United States District Court, D. New Jersey
PHILIP G. NERI, Plaintiff,
NEW JERSEY STATE PAROLE BOARD, et al., Defendants.
ROBERT B. KUGLER, District Judge.
Plaintiff is proceeding pro se with a second amended civil rights complaint pursuant to 42 U.S.C. § 1983. On August 27, 2013, this Court granted plaintiff's application to proceed in forma pauperis and dismissed plaintiff's first amended complaint without prejudice for failure to state a claim and this case was closed. Plaintiff was given thirty days in which to file a second amended complaint. Plaintiff filed a second amended complaint on September 16, 2013. Therefore, the Clerk will be ordered to reopen this case.
At this time, the Court must review the second amended complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) 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 suit. For the reasons set forth below, the second amended complaint will be dismissed without prejudice for failure to state a claim upon which relief can be granted.
On June 17, 2013, the Court received plaintiff's original complaint in this case. On August 1, 2013, plaintiff submitted his first amended complaint. On August 27, 2013, the Court dismissed the first amended complaint without prejudice. First, the Court noted that the majority of plaintiff's first amended complaint concerned his parole revocation proceedings. Ultimately, it was determined that plaintiff's claims related to his parole revocation proceedings were barred by Heck v. Humphrey, 512 U.S. 477 (1994), as plaintiff had not alleged that the Parole Board's decision has ever been rendered invalid. Furthermore, the Court determined that plaintiff had failed to state a claim with respect to his allegations of cruel and unusual punishment due to the conditions of confinement and his violation of his free exercise of religion rights. Plaintiff was given leave to file a second amended complaint to correct these deficiencies.
On September 16, 2013, the Court received plaintiff's second amended complaint. ( See Dkt. No. 8.) Plaintiff once again challenges his parole revocation in his second amended complaint. Indeed, he claims that he had to wait 142 days for his first parole hearing which violated his right to due process. Furthermore, he alleges that the parole violations as written were vague and ambiguous which also violated his right to due process. Plaintiff also states that his Fifth Amendment right against self-incrimination was violated during the parole revocation proceedings when he was made to take a "maintenance polygraph." He also claims that his due process rights were violated due to possible selective and vindictive prosecution due to the parole revocation proceedings.
Additionally, plaintiff claims that his rights to illegal search and seizure were violated when his parole officer came to his home on October 2, 2012 to do a home visit. Plaintiff states that as a result of this purported illegal search and seizure, the "fruit of the poisonous tree" doctrine should apply. Plaintiff states that he was arrested on October 4, 2012, and that the parole officer added incriminating images and illustrations to plaintiff's report to make it appear that plaintiff was not in parole compliance.
Finally, plaintiff alleges that he has suffered cruel and unusual punishment. As a basis for this claim, plaintiff states that "[i]t could be construed as cruel and unusual punishment to send a man away to prison for doing what other American[s] can do any day of the year." (Dkt. No. 8 at p. 11.) He states that his incarceration constitutes cruel and unusual punishment because, "a person who breaks the law, i.e. murderer, arsonist, gets off for good behavior, whereas a first time parole violator, has to serve a full time sentence, is akin to cruel and unusual punishment, when you factor in that his alleged violations are not illegal or repetitive in nature." ( Id. at p. 12.)
Plaintiff requests that he no longer be on parole and seeks $8.5 million in monetary damages. He further requests the appointment of counsel and an immediate injunction to put to an end plaintiff's parole requirements "so that Plaintiff may properly research, prepare and argue his constitutionally backed civil claim[.]" (Dkt. No. 9 at p. 1.)
III. STANDARD OF REVIEW
A. Standard for Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (Apr. 26, 1996) ("PLRA"), district courts must review complaints in those civil actions in which a prisoner is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B), seeks redress against a governmental employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim with respect to prison conditions, see 28 U.S.C. § 1997e. The PLRA directs district courts to sua sponte dismiss any claim that is frivolous, is 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.
According to the Supreme Court's decision in Ashcroft v. Iqbal, "a pleading that offers labels or conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive sua sponte screening for failure to state a claim, the complaint must allege "sufficient factual matter" to show that the claim is facially plausible. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 483 n.17 (3d Cir. 2012) (quoting Iqbal, 556 U.S. at 678). Moreover, while pro se pleadings ...