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