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Binns v. Doe

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY


March 24, 2008

JEFFREY BINNS, PLAINTIFF,
v.
PATROLMAN JOHN DOE, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Freda L. Wolfson United States District Judge

ORDER

Plaintiff, a prisoner confined at Middlesex County Adult Correctional Facility, New Brunswick, New Jersey, seeks to file a Complaint in forma pauperis without prepayment of fees pursuant to 28 U.S.C. § 1915. Based on his affidavit of poverty, prison account statement, and the apparent absence of three dismissals within 28 U.S.C. § 1915(g), the Court finds that Plaintiff qualifies for prisoner in forma pauperis status.*fn1 Having thoroughly reviewed Plaintiff's allegations, the Court finds that dismissal of the Complaint is not required by 28 U.S.C. § 1915(e)(2)(B) and 1915A(b) at this stage of the proceeding.

However, the South River Police Department will be dismissed as Defendant in this matter, since a police department is not a "person" amenable to suit under 42 U.S.C. § 1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 (1989) (holding that the Michigan Department of State Police was not a "person" under Section 1983); Ngiraingas v. Sanchez, 858 F.2d 1368 (9th Cir. 1988), aff'd 495 U.S. 182 (1990) ("The Guam Police Department, like the government it serves, is not a person for purposes of Section 1983 liability"); cf. Grabow v. Southern State Correctional Facility, 726 F. Supp. 537, 538-39 (D.N.J. 1989) (the New Jersey Department of Corrections is not a "person" under § 1983).*fn2

IT IS therefore on this 24th day of March , 2007, ORDERED that Plaintiff's application to proceed in forma pauperis is hereby granted; and it is further

ORDERED that the Clerk reopen this matter; and it is further ORDERED that the Clerk shall file the Complaint without prepayment of the filing fee; and it is further

ORDERED that the Complaint may proceed past sua sponte dismissal with respect to Plaintiff's Fourth Amendment excessive forth claims; and it is further

ORDERED that Plaintiff's allegations based on the arresting officer's usage of derogatory language during the arrest are dismissed with prejudice for failure to state a claim upon which relief may be granted; and it is further

ORDERED that Plaintiff's allegations against the South River Police Department are dismissed for failure to state a claim upon which relief may be granted, and the Clerk shall terminate this entity as a Defendant in this action; and it is further

ORDERED that the Clerk shall amend the docket in this matter by clarifying that Defendant "Patrolman John Doe" is "South River Police Department Patrolman who, on October 5, 2007, arrested Jeffrey Binns" (hereinafter "Arresting Officer"); and it is further

ORDERED that, pursuant to 28 U.S.C. § 1915(b), the Clerk shall forward a copy of this Order by regular mail to the Attorney General of the State of New Jersey and the warden of Plaintiff's current place of confinement; and it is further

ORDERED that, pursuant to 28 U.S.C. § 1915(d), the Clerk shall issue summons and the United States Marshal shall serve summons and copies of the Complaint and this Order upon the Arresting Officer;*fn3 and it is further

ORDERED that, pursuant to 42 U.S.C. § 1997e(g)(2), Defendant shall file and serve a responsive pleading within the time specified by Fed. R. Civ. P. 12; and it is further

ORDERED that, pursuant to 28 U.S.C. § 1915(e)(1) and § 4(a) of Appendix H of the Local Civil Rules, the Clerk shall notify Plaintiff of the opportunity to apply in writing to the assigned judge for the appointment of pro bono counsel in accordance with the factors set forth in Tabron v. Grace, 6 F.3d 454 (3d Cir. 1997), which sets forth the requirements for eligibility for appointment of pro bono counsel (in this regard, Plaintiff is advised that such appointment is neither guaranteed nor automatic); and it is further

ORDERED that the Clerk shall enclose with such notice a copy of Appendix H and a form Application for Appointment of Pro Bono Counsel; and it is further

ORDERED that, if at any time Plaintiff seeks the appointment of pro bono counsel, pursuant to Fed. R. Civ. P. 5(a) and (d), Plaintiff shall (1) serve a copy of the Application for Appointment of Pro Bono Counsel by regular mail upon each party at his last known address or, if the party is represented in this action by an attorney, upon the party's attorney at the attorney's address, and (2) file a Certificate of Service with the Application for Pro Bono Counsel; and it is further

ORDERED that Plaintiff is assessed a filing fee of $350.00 which shall be deducted from his prison account pursuant to 28 U.S.C. § 1915(b)(2) in the manner set forth below; and it is further

ORDERED that, pursuant to 28 U.S.C. § 1915(b)(1)(A), the agency having custody of Plaintiff shall deduct the initial fee from Plaintiff's prison account and forward it to the Clerk; and it is finally

ORDERED that, pursuant to 28 U.S.C. § 1915(b)(2), until the $350.00 filing fee is paid, each subsequent month that the amount in Plaintiff's prison account exceeds $10.00, the agency having custody of Plaintiff shall assess, deduct from the Plaintiff's account, and forward to the Clerk payments equal to 20% of the preceding month's income credited to Plaintiff's prison account, with each payment referencing the docket number of this action.


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