BETHEA v. CAESAR'S CASINO

Filing 10

OPINION. Signed by Chief Judge Jerome B. Simandle on 10/17/2016. (tf, n.m.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

DEREK BETHEA,

HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 15-7593 (JBS-AMD)

v.
CAESAR’S CASINO, et al.,

OPINION
Defendants.

APPEARANCES:
Derek Bethea, Plaintiff Pro Se
887858-538681A
East Jersey State Prison
Lock Bag-R
Rahway, NJ 07065
SIMANDLE, Chief Judge:
INTRODUCTION
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. By Order dated July 27, 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 pending screening on the merits, Docket
Entry 9.
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).
II.

BACKGROUND
Plaintiff, a prisoner confined in East Jersey State Prison

(“EJSP”), brings this civil rights action against the Caesar’s
Casino in Atlantic City and its security staff. 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 19, 2013, he was illegally
detained by a security supervisor after gambling in the casino.
Complaint at 1. He states that the supervisor instructed the
cashier not to let Plaintiff cash out. Id. at 2. Plaintiff then
attempted to leave the casino, but a security guard came up
behind him and jumped on his back. Id. at 2-3. Plaintiff was
thrown to the ground and detained by casino security. Id. at 3.
He states he was never given his Miranda1 warnings. He was held
at the casino until an employee of the Division of Gaming
Enforcement arrived and told the casino staff “that he, the law

1

Miranda v. Arizona, 384 U.S. 436 (1966).
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enforcement officer is the only one that can detain someone by
law and not the security staff, and holding [Plaintiff] in that
holding cell is civil, get him out of that room and give him
back . . . his casino cheques you confiscated from him, and let
him leave Caesar’s Casino.”

Id. at 4-5. Plaintiff states $100

was missing from the funds returned to him and that his hip was
injured as that a result of the security guards’ actions. Id. at
5. He further alleges the casino filed a false disorderly
conduct complaint against him, which was later dismissed. Id. at
6. Plaintiff asks the Court to file a criminal complaint against
the security guard and security supervisor. Id. at 7. He further
requests the appointment of counsel to represent him in his
action for violations of his civil rights.
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
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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. §
1915(e)(2)(b) because Plaintiff is a prisoner proceeding in
forma pauperis.
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)

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“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)).
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(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
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)
(citation omitted).
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
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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.
1994).
IV. ANALYSIS
Plaintiff seeks to bring assault, false imprisonment,
harassment, excessive force, and malicious prosecution claims
against Caesar’s Casino and its employees. Section 1983 only
provides for relief from state actors. “[T]he under-color-ofstate-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 violated his rights.
“[T]he deed of an ostensibly private organization or
individual,” such as Caesar’s Casino and its employees, may be
treated as state action if, and only if, “there is such a ‘close

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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 any facts for the Court to find for
screening purposes that the casino and its employees were state
agents. Indeed according to the complaint, the only state actor
involved, an employee of the Division of Gaming Enforcement,
specifically stated that the casino had no authority to act on
behalf of the state. Complaint at 4-5. As Plaintiff has failed
to allege an essential element of a § 1983 claim, that a state
actor committed the wrongful conduct, his federal claims must be
dismissed for failure to state a claim.3
Even if Plaintiff were to allege facts suggesting state
involvement, the complaint appears upon its face to be barred by
the statute of limitations. The statute of limitations on civil
rights claims is governed by New Jersey's two-year limitations
period for personal injury.4 See Wilson v. Garcia, 471 U.S. 261,

3

To the extent the complaint raises claims under New Jersey
state law, the Court declines to exercise supplemental
jurisdiction. 28 U.S.C. § 1367(c).
4 “Although the running of the statute of limitations is
ordinarily an affirmative defense, where that defense is obvious
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
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276 (1985); Dique v. N.J. State Police, 603 F.3d 181, 185 (3d
Cir. 2010). Plaintiff states he was detained and assaulted on
August 19, 2013. Complaint at 1. The statute of limitations on
his claims therefore expired on August 19, 2015, nearly two
months before he submitted his complaint for mailing on October
12, 2015. As it is apparent from the face of the complaint that
the claims are barred by the statute of limitations, they are
subject to dismissal.
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 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 is clear
that Plaintiff’s allegations are based on the actions of
Caesar’s Casino and its employees, not any state actor, and are
therefore not appropriately brought in federal court. As such,

state a claim.” Ostuni v. Wa Wa's Mart, 532 F. App'x 110, 111-12
(3d Cir. 2013) (per curiam)
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amending the complaint would be futile. The complaint is
therefore dismissed with prejudice.
IV.

CONCLUSION
For

the

reasons

stated

above,

Plaintiff’s

complaint

is

dismissed with prejudice for failure to state a claim, 28 U.S.C.
§ 1915(e)(2)(B)(ii). An appropriate order follows.

October 17, 2016
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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