GOLDBERG v. UNITED STATES OF AMERICA et al

Filing 8

MEMORANDUM AND ORDER that Plaintiff's application to proceed in forma pauperis is granted; the Complaint shall be filed; the Clerk of Court is directed to dismiss with prejudice Defendants the United States of America and the Federal Bureau of Prisons. Signed by Judge Noel L. Hillman on 1/23/2018. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARK GOLDBERG,

No. 17-cv-6024 (NLH) (JS)

Plaintiff,

MEMORANDUM AND
ORDER

v.
UNITED STATES OF AMERICA, et
al.,
Defendants.

IT APPEARING THAT:
1.

Federal law requires this Court to screen complaints in

those civil actions in which the plaintiff is proceeding in
forma pauperis and in which the plaintiff is incarcerated.

See

28 U.S.C. § 1915(e)(2)(B) (proceeding in forma pauperis), §
1915A (incarcerated).

The Court must sua sponte dismiss any

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

Plaintiff Mark

Goldberg’s Complaint, ECF No. 1, 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 1 and is
incarcerated.

1

By order of today’s date, Plaintiff’s application to proceed in
forma pauperis, ECF No. 7, is granted.
1

2.

This Court has screened the Complaint for dismissal and

has determined that the Complaint states a First Amendment
access to courts claim and a Fifth Amendment 2 due process claim
pursuant to Bivens v. Six Unknown Named Agents of the Federal
Bureau of Narcotics, 403 U.S. 386 (1971), 3 against Defendants
David Ortiz, Caryn Flowers, Laura Coleman, Ms. Clarke, Rashawn
Robinson, James Reiser, Mr. N. Mullins, Ms. M. Fischer, Ms.
Centano, and Mr. T. Vogt.
3.

The United States of America and the Federal Bureau of

Prisons will be dismissed as defendants because they are immune
from suit.

“Absent a waiver, sovereign immunity shields the

Federal Government and its agencies from suit.” FDIC v. Meyer,
510 U.S. 471, 475 (1994) (citations omitted).

See also Webb v.

Desan, 250 F. App’x 468, 471 (3d Cir. 2007) (noting that the
United States is immune from Bivens claims).

2

In the Complaint, Plaintiff references his Fourteenth Amendment
due process rights. The Court construes this as a Fifth
Amendment due process right. The Fifth Amendment applies to
conduct against federal employees, whereas the Fourteenth
Amendment applies to conduct against state employees. See,
e.g., Schanzer v. Rutgers Univ., 934 F. Supp. 669, 679 n. 14
(D.N.J. 1996) (citing Bartkus v. Illinois, 359 U.S. 121 (1959)).
3

Plaintiff references claims brought pursuant to both Bivens and
42 U.S.C. §§ 1983, 1985. Sections 1983 and 1985 do not apply to
claims brought against the United States and its employees. See
Brown v. Philip Morris, Inc., 250 F.3d 789, 800 (3d Cir. 2001).
The Court thus construes Plaintiff’s Complaint as being brought
pursuant to Bivens, the appropriate avenue for which to bring
civil rights claims against federal employees. See id.
2

4.

Although Plaintiff has not raised it as a specific

claim for relief, he states in the Complaint that “Defendant(s)
continue to discriminate against me because I can not easily
defend myself while trying to cope with my Legal Blindness and
being incarcerated, and not having no special services, nor
equipment to make life here the same with all other inmates in
violation of the Americans With Disabilities Act of 1990.”
Compl at 9.

It is not clear whether Plaintiff intends this

reference to raise a legal claim for violation of the Americans
with Disabilities Act (or, the Rehabilitation Act of 1973, 29
U.S.C. § 791 et seq.), as there are insufficient factual
allegations that would support such a claim.

While Plaintiff

asserts that he is blind, a recognized disability, he has not
articulated with the required specificity what conduct of the
Defendants violates his statutory rights. See Phillips v. Cnty.
of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (a complaint must
contain enough factual matter to suggest a plausible claim not
merely bald assertions or legal conclusions).

If Plaintiff

wishes to raise such a claim, he may file an amended complaint
in conformance with the Federal Rules of Civil Procedure.
IT IS therefore on this

23rd

day of January, 2018,

ORDERED that the Clerk of the Court shall make a new and
separate entry marking this matter RE-OPENED; and it is further

3

ORDERED that Plaintiff's application to proceed in forma
pauperis, ECF No. 7, is hereby granted; and it is further
ORDERED that, pursuant to 28 U.S.C. § 1915(b) and for
purposes of account deduction only, the Clerk shall serve a copy
of this Order by regular mail upon the United States Attorney
for the District of New Jersey and the warden of the Federal
Correctional Institution at Fort Dix; and it is further
ORDERED that Plaintiff is assessed a filing fee of $350.00
and shall pay the entire filing fee in the manner set forth in
this Order pursuant to 28 U.S.C. § 1915(b)(1) and (2),
regardless of the outcome of the litigation, meaning that if
Plaintiff’s case is otherwise administratively terminated or
closed, § 1915 does not suspend installment payments of the
filing fee or permit refund to the prisoner of the filing fee,
or any part of it, that has already been paid; and it is further
ORDERED that pursuant to Bruce v. Samuels, 136 S. Ct. 627,
632 (2016), if Plaintiff owes fees for more than one court case,
whether to a district or appellate court, under the Prison
Litigation Reform Act (PLRA) provision governing the mandatory
recoupment of filing fees, Plaintiff’s monthly income is subject
to a simultaneous, cumulative 20% deduction for each case a
court has mandated a deduction under the PLRA; i.e., Plaintiff
would be subject to a 40% deduction if there are two such cases,

4

a 60% deduction if there are three such cases, etc., until all
fees have been paid in full; and it is further
ORDERED that pursuant to 28 U.S.C. § 1915(b)(2), in each
month that the amount in Plaintiff’s account exceeds $10.00, the
agency having custody of Plaintiff shall assess, deduct from
Plaintiff’s account, and forward to the Clerk of the Court
payment equal to 20% of the preceding month’s income credited to
Plaintiff’s account, in accordance with Bruce, until the $350.00
filing fee is paid. Each payment shall reference the civil
docket numbers of the actions to which the payment should be
credited; and it is further
ORDERED that the Complaint shall be filed; and it is
further
ORDERED that the First Amendment access to courts claim and
the Fifth Amendment Due Process claim contained in the
Complaint, ECF No. 1, shall proceed; and it is further
ORDERED that the Clerk of Court is directed to dismiss with
prejudice Defendants the United States of America and the
Federal Bureau of Prisons; and it is further
ORDERED that, the Clerk shall mail to Plaintiff a
transmittal letter explaining the procedure for completing
Unites States Marshal (“Marshal”) 285 Forms (“USM-285 Forms”);
and it is further

5

ORDERED that, once the Marshal receives the USM-285 Form(s)
from Plaintiff and the Marshal so alerts the Clerk, the Clerk
shall issue summons in connection with each USM-285 Form that
has been submitted by Plaintiff, and the Marshal shall serve
summons, the Complaint and this Order to the address specified
on each USM-285 Form, with all costs of service advanced by the
United States 4; and it is further
ORDERED that Defendants shall file and serve a responsive
pleading within the time specified by Federal Rule of Civil
Procedure 12; and it is further
ORDERED that, pursuant to 28 U.S.C. § 1915(e)(1) and § 4(a)
of Appendix H of the Local Civil Rules, the Clerk shall notify
Plaintiff of the opportunity to apply in writing to the assigned
judge for the appointment of pro bono counsel; and it is further
ORDERED that, if at any time prior to the filing of a
notice of appearance by Defendants, Plaintiff seeks the
appointment of pro bono counsel or other relief, pursuant to
Fed. R. Civ. P. 5(a) and (d), Plaintiff shall (1) serve a copy
of the application by regular mail upon each party at his last

4

Alternatively, the U.S. Marshal may notify Defendants that an
action has been commenced and request that the defendants waive
personal service of a summons in accordance with Fed. R. Civ. P.
4(d).
6

known address and (2) file a Certificate of Service 5; and it is
further
ORDERED that the Clerk of the Court shall serve Plaintiff
with copies of this Order via regular mail.

At Camden, New Jersey

5

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

After an attorney files a notice of appearance on behalf of a
Defendant, the attorney will automatically be electronically
served all documents that are filed in the case.
7