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Brian Simmons, A/K/A Omar A. Johnson v. State of New Jersey

December 17, 2010

BRIAN SIMMONS, A/K/A OMAR A. JOHNSON, PLAINTIFF,
v.
STATE OF NEW JERSEY, ET AL., DEFENDANTS.



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

NOT FOR PUBLICATION

OPINION

Plaintiff Brian Simmons, a prisoner confined at New Jersey State Prison in Trenton, New Jersey, seeks to bring this action in forma pauperis pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. By Opinion and Order [6, 7] entered October 8, 2009, this Court (1) dismissed with prejudice all claims against the State of New Jersey, (2) dismissed without prejudice Plaintiff's challenge to the calculation of his sentence, noting that any challenge to the length of his sentence must be brought as a habeas proceeding, (3) dismissed with prejudice all remaining federal claims for failure to state a claim, and (4) dismissed without prejudice Plaintiff's remaining state law claim. In addition, this Court granted Plaintiff leave to move to re-open, attaching to any such motion a proposed amended complaint, should he be able to overcome the deficiencies identified in the Court's Opinion.

This matter is again before the Court pursuant to Plaintiff's submission of a Letter [9] request to re-open and submission of a proposed amended complaint. Having re-opened this matter, this Court will now screen the proposed amended complaint, pursuant to 28 U.S.C. § 1915, to determine whether to grant leave to file.

I. BACKGROUND

In the original Complaint, Plaintiff asserted claims for inadequate medical care, with respect to a case of genital warts, and a challenge to his place of confinement, in a maximum security prison with "lifers." This Court dismissed the medical-care claim for failure to allege facts suggesting "deliberate indifference;" Plaintiff alleged that his medical condition was treated, but that the treatment was inappropriate and caused his condition to worsen. This Court dismissed the "place of confinement" claim because a prisoner has no liberty interest, directly under the Due Process Clause of the Fourteenth Amendment, in a particular place of imprisonment and because Plaintiff failed to allege facts suggesting that his place of confinement violated any state-conferred liberty interest or otherwise constituted an "atypical and significant hardship." In addition, the Court noted that the claims asserted were not appropriate for joinder under the Federal Rules of Civil Procedure, but did not further elaborate on that as the Complaint otherwise failed to state a claim. As noted earlier, Plaintiff was granted leave to submit a proposed amended complaint if he could overcome the deficiencies noted in the Opinion.

In the proposed amended complaint, Plaintiff names as Defendants the University of Medicine and Dentistry of New Jersey, Dr. Johnny Wu, the New Jersey Department of Corrections, the Commissioner of the NJDOC, and the Warden of New Jersey State Prison.

Plaintiff re-asserts the medical-care claim asserted in the original Complaint. However, Plaintiff fails again to allege any facts suggesting deliberate indifference. Accordingly, the claim must again be construed solely as a state-law medical malpractice claim. Plaintiff does not attempt to cure the deficiencies with respect to his claim regarding his place of confinement.*fn1

Instead, Plaintiff asserts a litany of new claims.

Plaintiff asserts a claim for use of excessive force. He alleges that in April 2009, unnamed officers held him down and beat him with night sticks for allegedly refusing to lock in his cell. He alleges that his leg and/or ankle was injured as a result of this incident. He also alleges that he received Motrin for the pain, that x-rays were taken, and that medical staff told him that nothing was wrong with his ankle. He asserts that he has recently been trying to get an ankle brace or an Ace bandage for his ankle. Plaintiff does not identify the individuals who allegedly beat him or who provided, or denied, his medical care. At the end of the paragraph containing these allegations, Plaintiff asserts, without elaboration, "14th Amendment failure to supervise."

Plaintiff asserts that his religious beliefs have been violated, contrary to his rights under the First Amendment. Plaintiff alleges that his food was violated with pine during the month of Ramadan in 2008. Plaintiff alleges that his Quran was taken from him. Plaintiff alleges that he has been accused of being a homosexual, which he asserts is a violation of his religious beliefs. Plaintiff does not identify the individuals alleged to have committed these acts.

Plaintiff asserts that certain medical evidence related to this case has been taken from him. The Court construes this as an attempt to state a claim for denial of access to the courts.

Plaintiff alleges that his music has been stolen from him and has been wired into his cell and into his brain. Plaintiff alleges that the wire in his brain could lead to brain cancer. Plaintiff also alleges that he has refused to provide blood for tests for HIV or Hepatitis, because of fears that he would be injected with HIV. Because of his fears of bacteria in the prison, Plaintiff seeks an order from this Court that all his medical examinations be performed outside the prison.

Plaintiff alleges that since his "altercation," presumably the alleged April 2009 beating for refusing to lock in to his cell, he has not been allowed to take showers or take recreation in the yard.

Plaintiff does not identify which defendants he contends were involved in these various claims or are otherwise liable for these alleged constitutional violations. Nor does Plaintiff specify what relief he seeks.

II. STANDARDS FOR SUA SPONTE SCREENING

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).

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).

In addition, any complaint must comply with the pleading requirements of the Federal Rules of Civil Procedure.

Rule 8(a)(2) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." A complaint must plead facts sufficient at least to "suggest" a basis for liability. Spruill v. Gillis, 372 F.3d 218, 236 n.12 (3d Cir. 2004). "Specific facts are not necessary; the statement need only 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (citations omitted).

While a complaint ... does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a ...


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