TURNER v. JOHNSON et al

Filing 3

MEMORANDUM ORDER Dismissing MARCIA M. WALDRON from Case. USMS to serve summons and Defendants to file an answer to Complaint. If at any time prior to the filing of a notice of appearance by Defendants, Plaintiff seeks the appointment of pro bono coun sel; Plaintiff shall (1) serve a copy of the application by regular mail upon each party at his last known address and (2) file a Certificate of Service. Signed by Judge Peter G. Sheridan on 3/15/2017. (Blank Pro Bono Counsel form mailed to Plaintiff via USPS.) (km, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JUAN IBN-DON MUMIT TURNER,
Civil Action No. 17-0541 (PGS)
Plaintiff,
v.

:

MEMORANDUM AND ORDER

STEVEN JOHNSON, et al.,
Defendants.

This matter comes before the Court on a civil rights Complaint filed by Plaintiff Juan Ibn
Don Mumit Turner. Plaintiff is a convicted prisoner confined at the New Jersey State Prison in
Trenton, New Jersey. ECF No. 1 at 2. The Complaint asserts denial of access to the courts claims
against prison officials and the Clerk of Court, Marcia L. Waldron, for the Third Circuit Court of
Appeals. ECF No. 1 at 1. As Plaintiff has been granted informa pauperis status, the Court must
review the Complaint to see if it is subject to dismissal under 28 U.S.C. §1915(e)(2)(B), on the
account that it is frivolous or malicious, fails to state a claim on which relief may be granted, or
seeks monetary relief against a defendant who is immune from such relief. It appearing:
1. A plaintiff can pursue a cause of action under

§ 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. 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
.

.

42 U.S.C.

.

.

.

§ 1983. Thus, to state a claim for relief under § 1983, a plaintiff must establish, first,

the violation of a right secured by the Constitution or laws of the United States and, second, that

-i

the alleged deprivation was committed or caused by a person acting under color of state law. Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50-1 (1999); Morrow v. Balaski, 719 F.3d 160, 1667 (3d Cir. 2013).

2. The Complaint fails to state a claim against Waldron. The allegations in the Complaint
center around Plaintiffs assertions that the prison’s delay in delivering his legal mail, which
included an order denying his federal habeas petition, resulted in his loss of opportunity to appeal
the habeas denial. ECF No. 1 at 6. The Court fails to see how any of those allegations would
implicate Waldron. Indeed, as Plaintiff himself admits in the Complaint, “the prison not the federal
clerk is more likely responsible for the opinion reaching me two months late[,]” Id., and there is
no allegation whatsoever explaining how Waidron was personally involved in the delay. As such,
Plaintiffs claim against Waldron is dismissed.
3. The balance of the Complaint is permitted to proceed past screening.
IT IS therefore on this

1>

day of

,

2017,

OREDERED that Plaintiffs claim against Defendant Marcia L. Waldron is hereby
DISMISSED, and Waldron is hereby DISMISSED from the case; it is further
ORDERED that, pursuant to 28 U.S.C.

§

1915(d), the Clerk shall issue summons and the

United States Marshal shall serve summons, the Complaint and this Order upon Defendants, with
all costs of service advanced by the United States it is further
;
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ORDERED that, pursuant to 42 U.S.C.

§

1997e(g)(2), Defendants shall file and serve an

answer, see Fed. R. Civ. P. 12(a)(1)(A); it is further

Alternatively, the U.S. Marshal may notify defendants that an action has been commenced
and request that the defendants waive personal service of a summons in accordance with Fed. R.
Civ. p. 4(d).
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ORDERED that, pursuant to 28 U.S.C.

§

191 5(e)(l) and § 4(a) of Appendix H of the Local

Civil Rules, the Clerk shall notify Plaintiff of the opportunity to apply in writing to the assigned
judge for the appointment of pro bono counsel; and it is further
ORDERED that, if at any time prior to the filing of a notice of appearance by Defendants,
Plaintiff seeks the appointment of pro bono counsel or other relief, pursuant to Fed. R. Civ. P. 5(a)
and (d), Plaintiff shall (1) serve a copy of the application by regular mail upon each party at his
2
last known address and (2) file a Certificate of Service.
ORDERED that the Clerk shall serve a copy of this Order upon Plaintiff by regular mail.

IV(LUL

Peter G. Sheridan, U.S.D.J.

After an attorney files a notice of appearance on behalf of a Defendant, the attorney will
automatically be electronically served all documents that are filed in the case.
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