Opinion
Case No. C16-954-TSZ-MAT
08-18-2016
JOSEPH A. ROSARIO, Plaintiff, v. SCORE CORRECTION FACILITY, Defendant.
REPORT AND RECOMMENDATION
On June 20, 2016, plaintiff submitted to this Court for filing a civil rights complaint under 42 U.S.C. § 1983 together with an application to proceed with this action in forma pauperis. (See Dkt. 1.) Plaintiff alleged in his complaint that he was unlawfully detained at the SCORE Jail for 27 days after the court ordered his release. (See Dkt. 1-1 at 3.) Plaintiff identified the SCORE Correction Facility as the lone defendant in this action, and he requested damages in the amount of $37,500.
On July 8, 2016, the Court issued an Order granting plaintiff's application to proceed in forma pauperis. (Dkt. 4.) On the same date, the Court issued an Order declining to serve plaintiff's complaint and granting him leave to amend. (Dkt. 5.) The Court advised plaintiff therein that he had not adequately alleged a cause of action under § 1983 against defendant SCORE Correction Facility because he failed to identify the SCORE "policy" or "custom" which caused the harm alleged in the complaint, and he failed to allege any violation of a federally protected right. (Dkt. 5 at 2.) The Court noted as well that the few facts set forth in the complaint were not sufficient to implicate federal constitutional concerns. (See id.) Plaintiff was granted thirty days within which to file an amended complaint curing the specified deficiencies and was advised that his failure to do so would result in a recommendation that this action be dismissed. (Id.) To date, plaintiff has filed no amended complaint.
When a complaint is frivolous, 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, the Court may dismiss an in forma pauperis complaint before service of process under 28 U.S.C. § 1915(e)(2)(B). Because plaintiff failed to adequately allege a cause of action under § 1983 in his original civil rights complaint, and because he elected not to file an amended complaint, this Court recommends that plaintiff's complaint and this action be dismissed, without prejudice, pursuant to § 1915(e)(2)(B). A proposed order accompanies this Report and Recommendation.
Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit within twenty-one (21) days of the date on which this Report and Recommendation is signed. Failure to file objections within the specified time may affect the right to appeal. Objections should be noted for consideration on the District Judge's motions calendar for the third Friday after they are filed. Responses to objections may be filed within fourteen (14) days after service of objections. If no timely objections are filed, the matter will be ready for consideration by the District Judge on September 9 , 2016 . // //
DATED this 18th day of August, 2016.
/s/_________
Mary Alice Theiler
United States Magistrate Judge