SERRANO v. NEW JERSEY STATE SUPERIOR COURT OF CAMDEN COUNTY et al
OPINION. Signed by Judge Renee Marie Bumb on 8/23/17. (jbk, )
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ALBERT SERRANO, Jr.,
NEW JERSEY STATE SUPERIOR
COURT JUDGE JOHN T. KELLEY,
Civ. Action No. 17-5866 (RMB)
BUMB, District Judge:
Plaintiff Albert Serrano, Jr., a prisoner incarcerated in
Northern State Prison, in Newark, New Jersey, filed a civil
rights complaint on August 8, 2017.
(ECF No. 1.)
seeks to proceed without prepayment of fees (“in forma pauperis”
or “IFP”), pursuant to 28 U.S.C. § 1915(a).
did not file a properly completed IFP application because he did
not submit “a certified copy of the trust fund account statement
preceding the filing of the complaint . . . , obtained from the
appropriate official of each prison at which the prisoner is or
was confined,” required by 28 U.S.C. § 1915(a)(2).
Court will administratively terminate this action, subject to
reopening if Petitioner files a complete IFP application.
Plaintiff should be aware, however, that if he is granted
in forma pauperis status, he must pay the full amount of the
$350 filing fee in installments.
28 U.S.C. § 1915(b)(1).
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
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.
After Plaintiff completes his IFP application by submitting
his inmate trust fund account statement for the six-month period
immediately preceding the filing of his complaint, if he chooses
to do so, the Court must review the complaint pursuant to 28
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.1
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
This Court’s conclusive screening of Plaintiff’s claims is
reserved until he 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).
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 New Jersey Superior Court Judge John T.
Kelley made a frivolous ruling on Plaintiff’s petition for postconviction relief in his state criminal proceeding.
ECF No. 1, ¶¶4(b), 6).
For relief, Plaintiff seeks damages and
a hearing in his state criminal action.
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,
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
There are at least reasons the Court would be required to
dismiss Plaintiff’s complaint upon screening.
The first reason
is that the only defendant, a state court judge, is entitled to
performance of his duties has absolute immunity from suit and
will not be liable for his judicial acts.”
Capogrosso v. The
Supreme Court of New Jersey, 588 F.3d 180, 184 (3d Cir. 2009)
(quoting Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir. 2006)).
“A judge will not be deprived of immunity because the action he
took was in error, was done maliciously, or was in excess of his
authority; rather, he will be subject to liability only when he
has acted ‘in the clear absence of all jurisdiction.’”
Petitioner alleges Judge Kelley erred in denying his motion
for post-conviction relief.
He does not allege Judge Kelley
acted in the clear absence of all jurisdiction.
only defendant named in the civil rights action is immune from
suit, and the Court would be required to dismiss the complaint
upon screening pursuant to 28 U.S.C. § 1915(e)(2)(B).
The second reason the Court would dismiss the complaint
unavailable in this court.
Plaintiff seeks a hearing on his
petition for state post-conviction relief, and presumably relief
from the denial of his PCR petition.
(Compl., ECF No. 1, ¶7.)
The Rooker-Feldman doctrine bars Plaintiff from appealing his
under 42 U.S.C. § 1983.
See Darby v. Geiger, 441 F. App’x 840,
dismissal of complaint where plaintiff sought to appeal, in the
district court, the decisions in his state court post-conviction
without prejudice because Plaintiff failed submit a complete IFP
application under 28 U.S.C. § 1915(a)(2).
Plaintiff is advised
that if he cures the deficiencies in his IFP application and
dismissed upon screening pursuant to 28 U.S.C. § 1915(e)(2)(B).
An appropriate order follows.
August 23, 2017
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
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