Filing 2

OPINION. Signed by Judge Renee Marie Bumb on 4/10/2017. (rtm, )

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  NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE JOHN L. WILLIAMS, Jr., : : Plaintiff, : : v. : : : SOUTH WOODS STATE PRISON, and : UCHC MEDICAL STAFF, : : Defendants. : : Civ. Action No. 17-1466 (RMB) OPINION BUMB, District Judge: Plaintiff John L. Williams, Jr., a prisoner confined in South Woods State Prison, in Bridgeton, New Jersey, initiated this action Request.” by filing (ECF No. 1.) a self-styled “Late Tort Extension The Court will construe this document (ECF No. 1) as a prisoner civil rights complaint under 42 U.S.C. § 1983.1 Plaintiff initiated this action without paying the                                                              1 A District Court cannot grant an extension of a statute of limitations to a pro se litigant. See Wertheimer v. Grounds, No. C 14–00502 LB, 2015 WL 1848536, at *3 (N.D. Ca. Apr. 22, 2015) (while a court can accommodate scheduling matters, it cannot refuse to apply the statute of limitations to a pro se litigant). The Court will construe Plaintiff’s document, filed on March 3, 2017, as a prisoner civil rights complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is ‘to be liberally construed’” (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Plaintiff should be aware that if he files an amended complaint after the statute of limitations expires, it must relate back to a timely-filed 1      filing fee prepayment or submitting of fees an (“IFP application application”) to proceed under 28 without U.S.C. § 1915(a). The Prison Litigation Reform Act of 1995 (the “Act”), which amends 28 U.S.C. § 1915, establishes certain financial requirements for prisoners who are attempting to bring a civil action in forma pauperis. civil action including a in Under the Act, a prisoner bringing a forma statement pauperis of all must assets, submit affidavit, that the 28 U.S.C. § 1915(a)(1). prisoner is unable to pay the fee. which an states The prisoner also must submit a certified copy of his inmate trust fund account statement for the six-month preceding the filing of his complaint. period immediately 28 U.S.C. § 1915(a)(2). The prisoner must obtain this statement from the appropriate official of each prison at which he was or is confined. Id. The entire fee to be paid in advance of filing a civil complaint is $400. That fee includes a filing fee of $350 plus an administrative fee of $50, for a total of $400. who is granted in forma pauperis status will, A prisoner instead, be                                                                                                                                                                                                   complaint. See Glover v. F.D.I.C., 698 F.3d 139, 145 (3d Cir. 2012) (describing relation back under Fed. R. Civ. P. 15(c)(1)(B)). Additionally, if a complaint is filed outside the statute of limitations, Plaintiff may seek equitable tolling, if extraordinary circumstances prevented him from timely filing. See Freeman v. State, 347 N.J.Super. 11 (N.J. Super. Ct. App. Div. 2002) (describing equitable tolling of § 1983 claims under New Jersey law.) 2      assessed a filing fee of $350 and will not be responsible for the $50 administrative fee. If in forma pauperis status is denied, the prisoner must pay the full $400, including the $350 filing fee and the $50 administrative fee, before the complaint will be filed. If the prisoner is granted in forma pauperis status, the prisoner must pay the full amount of the $350 filing fee. U.S.C. § 1915(b)(1). 28 In each month that the amount in the prisoner’s account exceeds $10.00, until the $350.00 filing fee is paid, the agency having custody of the prisoner shall assess, deduct from the prisoner’s account, and forward to the Clerk of the Court, payment equal to 20% of the preceding month’s income credited to the prisoner’s account. Plaintiff may not have 28 U.S.C. § 1915(b)(2). known when he submitted his complaint that he must pay the filing fee in installments, and that even if the full filing fee, or any part of it, has been paid, the Court must dismiss the case if it finds that the action is: (1) frivolous or malicious; (2) fails to state a claim upon which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. U.S.C. § 1915(e)(2)(B). 28 If the Court dismisses the case for any of these reasons, the Act does not permit the prisoner to get his filing fee back. 3      After Plaintiff completes his IFP application by submitting his inmate trust fund account statement for the six-month period immediately preceding the filing of his complaint, if he chooses to do so, the Court must review the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) 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.2 I. STANDARDS FOR A SUA SPONTE DISMISSAL A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Civ. P. 8(a)(2). Fed. R. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a Ashcroft claim v. to Iqbal, relief 556 that U.S. is 662, plausible 678 (2009) on its (quoting Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). has facial plausibility when the plaintiff face.’” pleads Bell “A claim factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556.)                                                              2 This Court’s conclusive screening of Plaintiff’s claims is reserved until he pays the filing fee or obtains in forma pauperis status. See Izquierdo v. New Jersey, 532 F. App’x 71, 72-73 (3d Cir. July 25, 2013) (district court may decide whether to dismiss the complaint under 28 U.S.C. § 1915(e)(2) after leave to proceed IFP is granted). 4      “[A] court must accept contained in a complaint.” conclusions as true. as Id. Id. true all of the allegations A court need not accept legal Legal conclusions, together with threadbare recitals of the elements of a cause of action, do not suffice to state a claim. Id. Thus, “a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, entitled to the assumption of truth.” Id. at 679. are not “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. If a complaint can be remedied by an amendment, a district court may not dismiss the complaint with prejudice, but must permit the amendment. Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002). II. DISCUSSION A. The Complaint Plaintiff alleges the following in his submission, which this Court (Compl., construes ECF No. as 1.) a Plaintiff’s serious medical condition. Prison falsely malingering multiple his stated injury. retaliations, prisoner rights complaint stems complaint. from his Staff members at South Woods State on the record Plaintiff which caused grievances. 5    civil that has been him to Plaintiff subjected file was to executive   B. Section 1983 claims 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 (1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255–56 (3d Cir. 1994). 1. South Woods State Prison The Eleventh Amendment states, “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Under the Eleventh Amendment, a state 6      prison is immune from suit under § 1983. Baker v. James T. Vaughn Correctional Center,  425 F. App’x 83, 84 (3d Cir. 2011). “Congress did not abrogate the enactment of 42 U.S.C. § 1983.” 42, 44 (3d Cir. 2015.) Amendment immunity. Id. states' immunity through the Gromek v. Maenza, 614 F. App’x New Jersey has not waived its Eleventh Therefore, South Woods State Prison is not a proper defendant to this action. The proper defendants to a § 1983 action for money damages are state actors, personally involved in in their the individual alleged capacities, constitutional who were violation. See Iqbal, 556 U.S. at 676 (a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.) 2. UCHC Medical Staff Plaintiff’s claim that unidentified UCHC Medical Staff falsely accused Plaintiff of malingering his injury in a written record is insufficient to state an Eighth Amendment claim for deliberate indifference to his serious medical needs. “In order to establish a violation of [a prisoner’s] constitutional right to adequate medical care, evidence must show (i) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need. Natale v. Camden County Correctional Facility, 318 F.3d 575, 582 (3d Cir. 7      2003) (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)). A complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. . . a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. Estelle, 429 U.S. at 106. Plaintiff’s complaint against UCHC Medical Staff fails to state a claim under § 1983. 3. Retaliation Plaintiff alleges retaliation by prison staff but he has not described who retaliated against him, how they retaliated, and what they were retaliating against. Plaintiff has not alleged sufficient facts to state a plausible claim for relief. In order to establish illegal retaliation for engaging in protected conduct, [a plaintiff] must prove that: (1) his conduct was constitutionally protected; (2) he suffered an adverse action at the hands of prison officials; and (3) his constitutionally protected conduct was a substantial or motivating factor in the decision to discipline him. Because motivation is almost never subject to proof by direct evidence, [a plaintiff] must rely on circumstantial evidence to prove a retaliatory motive. He can satisfy his burden with evidence of either (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing that suggests a causal link. 8      Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016) (footnotes omitted). The adverse action alleged must be “sufficient to deter a person of ordinary firmness from exercising his First Amendment rights.” Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (internal quotation marks omitted). C. New Jersey Tort Claims Act Plaintiff entitled his submission to the Court “Late Tort Extension Request.” Plaintiff may be trying to assert a state tort If law claim. Plaintiff seeks to bring a medical malpractice claim under New Jersey law, he should be aware that state law requires that he file a notice of claim with the public entity “not later than the 90th day after accrual of the cause of action,” and if that claim is denied, “the claimant may file suit in expiration of received. an six appropriate court months the from of date law[,]” notice after of claim the is N.J.S.A. 59:8-8. III. CONCLUSION The Court will administratively terminate this matter without prejudice because Plaintiff failed to pay the filing fee or submit a complete IFP application 1915(a)(2). 9    under 28 U.S.C. §   An appropriate order follows. s/Renée Marie Bumb RENÉE MARIE BUMB United States District Judge Dated: April 10, 2017 10   

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