STORA v. BRADY et al

Filing 14

OPINION. Signed by Judge Noel L. Hillman on 5/22/2014. (tf, n.m.)

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SKIBOKY STORA,
Plaintiff,
v.
MARGARET BRADY, et al.,
Defendants.

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Civil Action No. 12-5131(NLH)

OPINION

APPEARANCES:
Skiboky Stora
559 Vermont Street
Brooklyn, NY 11207
Plaintiff pro se

HILLMAN, District Judge
Plaintiff Skiboky Stora seeks to bring this action alleging
violations of his constitutional rights, asserting jurisdiction
under 42 U.S.C. § 1983 (civil action for deprivation of rights)
and 28 U.S.C. 1331 (“federal question” jurisdiction).
Plaintiff was a prisoner at the time he submitted his
original Complaint [1], but he has since been released.

By

Opinion and Order entered December 19, 2012, this Court granted
Plaintiff leave to proceed in forma pauperis, dismissed the

Complaint without prejudice, and granted Plaintiff leave to
apply to re-open if he could cure the defects of his Complaint.
This matter is again before the Court pursuant to Plaintiff’s
submission of a proposed Amended Complaint [9] 1 and a Motion [7]
to transfer this case to the U.S. District Court for the Eastern
District of New York, at Brooklyn. 2
At this time, the Court will re-open this action and review
the proposed Amended Complaint to determine whether it should be
dismissed sua sponte 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).
I.

BACKGROUND

The following factual allegations are taken from
Plaintiff’s Amended Complaint and are accepted as true for
purposes of this review.
Plaintiff states that he resides in Brooklyn, New York.

1

He

Plaintiff also submitted a proposed amended complaint [7] in
February 2013, but that pleading is superseded by the second
Amended Complaint [9] submitted in September 2013. See West Run
Student Housing Associates, LLC v. Huntington National Bank, No.
12-2430, 2013 WL 1338986, *5 (3d Cir. April 4, 2013) (collecting
cases). See also 6 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1476 (3d ed. 2008). In any
event, the two pleadings are virtually identical in substance.
2

In the Motion to transfer, Plaintiff asserts jurisdiction
pursuant to 28 U.S.C. § 1332 (“diversity” jurisdiction).
2

alleges that he was in Atlantic City, New Jersey on May 16,
2012, when he was brought by emergency medical personnel from
his hotel to the Atlanticare Regional Medical Center in Atlantic
City.

Plaintiff does not describe the nature of his medical

emergency, but alleges that he was immediately discharged.

He

states that Defendant Nurse Margaret Brady and an Atlanticare
security guard both started pulling his arms to get him out of
the hospital while he was screaming in pain for them to stop.
Plaintiff asserts that Nurse Brady hit him in the chest, causing
him to fall on a bed.

He claims that Defendant Nurse Brady then

called the police, telling them that Plaintiff had assaulted
her.
Plaintiff states that Defendant Officers Kevin Burrows and
Robert Nawroc, both of the Atlantic City Police Department,
responded to the call and that Defendant Officer Burrows told
Defendant Officer Nawroc to arrest Plaintiff for assault on
Nurse Brady.

Plaintiff states that he told the officers that

there was a camera that would reveal Nurse Brady’s attack on
him, and alleges that he was bruised as a result of Nurse Brady
hitting him, but that the officers refused to take Plaintiff’s
complaint against Nurse Brady.
Plaintiff contends that the officers falsely arrested him

3

and forced medical treatment on him. 3

He states that he was

confined for 132 days following his arrest, but does not
describe the resolution of the charges against him.

He seeks

damages in the amount of five million dollars for alleged
violations of his rights, including, specifically: false arrest,
refusal to take his complaint against Nurse Brady, filing a
false police report stating that swelling was evident on Nurse
Brady, and for discrimination by the police officers.
Complaint, ¶ 4.)

(Amended

He names as Defendants Nurse Margaret Brady,

Atlanticare Regional Medical Center, Officer Kevin Burrows,
Officer Robert Nawroc, and the Atlantic City Police Department.
II.

STANDARDS FOR A SUA SPONTE DISMISSAL

Rule 8(a)(2) of the Federal Rules of Civil Procedure
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
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
3

Plaintiff does not describe the alleged forced medical
treatment.
4

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
common sense.”
Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012) (citations
omitted).
5

In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff.

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.

SECTION 1983 ACTIONS

A plaintiff may have a cause of action under 42 U.S.C.
§ 1983 for certain violations of his constitutional rights.
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
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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).
IV.
A.

ANALYSIS

Motion to Transfer
In support of his Motion to transfer this matter to the

District Court for the Eastern District of New York, Plaintiff
asserts that he was injured in an accident and that his health
prevents him from travelling to Camden, New Jersey.

He has

attached two letters from doctors that reflect that he is
receiving treatment for chronic back pain.

The Court finds that

transfer would not be appropriate.
A civil action wherein jurisdiction is not founded
solely on diversity of citizenship may, except as
otherwise provided by law, be brought only in (1) a
judicial district where any defendant resides, if all
defendants reside in the same State, (2) a judicial
district in which a substantial part of the events or
omissions giving rise to the claim occurred, ... or
(3) if there is no district in which an action may
otherwise be brought as provided in this section, any
judicial district in which any defendant is subject to
the court’s personal jurisdiction with respect to such
action.
28 U.S.C. § 1391(b). 4

Pursuant to 28 U.S.C. § 1404(a), “For the

4

For purposes of venue under this section, a defendant that is a
corporation shall be deemed to reside “in any judicial district
in which such defendant is subject to the court’s personal
7

convenience of parties and witnesses, in the interest of
justice, a district court may transfer any civil action to any
other district or division where it might have been brought or
to any district or division to which all parties have
consented.”
Here, Plaintiff has alleged that all of the Defendants
reside in the District of New Jersey and that all of the events
giving rise to his claims also occurred in the District of New
Jersey.

He has not obtained the consent of the other parties to

any transfer.

Accordingly, it would not be appropriate to

transfer this matter to the Eastern District of New York, where
none of the events giving rise to this action occurred and where
only Plaintiff resides.
B.

Claims Against Police Officers Burrows and Nawroc
1.

False Arrest

Plaintiff contends that Officers Burrows and Nawroc
subjected him to a false arrest when they arrested him for
assault.
It is well established in the Third Circuit that an arrest
without probable cause is a Fourth Amendment violation
actionable under § 1983. See Berg v. County of Allegheny, 219
F.3d 261, 268-69 (3d Cir. 2000) (collecting cases); see also,

jurisdiction with respect to the civil action in question.”
U.S.C. § 1391(c)(2).
8

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Albright v. Oliver, 510 U.S. 266, 274 (1994)(a section 1983
claim for false arrest may be based upon an individual’s Fourth
Amendment right to be free from unreasonable seizures).
To state a Fourth Amendment claim for false arrest, a
plaintiff must allege two elements: “(1) that there was an
arrest; and (2) that the arrest was made without probable
cause.” James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d
Cir. 2012) (citing Groman v. Twp. of Manalapan, 47 F.3d 628, 634
(3d Cir. 1995) and Dowling v. City of Philadelphia, 855 F.2d
136, 141 (3d Cir. 1988)). Probable cause exists “whenever
reasonably trustworthy information or circumstances within a
police officer’s knowledge are sufficient to warrant a person of
reasonable caution to conclude that an offense has been
committed by the person being arrested.” United States v. Myers,
308 F.3d 251, 255 (3d Cir. 2002) (citing Beck v. State of Ohio,
379 U.S. 89, 91 (1964)). “Probable cause . . . requires more
than mere suspicion; however, it does not require that the
officer have evidence to prove guilt beyond a reasonable doubt.”
Orsatti v. New Jersey State Police, 71 F.3d 480, 482-83 (3d Cir.
1995).
Here, Plaintiff has alleged that officers Burrows and
Nawroc responded to a call by Nurse Brady and an Atlanticare
security guard, both of whom advised the police officers that
Plaintiff had assaulted Nurse Brady.
9

While additional or

conflicting evidence may have been available, in light of the
statement of the alleged victim and witness, Plaintiff has
failed to allege facts demonstrating the absence of probable
cause necessary to establish a § 1983 claim for false arrest.
To the contrary, by acknowledging that Nurse Brady told the
officers that she was assaulted, Plaintiff has affirmatively
stated that the officers had probable cause.

Cf., e.g.,

Cummings v. City of Philadelphia, 137 F.App’x 504 (3d Cir.
2005), cert. denied, 546 U.S. 1185 (2006) (holding that, in
light of victim’s statement, officer’s reckless omission of nonmaterial exculpatory facts from affidavit of probable cause for
arrest warrant does not undermine finding of probable cause).
Therefore, this claim will be dismissed with prejudice.
2.

False Statement in Police Report

Plaintiff alleges that the officers falsely stated in their
police report, after his arrest, that there was swelling evident
on Nurse Brady.
The law is clear that there is no constitutional right to a
correct police report.

See generally Jarrett v. Township of

Bensalem, 312 F.App’x 505 (3d Cir. 2009); Thompson v. Howard,
Civil No. 09-1416, 2013 WL 2338247 (W.D. Pa. May 29, 2013)
(collecting cases); Bush v. City of Philadelphia, Civil No. 980994, 1999 WL 554585 (E.D. Pa. July 16, 1999) (collecting cases
and finding no civil rights violation in the absence of some
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evidence of separate deprivation of a constitutional right as a
result of the false statement).

Here, as Plaintiff accuses the

police officers of creating a false report after they arrested
him, and does not allege any further use of that report against
him, he has failed to state a claim for deprivation of a
constitutional right based on the allegedly false report.

Cf.,

e.g., Martin v. City of Reading, Civil No. 12-3665, 2013 WL
5429358 (E.D. Pa. Sept. 30, 2013) (holding that plaintiff states
a claim for unconstitutional deprivation of liberty where
deliberately false police report led to his arrest and
prosecution).

Accordingly, this claim will be dismissed without

prejudice.
3.

Failure to Investigate

Plaintiff alleges that the police officers violated his
rights when they refused to take his complaint against Nurse
Brady.
"'[A]n allegation of a failure to investigate, without
another recognizable constitutional right, is not sufficient to
sustain a section 1983 claim.'" Graw v. Fantasky , 68 F.App’x
378, 383 (3d Cir. 2003) (unpubl.) (quoting unpubl.
District Court opinion) (citing DeShaney v. Winnebago County
Dep't of Soc. Servs. , 489 U.S. 189, 195-96 (1989)); Hunter v.
Philadelphia Police Dept. Medical Examiner’s Office of
Philadelphia Co., Civil No. 12-2497, 2012 WL 1852980 (citing
11

Graw and dismissing claim based on alleged failure to properly
investigate death from a gunshot wound).
To the extent Plaintiff seeks damages for the failure to
prosecute Nurse Brady, "a private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of
another." Linda R.S. v. Richard D. , 410 U.S. 614, 619 (1973).
See also Leeke v. Timmerman , 454 U.S. 83, 85-87 (1981) (same);
Morrow v. Meehan, 258 F.App’x 492, 494 (3d Cir. 2007) (citing
Leeke and noting that “[c]ommencing a prosecution under any
criminal law is discretionary”).

Accordingly, this claim will

be dismissed with prejudice.
4.

Discrimination

Plaintiff alleges that the officers discriminated against
him, which this Court construes as an attempt to state a claim
for violation of his right to equal protection.
The Equal Protection Clause of the Fourteenth Amendment
commands that no State shall “deny to any person within its
jurisdiction the equal protection of the laws,” which is
essentially a direction that all persons similarly situated
should be treated alike. City of Cleburne, Texas v. Cleburne
Living Center, 473 U.S. 432, 439 (1985) (citing Plyler v. Doe,
457 U.S. 202, 216 (1982); Artway v. Attorney General of New
Jersey, 81 F.3d 1235, 1267 (3d Cir. 1996)). Despite its sweeping
language, though, “[t]he Equal Protection Clause does not forbid
12

classifications. It simply keeps governmental decisionmakers
from treating differently persons who are in all relevant
respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992),
quoted in Keystone Redevelopment Partners, LLC v. Decker, 631
F.3d 89, 109 (3d Cir. 2011).
Proof of disparate impact alone, however, is not sufficient
to succeed on an equal protection claim; a plaintiff also must
prove that the defendant intended to discriminate. Village of
Arlington Heights v. Metropolitan Housing Development Corp., 429
U.S. 252, 264-66 (1977); Washington v. Davis, 426 U.S. 229, 242,
244-45 (1976).

Thus, discriminatory intent must be a motivating

factor in the decision, but it need not be the sole motivating
factor.

Village of Arlington Heights, 429 U.S. at 265-66, cited

in Community Services, Inc. v. Wind Gap Mun. Authority, 421 F.3d
170, 177 (3d Cir. 2005).
Here, Plaintiff has failed to allege any facts that would
suggest that he was treated differently from other persons who
are similarly situated, or that any Defendant intended to
discriminate against him. Cf. Al-Shahin v. U.S. Dept. of
Homeland Security, Civil Action No. 06-5261, 2007 WL 2985553,
*11 (D.N.J. Oct. 4, 2007) (dismissing generalized allegation of
equal protection violation asserted by alien detainee
challenging conditions of confinement), cited in Mebuin v. U.S.,
Civil No. 13-0443, 2013 WL 4012449 (D.N.J. Aug. 5, 2013) (same).
13

Accordingly, the equal protection claim will be dismissed
without prejudice.

5.

Forced Medical Treatment

Plaintiff alleges that the officers forced him to undergo
medical treatment at the time of his arrest.

He provides little

information regarding his condition at the time, only his
statements that he was brought to the hospital by emergency
medical personnel, that Nurse Brady and the security guard had
caused him to scream in pain when they tried to remove him, and
that Nurse Brady had bruised him when she pushed him on the bed.
Plaintiff also provides no information regarding the nature of
the alleged medical treatment.
Arrestees and pre-trial detainees are protected by the Due
Process Clause of the Fourteenth Amendment.

See Bell v.

Wolfish, 441 U.S. 520, 535 n.16, 545 (1979); Bistrian v. Levi,
696 F.3d 352, 373-74 (3d Cir. 2012).
Involuntarily committed mental patients and convicted
prisoners retain a limited substantive due process right to
refuse medical treatment and to be informed of the proposed
treatment and viable alternatives. See, Youngberg v. Romeo , 457
U.S. 307, 322-23 (1982); White v. Napoleon , 897 F.2d 103, 113
(3d Cir. 1990).

There is no principled reason to distinguish

the circumstances of either of these populations from those of
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an arrestee or pre-trial detainee.

Cf. Bell v. Wolfish , 441

U.S. at 545 (with respect to prison conditions, pretrial
detainees retain at least those constitutional rights enjoyed by
convicted prisoners); Kost v. Kozakiewicz , 1 F.3d 176, 187-88
(3d Cir. 1993) (same).

See also King v. County of Gloucester,

302 F.App’x 92, 98 n.4 (3d Cir. 2008) (citing White and noting
in dicta that pre-trial detainees have a qualified right to
refuse medical treatment).

The scope of the right to refuse

treatment is circumscribed, however, by "legitimate
countervailing State interests."

Youngberg, 457 U.S. at 319-23;

White, 897 F.2d at 112-13 (noting that “prison authorities have
a legitimate interest in maintaining safety and security”).
Given the similarity of the State's interests in the
administration of mental hospitals and prisons, the
limitation on a prisoner's right of refusal should be
similar to the limitations on the right of an
involuntarily committed mental patient. Accordingly, a
prison may compel a prisoner to accept treatment when
prison officials, in the exercise of professional
judgment, deem it necessary to carry out valid medical
or penological objectives. As in the case of mental
institution authorities, the judgment of prison
authorities will be presumed valid unless it is shown
to be such a substantial departure from accepted
professional judgment, practice or standards as to
demonstrate that the person responsible actually did
not base the decision on such judgment. Cf. Youngberg
v. Romeo , 457 U.S. at 323, 102 S.Ct. at 2462; Rennie[
v. Klein], 720 F.2d [266, 274 (3d Cir. 1983)].
White, 897 F.2d at 113.
Here, Plaintiff has failed to provide sufficient factual
information to raise his claim for relief “above the speculative
15

level.”

See Twombly, 550 U.S. at 555.

He has failed to

describe his condition, the interaction (if any) that preceded
the alleged forcible medical treatment, or the nature of the
alleged medical treatment.

Accordingly, this claim will be

dismissed without prejudice.
C.

Claims Against the Atlantic City Police Department
Plaintiff names as a Defendant the Atlantic City Police

Department.

However, he has failed to allege any facts that

would support a basis for liability on the part of the Police
Department.
Local government units and supervisors are not liable under
§ 1983 solely on a theory of respondeat superior.

See Connick

v. Thompson, 131 S.Ct. 1350, 1358-61 (2011); City of Oklahoma
City v. Tuttle, 471 U.S. 808, 824 n.8 (1985); Monell v. New York
City Department of Social Services, 436 U.S. 658, 690-91, 694
(1978) (municipal liability attaches only “when execution of a
government’s policy or custom, whether made by its lawmakers or
by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury” complained of); Mulholland
v. Government County of Berks, Pa., 706 F.3d 227, 237 (3d Cir.
2013); Natale v. Camden County Correctional Facility, 318 F.3d
575, 583-84 (3d Cir. 2003).

“A defendant in a civil rights

action must have personal involvement in the alleged wrongs,
liability cannot be predicated solely on the operation of
16

respondeat superior.

Personal involvement can be shown through

allegations of personal direction or of actual knowledge and
acquiescence.”

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d

Cir. 1988) (citations omitted), quoted in Evancho v. Fisher, 423
F.3d 347, 353 (3d Cir. 2005).
To establish municipal liability under § 1983, “a plaintiff
must show that an official who has the power to make policy is
responsible for either the affirmative proclamation of a policy
or acquiescence in a well-settled custom.”

Bielevicz v.

Dubinon, 915 F.2d 845, 850 (3d Cir. 1990), quoted in Watson v.
Abington Twp., 478 F.3d 144, 156 (3d Cir. 2007) and cited in
Olivieri v. County of Bucks, 502 F.App’x 184, 189 (3d Cir.
2012).

A plaintiff must demonstrate that, through its

deliberate conduct, the municipality was the moving force behind
the plaintiff’s injury.

Monell, 436 U.S. at 689.

“A policy is made ‘when a decisionmaker possess[ing] final
authority to establish municipal policy with respect to the
action issues a final proclamation, policy or edict.’”
318 F.3d at 584 (citations omitted).

Natale,

“A custom is an act ‘that

has not been formally approved by an appropriate decisionmaker,’
but that is ‘so widespread as to have the force of law.’”
(citation omitted).

Id.

There are three situations where acts of a
government employee may be deemed to be the result of
a policy or custom of the governmental entity for whom
17

the employee works, thereby rendering the entity
liable under § 1983. The first is where “the
appropriate officer or entity promulgates a generally
applicable statement of policy and the subsequent act
complained of is simply an implementation of that
policy.” The second occurs where “no rule has been
announced as policy but federal law has been violated
by an act of the policymaker itself.” Finally, a
policy or custom may also exist where “the policymaker
has failed to act affirmatively at all, [though] the
need to take some action to control the agents of the
government ‘is so obvious, and the inadequacy of
existing practice so likely to result in the violation
of constitutional rights, that the policymaker can
reasonably be said to have been deliberately
indifferent to the need.’”
Natale, 318 F.3d at 584 (footnote and citations omitted).
Here, of course, Plaintiff has failed to establish that any
police officer violated his constitutional rights.

Thus, he

cannot establish that he was injured as a result of any custom
or policy of the Atlantic City Police Department.

In any event,

Plaintiff has failed to identify any custom or policy that
played any role in the events complained of.

Accordingly, this

claim will be dismissed without prejudice.
D.

Claims Against Margaret Brady and Atlanticare
Plaintiff asserts generally that Nurse Margaret Brady and

Atlanticare Regional Medical Center are also liable to him for
violations of his rights.

As noted above, however, to state a

claim under § 1983 for violation of a right secured by the
Constitution or laws of the United States, a plaintiff must also
establish that the alleged deprivation was committed or caused

18

by a person acting under color of state law.
"[T]he under-color-of-state-law element of § 1983 excludes
from its reach ‘merely private conduct, no matter how
discriminatory or wrongful.’"

American Mfrs. Mut. Ins. Co. v.

Sullivan, 526 U.S. 40, 50 (1999) (citations omitted), quoted in
Bates v. Paul Kimball Hosp., 346 F.App’x 883, 887 (3d Cir.
2009).

Nevertheless, "the deed of an ostensibly private

organization or individual" at times may demand to be treated
"as if a State has caused it to be performed."

Brentwood

Academy v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288
(2001).

Specifically, "state action may be found if, though

only if, there is such a ‘close nexus between the State and the
challenged action’ that seemingly private behavior ‘may be
fairly treated as that of the State itself.’" Id. (quoting
Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974)).
Here, Plaintiff has alleged no facts that would permit this
Court to find that Nurse Brady or Atlanticare Regional Medical
Center were acting under color of state law in their
interactions with Plaintiff.

Accordingly, this claim must be

dismissed without prejudice.
V.

CONCLUSION

For the reasons set forth above, this Court will deny the
Motion to transfer.

In addition, this Court will dismiss with

prejudice, for failure to state a claim, the claims against
19

Officers Burrows and Nawroc, for false arrest, making false
statements in a police report, and failure to investigate.

All

remaining claims will be dismissed without prejudice for failure
to state a claim.

However, because it is conceivable that

Plaintiff may be able to supplement his pleading with facts
sufficient to state a claim with respect to those claims
dismissed without prejudice, the Court will grant Plaintiff
leave to file an application to re-open accompanied by a
proposed third amended complaint. 5

No further opportunities to

amend will be granted.
An appropriate order follows.

At Camden, New Jersey

Dated:

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

May 22, 2014

5

Plaintiff is reminded that when an amended complaint is filed,
it supersedes the original and renders it of no legal effect,
unless the amended complaint specifically refers to or adopts
the earlier pleading. To avoid confusion, the safer practice is
to submit an amended complaint that is complete in itself.
20