LEONCINI v. SOUTH WOOD STATE PRISON et al
Filing
7
OPINION. Signed by Judge Noel L. Hillman on 11/21/16. (jbk, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
RICHARD LEONCINI,
:
:
Plaintiff,
:
Civ. No. 16-5533(NLH)
v.
:
OPINION
:
SOUTH WOODS STATE PRISON, et al., :
:
Defendants.
:
___________________________________:
APPEARANCES:
Richard Leoncini
964578/556035a
South Woods State Prison
215 Burlington Road
Bridgeton, NJ 08302
Plaintiff Pro se
HILLMAN, District Judge
Plaintiff Richard Leoncini (“Plaintiff”) seeks to bring a
civil rights complaint pursuant to 42 U.S.C. § 1983.
1.)
(ECF No.
Based on his affidavit of indigence (ECF No. 1-1), the
Court will grant him leave to proceed in forma pauperis.
U.S.C. § 1915.
See 28
For the reasons set forth below, the Court will
dismiss the Complaint without prejudice in part, and with
prejudice in part, for failure to state a claim.
28 U.S.C. §§
1915(e)(2)(B)(ii), 1915A.
I. BACKGROUND
Plaintiff brings this civil rights action, pursuant to 42
U.S.C. § 1983, against Defendants South Woods State Prison, New
Jersey Department of Corrections and Sergeant Dilks.
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 an unspecified date while incarcerated at South Woods
State Prison, Plaintiff alleges that Sergeant Dilks “made
several derogatory remark[s] and hand jester [sic] about my
gender and was telling other inmates [Plaintiff] was gay.
(Compl. ¶ 6.)
Sergeant Dilks then “filed a false complaint
because in his mind he thinks [Plaintiff is] gay.”
(Id.)
Plaintiff is seeking injunctive relief and unspecified monetary
damages.
II.
(Compl. ¶ 7.)
DISCUSSION
A. Legal Standard
1. 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, malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a defendant
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who is immune from such relief.
This action is subject to sua
sponte dismissal under 28 U.S.C. § 1915(e)(2)(B) and 1915A
because Plaintiff is a prisoner who is proceeding as indigent.
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 claim1, 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.”
Belmont v. MB
Inv. Partners, Inc., 708 F.3d 470, 483 n.17 (3d Cir. 2012)
(quoting Iqbal, 556 U.S. at 678).
Moreover, while pro se
pleadings are liberally construed, “pro se litigants still must
“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 42 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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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).
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....
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).
B. Analysis
At the outset, the claims against South Woods State Prison
and the New Jersey Department of Corrections must be dismissed
with prejudice because neither are “persons” within the meaning
of 42 U.S.C. § 1983.
See Will v. Mich. Dep't of State Police,
491 U.S. 58, 71 (1989); Grabow v. S. State Corr. Facility, 726
4
F. Supp. 537, 538-39 (D.N.J. 1989) (state department of
corrections and state prisons are not “persons” under § 1983).
With regard to his claims against Sergeant Dilks, Plaintiff
alleges that the sergeant verbally harassed him.
However,
“allegations of verbal abuse or threats, absent any injury or
damage, are not cognizable under § 1983.”
Brown v. Hamilton
Twp. Police Dep't Mercer Cty., N.J., 547 F. App’x 96, 97 (3d
Cir. 2013) (citing McBride v. Deer, 240 F.3d 1287, 1291 n. 3
(10th Cir. 2001); Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir.
1997)).
Here, Plaintiff has not made any allegations of injury
or damage and, therefore, this claim will be dismissed.2
Plaintiff also alleges that Defendant Dilks “filed a false
complaint because in his mind he thinks [Plaintiff is] gay.”
Plaintiff does not provide any context to this statement.
Specifically, it is unclear what type of “complaint” was filed;
what were the circumstances surrounding the complaint; whether
Plaintiff received any punishment as a result of this “false
complaint,” etc.
In short, Plaintiff falls well below the
pleading requirements under Iqbal and this claim must be
dismissed.3
See Iqbal, 556 U.S. at 678.
Plaintiff’s request for a Temporary Restraining Order against
Sergeant Dilks because he continues to make sexual comments
towards Plaintiff (ECF No. 3), is likewise denied.
2
To the extent it is relevant to Plaintiff’s intended claim, the
Court notes that “[t]he filing of false disciplinary charges
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III. CONCLUSION
For the foregoing reasons, the claims against South Woods
State Prison and the Department of Corrections will be dismissed
with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A
for failure to state a claim upon which relief may be granted.
The claims against Defendant Dilks will be dismissed without
prejudice.
Because it is conceivable that Plaintiff may be able
to supplement his pleading with facts sufficient to overcome the
deficiencies noted herein, the Court will grant Plaintiff leave
to move to re-open this case and to file an amended complaint.4
An appropriate Order follows.
Dated: November 21, 2016
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
does not constitute a claim under § 1983 so long as the inmate
was granted a hearing and an opportunity to rebut the charges.”
Crosby v. Piazza, 465 F. App'x 168, 172 (3d Cir. 2012) (citing
Smith v. Mensinger, 293 F.3d 641, 653-54 (3d Cir. 2002) and
Freeman v. Rideout, 808 F.2d 949, 952–53 (2d Cir. 1986). See
also Mimms v. U.N.I.C.O.R., 386 F. App’x 32, 36 (3d Cir. 2010)
(the “filing of false disciplinary charges does not constitute a
claim under § 1983 so long as the inmate was granted a hearing
and an opportunity to rebut the charges”).
Plaintiff should note 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. See West Run Student Housing Associates,
LLC v. Huntington National Bank, 712 F.3d 165, 171 (3d Cir.
2013)(collecting cases); see also 6 CHARLES ALAN WRIGHT ARTHUR R.
MILLER, FEDERAL PRACTICE AND PROCEDURE § 1476 (3d ed. 2008). To avoid
confusion, the safer practice is to submit an amended complaint
that is complete in itself. Id.
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