Filing 3

OPINION. Signed by Judge Renee Marie Bumb on 6/8/17. (jbk, )

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  NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE DAVID C. ROARY, : : : : : : : : : : : : Plaintiff, v. ATLANTIC COUNTY JUSTICE FACILITY et al., Defendants. Civ. Action No. 17-2674 (RMB) OPINION BUMB, District Judge: Plaintiff David C. Roary, an inmate confined in Atlantic County Justice Facility (“ACJF”), in Atlantic City, New Jersey, filed a civil rights action under 42 U.S.C. § 1983 on April 19, 2017. (Compl., ECF No. 1.) prepayment of fees U.S.C. § 1915(a). (“in Plaintiff seeks to proceed without forma pauperis” (IFP App., ECF No. 1-2.) or “IFP”) under 28 Plaintiff has filed a properly completed IFP application, establishing his financial eligibility to proceed in forma pauperis, and his application will be granted. The Court must review the complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B); 1915A(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. 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 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.” 2    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). A court must liberally construe a pro se complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). II. DISCUSSION A. The Complaint Plaintiff (Compl., Justice ECF asserts No. Facility, jurisdiction 1.) Plaintiff Warden under named Geraldine 42 the U.S.C. § 1983. County Executive Cohen, Atlantic Dennis Levinson, and Chairman Frank Formica as defendants in this civil rights action (Id.) Plaintiff alleges the Atlantic County Justice Facility does not have a law library where inmates can do independent legal research. (Id. at 4.) Plaintiff asserts the lack of a law library prevents him from properly defending his two indictments, denying him the right of access to the courts and causing him to suffer depression. B. (Id. at 4-5.) Section 1983 claims A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of his constitutional 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 3    rights.   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). Prisoners have a right of access to the courts under the First and Fourteenth Amendments. 821 (1977). Bounds v. Smith, 430 U.S. 817, However, there is no “freestanding right to a law library or legal assistance.” (1996). An adequate Lewis v. Casey, 518 U.S. 343, 351 law library is only of many acceptable ways to satisfy the right of access to courts. Diaz v. Holder, 532 F. App’x 61, 63 (3d Cir. 2013.) one For example, the right can be satisfied by appointing an attorney or providing the assistance of paralegals. To state shortcomings a in claim, the Id. an inmate library or must legal show the alleged assistance program “hindered his efforts to pursue a legal claim.” at 351. Thus, there is an actual injury requirement for a right 4    Casey, 518 U.S.   of access to courts claim. Id. Examples of actual injuries include dismissal of a complaint or the inability to bring a complaint due to inadequacies of the law library. Id. Where prisoners assert that defendants' actions have inhibited their opportunity to present a past legal claim, they must show (1) that they suffered an ‘actual injury'that they lost a chance to pursue a ‘nonfrivolous' or ‘arguable’ underlying claim; and (2) that they have no other ‘remedy’ that may be awarded as recompense' for the lost claim other than in the present denial of access suit. Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008) (quoting Christopher v. Harbury, 536 U.S. 403, 415 (2002)). Plaintiff’s freestanding library. claim right to There is not. fails because independent it access assumes to a there is physical a law Furthermore, Plaintiff has not pled an actual injury caused by the inadequacy of legal assistance at ACJF. This claim, against all defendants, will be dismissed without prejudice. III. CONCLUSION For the reasons discussed above, the Court grants Plaintiff’s IFP application and dismisses the Complaint without prejudice. An appropriate order follows. 5      Dated: June 8, 2017 s/Renée Marie Bumb RENÉE MARIE BUMB United States District Judge 6   

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