MENDEZ v. COUNTY OF MIDDLESEX NEW JERSEY et al

Filing 2

OPINION. Signed by Judge Joel A. Pisano on 11/29/2010. (gxh)

-TJB MENDEZ v. COUNTY OF MIDDLESEX NEW JERSEY et al

Doc. 2

NOT FOR PUBLICATION U N I T E D STATES DISTRICT COURT D I S T R I C T OF NEW JERSEY

T R A V I S MENDEZ, Plaintiff, v. C O U N T Y OF MIDDLESEX, et al., Defendants.

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C i v i l Action No.:10-5420 (JAP)

OPINION

APPEARANCES: T r a v i s Mendez, Pro Se 384716 E s s e x County Correctional Facility 3 5 4 Doremus Avenue N e w a r k , NJ 07105 P I S A N O , District Judge P l a i n t i f f , Travis Mendez, is currently confined as an i m m i g r a t i o n detainee at the Essex County Correctional Facility, N e w a r k , New Jersey. Plaintiff seeks to bring this action in forma

p a u p e r i s , pursuant to 28 U.S.C. § 1915, for violations of his c o n s t i t u t i o n a l rights under 42 U.S.C. § 1983. At this time, the Court must review the complaint pursuant to 2 8 U.S.C. § 1915(e)(2) to determine whether it should be dismissed a s frivolous or malicious, for failure to state a claim upon which r e l i e f may be granted, or because it seeks monetary relief from a d e f e n d a n t who is immune from such relief. r e a s o n s , the complaint will be dismissed. For the following

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BACKGROUND P l a i n t i f f seeks to challenge his guilty plea, which resulted i n a criminal conviction and removal proceedings against him. He

s t a t e s that he was never informed of the immigration consequences w h e n he pled guilty. He is now subject to deportation. Plaintiff

r e c e n t l y filed a post-conviction relief motion in state court to c h a l l e n g e his plea, which was denied in August of 2010. d o e s not indicate whether or not he appealed the denial. Plaintiff does not ask for monetary relief. He asks for a Plaintiff

s t a y of his deportation order, and for this Court to order that h i s guilty plea be vacated. DISCUSSION A. S t a n d a r d of Review T h e Prison Litigation Reform Act ("PLRA"), Pub. L. No. 1 0 4 - 1 3 4 , §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1 9 9 6 ) , requires a district court to review a complaint in a civil a c t i o n in which a prisoner is proceeding in forma pauperis or s e e k s redress against a governmental employee or entity. The

C o u r t is required to identify cognizable claims and to sua sponte d i s m i s s any claim that is frivolous, malicious, fails to state a c l a i m upon which relief may be granted, or seeks monetary relief f r o m a defendant who is immune from such relief. 1 9 1 5 ( e ) ( 2 ) ( B ) and 1915A. See 28 U.S.C. §§

This action is subject to sua sponte

s c r e e n i n g for dismissal under both 28 U.S.C. § 1915(e)(2)(B) b e c a u s e plaintiff is proceeding as an indigent.

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In determining the sufficiency of a pro se complaint, the C o u r t must be mindful to construe it liberally in favor of the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)

( f o l l o w i n g Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Haines v . Kerner, 404 U.S. 519, 520-21 (1972)). v . Day, 969 F.2d 39, 42 (3d Cir. 1992). See also United States The Court must "accept as

t r u e all of the allegations in the complaint and all reasonable i n f e r e n c e s that can be drawn therefrom, and view them in the light m o s t favorable to the plaintiff." Morse v. Lower Merion School The Court need not,

D i s t . , 132 F.3d 902, 906 (3d Cir. 1997).

h o w e v e r , credit a pro se plaintiff's "bald assertions" or "legal conclusions." Id.

R e c e n t l y , the Supreme Court refined this standard for summary d i s m i s s a l of a complaint that fails to state a claim in Ashcroft v . Iqbal, 129 S. Ct. 1937 (2009). The Court examined Rule 8(a)(2)

o f the Federal Rules of Civil Procedure which provides that a c o m p l a i n t must contain "a short and plain statement of the claim s h o w i n g that the pleader is entitled to relief." 8 ( a ) ( 2 ) .1 Fed. R. Civ. P.

Citing its recent opinion in Bell Atlantic Corp. v.

T w o m b l y , 550 U.S. 544 (2007), for the proposition that "[a] p l e a d i n g that offers `labels and conclusions' or `a formulaic r e c i t a t i o n of the elements of a cause of action will not do,'"

Rule 8(d)(1) provides that "[e]ach allegation must be s i m p l e , concise, and direct. No technical form is required." Fed. R . Civ. P. 8(d).

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Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555), the S u p r e m e Court held that, to prevent a summary dismissal, a civil c o m p l a i n t must now allege "sufficient factual matter" to show that t h e claim is facially plausible. This then "allows the court to

d r a w the reasonable inference that the defendant is liable for the m i s c o n d u c t alleged." See id. at 1948. The Supreme Court's ruling

i n Iqbal emphasizes that a plaintiff must demonstrate that the a l l e g a t i o n s of his complaint are plausible. See id. at 1949-50;

s e e also Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC S h a d y s i d e , 578 F.3d 203, 2009 WL 2501662, *4 (3d Cir., Aug. 18, 2009). B. S e c t i o n 1983 Actions A plaintiff may have a cause of action under 42 U.S.C. § 1983 f o r certain violations of his constitutional rights. p r o v i d e s in relevant part: E v e r y person who, under color of any statute, o r d i n a n c e , regulation, custom, or usage, of any State o r Territory . . . subjects, or causes to be subjected, a n y citizen of the United States or other person within t h e jurisdiction thereof to the deprivation of any r i g h t s , privileges, or immunities secured by the C o n s t i t u t i o n and laws, shall be liable to the party i n j u r e d in an action at law, suit in equity, or other p r o p e r proceeding for redress ... . T h u s , to state a claim for relief under § 1983, a plaintiff must a l l e g e , first, the violation of a right secured by the laws or C o n s t i t u t i o n of the United States and, second, that the alleged d e p r i v a t i o n was committed or caused by a person acting under color Section 1983

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of state law.

See West v. Atkins, 487 U.S. 42, 48 (1988);

P i e c k n i c k v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). C. P l a i n t i f f ' s Claims Will Be Dismissed. P l a i n t i f f ' s sole request for relief in this case is release f r o m confinement, and the vacation of his guilty plea. In Preiser

v . Rodriguez, 411 U.S. 475 (1973), the Supreme Court held that " w h e n a state prisoner is challenging the very fact or duration of h i s physical imprisonment, and the relief he seeks is a d e t e r m i n a t i o n that he is entitled to immediate release or a s p e e d i e r release from that imprisonment, his sole federal remedy i s a writ of habeas corpus." Id. at 500. Plaintiff cannot seek

r e l e a s e , or the overturning of his guilty plea, in a complaint f i l e d pursuant to § 1983. P l a i n t i f f ' s recourse would be by way of habeas petition, e i t h e r under 28 U.S.C. § 2254 (to challenge the guilty plea) after e x h a u s t i o n of state court remedies, or by 28 U.S.C. § 2241 (to c h a l l e n g e his confinement as an immigration detainee). CONCLUSION F o r the reasons set forth above, Plaintiff's complaint is dismissed. An appropriate order follows.

/ s / J o e l A. Pisano JOEL A. PISANO U n i t e d States District Judge Dated: November 29, 2010

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