WITHERSPOON v. KAHN et al

Filing 2

OPINION. Signed by Judge Stanley R. Chesler on 11/6/2014. (ld, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DESMOND WITHERSPOON,
Plaintiff,
v.
KHAN and PARTNER LEBRON,
Defendant.

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Civil Action No. 14-6821 (SRC)

OPINION

CHESLER, District Judge
This matter comes before the Court on the application filed by Plaintiff Desmond
Witherspoon (“Plaintiff” or “Witherspoon”) to proceed in forma pauperis without prepayment of
fees, pursuant to 28 U.S.C. § 1915. Based on Plaintiff’s affidavit of indigence, the Court finds
that Plaintiff qualifies for in forma pauperis status pursuant to 28 U.S.C. § 1915. However,
having thoroughly reviewed Plaintiff’s pleading, the Court will dismiss the Complaint pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii).
At the outset, the Court notes that because Plaintiff is proceeding pro se, the Court
construes the pleadings liberally and holds them to a less stringent standard than those filed by
attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972). Even so, under 28 U.S.C. § 1915, which
governs proceedings filed in forma pauperis, the Court must examine the merits of the claims
asserted and dismiss a case if it determines that the action cannot or should not proceed. The
statute provides as follows:
Notwithstanding any filing fee, or any portion thereof, that may
have been paid, the court shall dismiss the case at any time if the
court determines that –
(A) the allegation of poverty is untrue; or

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(B) the action or appeal –
(i)

is frivolous or malicious;

(ii)

fails to state a claim on which relief may be
granted; or

(iii)

seeks monetary relief against a defendant
who is immune from such relief.

28 U.S.C. § 1915(e)(2).
The one-page Complaint sets forth the following allegation: “At apox [sic] 11:41P.M.
Tuesday Oct. 28th in Jersey City two officers approached me in a degrading manner as well as
Publicly humiliating me.” No other facts are pled. To the extent Plaintiff may be attempting to
seek relief under 42 U.S.C. § 1983 for a violation of his Fourth Amendment protections, his
claim must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
The applicable standard of review for dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
is the same as the standard for a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6). Grayson v. Mayview State Hosp., 293 F.3d 103 (3d Cir. 2002). To state a claim that
survives a Rule 12(b)(6) motion to dismiss, a complaint must contain “enough facts to state a
claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). “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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court cannot draw such an inference from the
Complaint filed by Witherspoon.

For these reasons, the Court will permit Plaintiff’s Complaint to be filed without
prepayment of the filing fee but will simultaneously order it to be dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii). An appropriate Order will be filed.

s/Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge
Dated: November 6, 2014

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