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Malik v. Hannah

February 22, 2006

ABDUS SALAAM MALIK, PLAINTIFF,
v.
LEWIS HANNAH, ET AL., DEFENDANTS.



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

OPINION

Plaintiff Abdus Salaam Malik, a prisoner currently confined at the Monmouth County Correctional Institution, seeks to bring this action in forma pauperis pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. Based on the absence of Plaintiff's institutional account statements, as required by 28 U.S.C. § 1915, this Court will deny Plaintiff's request for leave to proceed in forma pauperis. Plaintiff has also paid the filing fee.

At this time, the Court must review the Complaint under 28 U.S.C. § 1915(e)(2) 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.*fn1

I. BACKGROUND

The following factual allegations are taken from Plaintiff's Complaint and Amended Complaint and are accepted as true for purposes of this review.

On March 28, 2003, officers of the Camden County Police Department came to Plaintiff's home to arrest Stanley Crump. In the course of arresting Crump, the officers forcibly awakened Plaintiff and his family and forced them downstairs. Plaintiff alleges that he was beaten and "hog tied" for no reason. The officers searched Plaintiff's home and, when asked for a warrant, threatened to plant drugs in the house. The officers dropped off Plaintiff outside a hospital. Plaintiff alleges that he has been permanently disabled as a result of the injuries he suffered. He names as defendants the Camden County Police Department and the Camden County Prosecutor's Office.

In April 2003, Plaintiff retained defendant attorney Lewis Hannah to pursue a civil action for damages arising out of the events of March 28, 2003. Defendant Hannah held the information for a period of two years, then resigned without explanation and without filing a civil action.

Plaintiff's complaint is dated July 26, 2005, and was received in this Court on August 4, 2005.

II. STANDARDS FOR A SUA SPONTE DISMISSAL

This Court must dismiss, at the earliest practicable time, certain in forma pauperis and prisoner actions 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); 28 U.S.C. § 1915A (actions in which prisoner seeks redress from a governmental defendant); 42 U.S.C. § 1997e (prisoner actions brought with respect to prison conditions).

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).

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); 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 ...


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