The opinion of the court was delivered by: JOEL PISANO, District Judge
Plaintiff Sherod H. Mair ("Mair"), a prisoner confined at
Northern State Prison in Camden, New Jersey ("CCCF"), seeks to
bring this action in forma pauperis pursuant to
28 U.S.C. § 1915 (1998). Based upon his affidavit of indigence and account
statement, this Court will (1) grant Plaintiff's application to
proceed in forma pauperis; (2) direct the Clerk of the Court to
file the Complaint without pre-payment of the filing fee; (3)
assess the $250.00 filing fee against Plaintiff; (4) direct the
New Jersey Department of Corrections ("DOC") to deduct an initial partial filing fee payment of $4.72 from Plaintiff's prison
account and forward same to the Clerk of the Court, when funds
exist in Plaintiff's account; and (5) direct the DOC to forward
payments from Plaintiff's prison account to the Clerk of the
Court each month the amount in the account exceeds $10.00, until
the $250.00 filing fee is paid in full, regardless of the outcome
of the litigation.*fn1 See 28 U.S.C. § 1915 (a), (b).
Pursuant to 28 U.S.C. §§ 1915(e) (2) and 1915A, the Court has
reviewed the Complaint to identify cognizable claims. The Court
will dismiss the Complaint pursuant to 28 U.S.C. §§ 1915 (e) (2)
(B) (ii) and 1915A (b) (1) for failure to state a claim upon
which relief may be granted.
Plaintiff brings this action pursuant to Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971),*fn2 seeking damages for alleged violations of his
rights secured by the Constitution and laws of the United States.
Defendants are Mullen and Larson, federal probation officers.
(Compl., ¶ 6.)
Plaintiff states the following facts in support of his claims:
Mr Mullen violated my probation on October 6, 2003,
after he had given me permission to leave to the
military base on August 19, 2003. He purposely
violated me to keep me in jail. Also, I was found not
guilty of a rape charge. Mr. Mullen and his
supervisor Mr. Larson call me a rapist every chance
they get. I'm suing for economic loss, damages to
reputation, mental and emotional stress, stress put
on my family, and defamation of character. (Compl.,
(Compl., ¶ 6.)
The Prison Litigation Reform Act, Pub.L. No. 104-134, §§
801-810, 110 Stat. 1321-66, 1321-77 (1996), requires the Court to
review a complaint in a civil action which seeks redress from a
government employee, or in which a plaintiff is proceeding in
forma pauperis, and to dismiss any claim that is frivolous,
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. 28 U.S.C. §§ 1915 (e) (2) (B), 1915A. A. Standard for Dismissal
Rule 8(a) (2) requires a complaint to include "a short and
plain statement of the claim showing that the pleader is entitled
to relief." Fed.R.Civ.P. 8 (a) (2); accord Leatherman v.
Tarrant County Narcotics Intelligence and Coordination Unit,
507 U.S. 163, 168 (1993). Plaintiff is "required to `set forth
sufficient information to outline the elements of his claim or to
permit inferences to be drawn that these elements exist.'" Kost
v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (quoting 5A
Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 1357, at 340 (2d ed. 1990)). The Court "must
determine whether, under any reasonable reading of the pleadings,
the plaintiff? may be entitled to relief, and . . . must accept
as true the factual allegations in the complaint and all
reasonable inferences that can be drawn therefrom." Nami v.
Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (citing Holder v.
Allentown, 987 F.2d 188, 194 (3d Cir. 1993)); Eli Lily & Co. v.
Roussel Corp., 23 F. Supp.2d 460, 474 (D.N.J. 1998) (citing
Nami and Holder).
A pro se complaint is held to less stringent standards than
formal pleadings drafted by lawyers. Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972); Then v. I.N.S., 58 F. Supp.2d 422, 429 (D.N.J. 1999),
aff'd sub nom. Then v. Quarantino, 208 F.3d 206 (3d Cir. 2000).
"Under our liberal pleading rules, during the initial stage of litigation, a
district court should construe all allegations in a complaint in
favor of the complainant" and give "credit to the allegations of
the complaint as they appear? in the complaint." Gibbs v.
Roman, 116 F.3d 83, 86 (3d Cir. 1997); see also Kulwicki v.
Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992). But a court need not
credit a complaint's "bald assertions" or "legal conclusions"
when deciding whether dismissal is appropriate. Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997); see also
Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th
Cir. 1993) ("[C]onclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to prevent a
motion to dismiss."). "When it appears beyond doubt that no
relief could be granted under any set of facts which could be
proved consistent with the allegations of the complaint, a
dismissal pursuant to Rule 12(b) (6) is proper." Robinson v.
Fauver, 932 F. Supp. 639, 642 (D.N.J. 1996) (citing Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)). The Court will construe the
Complaint as raising a claim of violation of Plaintiff's
Fourteenth Amendment right to due process of law because of the
wrongful revocation of his probation.
Claims brought under Bivens are typically analyzed under the
same methodology as claims brought under 42 U.S.C. § 1983, as a
Bivens action is the nonstatutory counterpart of a suit brought pursuant to § 1983, and is aimed at federal rather than state
officials. Island Online, Inc. v. Network Solutions, Inc.,
119 F. Supp.2d 289, 304 (E.D.N.Y. 2000). In order to state a Bivens
claim, a plaintiff must show (1) that he has been deprived of a
right secured by the Constitution and the laws of the United
States; and (2) that a defendant or defendants acted under color
of federal law in depriving him of that right. See Van Strum
v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991); Sixth Camden Corp.
v. Evesham Tp., 420 F.Supp. 709, 718 (D.N.J. 1976). Plaintiff
also must assert and prove some causal connection between a
Defendant and the alleged wrongdoing in order to recover against
that Defendant.*fn3 See, e.g., Mt. Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977);
Lee-Patterson v. New Jersey Transit Bus Operations, Inc.,
957 F. Supp. 1391, 1401-02 (D.N.J. 1997). "A defendant in a civil
rights action must have personal involvement in the alleged wrongs; liability cannot be predicated
solely on the operation of respondeat superior." Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing
Parratt v. Taylor, 451 U.S. 527, 537 n. 3 (1981)). Causal
connection is shown where a Defendant (1) participated in
violating Plaintiff's rights; (2) directed others to violate
them; (3) as the person in charge, had knowledge of and
acquiesced in his subordinates' violations; or (4) tolerated past
or ongoing misbehavior. The Court will now analyze Plaintiff's
claim to determine whether dismissal pursuant to
28 U.S.C. §§ 1915 (e) (2) (B) and 1915A (b) (1) is warranted.
Plaintiff's claim for damages is barred because a favorable
judgment would necessarily imply the invalidity of his
confinement. See Heck v. Humphrey, 512 U.S. 477, 486-87
(1994) (civil rights claim under § 1983 seeking damages for
allegedly unconstitutional imprisonment is not cognizable under §
1983 if a favorable judgment would necessarily imply the
invalidity of plaintiff's confinement unless "the conviction or
sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized
to make such determination, or called into question by a federal
court's issuance of a writ of habeas corpus"). See also Crow
v. Penry, 102 F.3d 1086, 1087 (10th Cir. 1996) (barring § 1983 claim
alleging false statements by probation officer, as Heck
"applies to proceedings that call into question the fact or
duration of parole or probation"); Wilson v. McKeown, 2003 WL
21715322, *2 (D.Del. July 24, 2003) (§ 1983 claim alleging
wrongful parole revocation barred under Heck).
Plaintiff's claim respecting his wrongful incarceration for
violation of probation is not cognizable under Bivens because
the finding of his probation violation has been neither reversed,
expunged, declared invalid, or called into question through a
writ of habeas corpus. See Heck, supra. See also Almahdi
v. Rodriquez, 2005 WL 1115209 (D.N.J. Apr 27, 2005) (barring
Bivens claim pursuant to Heck). Before proceeding under
Bivens in the present circumstances, Plaintiff must pursue a
habeas corpus action, which requires that he first exhaust
available state court remedies with respect to probation issues
before seeking federal habeas relief. Under these ...