SANCHEZ v. SMITH et al

Filing 7

OPINION FILED. Signed by Judge Noel L. Hillman on 9/24/15. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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Plaintiff,
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v.
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BARB SMITH, et al,
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Defendants.
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ANTONIO SANCHEZ,

Civ. No. 15-3266 (NLH)
OPINION

APPEARANCES:
Antonio Sanchez, #963612A/77517
South Woods State Prison
215 Burlington Road, South
Bridgeton, NJ 08302
Plaintiff Pro se

HILLMAN, District Judge
On or about May 11, 2015, Plaintiff Antonio Sanchez, a
prisoner presently confined at South Woods State Prison in
Bridgeton, New Jersey, filed this civil rights action pursuant
to 42 U.S.C. § 1983. (ECF No. 1).

On June 8, 2015, this case

was administratively terminated for failure to satisfy the
filing fee requirement. (ECF No. 3).

On or about July 14, 2015,

Plaintiff submitted a request to reopen and a renewed
application to proceed in forma pauperis. (EFC No. 4).

The case

was reopened for review by a judicial officer.
On July 21, 2015, the Court determined that Plaintiff had
submitted a complete application to proceed in forma pauperis

pursuant to 28 U.S.C. § 1915, and he was granted leave to
proceed without prepayment of fees. (ECF No. 5).

Plaintiff was

informed that this case remained subject to sua sponte screening
by the Court. See 28 U.S.C. §§ 1915(e)(2)(B); see also 28 U.S.C.
§ 1915A; 42 U.S.C. § 1997e.
The Court has had the opportunity to review the instant
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 suit pursuant to 28 U.S.C. §
1915(e)(2)(B).

For the reasons set forth below, the Complaint

will be dismissed with prejudice for failure to state a claim.
I.

BACKGROUND

Plaintiff’s claims relate to a subscription to USA Today
Newspaper.

Plaintiff states that on July 10, 2013, he mailed

$130 to “USA Today Company for the purpose of paying for
receiving dai[]ly newspaper for a period of 120 (one hundred and
twenty[)] days.” (Compl. 5, ECF No. 1).

Plaintiff contends that

the money was mailed to “Barb Smith, vice president, National
Customer Service.” (Id.).
Plaintiff states that he received the first newspapers in
August.
stopped.

About a month and a half later, however, the newspapers
Plaintiff states that he verified that the problem was

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not an internal prison issue, and he asserts that the newspaper
company is the party at fault.
Plaintiff names as defendants Barb Smith and “USA Today
Newspapers Company.”

He seeks reimbursement in the amount of

$15,000, compensatory damages in the amount of $50,000, punitive
damages in the amount of $50,000, court costs and attorney’s
fees. (Compl. 8, ECF No. 1).
Plaintiff indicates that he filed a civil complaint against
these same defendants in state court in July, 2014.

He states

that in January, 2015, he filed a motion for default due to
defendants’ failure to respond to his complaint. (Compl. 7, ECF
No. 1).

Plaintiff does not indicate the status of that

litigation or provide any court-issued documents confirming that
this litigation was filed.

Although he attaches several

exhibits which he asserts relate to the state litigation, these
documents all appear to have been prepared by Plaintiff.
(Exhibit 1-2, 7, 10-19, ECF No. 1-2) (referencing Docket No.
“CUM DC-002227-14”).
I.

STANDARD OF REVIEW
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.”
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“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
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).

The determination of whether the factual

allegations plausibly give rise to an entitlement to relief 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).
Thus, a court is “not bound to accept as true a legal conclusion
couched as a factual allegation,” and “[t]hreadbare recitals of

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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).
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).
In general, where a complaint subject to statutory
screening can be remedied by amendment, a district court should
not dismiss the complaint with prejudice, but should 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)
(noting that leave to amend should be granted “in the absence of
undue delay, bad faith, dilatory motive, unfair prejudice, or
futility of amendment”), cited in Thomaston v. Meyer, 519 F.
App’x 118, 120 n.2 (3d Cir. 2013); Urrutia v. Harrisburg County
Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).

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B. 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 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, 108
S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988); Malleus v. George, 641
F.3d 560, 563 (3d Cir. 2011).
II.

ANALYSIS

It is clear from the facts alleged in the Complaint that
Plaintiff has not set forth a cause of action under § 1983.
Plaintiff has not alleged a violation of a constitutional right;
nor has he named as defendants persons acting under the color of
state law.
Specifically, Plaintiff does not have a constitutional
right to a newspaper subscription and the “USA Today Newspapers
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Company” and its employees are not state actors.

Plaintiff’s

claim that USA Today has stopped delivering his newspapers is
more appropriately framed as a contract dispute which cannot be
brought in the form of an action pursuant to 42 U.S.C. § 1983.
Accordingly, the Complaint will be dismissed for failure to
state a claim upon which relief can be granted. 1
Furthermore, because Plaintiff cannot plead a cause of
action under § 1983 based on these facts, amendment would be
futile.

Therefore, Plaintiff will not be permitted to amend his

Complaint. See Grayson, 293 F.3d at 108; Thomaston v. Meyer, 519
F. App’x at 120 n.2 (“We are satisfied that amendment to
Thomaston's complaint would be futile, and therefore conclude

1

The following discussion has absolutely no bearing or effect on
the decision the Court makes today and is offered for the sole
purposes of assisting Plaintiff in resolving his claims without
the need for further litigation. The Court notes that Plaintiff
attaches to his Complaint a letter from USA Today which appears
to be an attempt to informally resolve this issue. (Exhibit 5,
Letter from USA Today, ECF No. 1-2). The letter informs
Plaintiff that USA Today had not received a payment from
Plaintiff and advises Plaintiff to inquire with his banking
institution. (Id.). Although Plaintiff attaches to his
Complaint a copy of a money order form (Application IFP at 14,
Business Remit, ECF No. 1-1), and a copy of a check (Application
IFP at 15, Bank of America Check, ECF No. 1-1) made out to USA
Today, Plaintiff does not attach any documentation confirming
that this money was, in fact, deducted from his account.
Moreover, the Court notes that the address on the check itself
does not match the address on the Business Remit or the address
listed in Plaintiff’s Complaint. Compare (Compl. 3, ECF No. 1)
(“USA Today, P.O. Box 10444”) with (Application IFP at 15, Bank
of America Check, ECF No. 1-1) (“USA Today Sports Weekly, P.O.
Box 1044”). Plaintiff may wish to investigate these matters
further before resorting to further litigation.
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that the District Court properly dismissed the complaint without
providing leave to amend.”).
III. CONCLUSION
For the foregoing reasons, the Complaint will be dismissed
with prejudice.
An appropriate Order follows.

___s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge

September 24, 2015

At Camden, New Jersey

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