RIVERA v. MILLER et al

Filing 8

OPINION. Signed by Judge Noel L. Hillman on 6/10/2014. (bdk, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MARCOS RIVERA,
Plaintiff,
v.
P. MILLER, and
J. PRUSZINSKI,
Defendants.

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Civil Action No. 12-0536(NLH)

OPINION

APPEARANCES:
Marcos Rivera
9168 Edmonston Road
Apt. 303
Greenbelt, MD 20770
Plaintiff pro se

HILLMAN, District Judge
Plaintiff seeks to bring this civil action, in forma
pauperis, 1 for damages for an injury allegedly sustained on

1

Plaintiff originally submitted his Complaint while he was
confined at South Woods State Prison. Plaintiff neither prepaid
the filing fee nor submitted an application for leave to proceed
in forma pauperis (“IFP application”). Accordingly, this Court
entered an Opinion and Order [2, 3] administratively terminating
this matter and granting Plaintiff leave to apply to reopen by
either prepaying the filing fee or submitting a complete IFP
application. Thereafter, Plaintiff was released from prison and
submitted a request to re-open this matter and a complete IFP

December 14, 2006, while he was confined at South Woods State
Prison in Bridgeton, New Jersey.
At this time, the Court must 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.

See 28 U.S.C. § 1915(e)(2) (in

forma pauperis actions).
I.

BACKGROUND

The following factual allegations are taken from
Plaintiff’s Complaint and attachments and are accepted as true
for purposes of this review.

Plaintiff alleges that on or about

December 14, 2006, while he was confined at South Woods State
Prison in Bridgeton, New Jersey, he was attacked and beaten by
Defendants P. Miller and J. Pruszinski, who are not otherwise
described.

Plaintiff asserts that the defendants threw him to

the floor and repeatedly punched, kicked and stomped him, until
blood spurted out of his mouth and head, from above his right
eye.

He states that he was treated by a nurse who stitched the

laceration above his right eye.

application. Based upon the new IFP application, this Court
will order the Clerk of the Court to re-open the Court’s file in
this matter and will grant Plaintiff leave to proceed in forma
pauperis.
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Plaintiff states that, over a period of months following
this attack, he suffered excruciating pain, an inability to
concentrate, and mood swings.

Sometime between September 2008

and April 2009, Plaintiff underwent cataract surgery, the need
for which he attributes to trauma suffered during the December
2006 beating.

Plaintiff states that he has lost the sight in

his right eye and he seeks damages in the amount of $500,000.00.
The Complaint is dated January 21, 2012.

Plaintiff

acknowledges that the Complaint is not timely, but asserts that
the limitations period did not begin to run until November 30,
2011, pursuant to the “discovery rule,” because he did not
receive his medical records from South Woods State Prison until
that date.

He does not state when he first requested the

records.
II.

STANDARDS FOR A SUA SPONTE DISMISSAL

Every complaint must comply with the pleading requirements
of 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.”
“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
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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 ... . Factual allegations must be enough to
raise a right to relief above the speculative level
... .
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations omitted).

That is, a complaint must assert “enough

facts to state a claim to relief that is plausible on its face.”
Id. at 570.
“A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Twombly, 550 U.S. at 556).

Thus, a court is “not bound to

accept as true a legal conclusion couched as a factual
allegation,” and “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice.”

Ashcroft v. Iqbal, 556 U.S. at 678 (citations

omitted).
To determine whether a complaint meets the pleading
standard, our analysis unfolds in three steps. First,
we outline the elements a plaintiff must plead to
state a claim for relief. Next, we peel away those
allegations that are no more than conclusions and thus
not entitled to the assumption of truth. Finally, we
look for well-pled factual allegations, assume their
veracity, and then “determine whether they plausibly
give rise to an entitlement to relief.” This last
step is “a context-specific task that requires the
reviewing court to draw on its judicial experience and
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common sense.”
Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012) (citations
omitted).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to accept its factual allegations as true,
see James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir.
2012), and to construe it liberally in favor of the plaintiff,
see Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United States
v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
Where a complaint can be remedied by an amendment, a
district court may not dismiss the complaint with prejudice, but
must permit the amendment.

Denton v. Hernandez, 504 U.S. 25, 34

(1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d
Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)), cited
in Thomaston v. Meyer, No. 12-4563, 2013 WL 2420891, *2 n.1 (3d
Cir. June 5, 2013); Shane v. Fauver, 213 F.3d 113, 116-17 (3d
Cir. 2000) (dismissal pursuant to 42 U.S.C. § 1997e(c)(1));
Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 453 (3d
Cir. 1996).
III.

ANALYSIS

Plaintiff does not state the basis for asserting federal
jurisdiction over his claim.

Moreover, he has failed to allege

facts sufficient to establish either federal question
jurisdiction, see 28 U.S.C. §§ 1331, or diversity jurisdiction,
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see 28 U.S.C. § 1332.
To the extent Plaintiff seeks to assert federal question
jurisdiction, for example, for a claim arising under 42 U.S.C.
§ 1983, he has failed to allege facts establishing a
jurisdictional basis.

More specifically, Section 1983 provides

in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory ... subjects, or causes to be subjected,
any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress ... .
Thus, to state a claim for relief under § 1983, a plaintiff must
allege, first, the violation of a right secured by the
Constitution or laws of the United States and, second, that the
alleged deprivation was committed or caused by a person acting
under color of state law.

West v. Atkins, 487 U.S. 42, 48

(1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
Here, Plaintiff has failed to allege any facts suggesting
that either of the two defendants is a state actor (e.g., a
correctional officer) as opposed to a private actor (e.g.,
another prisoner).

In the absence of any factual allegations

that the defendants are state actors, Plaintiff has alleged
merely that two individuals assaulted him, a potential tort
under state law.

This does not state a claim for a violation,
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by a state actor, of a right secured by the Constitution or laws
of the United States.
Alternatively, Section 1332 can provide jurisdiction over
state-law civil actions if, in the provision pertinent here, the
matter in controversy exceeds the sum or value of $75,000, 2
exclusive of interest and costs, and is between “citizens of
different States.”

It has long been recognized that, to found

jurisdiction upon § 1332, there must be complete diversity among
all parties, i.e., each plaintiff must be a citizen of a
different state from each defendant.

Owen Equipment and

Erection Co. v. Kroger, 437 U.S. 365, 373-74 (1978); Grand Union
Supermarkets of the V.I., Inc. v. H.E. Lockhart Mgmt, Inc., 316
F.3d 408, 410 (3d Cir. 2003).
A plaintiff, as the party asserting diversity jurisdiction,
“must specifically allege each party’s citizenship, and these
allegations must show that the plaintiff and defendant are
citizens of different states.”

American Motorists Ins. Co. v.

American Employers’ Ins. Co., 600 F.2d 15, 16 (5th Cir. 1979);
see also Universal Reinsurance Co., Ltd. v. St. Paul Fire &
Marine Ins. Co., 224 F.3d 139, 141 (2d Cir. 2000) (“The failure
to allege [the party’s] citizenship in a particular state is

2

Plaintiff asserts damages in excess of the $75,000
jurisdictional amount.
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fatal to diversity jurisdiction”).

See Gay v. Unlever Trumbull,

C.T., Civil Action No. 11-5929, 2013 WL 2338604, *3 (D.N.J. May
28, 2013) (citing American Motorists Ins. and Universal
Reinsurance).
Specifically with respect to individuals,
For purposes of determining diversity, state
citizenship is equated with domicile. Domicile,
however, is not necessarily synonymous with residence;
one can reside in one place and be domiciled in
another. Residence and an intent to make the place of
residence one’s home are required for citizenship and
to establish a new domicile. Although the analysis is
necessarily case specific, courts have looked to
certain factors, including state of employment,
voting, taxes, driver’s license, bank accounts and
assets, and civic and religious associations in
determining the citizenship of an individual. ...
McCracken v. Murphy, 328 F.Supp.2d 530, 532 (E.D. Pa. 2004)
(citations omitted), aff’d, 129 F.App’x 701 (3d Cir. 2005).
“For inmates, citizenship for diversity purposes is the state in
which the inmate was domiciled prior to incarceration, unless
the inmate plans to live elsewhere when he is released in which
event citizenship would be that state.”

McCracken, 328

F.Supp.2d at 532 (citing Flanagan v. Shively, 783 F.Supp. 922,
935 (E.D. Pa.), aff’d, 980 F.2d 722 (3d Cir. 1992)).

Thus, the

fact of incarceration in New Jersey is insufficient to establish
the citizenship of any of the parties, and Plaintiff has alleged
no facts regarding his own citizenship or the citizenships of
the Defendants.

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The Court is mindful that Plaintiff appears here pro se and
that, therefore, the Complaint is to be held to less stringent
standards than formal pleadings drafted by lawyers.
Kerner, 404 U.S. 519 (1972).

Haines v.

Nonetheless, the Court can discern

no basis for asserting jurisdiction over this action.
Accordingly, the Complaint will be dismissed without
prejudice for failure to plead facts establishing jurisdiction.
IV.

CONCLUSION

For the reasons set forth above, the Complaint will be
dismissed without prejudice, for lack of jurisdiction.

An

appropriate order follows.

At Camden, New Jersey

s/Noel L. Hillman
Noel L. Hillman
United States District Judge

Dated: June 10, 2014

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