IDOWU v. WHITELY et al
Filing
2
OPINION. Signed by Judge Esther Salas on 4/1/13. (DD, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
__________________________
:
ADEWALE B. IDOWU,
:
:
Plaintiff,
:
:
v.
:
:
LT. WHITELY et al.,
:
:
Defendants.
:
_________________________:
Civil Action No. 13-1674 (ES)
OPINION
Salas, District Judge:
Plaintiff
Adewale
B.
Idowu
(“Plaintiff”),
an
alien
detainee, seeks to bring this action in forma pauperis. Based on
his affidavit of indigence, the Court will grant Plaintiff’s
application to proceed in forma pauperis pursuant to 28 U.S.C. §
1915(a) and order the Clerk to file the Complaint.1
At this
time, the Court must review the complaint, 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 because it seeks
monetary relief from a defendant immune from such relief. For
the reasons set forth below, the Complaint will be dismissed.
1
Since Plaintiff is an alien detainee, no assessment will be directed against
him.
However, this dismissal will count against Plaintiff for the purposes
of the “three-strikes” rule.
Plaintiff
Plaintiff’s
asserts
property
that:
and
Defendant
funds;
Lt.
Defendant
Whitely
John
withheld
Doe
conspired
with Defendant Whitely to do the same; Defendants Mercado and
Lagana did not respond to Plaintiff’s grievances; and Defendant
Lagana, being the administrator of the prison facility, did not
intervene
in
the
said
events.
See
D.E.
No.
1
¶¶
4,
6.
Plaintiff also asserted that he commenced no prior actions in
federal court.
See id. ¶ 2.
The
Court
Supreme
detailed
the
standard
for
summary
dismissal of a complaint in Ashcroft v. Iqbal, 556 U.S. 662
(2009).
The Court examined Rule 8(a)(2) of the Federal Rules of
Civil Procedure, which provides that a complaint must contain “a
short and plain statement of the claim showing that the pleader
is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
Citing its
opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)
for the proposition that “[a] pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a
cause of action will not do,’” Iqbal, 556 U.S. at 672 (quoting
Twombly,
550
U.S.
at
555),
the
Supreme
Court
held
that,
to
prevent a summary dismissal, a civil complaint must now allege
“sufficient factual matter” to show that the claim is facially
plausible. This then “allows the court to draw the reasonable
inference
that
the
defendant
is
alleged.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2
liable
for
the
misconduct
2009) (citing Iqbal, 129 S. Ct. at 1948).
more
than
allege
the
plaintiff’s
“A complaint must do
entitlement
to
relief.
A
complaint has to ‘show’ such an entitlement with its facts.”2
Id. at 211 (citing Phillips v. Cnty. of Allegheny, 515 F.3d 224,
234-35 (3d Cir. 2008)).
Here,
Defendant
Plaintiff’s
Whitely
fails
deprivation
as
a
of
matter
property
of
law
claim
because
against
the
New
Jersey Tort Claims Act (“NJTCA”), N.J. Stat. Ann. § 59:1-1 et
seq., provides
adequate due process.
The NJTCA provides an
adequate post-deprivation judicial remedy to persons, including
inmates
such
as
Plaintiff,
who
believe
they
were
wrongfully
deprived of property at the hands of prison or jail officials.
See Holman v. Hilton, 712 F.2d 854, 857 (3d Cir. 1983); Asquith
v. Volunteers of Am., 1 F. Supp. 2d 405, 419 (D.N.J. 1998).
Because
the
NJTCA
is
an
available
post-deprivation
remedy
providing due process, Plaintiff's claim regarding the loss of
property and funds will be dismissed.
See id.
Plaintiff’s claims against Defendant John Doe fails for the
same reason and, in addition, for failure to state any facts
rendering Plaintiff’s conspiracy claim plausible.3
2
In determining the sufficiency of a pro se complaint, the Court must be
mindful to construe it liberally in favor of the plaintiff. See Erickson v.
Pardus, 551 U.S. 89, 93-94 (2007) (following Estelle v. Gamble, 429 U.S. 97,
106 (1976)); see also United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
3
The Court presumes Plaintiff intended to raise a Section 1985 conspiracy
claim. A claim under § 1985 is different from a § 1983 one because there is
no requirement of state action under the former.
However, a plaintiff must
prove the following elements under § 1985: (1) a conspiracy; (2) for the
3
Plaintiff’s claims against Defendants Mercado
are
also
deficient.
Since
it
is
well
and Lagana
established
that
“[p]risoners are not constitutionally entitled to a grievance
procedure and the state creation of such a procedure does not
create any federal constitutional rights,” Wilson v. Horn, 971
F. Supp. 943, 947 (E.D. Pa. 1997), a failure to respond to an
inmate’s grievances “does not violate his rights to due process
and is not actionable.”
Stringer v. Bureau of Prisons, 145 F.
App’x 751, 753 (3d Cir. 2005) (citing Antonelli v. Sheahan, 81
F.3d 1422, 1430 (7th Cir. 1996)).
based
on
his
Plaintiff’s claim against
Defendant
Lagana
supervisory
position
is
also
invalid.
See Iqbal, 556 U.S. at 676; Monell v. New York City
Dept. of Social Servs., 436 U.S. 658, 691 (1978).
Ordinarily, the plaintiff may be granted “leave [to amend,]
. . . when justice so requires.”
See Foman v. Davis, 371 U.S.
purpose of depriving any person or class of persons of the equal protection
of the laws or of equal privileges and immunities under the laws; (3) some
act in furtherance of the conspiracy committed or caused to be committed by
the conspirators; and (4) that the plaintiff was injured in his person or
property, or was deprived of having and exercising any right or privilege of
a citizen of the United States.
See Griffin v. Breckenridge, 403 U.S. 88,
102-03 (1971); Bethel v. Jendoco Constr. Corp., 570 F.2d 1168 (3d Cir. 1978).
The Motion at bar sufficiently addressed Plaintiff’s conspiracy challenge
and, therefore, it shall suffice to merely state that, since “[t]he linchpin
for conspiracy is agreement,” Bailey v. Bd. of Cty. Comm'rs, 956 F.2d 1112,
1122 (11th Cir. 1992)); to survive a motion to dismiss, a plaintiff asserting
a civil rights conspiracy claim must plead the facts showing an actual
agreement between the parties.
See Great W. Mining & Mineral Co. v. Fox
Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010) (“a plaintiff must assert
facts from which a conspiratorial agreement can be inferred”). Moreover, “a
plaintiff must show . . . that ‘some racial, or . . . class-based,
invidiously discriminatory animus lay behind the conspirators’ action,’”
Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 267-68 (1993)
(quoting Griffin, 403 U.S. at 102)). The Complaint here failed to even hint
at any fact showing a conspiracy against Plaintiff.
4
178, 182 (1962); accord Lorenz v. CSX Corp., 1 F.3d 1406, 1414
(3d Cir. 1993).
However, “[a]llowing leave to amend where there
is a stark absence of any suggestion by the plaintiffs [may]
cure
the
defects
in
the
pleadings
.
.
.
would
frustrate
Congress's objective in enacting this statute of provid[ing] a
filter at the earliest stage (the pleading stage) to screen out
lawsuits that have no factual basis.” Cal. Pub. Emps.’ Ret. Sys.
v.
Chubb
Corp.,
394
F.3d
126,
164
(3d
Cir.
2004)
(internal
quotation marks & citation omitted). Here, Plaintiff cannot cure
the deficiencies of his claims by re-pleading.
Therefore, his
Complaint will be dismissed with prejudice.
Finally,
the
Court
takes
judicial
notice
of
Plaintiff’s
prior actions litigated in this District, see Idowu v. Holder,
No. 13-304 (ES); Idowu v. Boone, No. 10-5480 (RMB); Idowu v.
Beaton, No. 08-2294 (KSH), and in the United States Court of
Appeals for the Third Circuit.
See Idowu v. Boone, U.S.C.A. No.
12-4128; Idowu v. Att’y General, U.S.C.A. No. 12-2954.
The Court notes the incompatibility of said record with
Plaintiff’s
statements
that
he
had
no
previous
lawsuits
in
federal court4 and takes this opportunity to advise Plaintiff
4
“Rule 201(b) . . . permits a district court to take judicial notice of facts
that are ‘not subject to reasonable dispute in that [they are] either[:] (1)
generally known within the territorial jurisdiction of the trial court[;] or
(2) capable of accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.” In re NAHC, Inc. Sec. Litig., 306
F.3d 1314, 1331 (3d Cir. 2002) (quoting Fed. R. Evid. 201(b)).
5
that
such
litigation
practice,
if
continued,
might
subject
Plaintiff to sanction, if appropriate.
For
proceed
the
in
foregoing
this
matter
reasons,
in
forma
Plaintiff’s
pauperis
application
will
be
granted.
Plaintiff’s Complaint will be dismissed with prejudice.
An appropriate Order follows.
s/ Esther Salas
ESTHER SALAS
United States District Judge
6
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