BETHEA v. TROPICANA CASINO
OPINION. Signed by Chief Judge Jerome B. Simandle on 12/23/2016. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE
No. 15-7290 (JBS-KMW)
TROPICANA CASINO, et al.,
Derek Bethea, Plaintiff Pro Se
East Jersey State Prison
Rahway, NJ 07065
SIMANDLE, Chief Judge:
Before the Court is Plaintiff Derek Bethea’s (“Plaintiff”),
submission of a civil rights complaint pursuant to 42 U.S.C. §
1983. Complaint, Docket Entry 1; Addendum, Docket Entry 6. By
Order dated March 23, 2016, this Court granted Plaintiff’s
motion to proceed in forma pauperis pursuant to 28 U.S.C. §
1915(a) and ordered the Clerk to file the complaint. (Docket
At this time, the Court must review the complaint, pursuant
to 28 U.S.C. § 1915(e)(2) 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.
For the reasons set forth below, the Court concludes that the
complaint will be dismissed for failure to state a claim upon
which relief may be granted, 28 U.S.C. § 1915(e)(2)(B)(ii).
Plaintiff, a prisoner confined in East Jersey State Prison
(“EJSP”), brings this civil rights action against the Tropicana
Casino in Atlantic City and its Security Guard Hicks. 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 truth of Plaintiff’s allegations.
Plaintiff states that on August 23, 2013, he was illegally
detained after gambling in the Tropicana Casino. Complaint at 1.
He states his detention was done “without a search warrant and
without an [sic] complaint by Tropicana Casino[.]” Id. at 2. He
alleges Hicks assaulted him, resulting in fractured ribs. Id. at
2-3. He seeks relief from the casino and Hicks for gross
negligence and asks the Court to file criminal charges against
them. Id. at 3-4. He further asserts he has been denied access
to the courts. Id. at 4.
Plaintiff filed the instant complaint on September 23,
2015. On October 13, 2015, the Court administratively terminated
the complaint as Plaintiff did not pay the filing fee or submit
an in forma pauperis application. Docket Entry 2. The Court
reopened the matter for consideration after Petitioner submitted
an in forma pauperis application and addendum to the complaint
on November 2, 2015. 1
III. STANDARD OF REVIEW
A. Standards for a Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub. L. No. 104-134,
§§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996)
(“PLRA”), district courts must review complaints in those civil
actions in which a prisoner is proceeding in forma pauperis, see
28 U.S.C. § 1915(e)(2)(B), seeks redress against a governmental
employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim
with respect to prison conditions, see 42 U.S.C. § 1997e. The
PLRA directs district courts to sua sponte dismiss any claim
that is frivolous, is 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. This action is subject
to sua sponte screening for dismissal under 28 U.S.C. §
Prior to receiving Plaintiff’s in forma pauperis application,
the Court received a document that it interpreted as an amended
complaint. Docket Entries 3 and 4. Petitioner later informed the
Court that the document was intended to be a separate complaint.
Docket Entry 7. That complaint is now filed under a separate
case number. Docket Entries 3 and 4 are not part of the Court’s
consideration in this matter, and the Court will instruct the
Clerk to remove them from the public docket to avoid further
1915(e)(2)(b) because Plaintiff is a prisoner proceeding in
According to the Supreme Court’s decision in Ashcroft v.
Iqbal, “a pleading that offers ‘labels or conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will
not do.’” 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). To survive sua sponte
screening for failure to state a claim, 2 the complaint must
allege “sufficient factual matter” to show that the claim is
facially plausible. Fowler v. UPMS Shadyside, 578 F.3d 203, 210
(3d Cir. 2009) (citation omitted). “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.” Fair Wind
Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)
(quoting Iqbal, 556 U.S. at 678). “A complaint that pleads facts
‘merely consistent with a defendant's liability . . . stops
short of the line between possibility and plausibility of
“The legal standard for dismissing a complaint for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the
same as that for dismissing a complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x
120, 122 (3d Cir. 2012) (citing Allah v. Seiverling, 229 F.3d
220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App’x 230,
232 (3d Cir. 2012) (discussing 28 U.S.C. § 1997e(c)(1));
Courteau v. United States, 287 F. App’x. 159, 162 (3d Cir. 2008)
(discussing 28 U.S.C. § 1915A(b)).
entitlement to relief.’ The plausibility determination is ‘a
context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.’” Connelly v. Lane
Const. Corp., 809 F.3d 780, 786-87 (3d Cir. 2016) (quoting
Iqbal, 556 U.S. at 678-79).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93–94 (2007)
(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). Although
pro se pleadings are liberally construed, they “still must
allege sufficient facts in their complaints to support a claim.”
Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013)
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 ....
§ 1983. 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 (1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir.
2011); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.
Plaintiff seeks to bring gross negligence, false arrest,
and assault claims against Tropicana Casino and one of its
employees. Section 1983 only provides for relief from state
actors. “[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) (internal quotation marks
omitted). Plaintiff does not allege any state actors were
involved in, or are liable to him for, any of his claims.
“[T]he deed of an ostensibly private organization or
individual,” such as Tropicana Casino and Hicks, may be treated
as state action if, and 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.’” Brentwood Acad. v. Tennessee Secondary Sch. Athletic
Ass'n, 531 U.S. 288, 295 (2001) (quoting Jackson v. Metropolitan
Edison Co., 419 U.S. 345, 351 (1974)). The complaint does not
allege sufficient facts for the Court to find for screening
purposes that the casino and its employee were acting on behalf
of the state. As Plaintiff has failed to allege an essential
element of a § 1983 claim, the involvement of a state actor, his
negligence, false arrest, and assault claims must be dismissed
for failure to state a claim.
Even if Plaintiff were to allege facts suggesting state
involvement, the complaint appears to be barred by the statute
of limitations. Plaintiff’s negligence, assault, and false
arrest claims are governed by New Jersey’s two-year statute of
limitations on personal injury claims whether they are construed
as federal or state claims. N.J. STAT. ANN. § 2A:14.2(a); Green v.
New Jersey, 625 F. App'x 73, 76 (3d Cir. 2015); Earl v. Winne,
101 A.2d 535, 542 (N.J. 1953). Plaintiff states he was detained
and assaulted on August 16, 2013. Complaint at 1. The statute of
limitations on his claims therefore expired on August 16, 2015,
over a month before he submitted his complaint for mailing. As
it is apparent from the face of the complaint that the claims
are barred by the statute of limitations, they are subject to
“Although the running of the statute of limitations is
ordinarily an affirmative defense, where that defense is obvious
Plaintiff also has not sufficiently alleged facts for an
access to the courts claim. “To establish a cognizable claim, a
prisoner must demonstrate that he has suffered an actual injury
to his ability to present a claim. A prisoner can show an actual
injury only when a nonfrivolous, arguable claim is lost.” Henry
v. Moore, 500 F. App'x 115, 117 (3d Cir. 2012) (citing
Christopher v. Harbury, 536 U.S. 403, 415 (2002); Lewis v.
Casey, 518 U.S. 343, 352–54 (1996)). Additionally, “the claim
must relate to either a direct or collateral challenge to the
prisoner's sentence or conditions of confinement [and] a
prisoner must demonstrate that no other remedy will potentially
compensate for the lost claim.”
Id. (internal citations
omitted); see also Lewis, 518 U.S. at 355 (“Impairment of any
other litigating capacity is simply one of the incidental (and
perfectly constitutional) consequences of conviction and
Plaintiff states he has been requesting tort claim forms
from the New Jersey Department of Treasury for the past two
years. Exhibit to Complaint, Docket Entry 1-1 at 2. He states
they kept sending him forms for suing the State of New Jersey,
from the face of the complaint and no development of the record
is necessary, a court may dismiss a time-barred complaint sua
sponte under § 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to
state a claim.” Ostuni v. Wa Wa's Mart, 532 F. App'x 110, 111-12
(3d Cir. 2013) (per curiam)
which was not his intention. Id. He further states the law
librarian at EJSP would not permit him to “order the right tort
claim.” Id. Construing the complaint liberally, the Court infers
that Plaintiff is alleging he lost his ability to file a tort
claim against Tropicana Casino and Hicks because no one would
provide him with the “right tort claim form.” However, this is
not a claim that can form the basis of a constitutional
violation because the alleged lost claim is not a challenge to
his criminal conviction, i.e., a habeas petition or direct
appeal, or to the conditions of his confinement. Henry, 500 F.
App'x at 117. He has therefore failed to state a claim for
denial of access to the courts.
Finally, to the extent Plaintiff asks this Court to file
criminal charges against Defendants, the Court cannot grant this
relief as the Court does not have the power to bring criminal
charges. The ability to bring criminal charges lies solely with
the prosecutors in the executive branches of the state and
federal governments. Therefore, all requests for prosecuting
criminal claims against Defendants are dismissed.
Generally, “plaintiffs who file complaints subject to
dismissal under [§ 1915] should receive leave to amend unless
amendment would be inequitable or futile.” Grayson v. Mayview
State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). Here, it does not
appear Plaintiff can correct the deficiencies of the complaint
as his negligence, assault, and false arrest claims are time
barred and his access to the courts claim does not meet the
“injury” requirement. The complaint is therefore dismissed with
The Court notes that this is Plaintiff’s third federal
action that has been dismissed under 28 U.S.C. § 1915(e)(2)(B)
after being granted in forma pauperis status. See Bethea v.
Trump, No. 06-4019 (3d Cir. Mar. 15, 2007) (dismissing appeal as
frivolous or malicious); Bethea v. Trump, No. 06-1052 (D.N.J.
Aug. 7, 2006) (dismissing complaint for failure to state a
claim). As such, Plaintiff is barred from receiving in forma
pauperis status unless he is “under imminent danger of serious
physical injury.” 28 U.S.C. § 1915(g).
dismissed with prejudice for failure to state a claim, 28 U.S.C.
§ 1915(e)(2)(B)(ii). Plaintiff is barred from receiving in forma
pauperis status in filing future federal court complaints unless
he is “under imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g). The accompanying Order will be entered.
December 23, 2016
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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