United States District Court, D. New Jersey
September 9, 2005.
GABRIEL ALI, Plaintiff,
MR. FREEMAN, Supervisor, Tully House, and MR. FISH, Security, Pathmark, Inc. Defendants.
The opinion of the court was delivered by: DENNIS CAVANAUGH, District Judge
Plaintiff, Gabriel Ali, is currently confined at the Central
Reception and Assignment Facility in West Trenton, New Jersey. He
seeks to bring this action in forma pauperis pursuant to
28 U.S.C. § 1915 and 42 U.S.C. § 1983, alleging violations of his
At this time, the Court must review the Complaint pursuant to
28 U.S.C. §§ 1915(e)(2) and 1915A 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 following reasons, the complaint must be
The following factual allegations are taken from Plaintiff's
Complaint and are accepted as true for purposes of this review.
Plaintiff states that while housed at the Tully House, a
"halfway" house, he was working at the Pathmark supermarket and
was charged with theft for allegedly stealing two packages of AA
batteries. Plaintiff states that he did not steal the batteries,
and provides a receipt evidencing that some exchange regarding
batteries was made.*fn1 Defendant Freeman, the supervisor at
the Tully House charged Plaintiff with theft, resulting in
Plaintiff's loss of halfway house status. Plaintiff also seeks to
sue Mr. Fish, a security guard at Pathmark for violating his due
process rights, and for not having a union representative present
during this incident, which resulted in his being fired. He
states that defendant Fish entrapped him.
Plaintiff seeks a declaratory judgment that his rights were
A. Standard of Review
In 1996, Congress enacted the Prison Litigation Reform Act
("PLRA"), Title VIII of the Omnibus Consolidated Rescissions and
Appropriations Act of 1996, Pub.L. No. 104-134, 110 Stat. 1321
(April 26, 1996). Congress's purpose in enacting the PLRA was
"primarily to curtail claims brought by prisoners under
42 U.S.C. § 1983 and the Federal Tort Claims Act . . . many of which are
routinely dismissed as legally frivolous." Santana v. United
States, 98 F.3d 752, 755 (3d Cir. 1996). A crucial part of the
congressional plan for curtailing meritless prisoner suits is the
requirement, embodied in 28 U.S.C. § 1915A(b), that a court must
dismiss, at the earliest practicable time, any prisoner actions
that are frivolous or malicious, fail to state a claim, or seek
monetary relief from immune defendants.
When determining the sufficiency of a complaint, the Court must
be mindful to construe it liberally in favor of the plaintiff.
See Haines v. Kerner, 404 U.S. 519 (1972); United States v.
Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court should "accept as
true all of the allegations in the complaint and 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, lend credit to 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 520 (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)); Milhouse v. Carlson,
652 F.2d 371, 373 (3d Cir. 1981).
B. 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 laws or
Constitution of the United States and, second, that the alleged
deprivation was committed or caused by a person acting under
color of state law. See West v. Atkins, 487 U.S. 42
(1988); Piecknick v. Pennsylvania, 36 F.3d 1250
, 1255-56 (3d
Cir. 1994). In this case, Plaintiff's claims against defendant Fish must be
dismissed, as defendant Fish, as an employee of Pathmark, is not
a person "acting under color of state law."
C. Plaintiff's Claims Will Be Dismissed.
In a series of cases beginning with Preiser v. Rodriguez,
411 U.S. 475 (1973), the Supreme Court has analyzed the intersection
of 42 U.S.C. § 1983 and the federal habeas corpus statute,
28 U.S.C. § 2254. The Court held that "when a state prisoner is
challenging the very fact or duration of his physical
imprisonment, and the relief he seeks is a determination that he
is entitled to immediate release or a speedier release from that
imprisonment, his sole federal remedy is a writ of habeas
corpus." Id. at 500.
In this case, to the extent that Plaintiff asserts that there
was no probable cause to remove his halfway house status,
Plaintiff challenges the fact of his physical imprisonment.
Therefore, in accordance with Preiser, the claims are
dismissable for failure to state a claim upon which relief may be
granted, pursuant to 28 U.S.C. §§ 1915(e) (2) (b) (ii) and 1915A
Further, it is well-established that a prisoner possesses no
liberty interest arising from the Due Process Clause in a
particular custody level or place of confinement. See, e.g.,
Olim v. Wakinekona, 461 U.S. 238, 245-46 (1983); Hewitt v.
Helms, 459 U.S. 460, 466-67 (1983); Meachum v. Fano, 427 U.S. 215,
224-25 (1976); Montanye v. Haymes, 427 U.S. 236, 242 (1976).
Governments, however, may confer on prisoners liberty interests
that are protected by the Due Process Clause. "But these
interests will be generally limited to freedom from restraint
which, while not exceeding the sentence in such an unexpected
manner as to give rise to protection by the Due Process Clause of
its own force, nonetheless imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of
prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995)
(finding that disciplinary segregation conditions which
effectively mirrored those of administrative segregation and
protective custody were not "atypical and significant hardships"
in which a state conceivably might create liberty interest).
Plaintiff's allegation that he has been deprived of liberty
without due process by being confined in a prison rather than a
halfway house fails to state a claim. See Asquith v.
Department of Corrections, 186 F.3d 407, 411-12 (3d Cir. 1999)
(return to prison from halfway house did not impose "atypical and
significant hardship" on prisoner and, thus, did not deprive him
of protected liberty interest). CONCLUSION
For the reasons set forth above, Plaintiff's complaint will be
dismissed. An appropriate order follows.
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