GLOVER v. NEW JERSEY STATE PAROLE BOARD et al
OPINION filed. Signed by Judge Anne E. Thompson on 8/18/2017. (mps)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
AUG 2 5 2017
No. 17-2889 (AET-LHG)
NEW JERSEY STATE PAROLE BOARD,
THOMPSON, District Judge:
Before the Court is Aaron Glover's amended civil. rights
complaint pursuant to 42 U.S.C. § 1983. Amended Complaint,
Docket Entry 3. At this time, the Court must review the
complaint, pursuant to 28 U.S.C. §§ 1915(e) (2) and 1915A 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 such relief. For the reasons set forth below,
the Court concludes that the complaint will be dismissed without
prejudice for failure to state a claim.
Plaintiff alleges the New Jersey State Parole Board
("Parole Board") did not conduct his probable cause and
revocation hearings in the time required under New Jersey law.
6. He states he was returned to Mercer
County Jail on January 20 and transferred to prison on January
23. He claims his probable cause hearing should have been
conducted on February 8, but did not take place until March 7,
Id. He further alleges the revocation hearing took place
on June 20, 2017, which exceeded the permitted amount of time.
Plaintiff originally filed his complaint on April 27, 2017.
This Court administratively terminated the complaint as
Plaintiff did not pay the filing fee or submit a complete in
forma pauperis application. Docket Entry 2. Plaintiff submitted
an in forma pauperis application and amended complaint on June
23, 2017, and the Court granted the in forma pauperis
application. Plaintiff seeks relief in the amount of $500,000
for mental anguish, suffering, and stress. Id.
III. STANDARD OF REVIEW
A. Standards for a Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub. L. No. 104-134,
§§ 801-810, 110 Stat. 1321-66 to 1321-77
(April 26, 1996)
("PLRA"), district courts must review complaints in those civil
actions in which a prisoner is proceeding in forma pauperis,
28 U.S.C. § 1915 (e) (2) (B), seeks redress against a governmental
employee 'or entity, see 28 U.S.C. § 1915A(b), or brings a claim
with respect to prison conditions, see 42 0.S.C. § 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. This action is subject
to sua sponte screening for dismissal under 28 U.S.C. §§
1915 (e) (2) (b) and 1915A because Plaintiff is a prisoner
proceeding in forma pauperis and is seeking relief from a
government entity. _
According to the Supreme Court's decision in Ashcroft 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
(quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). To survive sua sponte
screening for failure to state a claim, 1 the complaint must
allege "sufficient factual matter" to show that the claim is
facially plausible. Fowler v. UPMS
(3d Cir. 2009)
578 F.3d 203, 210
(citation omitted). "A claim has facial
· plausibility when the plaintiff pleads factual content that
"The legal standard for dismissing a complaint for failure to
state a claim p-u rs uan t to 2 8 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 (3ct 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. § 1997e(c) (1));
Courteau v. United States, 287 F. App'x. 159, 162 (3d Cir. 2008)
(discussing 28 U.S.C. § 1915A(b)).
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).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94
(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also
United States v. Day,
969 F.2d 39, 42 (3d Cir. 1992). Although
pro se pleadings are liberally construed, plaintiffs "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)
B. Section 1983 Actions
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 ... 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 ....
1983. 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 West v. Atkins, 487 U.S.
(1988); Malleus v. George,
641 F.3d 560, 563 (3d Cir.
2011); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.
Plaintiff alleges the Parole Board violated his due process
rights when it failed to hold timely probable cause and
revocation proceedings.- His claims for monetary damages against
the ·parole Board are barred by the Eleventh Amendment, however.
·The Eleventh Amendment to the United States Constitution
provides: "The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by citizens of
another State, or by Citizens or Subjects of any Foreign State."
U.S. CONST. amend. XI. The Parole Board, a state agency, is
entitled to Eleventh Amendment immunity from suit in federal
court. See Pennhurst State Sch.
89, 100 (1984)
& Hosp. v. Halderman, 465 U.S.
(" [I]n the absence of' consent a suit in which the
State or one of its agencies or departments_ is named as the
defendant is proscribed by the Eleventh Amendment."). See also
Goodman v. McVey,
428 F. App'x 125 (3d Cir. 2011)
Pennsylvania Board of Probation and Parole is a state agency
entitled to Eleventh Amendment immunity); Madden v. N.J. State
Paro 1 e Ed. , 4 3 8 F . 2 d 118 9 , 119 0 ( 3 d Cir . 19 7 1 )
(per cur i am)
(noting Parole Board is not a person subject to suit under §
1983); Ferguson v.
Isabella, No. 12-2662, 2014 WL 282757, at *3
(D.N.J. Jan. 21, 2014)
(citing cases). The claims against the
Parole Board must be dismissed with prejudice.
To the extent the complaint could be construed as raising
claims against Parole Board Chairman James Plousis, Plaintiff
has failed to state a claim as he has not pled sufficient facts
regarding Chairman Plousis' personal
in the alleged
constitutional violation. See Goodman, 428 F. App'x at 127
plaintiff failed to state claims against parole board
chairperson because claims "under § 1983 cannot be sustained on
the basis of respondeat superior") . As Plaintiff may be able to
allege facts supporting the personal liability of Chairman
Plousis or another individual, Plaintiff shall be permitted to
move to amend his complaint within 30 days of the date of this
opinion and order. Any motion to amend must be accompanied by a
proposed second amended complaint.
Plaintiff should note that when a second amended complaint
is filed, the amended complaint no longer performs any function
in the case and cannot be utilized to cure defects in the second
amended complaint, unless the relevant portion is specifically
incorporated in the second amended complaint. 6 Wright, Miller &
Kane, Federal Practice and Procedure 1476 (2d ed. 1990)
(footnotes omitted). The second amended complaint may adopt some
or all of the allegations in the amended complaint, but the
identification of the particular allegations to be adopted must
be clear and explicit. Id. To avoid con£usion, the safer course
is to file a second amended complaint that is complete in
itself. Id. The second amended complaint may not adopt or repeat
claims that have been dismissed with prejudice by the Court.
For the reasons stated above, the claims against the New
Jersey State Parole Board,are dismissed with prejudice as it is
immune from suit. 28 U.S.C.
1915(e) (2) (B) (iii). The complaint
is dismissed without prejudice for failure to state a claim. 28
1915(e) (2) (B) (ii). Plaintiff may move to amend his
complaint within 30 days.
An appropriate order follows.
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