Opinion
CIV. NO. 20-1316 (RMB-JS)
07-23-2020
GENO L. MCINTOSH, Plaintiff v. BERNARD J. DELURY, Defendant
NOT FOR PUBLICATION
OPINION
BUMB, DISTRICT JUDGE
Plaintiff Geno L. McIntosh, a pretrial detainee confined in the Atlantic County Justice Facility in Mays Landing, New Jersey, filed this civil rights action on February 10, 2020. (Compl., Dkt. No. 1.) Plaintiff submitted an application to proceed in forma pauperis ("IFP") under 28 U.S.C. § 1915. (IFP App., Dkt. No. 1-1.) 28 U.S.C. § 1915(a) provides, in relevant part,
(a)(1) Subject to subsection (b), any court of the United States may authorize the commencement ... of any suit ... without prepayment of fees ... by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees .... Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress.
(2) A prisoner seeking to bring a civil action ... without prepayment of fees ... in addition to filing the affidavit filed under paragraph (1), shall submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month
period immediately preceding the filing of the complaint or notice of appeal, obtained from the appropriate official of each prison at which the prisoner is or was confined.Plaintiff did not submit a certified prisoner trust account statement, as required by statute.
The Court will administratively terminate this action. Plaintiff may reopen this action if he timely submits a properly completed IFP application or pays $400.00 for the filing and administrative fees. Plaintiff should be aware that, even if granted IFP status, he must pay the $350.00 filing fee in installments, if available in his prison trust account, regardless of whether the complaint is dismissed, see U.S.C. § 1915(b)(1).
U.S.D.C. District of New Jersey Local Civil Rule 54.3(a) provides:
Except as otherwise directed by the Court, the Clerk shall not be required to enter any suit, file any paper, issue any process or render any other service for which a fee is prescribed by statute or by the Judicial Conference of the United States, nor shall the Marshal be required to serve the same or perform any service, unless the fee therefor is paid in advance. The Clerk shall receive any such papers in accordance with L.Civ.R. 5.1(f).
I. Sua Sponte Dismissal
When a prisoner is permitted to proceed without prepayment of the filing fee or when the prisoner pays the filing fee for a civil action and seeks redress from a governmental entity, officer or employee of a governmental entity, 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) and 42 U.S.C. § 1997e(c) require courts to review the complaint and sua sponte dismiss any claims that are (1) frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief against a defendant who is immune from such relief.
Conclusive screening is reserved until the filing fee is paid or IFP status is granted. See Izquierdo v. New Jersey, 532 F. App'x 71, 73 (3d Cir. 2013) (district court should address IFP application prior to conclusive screening of complaint under 28 U.S.C. § 1915(e)(2)).
Courts must liberally construe pleadings that are filed pro se. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Thus, "a pro se complaint, however inartfully pleaded, must be held to 'less stringent standards than formal pleadings drafted by lawyers.'" Id. (internal quotation marks omitted). A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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." Id. (quoting Twombly, 550 U.S. at 556.) Legal conclusions, together with threadbare recitals of the elements of a cause of action, do not suffice to state a claim. Id.
Thus, "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. If a complaint can be remedied by an amendment, a district court may not dismiss the complaint with prejudice but must permit the amendment. Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002). For the reasons discussed below, the Court would dismiss the complaint with prejudice upon conclusive screening. II. DISCUSSION
A. The Complaint
Plaintiff, a pretrial detainee, asserts jurisdiction under 42 U.S.C. § 1983 for alleged violations of his constitutional rights. (Compl., ¶4, Dkt. No. 1.) The Court accepts the factual allegations in the complaint as true for purposes of screening the complaint. The sole defendant is the Honorable Bernard J. Delury, who Plaintiff alleges presided over his state court bench trial and found Plaintiff guilty of assault. (Compl., Dkt. No. 1-2.) Plaintiff alleges Judge Delury relied on witness testimony that was not credible and relied on other unreliable evidence in reaching a guilty verdict. (Id.) For relief, Plaintiff seeks dismissal of his criminal charges. (Compl., ¶5, Dkt. No. 1.)
B. Section 1983 Claims
Plaintiff asserts jurisdiction under 42 U.S.C. § 1983, which 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....To state a claim for relief under § 1983, a plaintiff must allege the violation of a right secured by the Constitution or laws of the United States, and that the constitutional deprivation was caused by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1998); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). II. DISCUSSION
The proper avenue for a state prisoner to challenge his state court conviction is a petition for writ of habeas corpus under 28 U.S.C. § 2254, after exhausting state court remedies. 28 U.S.C. § 2254(b)(1)(A). Even if Plaintiff had sought money damages for a constitutional violation, rather than reversal of his conviction, judges have absolute immunity from actions under 42 U.S.C. § 1983 for their judicial acts, unless taken in complete absence of jurisdiction. Mireles v. Waco, 502 U.S. 9, 11 (1991). Therefore, upon conclusive screening, the Court would dismiss Plaintiff's complaint with prejudice. III. CONCLUSION
The Court will administratively terminate this action, subject to reopening. An appropriate Order follows. DATE: July 23, 2020
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge