BERROA v. SUMNER et al

Filing 11

OPINION. Signed by Judge Noel L. Hillman on 1/25/2018. (rtm, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HARRY BERROA,

No. 17-cv-4910 (NLH) (AMD)

Plaintiff,
v.

OPINION

KITCHEN OFFICER SUMNER and
WARDEN ORTIZ,
Defendant.

APPEARANCE:
Harry Berroa, #62268-066
FCI – Ft. Dix
P.O. Box 2000
Joint Base MDL, NJ 08640
Plaintiff Pro se
HILLMAN, District Judge
Plaintiff Harry Berroa, a prisoner presently incarcerated
at Federal Correctional Institution (“FCI”) Fort Dix in Fort
Dix, New Jersey, intends to bring a civil rights action pursuant
to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971), against Defendants Kitchen Officer Sumner and Warden
Ortiz, both of FCI Ft. Dix.

Instead of filing a complaint,

Plaintiff has filed a “Notice of Intent to File Suit.”

ECF No.

1.
At this time, the Court must review Plaintiff’s filing,
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A to determine
whether it should be dismissed as frivolous or malicious, for
failure to state a claim upon which relief may be granted, or
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because it seeks monetary relief from a defendant who is immune
from such relief.

For the reason set forth below, the Court

will dismiss the Notice without prejudice for failure to state a
claim.

28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1).

BACKGROUND
Plaintiff filed a “Notice of Intent to File Suit and
Litigation Preservation Request of Video Evidence” (the
“Notice”), docketed by the Clerk of the Court as a complaint, on
July 5, 2017.

ECF No. 1.

Plaintiff’s Notice is only one page

long, and there is only a single factual allegation:

“On

6/24/2017 AT 11.20 Plaintiff was in the East side of Fort Dix
prison, inside food service ‘30’ receiving his lunch.

While the

Plaintiff was exiting the food line Officer Sumner called the
Plaintiff a FAGOT because he asked why his food was missing
meat.”

Notice, ¶ 1.

The Plaintiff also states in his Notice

that, “You [defendants] have now been served with Notice that
will conclude with a law suit AFTER exhaustion of AVAILABLE
remedies have been concluded.”

Notice, ¶ 2.

STANDARD OF REVIEW
Sections 1915(e)(2) and 1915A require a court to review
complaints prior to service in cases in which a plaintiff is
proceeding in forma pauperis and in which a plaintiff is
incarcerated.

The Court must sua sponte dismiss any claim that

is frivolous, is malicious, fails to state a claim upon which
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relief may be granted, or seeks monetary relief from a defendant
who is immune from such relief.

This action is subject to sua

sponte screening for dismissal under 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A because Plaintiff is proceeding in forma pauperis and
is also incarcerated.

See ECF No. 9 (granting in forma pauperis

application).
To survive sua sponte screening for failure to state a
claim, the complaint must allege “sufficient factual matter” to
show that the claim is facially plausible.
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

Fowler v. UPMC
“‘A claim has

facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’”

Fair Wind

Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

“[A]

pleading that offers ‘labels or conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’”
Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)).
DISCUSSION
To the extent Plaintiff’s Notice was construed by the Clerk
of the Court as a complaint under Rule 3 of the Federal Rules of
Civil Procedure and filed as such it must be dismissed without
prejudice for failure to state a claim upon which relief may be
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granted. 1

Plaintiff has plainly intended to file the Notice as a

litigation hold notice to Defendants and not as a civil action,
as the Notice by its own terms provides that a lawsuit will
follow after Plaintiff exhausts his administrative remedies.
See Notice, ¶ 2.

Under the Federal Rules of Civil Procedure,

there is only one form of action, the civil action, see Fed. R.
Civ. P. 2, which may only be commenced by filing a complaint,
see Fed. R. Civ. P. 3.

The Federal Rules provide no way to

commence a civil action pre-complaint.

For this reason, the

Notice must be dismissed.
In addition, Plaintiff’s Notice must be dismissed because
even if it were styled as a complaint, it fails to provide
sufficient factual allegations to establish a cognizable legal
claim.

Here, Plaintiff’s only allegation is that Defendant

Kitchen Officer Sumner called him a “faggot.”

Name-calling does

not rise to the level of a constitutional violation.

“Verbal

harassment of a prisoner, without more, does not violate the
Eighth Amendment.”
Cir. 2012).

Brown v. Deparlos, 492 F. App’x 211, 215 (3d

See also DeWalt v. Carter, 224 F.3d 607, 612 (7th

Cir. 2000) (“Standing alone, simple verbal harassment does not

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Plaintiff has also filed a Motion for Judicial Notice,
requesting that the Court take notice of five cases in which
Plaintiff alleges that the staff at FCI Ft. Dix were found to
have retaliated against inmates. See ECF No. 10. Because the
Court is dismissing without prejudice Plaintiff’s Notice, the
Court will also deny without prejudice the Motion.
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constitute cruel and unusual punishment, deprive a prisoner of a
protected liberty interest or deny a prisoner equal protection
of the laws”).

For this additional reason, the Notice must be

dismissed.
Although the Court generally grants leave to amend a
complaint pursuant to Grayson v. Mayview State Hosp., 293 F.3d
103, 114 (3d Cir. 2002), unless such amendment would be
inequitable or futile, the Court declines to grant leave to
amend here.

Because the Plaintiff states that his filing is a

notice and was not intended to be a complaint, amendment is
unnecessary.
CONCLUSION
For the reasons stated above, the Notice, docketed as a
complaint, is dismissed without prejudice for failure to state a
claim.

An appropriate order follows.

Dated: January 25, 2018
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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