govinfo:USCOURTS-njd-2_25-cv-13513-0

NOT FOR PUBLICATION 
 
UNITED STATES DISTRICT COURT 
DISTRICT OF NEW JERSEY 
 
ALTURIK FRANCIS, 
 
Civil Action No. 25-13513 
 
OPINION 
 
June 17, 2026 
 
Petitioner, 
 v. 
NEW JERSEY DEPARTMENT OF 
CORRECTIONS, JOSEPH R. HEATON, 
TINA CORTES, GIOVANNI ORTIZ, and 
VICTORIA KUHN, 
 
Respondents. 
 
SEMPER, District Judge 
THIS MATTER comes before the Court upon Defendants’ Motion to Dismiss Plaintiff’s 
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 1-2, “Complaint,” or 
“Compl.”; ECF No. 4, “Motion” or “Mot.”) Plaintiff, proceeding pro se, filed an opposition, (ECF 
No. 9, “Opposition” or “Opp.”), and Defendants submitted a reply. (ECF No. 12, “Reply.”) The 
Court has decided this Motion upon the submissions of the parties, without oral argument, pursuant 
to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1. For the reasons set forth below, 
the motion is GRANTED IN PART and DENIED IN PART. 
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
1 
This matter arises from an incident alleged to have occurred while Plaintiff, an incarcerated 
 
1 The facts and procedural history are drawn from the Complaint (Compl.) and documents integral 
to or relied upon by the Complaint, including Plaintiff’s brief in opposition to Defendants’ Motion 
(Opp.) and Defendants’ brief in reply (Reply). See In re Burlington Coat Factory Sec. Litig., 114 
F.3d 1410, 1426 (3d Cir. 1997). For the purposes of a motion to dismiss, the facts drawn from the PageID:
<pageID>
2 
 
individual, was being transported to court. (Compl. ¶3; Opp. at 8.) Plaintiff alleges that Defendant 
Giovanni Ortiz used excessive force against him after he refused to expose himself while 
attempting to use a restroom, resulting in physical injury. (Id.) 
While he was in the bathroom of the Union County Courthouse on 
April 29, 2024, Mr. Francis was savagely slammed to the ground 
and trumped up on a bogus assault charges because the Defendant 
wanted Mr. Francis to urinate with the Defendant standing there and 
watching him urinate. Mr. Francis refused. 
 
A dislocated and fractured big toe, severely cut and bruised wrist, 
and almost three weeks of soreness to the body and jawbones, were 
the injuries Francis sustained as the direct and immediate 
consequence of Ortiz violently throwing him to the concrete floor. 
 
At the time Mr. Francis was attacked by Defendant Ortiz, he was in 
physical restraints. His legs were shackled and his handcuffs were 
connected to a belly chain. He was incapacitated from resisting or 
putting Ortiz in peril. The belly chain that Francis’s handcuffs were 
connected to kept his arms steady. Simply put Plaintiff Francis was 
assaulted for refusing to urinate while the officer watched. He was 
subjected to retaliation for his involvement in constitutionally 
protected activity. 
 
(Compl. ¶¶ 3–5.) 
Plaintiff further references a disciplinary proceeding and broadly asserts violations of his 
constitutional rights, as well as the Prison Rape Elimination Act (“PREA”). 
On April 30, 2024 Defendant Heaton served Francis with the bogus 
assault charge that Ortiz wrote. Rather than thoroughly investigate 
and provide recourse when Francis complained that the reprisal in 
Paragraphs 10 through 12 befell him. Heaton concurred that Francis 
assaulted Ortiz, and forwarded the charge to Defendant Cortes, to 
decide whether to convict or acquit. 
 
As Francis languished in the hole, Defendant Cortes postponed the 
disciplinary hearing on five separate occasions, May 2, 7, 10, 15, 20, 
and 29, 2024, to view the body- worn camera video of the incident. 
The video showed that Francis was in physical restraints, and it was 
 
Complaint are accepted as true. See Fowler v. UMPC Shadyside , 578 F.3d 203, 210- 11 (3d Cir. 
2009). PageID:
<pageID>
3 
 
impossible under the law of nature for him to engage in the 
assaultive behavior that Ortiz described. In the video, Ortiz could 
be heard screaming “Stop resisting.” 
 
When the disciplinary hearing resumed on June 11, 2 024, Cortes 
downgraded the charge from assault to a refusing to obey a direct 
order. Her guilty verdict was predicated on Francis refusing to allow 
Ortiz to glance at his penis as he took a pee. She imposed the 
sanctions of 90 days loss of commutation time, 60 days in 
Restorative Housing Unit, and 60 days loss of JPay privileges. 
 
Both the Prison Rape Elimination Act (“PREA”) and the Zero 
Tolerance policy of the Department of corrections, classify the 
peering at an inmate who is about to perform bodily functions in a 
lavatory, as an invasion of privacy. Defendant Ortiz wanted to 
derive pleasure and gratification from observing Francis’ genitals. 
 
(Id. ¶¶ 6–9.) 
The action was originally filed in the Superior Court of New Jersey and removed to this 
Court on July 18, 2025. (ECF No. 1.) Defendants include the New Jersey Department of 
Corrections (“NJDOC”), Commissioner Victoria Kuhn, Officer Tina Cortes, Officer Joseph 
Heaton, and Officer Giovanni Ortiz. (See Compl.) 
Defendants move to dismiss all claims, arguing, inter alia , sovereign immunity, lack of 
personal involvement, failure to state a claim, and the absence of a private cause of action under 
the PREA. (See generally Mot.) 
II. LEGAL STANDARD 
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient 
factual matter to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 
550 U.S. 544, 570 (2007) (requiring factual allegations sufficient to raise a right to relief above 
speculation). A court must accept all well -pleaded facts as true but need not credit legal 
conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (distinguishing factual allegations from 
conclusory assertions). Because Plaintiff proceeds pro se , the Court construes his pleadings PageID:
<pageID>
4 
 
liberally. Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (holding pro se pleadings are held to 
less stringent standards). 
III. ANALYSIS 
a. Claims Against NJDOC and Official-Capacity Defendants 
A liberal construction of Plaintiff’s Complaint suggests he seeks relief under 42 U.S.C. § 
1983 and the New Jersey Civil Rights Act (“NJCRA”) against the NJDOC and several NJDOC 
officials. (ECF 1-1; Compl. at 1-10); see Haines, 404 U.S. at 520-1. Defendants argue that these 
claims fail as a matter of law because the NJDOC, as an arm of the State, and the individual 
defendants in their official capacities are not “persons” amenable to suit under either statute. (Mot. 
at 10–12.) 
Established precedent compels this conclusion. A state and its agencies are not “persons” 
amenable to suit under 42 U.S.C. § 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 
(1989) (holding states and state officials in official capacities are immune from § 1983 damages 
suits). The Third Circuit has consistently applied this principle. See Chavarriaga v. N.J. Dep’t of 
Corr., 806 F.3d 210, 222 (3d Cir. 2015) (recognizing Eleventh Amendment immunity for state 
entities). 
The same result obtains under the NJCRA, which is generally interpreted analogously to 
42 U.S.C. § 1983. See Tumpson v. Farina, 95 A.3d 210, 223 (N.J. 2014) (directing courts to look 
to § 1983 jurisprudence). Because the NJDOC is an arm of the State of New Jersey, it is not a 
“person” amenable to suit under either 42 U.S.C. § 1983 or the NJCRA. Similarly, as explained 
below, Commissioner Kuhn and Defendants Cortes, Heaton, and Ortiz, insofar as they are sued in 
their official capacities, are not proper defendants under either statute. Accordingly, Plaintiff’s 42 
U.S.C. § 1983 and NJCRA claims against the NJDOC and against the individual defendants in PageID:
<pageID>
5 
 
their official capacities are DISMISSED with prejudice. 
b. Section 1983 Claims Against Commissioner Kuhn, Officer Cortes, and Officer 
Heaton 
 
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege each defendant’s personal 
involvement in the alleged constitutional violation. Iqbal, 556 U.S. at 676 (requiring individual 
liability based on personal conduct); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) 
(requiring particularized allegations of participation or knowledge). Personal involvement may be 
shown through allegations of personal direction, actual participation, or knowledge and 
acquiescence, but such allegations must be pled with appropriate particularity. Rode, 845 F.2d at 
1207. 
The Complaint , even when construed liberally, fails to satisfy that standard. Plaintiff 
alleges no facts whatsoever concerning Commissioner Kuhn’s involvement in the events at issue. 
As to Officers Cortes and Heaton, Plaintiff alleges only that one presided over a disciplinary 
hearing and another served a disciplinary charge. (Compl. ¶¶ 6-8; Mot. at 13.) Standing alone, 
such allegations do not plausibly establish either officer’s involvement in Plaintiff’s alleged 
constitutional violations. See Rode, 845 F.2d at 1207–08 (requiring allegations wit h appropriate 
particularity); Iqbal, 556 U.S. at 678 (rejecting “bald assertions”). 
In opposing dismissal, Plaintiff attempts to bolster these claims by asserting that 
Defendants were aware of his serious medical needs and acted with deliberate indifference thereto. 
The Defendants were well aware of the fact that Plaintiff had serious 
needs and were deliberately indifferent. In addition to damages for 
deliberate indifference, Plaintiff seeks damages for the physical and 
emotional injuries. 
 
(Opp. at 14–15.) 
Those allegations, however, do not appear in the Complaint. It is well established that , “a PageID:
<pageID>
6 
 
complaint may not be amended by the briefs in opposition to a motion to dismiss.” Pa. ex rel. 
Zimmerman v. Pepsico, Inc., 836 F.2d 173, 181 (3d Cir. 1988). Because the Complaint does not 
plausibly allege the personal involvement of Commissioner Kuhn, Officer Cortes, or Officer 
Heaton in any constitutional violation, the claims against those Defendants in their individual 
capacities are DISMISSED without prejudice. 
c. Eighth Amendment Claims Against Officer Ortiz 
Liberally construing Plaintiff’s allegations, the Court understands the Complaint to assert 
that Defendant Ortiz used physical force against Plaintiff while he was restrained after refusing to 
comply with an order to expose himself in a restroom setting. Plaintiff further alleges that he 
suffered injuries as a result of the encounter. (Compl. ¶¶ 3–5; Opp. at 8–9.) 
At this stage of the proceedings, those allegations are sufficient to state a plausible Eighth 
Amendment excessive force claim. See Hudson v. McMillian, 503 U.S. 1, 7 (1992) (holding that 
the core inquiry is whether force was applied to maintain discipline, or maliciously and sadistically 
to cause harm ). Accepting Plaintiff’s factual allegations as true and drawing all reasonable 
inferences in his favor, as the Court must on a motion to dismiss, Plaintiff has plausibly alleged 
that Ortiz used force for a purpose other than maintaining or restoring discipline. See Twombly , 
550 U.S. at 555-56. Moreover, the absence of significant injury would not, by itself, defeat such 
a claim. See Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000) (recognizing that even de minimis 
injuries may support excessive force claims). 
Accordingly, the M otion to D ismiss is DENIED as to Plaintiff’s excessive force claim 
against Defendant Ortiz in his individual capacity. PageID:
<pageID>
7 
 
d. Plaintiff’s Request for Declaratory Judgment 
The Court notes that Plaintiff’s Opposition does not respond to Defendants’ contention that 
his request for declaratory relief is not cognizable. (See Opp.; Mot. at 10–11.) Upon independent 
review, the Court concludes that Plaintiff has failed to state a claim for declaratory relief. 
The Declaratory Judgment Act authorizes courts to declare the rights and legal relations of 
parties in cases presenting a live controversy warranting prospective relief. It does not provide a 
vehicle for obtaining a declaration that a defendant violated a plaintiff’s rights in the past. See 
Corliss v. O’Brien, 200 F. App’x 80, 84 (3d Cir. 2006) (holding that declaratory judgment is not 
intended to declare past liability ); Pieczenik v. N.J. Dep’t of Env’t Prot., 715 F. App’x 205, 208 
(3d Cir. 2017) (requiring a real and immediate threat of future injury). 
Here, Plaintiff’s request for declaratory relief is based on the same completed events that 
underlie his damages claims. He seeks a declaration that Defendants’ past actions violated his 
constitutional rights, rather than prospective relief governing future conduct. Because the 
requested declaration would serve only to adjudicate the legality of past conduct, Plaintiff has 
failed to state a cognizable claim for declaratory relief. Accordingly, that claim is dismissed 
without prejudice. 
e. PREA Claims 
To the extent Plaintiff seeks relief under the PREA, that claim fails as a matter of law. 
Plaintiff alleges that Defendant Ortiz improperly sought to observe his genitals while he was using 
a restroom, conduct that Plaintiff characterizes as an invasion of privacy prohibited by the PREA 
and NJDOC’s “Zero Tolerance” policy. (Compl. ¶¶ 8 –9.) Plaintiff further alleges that the 
disciplinary charges and sanctions that followed stemmed from his refusal to permit such 
observation. (Id. ¶¶ 6–8.) Even accepting those allegations as true for purposes of this M otion, PageID:
<pageID>
8 
 
the PREA does not create a private right of action and therefore cannot serve as an independent 
basis for civil liability. Courts within this District have consistently held that the PREA creates no 
enforceable rights actionable under 42 U.S.C. § 1983 or otherwise. See Walsh v. N.J. Dept. of 
Corrections, No.17-2442, 2017 WL 3835666, at *3 (D.N.J. Aug. 31, 2017) (“The Court holds that 
Congress has not manifested any intent to create a new right enforceable under § 1983 on behalf 
of a prisoner under the PREA.”); see also Nestor v. Dir. of N.E. Region Bureau of Prisons, No.11-
4683, 2012 WL 6691791, at *3 (D.N.J. Dec. 20, 2012) (holding that a plaintiff may not assert a 
private cause of action under the PREA.). 
Accordingly, to the extent the Complaint asserts a standalone claim under the PREA, that 
claim is DISMISSED with prejudice. This dismissal does not affect the Court’s separate analysis 
of Plaintiff’s constitutional claims arising from the same underlying events. 
f. Leave to Amend 
Finally, the Court considers whether leave to amend should be granted. The Third Circuit 
has instructed that leave to amend should generally be permitted unless amendment would be 
inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). 
Because Plaintiff is proceeding pro se and some of the deficiencies identified herein may be 
curable through amendment, the Court will permit Plaintiff to file an amend ed complaint with 
respect to the claims dismissed without prejudice, including the individual-capacity claims against 
Defendants Kuhn, Cortes and Heaton, and the request for and declaratory relief. 
IV. CONCLUSION 
For the foregoing reasons , Plaintiff’s c laims against NJDOC and official- capacity 
defendants are DISMISSED WITH PREJUDICE ; Plaintiff’s claims against Kuhn, Cortes, and 
Heaton (individual capacity) are DISMISSED WITHOUT PREJUDICE ; Plaintiff’s PREA PageID:
<pageID>
9 
 
claims are DISMISSED WITH PREJUDICE ; Plaintiff’s d eclaratory judgment claim is 
DISMISSED WITHOUT PREJUDICE ; and the Motion is DENIED as to Plaintiff’s § 1983 
excessive force claim against Defendant Ortiz. 
An appropriate Order follows. 
 
 
/s/ Jamel K. Semper 
HON. JAMEL K. SEMPER 
United States District Judge 
Orig: Clerk 
cc: Michael A. Hammer, U.S.M.J. 
Parties PageID:
<pageID>

Passage view · GavelSight