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GIBBONE v. D'AMICO

August 15, 2005.

JAMES T. GIBBONE, II, Plaintiff,
v.
JOHN D'AMICO, JR., et al., Defendants.



The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge

OPINION

Plaintiff, James T. Gibbone, II ("Gibbone"), confined at the South Woods State Prison in Bridgeton, New Jersey at the time he submitted this Complaint for filing, and recently deceased on or about July 25, 2005,*fn1 seeks to bring this action in forma pauperis pursuant to 28 U.S.C. § 1915. Based on plaintiff's affidavit of indigence and his prison account statements, it appears that plaintiff is qualified to proceed as an indigent. Therefore, the Court will grant plaintiff's application to proceed in forma pauperis and direct the Clerk of the Court to file the Complaint without pre-payment of the filing fee.

  Having reviewed the Complaint to identify cognizable claims pursuant to 28 U.S.C. § 1915(e)(2), the Court concludes that the Complaint for damages may proceed in part; however, the claim for injunctive relief directing defendants to schedule a parole eligibility hearing is rendered moot by plaintiff's death.

  I. BACKGROUND

  Gibbone filed this civil rights action under 42 U.S.C. § 1983 as against the following defendants: John D'Amico, Jr., Chairman of the New Jersey State Parole Board (hereinafter, the "Board"), and fictitious John and Jane Does 1-20, employees and/or agents of the Board or the New Jersey Department of Corrections (hereinafter, the "DOC"). (Complaint, Caption, ¶¶ 3-5). The following factual allegations are taken from the Complaint and are accepted as true for purposes of this review.

  Gibbone was convicted of aggravated manslaughter and was sentenced to a 30-year prison term with a 10-year parole disqualifier on June 26, 1992. He received 352 days of jail credits, which allegedly made his first parole eligibility date on or about July 9, 2001. (Compl., ¶¶ 7, 8). It appears that Gibbone was determined ineligible for parole in 2001, although the Complaint does not actually make this allegation. The Complaint does state that Gibbone had a new parole eligibility date on or about March 8, 2005. In October 2004, Gibbone was informed that he would soon have a parole eligibility hearing. The hearing was initially scheduled for January 8, 2005, but was postponed without plaintiff's consent. Gibbone contends that rescheduled hearings of January 22, 2005 and February 8, 2005 also were postponed without his consent. (Compl., ¶¶ 9-13).

  Gibbone complained about these postponements to defendant D'Amico by certified letter, which was received by D'Amico's office on February 24, 2005. Gibbone submitted this Complaint for filing on or about March 17, 2005. At that time, there was no corrective action taken on his complaint to D'Amico, nor was Gibbone rescheduled for a parole eligibility hearing before he filed this Complaint. (Compl., ¶¶ 15-17).

  The Complaint alleges that the defendants "deliberately and capriciously conspired" to deprive plaintiff of his constitutional right to due process, equal protection, access to a tribunal and parole, a fair and impartial hearing, and cruel and unusual punishment. (Compl., ¶¶ 22-29). The Complaint seeks a declaratory judgment that Gibbone's constitutional rights were violated by defendants, and injunctive relief directing defendants to conduct a fair and impartial parole eligibility hearing. The Complaint also asks for compensatory damages in the amount of $50,000.00 and punitive damages in the amount of $10,000.00. (Complaint, "Relief").

  II. STANDARDS FOR A SUA SPONTE DISMISSAL

  The Prison Litigation Reform Act ("PLRA"), Pub.L. No. 104-134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996), requires a district court to review a complaint in a civil action in which a prisoner is proceeding in forma pauperis or seeks redress against a governmental employee or entity. The Court is required to identify cognizable claims and to sua sponte 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) and 1915A.*fn2

  In determining the sufficiency of a pro se complaint, the Court must be mindful to construe it liberally in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court must "accept as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). The Court need not, however, credit a pro se plaintiff's "bald assertions" or "legal conclusions." Id.

  III. SECTION 1983 LIABILITY

  The Complaint asserts an action under 42 U.S.C. § 1983, alleging violations of plaintiff's 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. . . .
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. West v. Atkins, 487 U.S. 42, 48 (1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). IV. ANALYSIS

  There is no federal constitutional right to parole; states, however, may create a parole entitlement protected by the Due Process Clause. See Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7 (1979). See also Board of Pardons v. Allen, 482 U.S. 369 (1987); Prevard v. ...


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