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WARNER v. SWEENEY

September 12, 2005.

BERNARD WARNER, Plaintiff,
v.
LT. RICHARD SWEENEY, et al., Defendants.



The opinion of the court was delivered by: JEROME SIMANDLE, District Judge

OPINION

Plaintiff, Bernard Warner ("Warner"), currently confined at the Burlington County Detention Center in Mount Holly, New Jersey, seeks to bring this action in forma pauperis pursuant to 28 U.S.C. § 1915. Based on his affidavit of indigence and accompanying account statement, the Court grants Warner's application to proceed in forma pauperis and directs the Clerk of the Court to file the complaint without pre-payment of the filing fee. See 28 U.S.C. § 1915(a), (b).

  Having reviewed the complaint to identify cognizable claims as required under 28 U.S.C. §§ 1915(e)(2) and 1915A, the Court concludes that the Complaint should proceed in part. I. BACKGROUND

  Warner brings this civil rights action, pursuant to 42 U.S.C. § 1983, against the following defendants: Lt. Richard Sweeney of the Burlington Township Police Department ("BTPD"); Detective Stephen Craig of the Burlington County Prosecutor's Office; Detective Deanna Kuzob of the BTPD; Patrol Officer Charles J. Zelaukas of the BTPD; and Liesel Cunningham, the alleged victim. (Complaint, Caption, ¶ 4). The following factual allegations are taken from the Complaint and are accepted as true for purposes of this review.

  On February 25, 2005, an elderly white female, defendant Cunningham, was attacked in her home. Defendant, Lt. Sweeney, apprehended plaintiff several blocks from the crime scene. Warner alleges that Lt. Sweeney lied about probable cause to arrest him and that defendant also illegally seized plaintiff's wallet and jeans from the unlocked garage of plaintiff's girlfriend. Warner further alleges that Lt. Sweeney lied about finding the wallet on Warner and that Sweeney tainted plaintiff's jeans with the victim's blood. (Compl., ¶¶ 4, 6).

  Warner next claims that defendants, Det. Craig and Det. Kuzob, ignored plaintiff's requests for an attorney, to make a phone call, and to use the bathroom. Warner contends that the defendants ignored these requests to force plaintiff to make a confession. He also states that Det. Kuzob maced plaintiff, and then denied plaintiff's request to use the bathroom to wash his eyes. (Compl., ¶¶ 4, 6).

  Warner further alleges that defendant, Patrolman Zelaukas, was in charge of the crime scene log and observed Lt. Sweeney plant tainted evidence without stopping him. Plaintiff contends that Zelaukas let others into the crime scene unit, which served to compromise the integrity of the evidence. (Compl., ¶¶ 4, 6).

  Finally, plaintiff asserts that the victim, Ms. Cunningham lied about plaintiff's involvement in the attack, and made slanderous statements about plaintiff. (Compl., ¶¶ 4, 6).

  Warner seeks monetary damages from these defendants for their public humiliation of him, and for wrongful imprisonment. He also seeks to have it noted on record that he is innocent of all charges. (Compl., ¶ 7).

  II. STANDARDS FOR A SUA SPONTE DISMISSAL

  The Prison Litigation Reform Act ("PLRA"), Pub.L. No. 1041-34, §§ 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.*fn1

  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 complaint is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989) (interpreting the predecessor of § 1915(e)(2), the former § 1915(d)). The standard for evaluating whether a complaint is "frivolous" is an objective one. Deutsch v. United States, 67 F.3d 1080, 1086-87 (3d Cir. 1995). 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). However, 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

  Warner brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his civil rights guaranteed under the United States Constitution. 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, ...

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