MAIR v. HICKSON et al
OPINION. Signed by Judge Kevin McNulty on 11/23/2015. (nr, )
UNITEI) STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SHEROD HASTiNGS MAIR, Ii,
Civ. No. 15-8119 (KM) (JBC)
DAVE P. HICKSON, et a!.,
KEVIN MCNULTY, U.S.D.J.
According to the Complaint, the Plaintiff, Sherod Hastings Mair, II, is detained at FCC
Allenwood in White Deer, Pennsylvania, following a finding that he was not guilty of a criminal
offense by reason of insanity. lie is proceeding pro se with a civil rights complaint. Mr. Mair’s
application to proceed informapauperis will be granted and the Clerk will be ordered to file the
The Court must now review the complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B) and
191 5A 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
who is immune from suit. For the reasons set forth below, the federal Bivens and
§ 1983 claims
will be dismissed with prejudice.
The allegations of the complaint are taken as true for purposes of this Opinion. Mr.
Mair’s complaint names as defendants the following persons: (I) Dave P. Hickson; (2) Gordon
“Mr. Mair,” unless otherwise specified, refers to the plaintiff, Sherod Hastings Mair, II.
M. Mair; and (3) Thelma Mair. The complaint alleges that Thelma Mair molested Mr. Mair
beginning when he was five years old in 1972, and again in 1994. The complaint alleges that
Dave P. Ilickson raped Mr. Mair in 1988, and that Gordon Mair molested him in 1994. Mr. Mair
alleges that Thelma Mair was involved, and that he was drugged in connection with these alleged
assaults. 1-le requests that this Court send the three defendants to jail and seeks $20,000 in
Mr. Mair’s complaint, although submitted on the form for a civil rights complaint, does
not indicate whether he is seeking to bring his claims against the defendants under 42 U.S.C.
1983, or under Bivens v. Six Unknown Agents ofFed. Bureau ofNarcotics, 403 U.S. 388 (1971).
For present purposes, the distinction is unimportant. Section 1983 is used to bring constitutional
claims against state officers; Bivens is a parallel means of bringing constitutional claims against
federal officers. See Walker v. Zenk, 323 F. App’x 144, 145 n.1 (3d Cir. 2009) (per curiam)
(citing Egervary v. Young, 366 F.3d 238, 246 (3d Cir. 2004)). They are interpreted and applied
similarly. See Collins v. F.B.I., No. 10—3470, 2011 WL 1627025, at *6 (D.N.J. Apr.28, 2011)
(“The Third Circuit has recognized that Bivens actions are simply the federal counterpart to
1983 claims brought against state officials’ and thus the analysis established under one type of
claim is applicable under the other.”) (internal quotation marks and citations omitted).
A plaintiff may have a cause of action under 42 U.S.C.
§ 1983 for certain violations of
his constitutional rights. Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, 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, or other proper
proceeding for redress, except that in any action brought against a
judicial officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was
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. See Harvey v. Plains Twp.
Police Dep’t, 635 F.3d 606, 609 (3d Cir. 2011) (citations omitted); see also West v. Atkins, 487
U.S. 42, 48 (1988). Under Bivens, the federal counterpart to section 1983, a plaintiff must allege
(1) a deprivation of a right secured by the Constitution or laws of the United States; and (2) that
the deprivation of the right was caused by a person acting under color of federal law.
Under the Prison Litigation Reform Act, Pub.L. 104—134,
801—810, 110 Stat. 1321—66
to 132 1—77 (Apr. 26, 1996) (“PLRA”), district courts must review complaints in those civil
actions in which a prisoner is proceeding informapauperis, see 28 U.S.C.
seeks redress against a governmental employee or entity, see 28 U.S.C.
claim with respect to prison conditions, sec 42 U.S.C.
1915A(b), or brings a
1997e. 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. See 28 U.S.C.
“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28
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 42 U.S.C.
l997e(c)(l)); Courteau v. United States, 287 F.
App’x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C.
§ 1915A(b)). That standard is set forth in
AshcroJi v. Iqbal, 556 U.S. 662 (2009) and Bell Atlaniic Corp. v. Twombly, 550 U.S. 544 (2007),
as explicated by the United States Court of Appeals for the ‘l’hird Circuit. To survive the court’s
screening for failure to state a claim, the complaint must allege “sufficient factual matter” to
show that the claim is facially plausible. See Fowler v. UPIvIC Shadyside, 578 F.3d 203, 210 (3d
Cir. 2009) (citation omitted). “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.” Fair Wind Sailing, Inc. v. Dernpsler, 764 F.3d 303, 308 n.3 (3d Cir. 2014)
(quoting Iqhal, 556 U.S. at 678). “[Al pleading that offers ‘labels or conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.” Iqhal, 556 U .S. at 678 (quoting
Twombly, 550 U.S. at 555).
Pro se pleadings, as always, will be liberally construed. See Haines v. Kerner, 404 U.S.
519 (1972). Nevertheless, “prose litigants still must allege sufficient facts in their complaints to
support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation
omitted) (emphasis added).
A. Section 1983 &Bivens
“To establish a claim under
§ 1983, a plaintiff ‘must establish that she was deprived of a
federal constitutional or statutory right by a state actor.” Frierson v. St. Francis Med. Ctr., 525
F. App’x 87, 90 (3d Cir. 2013) (quoting Kach v. hose, 589 F.3d 626, 646 (3d Cir. 2009))
(emphasis added); see also Veggian v. Camden Bd. of Educ., No. 05-0070, 2007 WL 2900413, at
*3 (D.N.J. Oct. 2, 2007) (“It is well-established
that in order to maintain a
§ 1983 claim for an
alleged constitutional violation, it must be brought against a ‘state actor.”) (citations omitted).
By extension, a Bivens claim can be brought only against a federal official, not a purely
private party. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001) (“The purpose of Bivens
is to deter individual federal officers from committed constitutional violations.”) (citations
omitted); see also Robertson v. Exec. Dir. Brain Inst. Geisinger Med. Ctr., 578 F. App’x 76, 77
(3d Cir. 2014) (“It is well-settled that a Bivens action can oniy be brought against federal
officials, not private entities.”) (citations omitted); Michtavi v. Scism, No. 12-1196, 2013 WL
371643, at *3 (M.D. Pa. Jan. 30, 2013) (dismissing Bivens claim with prejudice against private
individual since he is not amenable to suit under Bivens); Valentazas v. US.P. health Care
Servs. Adrn ‘r, No. 07-1255, 2008 WL 1745659, at *3 (M.D. Pa. Apr. 11, 2008) (“It is wellestablished that Plaintiff may not assert a Bivens claim against a private individual as such
actions are reserved for seeking damages for unconstitutional conduct by federal officials.”)
The complaint contains no allegations that the three defendants acted on behalf of the
state or federal governments. The nature of the allegations makes it highly implausible that the)’
committed these alleged wrongs as state or federal officers. And private parties, not acting for
the state or federal government, are not proper defendants under
To the extent it seeks to allege a
1983 or Bivens.
1983 or Bivens claim against private individuals, the
complaint must be dismissed with prejudice for failure to state a claim upon which relief may be
granted. No other cause of action or basis for federal jurisdiction is suggested or alleged.
The complaint leaves blank the space for identifying each defendant’s state or federal position; I
interpret that as an admission. In an abundance of caution, however, I will entertain a motion for
reconsideration, filed within 14 days, identifying any state or federal position any defendant may have
held when perpetrating these alleged acts. I note also that a private person may become a state actor by
virtue of conspiring with a state actor. See Adams v. Cnty. of Erie, Pa., 558 F. App’x 199, 203 (3d Cir.
2014) (citing cases). Here, too, no state or federal actor is identified at all, and the nature of the
allegations makes it unlikely that there would be one. Again, I would entertain a motion for
reconsideration, filed within 14 days, in which the plaintiff named such a federal or state coconspirator.
B. Initiation of Criminal Proceedings
I liberally interpret Mr. Mair’s request that the three defendants be sent to jail as his
attempt to have the Court initiate criminal proceedings against the defendants. The authority to
institute criminal proceedings, however, does not lie with this Court. “[Tihis Court is without
authority to institute any cruriinal proceedings on [plaintiffs behalf, since
[ill is well established
that private citizens can neither bring a direct criminal action against another person nor can they
petition the federal courts to compel the criminal prosecution of another person.” Alfred v. New
Jersey, No. 13-0332, 2014 WL 2559111, at *3 (D.N.J. June 6,2014) (quotingAbdullah v. New
Jersey, No. 12-4202, 2012 WL 2916738, at *7 (D.N.J. July 16, 2012)) (remaining citation
omitted); see also Anderson v. Soper, No. 15-0055, 2015 WL 273650, at *2 (D.N.J. Jan. 22,
2015) (“The court has no authority to instigate a criminal prosecution; this is an exclusive
function of the prosecutor.”) (citations omitted); Pilkey v. Nash, No. 05-54 19, 2006 WL
1797192, at *1 (D.N.J. June 26, 2006) (“A private plaintiff cannot force a criminal prosecution
because ‘the authority to initiate a criminal complaint rests exclusively with state and federal
prosecutors.”) (quoting Collyer v. Darling, 98 F.3d 211, 222 (6th Cir. 1996)) (remaining
To the extent that the complaint seeks to have the Court initiate criminal charges, then, it
is dimissed with prejudice.
For the foregoing reasons, Mr. Mair’s federal Bivens and
§ 1983 claims are dismissed
with prejudice. An appropriate Order will be entered.
DATED: November23, 2015
United States District Judge
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