SARBOUKH v. GLADING et al
Filing
6
OPINION. Signed by Judge Jose L. Linares on 11/3/2015. (nr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
J.SARBOUKH,
Civil Action No. 15-6499 (JLL)
Plaintiff,
v.
:
OPINION
JO ASTRID GLADING, et al.,
Defendants.
LINARES, District Judge:
Currently before the Court is the amended complaint of Plaintiff, J. Sarboukh,
(ECF No.
5). Plaintiffs complaint raises several claims purportedly brought pursuant to 42
U.S.C.
§ 1983.
As Plaintiff was previously granted informa pauperis status (ECF No. 3), this Court
must screen
Plaintiff’s complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B) and determine whether it is frivolous,
malicious, fails to state a claim for relief, or seeks damages from a defendant
who is immune. As
the Court finds that Plaintiff’s complaint fails to state a claim for which relief
can be granted,
Plaintiffs complaint will be dismissed without prejudice.
1.
BACKGROUND
Plaintiff is currently civilly committed as a sexually violent predator
at the Special
Treatment Unit in Avenel, New Jersey. On August 31, 2015, Plaintiff filed
a complaint with this
Court purportedly for violations of his civil rights pursuant to 42 U.S.C.
§ 1983. Plaintiffs
complaint was hand written and extremely difficult to read, often
varying in size, clarity,
punctuation, capitalization, etc. (ECF No. 1 at 5). This Court reviewed that complaint
and
dismissed it pursuant to 28 U.S.C.
§ 1915(e)(2)(B) on September 8, 2015. (ECF No. 2, 3). In
this Court’s opinion dismissing the complaint, Plaintiff was given the following instructions
were
he to file an amended complaint:
Plaintiff’s complaint, as demonstrated by the quotations above, was
quite difficult to read and contained numerous notes scrawled in the
margins and frequent bouts of complete illegibility. As such,
should Plaintiff choose to file an amended complaint, he should
write or type the complaint legibly, in a consistent size equivalent to
12 point typed font, and should refrain from adding notes in the
margins. If Plaintiff requires more space than is available in the
form complaint, he should add additional pages rather than overfill
the space provided.
(ECF No, 2 at 12, see also ECF No. 3 at 2).
On October 5, 2015, Plaintiff filed an amended complaint naming only a single defend
ant:
Jo Glading, Petitioner’s “court appointed advocate” from the “Division of Menta
l Health
Advocacy Office.” (ECF No. 5 at 5). Plaintiff’s amended complaint is again rife with
barely
legible text of varying size and notes scrawled in the margins rather than placed upon
additional
sheets of paper. (ECF No. 5 at 6). To the extent that the complaint is legible, it
presents the
following allegations:
Please help me before I get killed by her forced meds [illegible] and
violent attacks [illegible] including but not limited to: Jo Glading
violated ADA rights 9/3/14 [by] aiding and abetting my remedy
form ADA complaint [regarding Plaintiff’s removal from] medical
handicap following [illegible;] civil rights violations 2 sets of
rules[,] 1 for blacks[,] I for Jews[,] that is [illegible] 7/1/14 anti
Semitic hate crime of violence attempt on my life (as a Jew)[;]
aiding and abetting black [illegible] to remove [or] keep[ him]
separate [and ensure Plaintiff is] kept safe from convicted killer of
his family the animal Curtis Austin [of] A Block[,] but for black on
black crimes I know of 2 keep separate and keep safes [Curtis and
2
Pope] [illegible.] [On] 9/1/14 the law clearly states I’m here for the
sole purpose of treatment[,] Jo Glading [has] done nothing to get me
my special tailored treatment since like 2010 and [the] law clearly
state[s that]she has a legal [and] moral obligation to keep me
separate [and] keep me safe when there is a known history of violent
attempts on my life being [illegible] and anti-Semitic hate crimes of
violen[ce]/ sexual assault whenever the state gave her the fiduciary
position of trust and a license to advocate (court appointed to me)
including but not limited to the anti-Semitic hate crimes of violence
she aids and abets to protect my attackers and their rights never
mine! Forlorn forgotten malice negligence[.] Attempts on my life
she laughs [and says] get over it; causing me severe PTSD[,] chest
pains[,] anxiety[, and] panic attacks[.] Add to that my daily US
Federal pt class mail [being] stolen by black racist Erica Brown
[who] ordered it as in-house punishment[.] Jo Glading did nothing
for me again [and] aided and abetted my abuser defendant [illegible]
protecting than the black[ .1 Approx[imately] since 9/1 / 14 same with
federal ADA laws and rights violated[,] same with federal religious
rights violated [for] fair balanced hot cooked Jewish meals[,] same
with federal right to access the courts non-collect legal calls[,] I can
go on [and] on [with] rights violated on her watch she laughs [and
helps my] abuser[,] not to mention illegal search [and] seizure [and]
stolen property which is [a] U.S. Constitutional Right violated
[illegible.]
—
(ECF No. 5 at 6).
As to the relief sought, Petitioner states that he seeks
“Release” to family/loved ones [and] to be treated on an outpatient
basis[,] also relief [and] redress to stop babying the blacks [illegible]
so no other Jew entrusted in her fiduciary position of trust suffers as
I have just as Black Al Sharpton states when its done to them
(Blacks) (Same for a Jew like me) Just as they don’t like it done to
them (Blacks)[,] Jews don’t like it done by them (Blacks) to Jews[.]
Jews suffer pin and suffering too[,] thus [I am] seeking mon[e]tary
relief from said defendant in the amount to be determined for: severe
emotional distress[,] mental anguish[,] sensory deprivation both
physical [and] pain [and] suffering (unable [to] bath[e]) and PTS
[illegible.] [Plaintiff also seeks to r]emove [Defendant’s] license
to
[illegible] [and] release me to loved ones [illegible.]
To sum up
my “relief” [is] in [the] form of “release[,]” stop me from being
denied a life of liberty and mon[ejtary damages sought personally
.
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.
.
[and in Defendant’s] professional[] capacity to be determined[.]
(ECF No, 5 at 7).
II. DISCUSSION
A.
Legal Standard
Per the Prison Litigation Reform Act, Pub. L. No. 104-134,
§ 801-810, 110 Stat. 1321-66
to 1 321 -77 (April 26, 1996) (“PLRA”), district courts must review complaints in those civil actions
in which a plaintiff is proceeding informa pauperis, see 28 U.S.C.
§ 1915(e)(2)(B). The PLRA
directs district courts to 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 This action is subject to sua sponte screening for dismissal under 28 U.S.C.
§
1915(e)(2)(B) because Plaintiff has been granted informapauperis status.
According to the Supreme Court’s decision in AshcroJi v. Iqbal, “a pleading that offers
‘labels or conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.”
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
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. Fowler v. UPMS Shadyside, 578
F.3d
203, 210 (3d Cir. 2009) (citation omitted). “A claim has facial plausibility when the
plaintiff
“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir.
2012)
(citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F.
App’x
230, 232 (3d Cir. 2012) (discussing 28 U.S.C. § 1997e(c)(1)); Courteau v. United
States, 287 F.
App’x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C. 19l5A(b)).
§
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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 Iqbal, 556 U.S. at 678). Moreover, while pro se pleadin
gs are liberally
construed, “pro se litigants still must allege sufficient facts in their complaints
to support a claim.”
Ma/a v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation
omitted) (emphasis
added).
B. Analysis
Plaintiff seeks to make claims against the defendant for alleged violati
ons of his
constitutional rights pursuant to 42 U.S.C.
§ 1983. “To establish a claim under 42 U.S.C. § 1983,
a plaintiff must demonstrate a violation of a right protected by the Consti
tution or laws of the
United States that was committed by a person acting under the color of state
law.” Nicini v.
Morra, 212 F.3d 798, 806 (3d Cir. 2000); see also Woodyard v. Cnty. ofEss
ex, 514 F. App’x 177,
180 (3d Cir. 2013) (the statute provides “private citizens with a means to
redress violations of
federal law committed by state [actors]”). “The first step in evaluating a
section 1983 claim is to
‘identify the exact contours of the underlying right said to have been violate
d’ and to determine
‘whether the plaintiff has alleged a deprivation of a constitutional right at
all.” Nicini, 212 F.3d
at 806 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998)
). As in his prior
complaint, Plaintiff seeks to raise claims that he has been denied access
to the courts through the
lack of non-collect legal calls, that he has been denied his right to the mails,
that he has been denied
his rights of free exercise of religion by the denial of hot cooked religio
us meals, that he has been
denied his rights to liberty under the Fourteenth Amendment, that he has
been subject to unlawful
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searches and seizures in violation of the Fourth Amendment, and that Defendant has failed
to
protect him in violation of his Fourteenth Amendment rights. Petitioner also appear
s to assert a
claim for a violation of the Americans with Disabilities Act and a state law claim for
professional
malpractice or negligence. For the reasons set out in this Court’s previous opinio
n (ECF No. 2),
Plaintiffs religious exercise, mail, access to courts, general fourteenth amendment
liberty claim,
and ADA claim fail to state a claim for relief.
(ECF No. 2 at 7-1 1). Nothing presented in
Plaintiffs amended complaint addresses or otherwise corrects the issues raised
by this Court in
that opinion, and as such these claims continue to fail to state a claim and must
be dismissed
without prejudice. This Court will, however, address Plaintiffs failure to protect
, search and
seizure, and state law claims as they were not previously raised.
An underlying problem with Plaintiffs
§ 1983 claims, including his claim for failure to
protect and for illegal search and seizure, is that Plaintiff has failed to show how the
sole Defendant
named in his amended complaint, Jo Glading, was personally involved in the
vaguely asserted
violations he asserts. “A defendant in a civil rights action must have personal involv
ement in the
alleged wrongs; liability cannot be predicated solely on the operation of respon
deat superior.
Personal involvement can be shown through allegations of personal directi
on or of actual
knowledge and acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195, 1207-0
8, see also Jqbal,
556 U.S. at 675-77. Here, although Plaintiff vaguely alleges that person
s within the Special
Treatment Unit failed to protect him from attacks on his life and that other
unnamed officials
illegally searched and seized his property, the only named Defendant, Jo Gladin
g, is described as
his “court appointed advocate.” Plaintiff has provided no facts which would
connect Glading to
the alleged violations other than his assertions that Glading should be
providing him with further
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advocacy. Indeed, Plaintiff fails to provide enough information to determine what
Glading’s
exact relationship is with Plaintiff In any event, because Plaintiff has failed to plead
Glading’s
personal involvement in these alleged violations, his claims against her fail to
state a claim for
relief and must be dismissed.
2
A ftirther complication with Plaintiff’s claims arises out of the proposed relief sought
in so
much as Plaintiff seeks his release from the Special Treatment Unit. “[A] prisoner in
state custody
cannot use a
§ 1983 action to challenge ‘the fact or duration of his confinement.” Wilkinson v.
Dotson, 544 U.S. 74, 78 (2005) (quoting Preiser v. Rodriguez, 411 U.S. 475, 489
(1973)). A
plaintiff seeking such relief must instead file an action sounding in habeas corpus
. Id. The Court
has therefore stated that “a state prisoner’s
§ 1983 action is barred (absent prior invalidation) no
—
matter the relief sought (damages or equitable relief), no matter the target of the
prisoner’s suit.
if success in that action would necessarily demonstrate the invalidity of confin
ement or its
duration.” Id. at 81-82. As such, to the extent that Plaintiff seeks his “release”
into the custody
of his family, his action challenging his involuntary commitment is barred under
§ 1983 and would
only be actionable as a habeas action. Plaintiff’s fourteenth amendment claims
challenging his
confinement therefore must be dismissed on that basis as well.
The final claim Plaintiff appears to assert is a common law claim for
professional
negligence or malpractice. As all of Plaintiff’s claims over which it has origina
l jurisdiction have
been dismissed, this Court declines to exercise supplemental jurisdiction over
Plaintiff’s state law
2
This Court also notes that Plaintiff’s pleading as to his failure to protect and
search and seizure
claims provide no more than conclusory allegations without any factual suppor
t, and would also
warrant dismissal on that basis. See Iqbal, 556 U.S. at 678.
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claims. See 28 U.S.C.
§ 1 367(c)(3). As this Court has either dismissed or declined to extend
supplemental jurisdiction over all of the claims presented in Plaintiff’s complaint,
Plaintiff’s
amended complaint shall be dismissed in its entirety.
III. CONCLUSION
For the reasons stated above, Plaintiff’s complaint shall be dismissed without prejud
ice for
failure to state a claim for which relief may be granted. Plaintiff may file a second
amended
complaint to cure the deficiencies identified herein within thirty (30) days of the date
of this
Court’s corresponding order. If Plaintiff fails to file an amended complaint within this
period, his
complaint will be dismissed with prejudice. Additionally, as Plaintiff is being afforde
d another
opportunity to amend his complaint despite his failure to comply with this Court’
s prior
instructions, failure to sufficiently state a claim in a second amended complaint will
result in the
complaint being dismissed with prejudice. An appropriate order follows.
n. Jose L. Linares,
tJnited
1 States District Judge
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