Brett v. Tully

Full title: FRANK BRETT, Plaintiff, v. UNITED STATES MARSHAL MR. TULLY, Defendant.

Court: UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Date published: Jun 29, 2015

Civil Action No. 15-4197 (MAS) (DEA) (D.N.J. Jun. 29, 2015)

Opinion

Civil Action No. 15-4197 (MAS) (DEA)

06-29-2015

FRANK BRETT, Plaintiff, v. UNITED STATES MARSHAL MR. TULLY, Defendant.

MICHAEL A. SHIPP UNITED STATES DISTRICT JUDGE

NOT FOR PUBLICATION

MEMORANDUM ORDER ON APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES

This matter comes before the Court on the application of Plaintiff Frank Brett to proceed without prepayment of fees under 28 U.S.C. § 1915. (Application, ECF No. 1-2.) The Court will grant the application on the strength of Plaintiff's allegation of indigence but dismiss the Complaint (ECF No. 1) because it fails to state a claim upon which relief may be granted. See 28 U.S.C. §1915(e)(2)(B)(ii).

Plaintiff asserts two claims: (1) a claim under Bivens v. Six Unknown Federal Narcotics Agents, or an implied private action for damages against federal officers who have allegedly violated a citizen's constitutional rights, 403 U.S. 388 (1971), and (2) a claim under 42 U.S.C. § 1983. Plaintiff brings suit against a U.S. Marshal. Plaintiff requests $1 million in damages.

In order to state a valid Bivens claim, a plaintiff must "allege the violation of a clearly established constitutional right." Siegert v. Gilley, 500 U.S. 226, 231 (1991). Reading the allegations of the Complaint liberally, Plaintiff has not specified a cognizable constitutional right in connection with his Bivens claim. Plaintiff asserts Defendant harassed him and called him names. In asserting a Bivens action, a plaintiff "must plead sufficient factual matter" in support of a claim of a violation of constitutional right. See Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009).

As noted, Plaintiff also asserts a § 1983 claim. Section 1983 does not provide a right of action against federal officers. See Wheedlin v. Wheeler, 373 U.S. 647, 650 & n.2 (1963). Accordingly, Plaintiff's § 1983 claim also fails.

Accordingly,

IT IS, on this 29^th day of June 2015, ORDERED that:

1) Plaintiff's application to proceed in forma pauperis is hereby granted pursuant to 28 U.S.C. § 1915;

2) The Clerk of the Court shall file the Complaint without prepayment of fees or security;

3) The Complaint is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim; and

4) The Clerk of the Court shall mark this matter CLOSED.

/s/ _________

MICHAEL A. SHIPP

UNITED STATES DISTRICT JUDGE