BURGOS v. CAMDEN COUNTY SHERIFF DEPARTMENT

Filing 2

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NOT FOR PUBLICATION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
CAMDEN VICINAGE
JOHN A. BURGOS,

:
:
Plaintiff,
:
:
v.
:
:
:
CAMDEN COUNTY SHERIFF DEP’T., :
:
Defendant.
:
:

Civ. Action No. 17-2317 (RMB)

MEMORANDUM AND ORDER

Plaintiff John A. Burgos, a pretrial detainee confined in
Camden

County

Correctional

Facility,

in

Camden,

New

Jersey,

submitted to this Court a “Notice of Tort Claim Against a Public
Entity.

(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
this

Court

under

42

U.S.C.

§

1983,

he

must

either

pay

the

$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
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

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.
2 

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.

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).

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.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).

Fed. R.

“To survive a motion to dismiss, a complaint

1

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).
3 

must contain sufficient factual matter, accepted as true, to
‘state

a

Ashcroft

claim
v.

to

relief

Iqbal,

556

that

U.S.

is

plausible

662,

678

on

(2009)

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.)
“[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
4 

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
heel.

(Notice, ECF No. 1.)

It appears that Plaintiff wishes to

bring a claim under the New Jersey Tort Claims Act, but not only
does

he

first

appropriate
lacks

have

state

jurisdiction

claims

are

also

to

agency
over

file

his

Notice

of

or

local

public

entity,

a

presented,

citizenship between parties.
B.

state

law

unless

Claim

claim

where

there

is

with
this
no

the

Court

federal

diversity

of

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
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

5 

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).
A

sheriff's

department

is

not

a

“person”

subject

to

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).
1983

claim,

he

must

choose

If Plaintiff wishes to bring a §
another

defendant.

The

proper

defendant for a claim against a sheriff's department is the
municipality itself.

Jackson, 570 F. App'x at 114 n. 2.

To

state a claim against a municipality, a plaintiff must allege an
unconstitutional policy or custom that resulted in injury to the
plaintiff.

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
policy

is

responsible

for

a

deprivation

of

rights

local

governments . . . may be sued . . . pursuant to governmental
“custom”

even

though

such

a

custom

has

not

received

formal

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
6 

filing

fee;

Plaintiff

is

informed

that

administrative

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
the

date

include

of

entry

either

application,

(1)

of

this

a

including

Order;

complete,
a

certified

Plaintiff’s
signed

in

six-month

writing
forma
prison

shall

pauperis
account

statement, or (2) the $400 fee including the $350 filing fee
plus the $50 administrative fee; and a complaint; and it is
further

7 

ORDERED
stating

that

that

upon

he

wishes

receipt
to

of

reopen

a

writing

this

case,

from
and

Plaintiff
either

a

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

8