FONTANEZ v. CAMDEN COUNTY
OPINION. Signed by Chief Judge Jerome B. Simandle on 5/5/17. (jbk, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE
No. 16-cv-09085 (JBS-AMD)
Pedro Fontanez, Plaintiff Pro Se
1220 So. 4th Street
Camden, NJ 08104
SIMANDLE, Chief District Judge:
Plaintiff Pedro Fontanez presumably1 seeks to bring a
civil rights complaint pursuant to 42 U.S.C. § 1983 against
Camden County. Complaint, Docket Entry 1.
Section 1915(e)(2) requires a court to review
complaints prior to service in cases in which a plaintiff is
proceeding in forma pauperis. The Court must 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.
As discussed below, the complaint is lacking in substantive
§ 1915(e)(2)(B) because Plaintiff is proceeding in forma
For the reasons set forth below, the Court will
dismiss the complaint without prejudice for failure to state a
claim. 28 U.S.C. § 1915(e)(2)(b)(ii).
To survive sua sponte screening for failure to state a
claim, 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). “[A] pleading that offers ‘labels or
conclusions’ or ‘a formulaic recitation of the elements of a
cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)).
Plaintiff presumably brings this action pursuant to 42
U.S.C. § 19832 for alleged violations of Plaintiff’s
Section 1983 provides: “Every person who, under color of any
statute, ordinance, regulation, custom, or usage, of any State .
. . 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
constitutional rights. In order to set forth a prima facie case
under § 1983, a plaintiff must show: “(1) a person deprived him
of a federal right; and (2) the person who deprived him of that
right acted under color of state or territorial law.” Groman v.
Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995) (citing Gomez
v. Toledo, 446 U.S. 635, 640 (1980)).
Generally, for purposes of actions under § 1983,
“[t]he term ‘persons’ includes local and state officers acting
under color of state law.” Carver v. Foerster, 102 F.3d 96, 99
(3d Cir. 1996) (citing Hafer v. Melo, 502 U.S. 21 (1991)).3 To
say that a person was “acting under color of state law” means
that the defendant in a § 1983 action “exercised power [that the
defendant] possessed by virtue of state law and made possible
only because the wrongdoer [was] clothed with the authority of
state law.” West v. Atkins, 487 U.S. 42, 49 (1988) (citation
omitted). Generally, then, “a public employee acts under color
of state law while acting in his official capacity or while
exercising his responsibilities pursuant to state law.” Id.
injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .” 42 U.S.C. § 1983.
3 “Person” is not strictly limited to individuals who are state
and local government employees, however. For example,
municipalities and other local government units, such as
counties, also are considered “persons” for purposes of § 1983.
See Monell v. N.Y.C. Dep't of Social Services, 436 U.S. 658,
Plaintiff has not pled sufficient facts to support a
reasonable inference that a constitutional violation has
occurred as is necessary to survive this Court’s review under
§ 1915. The majority of the complaint is blank. Plaintiff has
not stated where the events giving rise to his alleged claim
occurred, has not alleged that a person violated his federal
rights, has stated no injuries, and has requested no relief.
Complaint §§ III, IV, V. Plaintiff states only that the events
giving rise to his claim occurred, “June 2003-2005” and Aug.
2016.” Complaint § III. The sole factual allegation in the
complaint states: “Slept on Floor.” Even accepting this
statement as true for screening purposes only, there is not
enough factual support for the Court to infer a constitutional
violation has occurred.
As Plaintiff may be able to amend his complaint to
address the deficiencies noted by the Court, the Court shall
grant Plaintiff leave to amend the complaint within 30 days of
the date of this order.
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.4 Id.
For the reasons stated above, the claims arising from
Plaintiff’s 2002 confinement are barred by the statute of
limitations and therefore are dismiss with prejudice. The
remainder of the complaint is dismissed without prejudice for
failure to state a claim. The Court will reopen the matter in
the event Plaintiff files an amended complaint within the time
allotted by the Court.
An appropriate order follows.
May 5, 2017
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
The amended complaint shall be subject to screening prior to
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