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KAREEM ABDUL BLOCKER v. J. BELLUSCI

November 29, 2010

KAREEM ABDUL BLOCKER, PLAINTIFF,
v.
J. BELLUSCI, ET AL., : DEFENDANTS.



Kareem Abdul Blocker, Pro Se 618476/162061C Southern State Correctional Facility 4295 Route 47 Delmont, NJ 08314

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

OPINION APPEARANCES:

Plaintiff, Kareem Abdul Blocker, currently confined at the Southern State Correctional Facility, Delmont, New Jersey, seeks to bring this action alleging violations of his constitutional rights in forma pauperis, without prepayment of fees pursuant to 28 U.S.C. § 1915. Based on Plaintiff's affidavit of indigence and prison account statement, the Court will grant his 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 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, Plaintiff's claims will be dismissed, without prejudice.

BACKGROUND

Plaintiff asserts that on January 12, 2010, he was in the day room when defendant Officer Bellusci told everyone that there was going to be a wing search, and made everyone relocate. When Plaintiff was in the sergeant's office he was told to put his hands on the walls, and he was cuffed and taken to "compound unit 1 left lock up."

On January 13, 2010, Plaintiff was given three disciplinary charges by defendant Sergeant Waldin. It appears that contraband was found in his two lockers. Plaintiff pled not guilty to the charges and claimed he was "set up." He was found guilty of the charges, with the finding being upheld on appeal. Plaintiff received 545 days of administrative segregation, 485 days loss of commutation time, and 30 days detention time. He asserts that his constitutional rights were violated because he "wasn't a problem on his unit, [his] conditions of [his] health w[ere] violated by these charges, which the chargers [knew] that [he] didn't have any of the items." Plaintiff asks for monetary relief.

DISCUSSION

A. STANDARDS FOR A SUA SPONTE DISMISSAL

The Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, §§ 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. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. This action is subject to sua sponte screening for dismissal under both 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, because plaintiff is a prisoner and is proceeding as an indigent.

In determining the sufficiency of a pro se complaint, the Court must be mindful to construe it liberally in favor of the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). See also 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.

Recently, the Supreme Court refined this standard for summary dismissal of a complaint that fails to state a claim in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). The Court examined Rule 8(a)(2) of the Federal Rules of Civil Procedure which provides that a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2).*fn1 Citing its recent opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), for the proposition that "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do,'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555), the Supreme Court held that, to prevent a summary dismissal, a civil complaint must now allege "sufficient factual matter" to show that the claim is facially plausible. This then "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." See id. at 1948. The Supreme Court's ruling in Iqbal emphasizes that a plaintiff must demonstrate that the allegations of his complaint are plausible. See id. at 1949-50; see also Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC Shadyside, 578 F.3d 203, 2009 WL 2501662, *4 (3d Cir., Aug. 18, 2009).

B. SECTION 1983 ACTIONS

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


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