GIBSON v. SHOPRITE et al
Filing
6
OPINION. Signed by Judge Noel L. Hillman on 1/2/2013. (nz, )n.m.
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
RAYMOND ANTHONY GIBSON, JR., :
:
Plaintiff,
:
:
v.
:
:
SHOPRITE, et al.,
:
:
Defendants.
:
:
Civil No. 12-4077 (NLH)
OPINION
APPEARANCES:
RAYMOND ANTHONY GIBSON, JR., Plaintiff Pro Se
VOA Liberty House
510 Liberty Street
Camden, NJ 08104
HILLMAN, District Judge:
Plaintiff Raymond Anthony Gibson, Jr., a prisoner1 who is
presently confined at a halfway house in Camden, New Jersey,
seeks to file a Complaint without prepayment of the filing fee.
This Court will grant Plaintiff’s application to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915.
Having screened
Plaintiff’s Complaint, as required by 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A, this Court will dismiss the Complaint for lack of
jurisdiction.
1
According to the online inmate locator of the New Jersey
Department of Corrections, Gibson remains in their custody as of
October 3, 2012. See N.J. Dep’t of Corrections, Inmate Locator,
https://www6.state.nj.us/DOC_Inmate/details?x=1074814&n=0 (Oct.
3, 2012).
I.
BACKGROUND
Raymond Anthony Gibson, Jr., brings this Complaint against
Shoprite supermarket in Evesham Township, New Jersey, and five of
its employees, i.e., Ben Rothberg, Marc Huber, Michael Kennedy,
Harshil Desai, and Robert Cecheg.
(Dkt. 1 at 3.)
Gibson asserts
the following facts in the Complaint:
On 10-3-10 at 4:24 pm a Shoprite employee called 911 in
regards to a suspected shoplifter exiting the store.
Subsequently the plaintiff was confronted in the
Shoprite vestibule by los[s] prevention employee Marc
Huber. Huber bumped plaintiff, feeling for concealed
merchandise. Plaintiff informed Huber that he didn’t
have anything. Huber responded “It doesn’t matter
we’re going to beat you like you stole something!” At
this time he signaled to a group of men congregating in
front of the store.
On 10-3-10 at 4:25 pm seeing the signal from Huber; Ben
Rothberg, Harshil Desai, Robert Celneg [sic] and
Michael Kennedy ran towards the exit door. Fearing
violence the plaintiff attempted to exit the store and
get out of harms way but was tripped from behind by
defendant Marc Huber. As plaintiff stumbled he was
immediately tackled and brought to the ground by
defendants, B. Rothberg, H. Desai, R. Celneg [sic] and
M. Kennedy.
On 10-3-10 at 4:26 pm five feet from the exit door the
defendants pinned plaintiff face down on the ground and
proceeded to assault plaintiff after he was down.
Blows to the head and ribs were delivered as
plaintiff’s right arm was twisted behind his back
causing extreme pain.
The weight of the defendants on top of plaintiff became
overwhelming and plaintiff told defendants he could not
breath[e]. Plaintiff[’]s pleas for mercy were ignored,
the assault was continued and plaintiff lost
consciousness.
On 10-3-10 at 4:30 responding officer Andrew Dougherty
arrived to find plaintiff face down on the pavement
2
with defendants still on top of him.
the situation . . .
After assessing
On 10-3-10 at 4:41 officer of the Evesham Township
Police called a ambulance for the plaintiff.
On 10-3-10 at 4:48 the EMS arrived and plaintiff was
transported to Virtua Hospital in Marlton N.J. where
plaintiff was treated for bruised ribs and head
tra[u]ma.
(Dkt. 1 at 7-8.)
For violation of his constitutional rights, Plaintiff seeks
“a monetary award of $1,500,000.00 for compensatory, punitive and
nominal damages [and] a declaratory judgement regarding
defendants[’] los[s] prevention policies.”
II.
(Dkt. 1 at 9.)
STANDARD OF REVIEW
The Prison Litigation Reform Act (?PLRA”), Pub. L. No. 104134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996),
requires a District Court to screen a complaint in a civil action
in which a plaintiff is proceeding in forma pauperis or a
prisoner is seeking redress against a government employee or
entity, and to sua sponte dismiss any claim if the Court
determines that it is frivolous, malicious, fails to state a
claim on which relief may be granted, or seeks monetary relief
from a defendant who is immune from such relief.
See 28 U.S.C.
§§ 1915(e)(2)(B), 1915A.
III.
DISCUSSION
Federal courts are courts of limited jurisdiction.
See
Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U.S. 379, 383 (1884).
3
Federal courts “have only the power that is authorized by Article
III of the Constitution and the statutes enacted by Congress
pursuant thereto.”
Bender v. Williamsport Area School Dist., 475
U.S. 534, 541 (1986).
Article III of the Constitution provides:
The judicial Power shall extend to all Cases,
in Law and Equity, arising under this
Constitution, the Laws of the United States,
and Treaties made, or which shall be made,
under their Authority;--to all Cases
affecting Ambassadors, other public Ministers
and Consuls;--to all Cases of admiralty and
maritime Jurisdiction;--to Controversies to
which the United States shall be a Party;--to
Controversies between two or more States;-between a State and Citizens of another
State;--between Citizens of different
States;--between Citizens of the same State
claiming Lands under Grants of different
States, and between a State, or the Citizens
thereof, and foreign States, Citizens or
Subjects.
U.S. Const. art. III, § 2.
The essential facts establishing subject matter jurisdiction
must be alleged in the complaint.
See McNutt v. General Motors
Acceptance Corp. of Indiana, 298 U.S. 178, 182, 189 (1936).
The
plaintiff, “who claims that the power of the court should be
exerted in his behalf . . . must carry throughout the litigation
the burden of showing that he is properly in court.”
Id. at 189.
Moreover, lack of subject matter jurisdiction may be raised by
the Court sua sponte at any time.
See Bender, 475 U.S. at 541;
Louisville & Nashville Railroad Co. v. Mottley, 211 U.S. 149, 152
4
(1908); Van Holt v. Liberty Mutual Fire Ins. Co., 163 F.3d 161,
166 (3d Cir. 1998).
(1) Diversity Jurisdiction
Congress has given district courts “original jurisdiction of
all civil actions where the matter in controversy exceeds the sum
or value of $75,000, exclusive of interest and costs, and is
between - (1) citizens of different States.”
1332(a)(1).
28 U.S.C. §
Diversity jurisdiction is determined by examining
the citizenship of the parties at the time the complaint is
filed.
See Smith v. Sperling, 354 U.S. 91 (1957); see also Grupo
Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 570 (2004)
(“It has long been the case that the jurisdiction of the court
depends upon the state of things at the time of the action
brought”) (citation and internal quotation marks omitted).
This
time-of-filing rule “measures all challenges to subject-matter
jurisdiction premised upon diversity of citizenship against the
state of facts that existed at the time of filing - whether the
challenge be brought shortly after filing, after the trial, or
even for the first time on appeal.”
Grupo Dataflux, 541 U.S. at
571.
In a diversity action, the complaint must set forth the
citizenship of each party, such that the existence of complete
5
diversity is demonstrated on the face of the complaint.2
See
Universal Reinsurance Co., Ltd. v. St. Paul Fire And Marine Ins.
Co., 224 F. 3d 139, 141 (2d Cir. 2000) (“The failure to allege [a
party’s] citizenship in a particular state is fatal to diversity
jurisdiction); Guaranty Nat’l Title Co. v. J.E.G. Assoc., 101 F.
3d at 58 (“When the parties allege residence but not citizenship,
the court must dismiss the suit”); American Motorists Ins. Co. v.
American Employers’ Ins. Co., 600 F. 2d 15, 16 (5th Cir. 1979)
(plaintiff “must specifically allege each party’s citizenship,
and these allegations must show that the plaintiff and
defendant[s] are citizens of different states”).
In addition,
the party asserting diversity jurisdiction bears the burden of
establishing diversity by a preponderance of the evidence.
See
McCann v. Newman Irrevocable Trust, 458 F.3d 281, 286 (3d Cir.
2006) (citing McNutt, 298 U.S. at 189).
In this Complaint, Gibson does not locate the citizenship of
any defendant at the time he filed the Complaint (on or about
November 15, 2011, under the “mailbox rule.”)
Accordingly, the
Complaint fails to establish that this Court has diversity
jurisdiction over this matter.
2
Complete diversity means that “the citizenship of each
plaintiff is diverse from the citizenship of each defendant.”
Caterpillar Inc. v. Lewis, 519 U.S. 61, 67 (1996).
6
(2) Federal Question Jurisdiction
A district court may also exercise jurisdiction over “Cases,
in Law and Equity, arising under this Constitution, the Laws of
the United States, and Treaties made, or which shall be made,
under their authority.”
U.S.C. § 1331.
U.S. Const. art. III., § 2; see also 28
Specifically, 42 U.S.C. § 1983 authorizes a
person to seek redress for a violation of his or her federal
rights by a person who was acting under color of state law.3
To
recover under 42 U.S.C. § 1983, a plaintiff must show two
elements:
(1) a person deprived him or caused him to be deprived
of a right secured by the Constitution or laws of the United
States, and (2) the deprivation was done under color of state
law.
See West v. Atkins, 487 U.S. 42, 48 (1988); Adickes v. S.H.
Kress & Co., 398 U.S. 144, 152 (1970); Sample v. Diecks, 885 F.2d
1099, 1107 (3d Cir. 1989).
3
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.
42 U.S.C. § 1983.
7
"[T]he under-color-of-state-law element of § 1983 excludes
from its reach 'merely private conduct, no matter how
discriminatory or wrongful."
American Manufacturers Mutual Ins.
Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quoting Shelley v.
Kraemer, 334 U.S. 1, 13 (1948)).
State action exists where the
conduct allegedly causing the deprivation of a federal right is
"fairly attributable to the State."
Inc., 457 U.S. 922, 937 (1982).
Lugar v. Edmondson Oil Co.,
A private person may fairly be
said to be a state actor "when (1) he is a state official, (2) he
has acted together with or has obtained significant aid from
state officials, or (3) his conduct is, by its nature, chargeable
to the state."
Angelico v. Lehigh Valley Hospital, Inc., 184
F.3d 268, 277 (3d Cir. 1999).
Here, nothing asserted in the Complaint plausibly shows that
Shoprite or its employees were acting under color of state law
when the employees allegedly assaulted Gibson.
The Complaint
therefore fails to assert a claim under § 1983.
This Court will accordingly dismiss the Complaint for want
of jurisdiction.
Because it is not inconceivable that Gibson may
be able to assert facts curing the lack of jurisdiction by filing
an amended complaint, this Court will grant leave to file an
amended complaint regarding the alleged incident on October 3,
8
2010.4
See DelRio-Mocci v. Connolly Properties Inc., 672 F.3d
241, 251 (3d Cir. 2012); Shane v. Fauver, 213 F.3d 113, 115 (3d
Cir. 2000).
V.
CONCLUSION
Based on the foregoing, this Court will grant Plaintiff’s
application to proceed in forma pauperis and dismiss the
Complaint.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
Dated:
January
2 , 2013
At Camden, New Jersey
4
Plaintiff should note that once an amended complaint is
filed, the original complaint no longer performs any function in
the case and “cannot be utilized to cure defects in the amended
[complaint], unless the relevant portion is specifically
incorporated in the new [complaint]. 6 Wright, Miller & Kane,
Federal Practice and Procedure: Civil 2d § 1476 (1990)
(footnotes omitted). An amended complaint may adopt some or all
of the allegations in the original complaint, but the
identification of the particular allegations to be adopted must
be clear and explicit. Id. To avoid confusion, this Court
directs Plaintiff to file an amended complaint that is complete
in itself. Id.
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