ROARY v. ATLANTIC COUNTY JUSTICE FACILITY et al
OPINION. Signed by Judge Renee Marie Bumb on 6/8/17. (jbk, )
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DAVID C. ROARY,
ATLANTIC COUNTY JUSTICE
FACILITY et al.,
Civ. Action No. 17-2674 (RMB)
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,
(Compl., ECF No. 1.)
U.S.C. § 1915(a).
Plaintiff seeks to proceed without
(IFP App., ECF No. 1-2.)
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).
“To survive a motion to dismiss, a complaint
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.
A court must liberally construe a pro se complaint.
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Levinson, and Chairman Frank Formica as defendants in this civil
Justice Facility does not have a law library where inmates can
do independent legal research.
(Id. at 4.)
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.
(Id. at 4-5.)
Section 1983 claims
A plaintiff may have a cause of action under 42 U.S.C. §
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
Prisoners have a right of access to the courts under the
First and Fourteenth Amendments.
Bounds v. Smith, 430 U.S. 817,
However, there is no “freestanding right to a law
library or legal assistance.”
Lewis v. Casey, 518 U.S. 343, 351
acceptable ways to satisfy the right of access to courts.
v. Holder, 532 F. App’x 61, 63 (3d Cir. 2013.)
For example, the
right can be satisfied by appointing an attorney or providing
the assistance of paralegals.
“hindered his efforts to pursue a legal claim.”
Thus, there is an actual injury requirement for a right
Casey, 518 U.S.
of access to courts claim.
Examples of actual injuries
include dismissal of a complaint or the inability to bring a
complaint due to inadequacies of the law library.
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
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.
Christopher v. Harbury, 536 U.S. 403, 415 (2002)).
There is not.
Furthermore, Plaintiff has not pled an
actual injury caused by the inadequacy of legal assistance at
This claim, against all defendants, will be dismissed
Plaintiff’s IFP application and dismisses the Complaint without
An appropriate order follows.
Dated: June 8, 2017
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
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