STORA v. BRADY et al
Filing
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OPINION. Signed by Judge Noel L. Hillman on 12/18/2012. (nz, )n.m.
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SKIBOKY STORA,
Plaintiff,
v.
MARGARET BRADY, et al.,
Defendants.
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Civil No. 12-5131 (NLH)
OPINION
APPEARANCES:
SKIBOKY STORA, Plaintiff pro se
205952
ACJF
5060 Atlantic Avenue
Mays Landing, N.J. 08330
HILLMAN, District Judge
Plaintiff Skiboky Stora (“Plaintiff”) seeks to bring this
action in forma pauperis.
Based on his affidavit of indigence, the
Court will grant Plaintiff’s application to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915(a) and order the Clerk of the Court to
file the complaint.
At this time, the Court must review the complaint, pursuant to
28 U.S.C. § 1915(e)(2) and § 1915A, 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
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from a defendant who is immune from such relief.
For the reasons
set forth below, the Court concludes that the complaint should be
dismissed.
I. BACKGROUND
Plaintiff brings this civil rights action, pursuant to 42 U.S.C.
§ 1983, against Margaret Brady and Atlantic Care Hospital.
The
following factual allegations are taken from the complaint, and are
accepted for purposes of this screening only.
The Court has made
no findings as to the veracity of Plaintiff’s allegations.
On May 16, 2012, Plaintiff was taken from the Tropicana Casino
to Atlantic Care Hospital.
While in the hospital, Defendant Brady,
who is a nurse at Atlantic Care Hospital, came to Plaintiff’s room
and attempted to get him out of bed and into a wheelchair.
to lift him up and he began screaming in pain.
chest and pushed him back on the bed.
She tried
She hit him in his
police and said that Plaintiff hit her.
Defendant Brady called the
The police came to the
hospital and arrested Plaintiff.
Plaintiff requests that Defendant Brady be fired and arrested
for her false accusations.
Plaintiff also requests monetary
damages.
II.
DISCUSSION
A. Legal Standard
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1. Standards for a Sua Sponte Dismissal
The Prison Litigation Reform Act, Pub.L. No. 104-134, §§
801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996), requires a
district court to review a complaint in a civil action in which a
prisoner is proceeding in forma pauperis or seeks redress against
a governmental employee or entity.
The Court is required to identify
cognizable claims and to sua sponte dismiss any claim that is
frivolous, malicious, fails to state a claim upon 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). This action is
subject to sua sponte screening for dismissal under 28 U.S.C. §§
1915(e)(2)(B) and 1915A because Plaintiff is proceeding as an
indigent and is a prisoner.
The Supreme Court refined the standard for summary dismissal
of a complaint that fails to state a claim in Ashcroft v. Iqbal, 556
U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
The Court examined
Rule 8(a)(2) of the Federal Rules of Civil Procedure which provides
that a complaint must contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
8(a)(2).
FED.R.CIV.P.
Citing its opinion in Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007) for the proposition that “[a] pleading that offers
‘labels and conclusions' or ‘a formulaic recitation of the elements
of a cause of action will not do,’” Iqbal, 556 U.S. at 678 (quoting
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Twombly, 550 U.S. at 555), the Supreme Court held that, to prevent
a summary dismissal, a civil complaint must allege “sufficient
factual matter” to show that the claim is facially plausible.
This
then “allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)(citing Iqbal).
The Supreme Court's ruling in Iqbal emphasizes that a plaintiff
must demonstrate that the allegations of his complaint are plausible.
See Iqbal, 556 U.S. 677-679.
See also Twombly, 505 U.S. at 555, &
n. 3; Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011);
Bistrian v. Levi, 696 F.3d 352 (3d Cir. 2012).
“A complaint must
do more than allege the plaintiff's entitlement to relief.
complaint has to ‘show’ such an entitlement with its facts.”
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Fowler,
578 F.3d at 211 (citing Phillips v. County of Allegheny, 515 F.3d
224, 234-35 (3d Cir. 2008)).
2.
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....
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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.
See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40
(1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
B.
Analysis
As noted above, to state a claim for relief under § 1983, a
plaintiff must allege a violation of a constitutional right caused
by a person acting under color of state law.
In this case, Defendants Brady and Atlantic Care Hospital are
not state actors acting under color of state law.
“Although a
private [party] may cause a deprivation of ... a right, [it] may be
subjected to liability under § 1983 only when [it] does so under color
of law.”
Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.
1995 (quoting Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978)).
The “under color of state law” requirement of 42 U.S.C. § 1983 has
been treated identically to the “state action” requirement of the
Fourteenth Amendment.
See Mark, 51 F.3d at 1141 (citing United
States v. Price, 383 U.S. 787, 794 n. 7 (1966); Lugar v. Edmondson
Oil Co., 457 U.S. 922, 928 (1982); Rendell-Baker v. Kohn, 457 U.S.
830, 838 (1982)).
A private entity can be sued under § 1983 where
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(1) it “has exercised powers that are traditionally the exclusive
prerogative of the State, Mark, 51 F .3d at 1142; (2) the State and
the private party act in concert or jointly to deprive a plaintiff
of his rights, Adickes v. S.H. Kress & Co., 398 U.S. 144, 170-171
(1970); (3) the State has permitted a private party to substitute
his judgment for that of the State, Cruz v. Donnelly, 727 F.2d 79,
81-82 (3d Cir. 1984); or (4) the private party and the State have
a symbiotic relationship as joint participants in the
unconstitutional activity, Edmonson v. Leesville Concrete Co., Inc.,
500 U.S. 614, 620 (1991); Mark, 51 F.3d at 1143.
Applying these principles to the instant case, Plaintiff does
not allege any facts indicating that the Defendants are state actors
or otherwise acted under color of state law.
a violation of any constitutional right.
He also does not allege
See DeShaney v. Winnebago
County Dept. of Social Services, 489 U.S. 189 (1989) (Fourteenth
Amendment's “purpose was to protect the people from the State, not
to ensure that the State protected them from each other”); Van Ort
v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996) (“Individuals
... have no right to be free from infliction of [constitutional] harm
by private actors”); Jones v. Arbor, Inc., 820 F.Supp. 205, 208
(E.D.Pa.1993) (plaintiff did not allege that defendant corporation
was a state actor or had such a symbiotic relationship with the state
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so as effectively to be an instrumentality of the state).
Therefore,
the § 1983 claims against these Defendants will be dismissed.
Further, Plaintiff does not allege jurisdiction based upon
diversity of citizenship under 28 U.S.C. § 1332 and the facts alleged
do not establish a basis for diversity jurisdiction.
Section 1332
can provide jurisdiction over state-law claims if, in the provision
pertinent here, such claims are between “citizens of different
States.”
A plaintiff, as the party asserting federal 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 fatal to diversity
jurisdiction”).
Here, Plaintiff alleges no facts that would permit
this Court to determine either his citizenship or the citizenship
of the defendants.
The Court is mindful that Plaintiff appears here as a pro se
plaintiff and therefore his complaint is to be held to less stringent
standards than formal pleadings drafted by lawyers. Haines, 404 U.S.
at 519.
Nonetheless, the Court can discern no basis for asserting
jurisdiction over this action.
“The person asserting jurisdiction
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bears the burden of showing that the case is properly before the court
at all stages of the litigation.”
Packard v. Provident Nat'l Bank,
994 F.2d 1039, 1045 (3rd Cir. 1993).
For a court properly to assume
jurisdiction over an action under § 1332, complete diversity must
be apparent from the pleadings.
Neat-N-Tidy Co., Inc. v. Tradepower
(Holdings) Ltd., 777 F.Supp. 1153 (S.D.N.Y. 1991) (complaint
dismissed for lack of diversity jurisdiction where corporate
plaintiff failed to allege its own and defendant corporation's
principal places of business).
Thus, in the present case, where the
complaint fails to assert facts suggesting either federal-question
or diversity jurisdiction, dismissal without prejudice for lack of
jurisdiction is proper.
See Joyce v. Joyce, 975 F.2d 379 (7th Cir.
1992) (affirming district court's sua sponte dismissal for lack of
subject-matter jurisdiction where jurisdictional defect was
incurable).
IV. CONCLUSION
For the reasons set forth above, the Complaint will be dismissed
without prejudice for lack of subject matter jurisdiction.
However,
because it is conceivable that Plaintiff may be able to supplement
his pleading with facts sufficient to establish subject matter
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jurisdiction, the Court will grant Plaintiff leave to move to reopen
and file an amended complaint. 1
An appropriate order follows.
Dated: December 18, 2012
At Camden.
s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
1
Plaintiff should note that when 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
§ 1476 (2d ed. 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, the safer course is
to file an amended complaint that is complete in itself. Id.
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