United States District Court, D. New Jersey
WALTHER M. RIVERA, Plaintiff,
SGT. C. ZWIEGLE, et al, Defendants.
KEVIN McNULTY, District Judge.
Plaintiff, Walther M. Rivera, is a pretrial detainee at the Warren County Correctional Facility in Belvidere, New Jersey. He filed an original complaint, followed by one or more letters in which he expressed an intention to supplement his claims. On January 24, 2014, I ordered him to submit an all-inclusive amended complaint, containing all of his claims. (ECF 11) Mr. Rivera has done so, and is now proceeding pro se with an amended civil rights complaint asserting claims under 42 U.S.C. § 1983 and state law. (ECF 13) In the interim, defendants Byram Township Police Department and P. Zabita filed a motion to dismiss the complaint for failure to state a claim. Defendant C. Zweigle filed an answer, and thereafter a motion for judgment on the pleadings. (ECF 16, 18, 19, 24)
The Court will first screen the amended complaint pursuant to 28 U.S.C. § 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 amended complaint will be permitted to proceed, but only in part, and only against defendant Zweigle.
The allegations of the amended complaint will be construed as true for purposes of this screening. Mr. Rivera names as defendants (1) Sergeant Charles Zweigle - Police Officer Stanhope Police Department; (2) Lieutenant P. Zabita - Police Officer Byram Township Police Department; and (3) the Byram Township Police Department.
The amended complaint alleges that Mr. Rivera was driving on Route 80 on January 26, 2012, at approximately 11:30 p.m., when he was pulled over by Sgt. Zwiegle, a police officer. Zwiegle allegedly told Rivera that he was pulled over because Zwiegle was looking for three black males in a black vehicle and had seen Mr. Rivera talking to someone in his vehicle. Mr. Rivera alleges that he is a light skinned Hispanic and that his vehicle is light blue.
The amended complaint asserts several theories of liability: racial profiling, illegal search and seizure, false imprisonment, and defamation. It seeks compensatory and punitive damages.
III. STANDARD OF REVIEW
A. Standard for Sua Sponte Dismissal
District courts must perform an initial screening of complaints in civil actions in which a prisoner seeks redress against a governmental employee or entity. See 28 U.S.C. § 1915A(a). Section 1915A(b) directs district courts to dismiss sua sponte 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 See id. § 1915A(b).
"[T]he legal standard for dismissing a complaint for failure to state a claim pursuant to § 1915A is identical to the legal standard employed in ruling on 12(b)(6) motions." See Courteau v. United States, 287 F.Appx. 159, 162 (3d Cir. 2008) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)). Under 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)). The complaint must allege "sufficient factual matter" to show that the claim is facially plausible. See 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).
B. Section 1983 Actions
A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of his 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 or the District of Columbia, 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 party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
Thus, to state a claim for relief under § 1983, a plaintiff must allege, first, the violation of a right secured by the Constitution or laws of the United States, and second, that the alleged deprivation was committed or caused by a person acting under color of state law. See Harvey v. Plains Twp. Police Dep't, 635 F.3d 606, 609 (3d Cir. 2011) (citations omitted); see also West v. Atkins, 487 U.S. 42, 48 (1988).
A. Defendant P. Zabita
The amended complaint's only factual allegation against defendant Zabita is that he "made racial jokes and comments about [plaintiffs] race as well as threats of deportation." (Dkt. No. 13 at p. 4.) Those allegations are insufficient to state a Section 1983 claim. "[A]llegations of verbal abuse or threats, absent any injury or damage, are not cognizable under § 1983." Brown v. Hamilton Twp. Police Dep't Mercer Cnty., N.J., 547 F.Appx. 96, 97 (3d Cir. 2013) (per curiam; not precedential) (citing McBride v. Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001); Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997)); see also Mugavero v. Town of Kearny, No. 12-2439, 2013 WL 3930120, at *3 (D.N.J. July 30, 2013) ("[R]acially discriminatory statements, racial slurs, and racial epithets, on their own, fail to establish liability under section 1983.") (citations omitted).
Accordingly, Mr. Rivera's federal claims against Zabita will be dismissed for failure to state a claim upon which relief may be granted.
To the extent that Mr. Rivera may intend to assert state law claims, I will dismiss them for lack of subject matter jurisdiction. The parties are not alleged to be of diverse citizenship. See 28 U.S.C. § 1332. An exercise of supplemental jurisdiction under 28 U.S.C. § 1367 is inappropriate because there are no federal-law claims against Zabita sufficient to withstand the initial screening of the complaint. See 28 U.S.C. § 1367(c)(3); T.R. v. County of Delaware, No. 13-2931, 2013 WL 6210477, at *8 (E.D. Pa. Nov. 26, 2013) (declining supplemental jurisdiction over state law claims over one defendant where there are no viable claims against that defendant, despite the fact that ...