BURGOS v. CAMDEN COUNTY SHERIFF DEPARTMENT
MEMORANDUM, ORDER Clerk of the Court shall administratively terminate this case. Directing Clerk to send Plaintiff a blank IFP application and Complaint. nm 5/9. Signed by Judge Renee Marie Bumb on 5/9/17. (jbk, )
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JOHN A. BURGOS,
CAMDEN COUNTY SHERIFF DEP’T., :
Civ. Action No. 17-2317 (RMB)
MEMORANDUM AND ORDER
Plaintiff John A. Burgos, a pretrial detainee confined in
submitted to this Court a “Notice of Tort Claim Against a Public
(ECF No. 1.)
If Plaintiff intends to file a tort claim
against Camden County Sheriff’s Department, he has submitted his
notice to the wrong governmental unit.
Pursuant to the New
Jersey Tort Claims Act (“NJTCA”), the Notice of Tort Claim must
be “deliver[ed] or mail[ed] [by] certified mail to the office of
the Attorney General or the office of the State agency allegedly
involved in the action.”
It may also be delivered to or mailed
by certified mail to the local public entity [here the Camden
County Sheriff’s Department].
If Plaintiff intended to bring a civil rights action in
$400.00 filing fee or submit a properly completed application to
proceed without prepayment of fees (“in forma pauperis” or “IFP
application”), pursuant to 28 U.S.C. § 1915.
The Prison Litigation Reform Act of 1995 (the “Act”), which
requirements for prisoners who are attempting to bring a civil
action in forma pauperis.
Under the Act, a prisoner bringing a
28 U.S.C. § 1915(a)(1).
prisoner is unable to pay the fee.
prisoner also must submit a certified copy of his inmate trust
preceding the filing of his complaint.
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.
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.
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).
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.
28 U.S.C. § 1915(b)(2).
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).
If the Court dismisses the case for any
of these reasons, the Act does not permit the prisoner to get
his filing fee back.1
I. STANDARDS FOR 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).
“To survive a motion to dismiss, a complaint
This Court’s conclusive screening of Plaintiff’s claims is
reserved until he files a complaint and 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).
must contain sufficient factual matter, accepted as true, to
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
(quoting Twombly, 550 U.S. at 556.)
contained in a complaint.”
A court need not accept legal
threadbare recitals of the elements of a cause of action, do not
suffice to state a claim.
Thus, “a court considering a
motion to dismiss can choose to begin by identifying pleadings
entitled to the assumption of truth.” Id. at 679.
conclusions can provide the framework of a complaint, they must
be supported by factual allegations.”
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.
Plaintiff alleges excessive force was used against him by
officers of the Camden County Sheriff’s Fugitive Unit on October
18, 2016, causing him to suffer abrasions and a broken left
(Notice, ECF No. 1.)
It appears that Plaintiff wishes to
bring a claim under the New Jersey Tort Claims Act, but not only
citizenship between parties.
See 28 U.S.C. §§ 1331; 1332.
Section 1983 claims
Although Plaintiff did not assert any federal claims in the
form he submitted to this Court, a plaintiff may have a cause of
action under 42 U.S.C. § 1983 for certain violations of his
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
liability under § 1983. Will v. Mich. Dep't of State Police, 491
U.S. 58, 71 (1989); Jackson v. City of Erie Police Dep't, 570 F.
App'x 112, 114 (3d Cir. 2014).
If Plaintiff wishes to bring a §
defendant for a claim against a sheriff's department is the
Jackson, 570 F. App'x at 114 n. 2.
state a claim against a municipality, a plaintiff must allege an
unconstitutional policy or custom that resulted in injury to the
See Monell v. Dep't of Social Servs. New York City,
436 U.S. 658, 690 (1978) (“although the touchstone of the § 1983
action against a government body is an allegation that official
governments . . . may be sued . . . pursuant to governmental
approval . . .”)
IT IS therefore on this 9th day of May 2017,
ORDERED that the Clerk of the Court shall administratively
terminate this case without filing the complaint or assessing a
termination is not a “dismissal” for purposes of the statute of
limitations, and that if the case is reopened, it is not subject
to the statute of limitations time bar if it was originally
filed timely, see Jenkins v. Superintendent of Laurel Highlands,
705 F.3d 80, 84 n.2 (2013) (describing prisoner mailbox rule
generally); Dasilva v. Sheriff's Dept., 413 F. App’x 498, 502
(3rd Cir. 2011) (“[The] statute of limitations is met when a
complaint is submitted to the clerk before the statute runs
….”); and it is further
ORDERED that the Clerk of the Court shall send Plaintiff a
blank form application to proceed in forma pauperis, and a blank
form prisoner civil rights complaint; and it is further
ORDERED that if Plaintiff wishes to reopen this case, he
shall so notify the Court, in writing addressed to the Clerk of
the Court, Mitchell H. Cohen Building & U.S. Courthouse, 4th &
Cooper Streets, Room 1050, Camden, NJ 08101, within 30 days of
statement, or (2) the $400 fee including the $350 filing fee
plus the $50 administrative fee; and a complaint; and it is
complete in forma pauperis application or payment of the filing
and administrative fees within the time allotted by this Court,
and a complaint, the Clerk of the Court will be directed to
reopen this case; and it is finally
ORDERED that the Clerk of the Court shall serve a copy of
this Order upon Plaintiff by regular U.S. mail.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
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