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BANDA v. N.J. DEPT. OF MENTAL HEALTH SERVICES

August 31, 2005.

JOHN M. BANDA, JR., Plaintiff,
v.
N.J. DEPT. OF MENTAL HEALTH SERVICES, et al., Defendants.



The opinion of the court was delivered by: WILLIAM J. MARTINI, District Judge

OPINION

Plaintiff John M. Banda, Jr. ("Banda"), a civilly-committed person*fn1 currently confined at the Special Treatment Unit Annex ("STU Annex") at Avenel, New Jersey, seeks to bring this action in forma pauperis pursuant to 42 U.S.C. § 1983. Based on his affidavit of indigence with respect to recently filed applications for in forma pauperis status with this Court, the Court will grant Banda's application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) and order the Clerk of the Court to file the Complaint.

  At this time, the Court must review the Complaint to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from such relief. For the reasons stated below, the Court finds that the Complaint should be dismissed.

  I. BACKGROUND

  The following factual allegations are taken from the Complaint and are accepted as true for purposes of this review.

  Banda alleges that the named defendants violated his civil rights in the following manner: (1) New Jersey Department of Human Services ("NJDHS") for "allowing the malpractice and professional misconduct to proceed in their department"; (2) New Jersey Department of Mental Health Services ("NJMHS") for "allowing the malpractice, deliberate mis-diagnosis, professional misconduct to proceed in their department"; (3) STU Annex for allowing the malpractice, deliberate mis-diagnosis, professional misconduct to proceed in their facility; (4) Alicia A. Caputo, clinical psychologist at the STU/Northern Regional Unit ("NRU") in Kearny, New Jersey, and a member of the Treatment Progress Review Committee, for agreeing with the deliberate mis-diagnosis, false allegations, altered reports and groundless theories and opinions as set forth in Banda's annual review; (5) Gregory Gambone, clinical psychologist at STU/NRU, and a Treatment Progress Review Committee member, for intentionally altering reports, misleading investigations, and mis-diagnosing plaintiff, and for agreeing with the annual review report which contained fraudulent allegations; (6) Manuel Isek, clinical psychologist at STU/NRU and a Treatment Progress Review Committee member (same as above); (7) Eleni Marcantonis, clinical psychologist at STU/NRU (same as above); (8) Thomas Schattner, clinical psychologist at STU/NRU (same as above); (9) Michael R. McAllister, psychiatrist at STU/NRU (same as above); (10) Deon Bullard, assistant social worker supervisor at the STU Annex in Avenel (same as above); (11) Carole Lester, clinical psychologist at the STU Annex in Avenel (same as above); (12) Benjamin Liberatore, psychologist at STU/NRU (same as above); (13) Luis Zeiguer, clinical psychologist at STU/NRU (same as above); (14) Ronald "Rusty" Reeves, clinical psychologist at the Hydrangea Hill Psychiatric Associates, Inc., in South Orange, New Jersey (same as above); and (15) Herbert Kaldani, psychologist at STU/NRU (same as above). (Complaint, Caption, ¶¶ 5(b), 5(c)).

  Banda complains that, on April 25, 2005, he received his annual review report from defendant Carole Lester, at the STU Annex in Avenel, which contains altered and false allegations, "trumped-up" and groundless theories and opinions based on deliberate mis-diagnoses, misleading investigations, hearsay, and non-sex related crimes. Banda contests numerous factual allegations about his family history, statements and evidence reviewed, his criminal convictions, and the theories and opinions relied upon by the members of the Treatment Progress Review Committee as discussed in the annual review report. He contends that he was not convicted of a sex offense and therefore should not be committed under the SVPA as a convicted sex offender. (Compl., ¶¶ 8.1-53). In short, Banda challenges his civil commitment. He seeks release from commitment without any restrictions, an expungement of his convictions record, and over $310 million in damages. (Compl., ¶ 9).

  II. STANDARDS FOR A SUA SPONTE DISMISSAL

  This Court must dismiss, at the earliest practicable time, certain in forma pauperis that are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2) (in forma pauperis actions).

  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.

  A pro se complaint may be dismissed for failure to state a claim only if it appears "`beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Haines, 404 U.S. at 521 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Milhouse v. Carlson, 652 F.2d 371, 373 (3d Cir. 1981). Where a complaint can be remedied by an amendment, a district court may not dismiss the complaint with prejudice, but must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34 (1992); Alston v. Parker, 363 F.3d 229 (3d Cir. 2004) (complaint that satisfied notice pleading requirement that it contain short, plain statement of the claim, but lacked sufficient detail to function as a guide to discovery, was not required to be dismissed for failure to state a claim; district court should permit a curative amendment before dismissing a complaint, unless an amendment would be futile or inequitable); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996). III. SECTION 1983 ACTIONS

  A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of his 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

  Banda's § 1983 claim essentially alleges that he was involuntarily committed under the SVPA, in violation of his civil rights based on false information and reports, non-sex related convictions, and deliberate mis-diagnoses by defendants. Banda seeks both monetary damages and release from his involuntary commitment based on the above-referenced challenges to his commitment. In this ...


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