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Mohamed P. Cisse v. Oscar Aviles

March 31, 2011

MOHAMED P. CISSE, PLAINTIFF,
v.
OSCAR AVILES, ET AL., DEFENDANTS.



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

NOT FOR PUBLICATION

OPINION

Plaintiff Mohamed P. Cisse, currently confined at the Hudson County Correctional Center, Kearny, New Jersey, seeks to bring this action in forma pauperis, alleging violations of his constitutional rights.*fn1

Based on his affidavit of indigence, the Court will grant Plaintiff's 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.*fn2

At this time, the Court must review the complaint pursuant to 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. For the reasons set forth below, the Court concludes that Plaintiff's medical claim, his claim regarding reading materials and his claim regarding the ventilation system will proceed. The remaining claims will be dismissed.

I. BACKGROUND

The following facts are taken from Plaintiffs' complaint and are assumed true for purposes of this review.

Plaintiff is an Immigration and Customs Enforcement ("ICE") detainee currently housed at the Hudson County Correctional Center ("HCCC"). Plaintiff names the following Defendants: Oscar Aviles, the warden of the facility; Lieutenant Rivera; Deputy Warden Eady; Captain Day; Hudson County Correctional Center; Thomas A. Degise, Hudson County Executive; and Sergeant L. Levine.

Plaintiff alleges nine separate claims: (1) violations of "due process" when disciplinary actions are taken against the detainees; (2) ten percent tax on commissary items; (3) detainee grievances are not answered; (4) detainees do not receive newspapers; (5) detainees do not receive novels or other reading material; (6) detainees are forced to go to bed every night at nine p.m.; (7) male detainees are housed in female units which do not have urinals; (8) the housing unit's ventilation system is dirty; and (9) Plaintiff was denied Tylenol for a headache and now suffers from a constant cluster headache.

II. DISCUSSION

A. Legal Standard

1. Standards for a Sua Sponte Dismissal

The Prison Litigation Reform Act, 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). This action is subject to sua sponte screening for dismissal under 28 U.S.C. §§ 1915(e)(2) (B) because Plaintiff 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).

Recently, the Supreme Court refined the 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). Citing its 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 (3d Cir. 2009).

2. 42 U.S.C. § 1983

Plaintiff's claims against Defendants have their jurisdictional basis under 42 U.S.C. § 1983. A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of his or her constitutional rights. Section 1983 provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the ...


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