The opinion of the court was delivered by: Simandle, District Judge:
Plaintiff, a federal prisoner confined at the Federal Correctional Institution ("FCI"), Fort Dix, New Jersey brings this civil action alleging violations of his constitutional rights. He has applied to proceed in forma pauperis ("IFP"), pursuant to 28 U.S.C. § 1915. This case was originally terminated for failure to pay the filing fee or properly apply to proceed IFP; however, the case was reopened after Plaintiff submitted a complete IFP application.
At this time, the Court must review the complaint, pursuant to 28 U.S.C. §§ 1915(e) 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 dismissed, without prejudice.
Plaintiff seeks to sue L. Batiste, a counselor at FCI Fort Dix where he is currently incarcerated for relief pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971). He asserts that defendant Batiste violated his First, Eighth, and Fourteenth Amendment rights by harassing him.
Specifically, Plaintiff submitted visitation forms to Batiste for his niece and nephew to visit him at the institution; however, Batiste did not properly act on the forms, and has lied to Plaintiff about receiving and processing them. Plaintiff also asserts that defendant Batiste became angry with him when he brought the issue of the forms before another counselor, when Batiste was purportedly on vacation. Batiste allegedly came into Plaintiff's cell, and told Plaintiff that he was Plaintiff's counselor, and forms should go to him. Plaintiff contends that Batiste's manner and demeanor were "aggressive," and made Plaintiff feel "scared," "harassed," and "intimidated."
Plaintiff claims that Batiste also made known to numerous individuals that Plaintiff requested a BP-8 form from him to file claims against a case manager, which Plaintiff contends was a private matter.
For relief, Plaintiff asks to be transferred to a different facility, specifically, the Manhattan Detention Center, so that he can maintain ties with his family.
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. ...