his Appeal of Disciplinary Decision, dated May 12, 1999, not available at the time of the previous oral argument or prior to the Court's decision, in which plaintiff checks off the "violation of standards," "misinterpretation of the fact," "a plea for leniency," and "other" as reasons for his appeal. See Appeal, Pl.'s Opp. Br. Ex. A. Weaver handwrote an "explanation," which provides, in part:
When I took the saliva test at the Tullyhouse, The counselor said that it change color. I ask may I see it. He told me "No" you will see it when you go to court line. I ask him don't I have to sign it. He told me to go in the next room. I was NOT intoxicants or I was not drunk or disorder.
. . .
I should when to A.D.T.C. to take another test we stop there to pickup some medical records. I ask the C.O. I'm I going inside to take Breathalizer Test. He said I'm taking you to C.R.A.F. I said what about my Due Process when you come from the half way house. You have to stop at A.D.T.C. to take the test to. When I arrive at C.R.A.F. I saw the nurse she told me to walk a straight line and I pass the test. . . .Id.
Contrary to plaintiff's assertions, his explanation does not protest the use of the saliva swab test as unreliable, unauthorized or illegal, nor does it attribute any wrongdoing to the officials' administration of the saliva swab test, as opposed to a Breathalyzer test or urinalysis. Even if the Appeal could be construed as raising these objections, deliberate indifference as demonstrated by a failure to investigate, see Moore, 986 F.2d at 686-87, is not shown here where the disciplinary officer determined in the appeal that neither a violation nor a misinterpretation of the facts was found, and wherein he decreased plaintiff's administrative segregation from 150 days to 60 days, and loss of commutation time from 150 days to 60 days, along with other modifications. See Appeal, Pl.'s Opp. Br. Ex. A. This does not resemble a situation where a hearing officer was put "on notice" yet refused to investigate a claim, and the actions of McKeen, Wiater and Corby in this case are insufficient to demonstrate deliberate indifference. See Lundblade v. Franzen, 631 F. Supp. 214 (N.D. Ill. 1986) (where investigation was conducted, Eighth Amendment claim not supported); see also Alexander v. Perrill, 916 F.2d 1392, 1398 (9th Cir. 1990) (deliberate indifference where plaintiff put officials on notice of computational error, but who stood "idly by" despite plaintiff's documentary evidence in support of claim).
Because it cannot be concluded, under the "fair warning" inquiry in Hope, that a reasonable person would have known that defendants Corby and Wiater's actions in conducting the disciplinary hearing adjudicating plaintiff guilty for alcohol use based on the saliva swab test and in affirming the finding on appeal were unconstitutional, defendants Corby and Wiater are entitled to qualified immunity with respect to plaintiff's Eighth Amendment claim.
Because defendants' motion is decided on qualified immunity grounds, the Court need not address defendants' alternative arguments that Edwards v. Balisok and Heck v. Humphrey apply to bar plaintiff's claims.
C. Plaintiff's State Law Claim
Finally, in Count Four of his Complaint, plaintiff alleges that defendants Corby and Wiater violated plaintiff's substantive and due process rights under the New Jersey Constitution. As for plaintiff's remaining state law claim against these defendants, this Court declines to exercise supplemental jurisdiction over it after finding defendants entitled to qualified immunity from the federal law claims. The Third Circuit has stated:
The power of the court to exercise pendant jurisdiction, although largely unrestricted, requires, at a minimum, a federal claim of sufficient substance to confer subject matter jurisdiction on the court. The substantiality of the federal claim is ordinarily determined on the basis of the pleadings. If it appears that the federal claim is subject to dismissal under F.R. Civ. P. 12(b)(6) or could be disposed of on a motion for summary judgment under F.R. Civ. P. 56, then the court should ordinarily refrain from exercising jurisdiction in the absence of extraordinary circumstances.Tully v. Mott Supermarkets, Inc., 540 F.2d 187, 196 (3d Cir. 1976). Statutorily, the Court may decline to exercise supplemental jurisdiction over a pendant claim if "the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). In the instant case, defendants' qualified immunity "is an immunity from suit rather than a mere defense to liability." Bennett, 274 F.3d at 136. As such, it precludes plaintiff from bringing a cognizable claim for relief against defendants Corby and Wiater under federal law. This Court acts within its discretion and declines to exercise supplemental jurisdiction over the remaining state claim against defendants Corby and Wiater, which will be dismissed without prejudice.
III. CONCLUSION
For the above reasons, defendants Corby and Wiater are entitled to qualified immunity on plaintiff's constitutional claims, and their motion to dismiss will be granted. Plaintiff's Counts III will be dismissed as to defendants Corby and Wiater. In addition, the Court declines in its discretion to exercise supplemental jurisdiction over plaintiff's state law claims against Corby and Wiater, and Count Four as to Corby and Wiater will be dismissed without prejudice. The accompanying Order will be entered.
ORDER
THIS MATTER having come before the Court upon defendants Clifford Corby and Donald Wiater's motion to dismiss plaintiff's Amended Complaint; and the Court having considered the parties' submissions; and for the reasons stated in the Opinion of today's date; and for good cause shown;
IT IS on this day of June, 2003, hereby
ORDERED that defendants Corby and Wiater's motion to dismiss [Docket Item No. 45-1] be, and hereby is, GRANTED ; and plaintiff's federal law claims alleged against these defendants in Count III are hereby DISMISSED with prejudice, and plaintiff's state law claims alleged against defendants Corby and Wiater are hereby DISMISSED without prejudice.