United States District Court, D. New Jersey
Fontanez, Plaintiff Pro Se
B. SIMANDLE Chief U.S. District Judge.
Plaintiff Pedro Fontanez presumably seeks to bring a civil
rights complaint pursuant to 42 U.S.C. § 1983 against
Camden County. Complaint, Docket Entry 1.
Section 1915(e)(2) requires a court to review complaints
prior to service in cases in which a plaintiff is proceeding
in forma pauperis. The Court must 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. This action is subject to sua
sponte screening for dismissal under 28 U.S.C. §
1915(e)(2)(B) because Plaintiff is proceeding in forma
the reasons set forth below, the Court will dismiss the
complaint without prejudice for failure to state a claim. 28
U.S.C. § 1915(e)(2)(b)(ii).
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. UPMS 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.”
Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303,
308 n.3 (3d Cir. 2014). “[A] pleading that offers
‘labels or conclusions' or ‘a formulaic
recitation of the elements of a cause of action will not
do.'” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007)).
Plaintiff presumably brings this action pursuant to 42 U.S.C.
§ 1983 for alleged violations of Plaintiff's
constitutional rights. In order to set forth a prima
facie case under § 1983, a plaintiff must show:
“(1) a person deprived him of a federal right; and (2)
the person who deprived him of that right acted under color
of state or territorial law.” Groman v. Twp. of
Manalapan, 47 F.3d 628, 633 (3d Cir. 1995) (citing
Gomez v. Toledo, 446 U.S. 635, 640 (1980)).
Generally, for purposes of actions under § 1983,
“[t]he term ‘persons' includes local and
state officers acting under color of state law.”
Carver v. Foerster, 102 F.3d 96, 99 (3d Cir. 1996)
(citing Hafer v. Melo, 502 U.S. 21
(1991)). To say that a person was “acting
under color of state law” means that the defendant in a
§ 1983 action “exercised power [that the
defendant] possessed by virtue of state law and made possible
only because the wrongdoer [was] clothed with the authority
of state law.” West v. Atkins, 487 U.S. 42, 49
(1988) (citation omitted). Generally, then, “a public
employee acts under color of state law while acting in his
official capacity or while exercising his responsibilities
pursuant to state law.” Id. at 50.
Plaintiff has not pled sufficient facts to support a
reasonable inference that a constitutional violation has
occurred as is necessary to survive this Court's review
under § 1915. The majority of the complaint is blank.
Plaintiff has not stated where the events giving rise to his
alleged claim occurred, has not alleged that a person
violated his federal rights, has stated no injuries, and has
requested no relief. Complaint §§ III, IV, V.
Plaintiff states only that the events giving rise to his
claim occurred, “June 2003-2005” and Aug.
2016.” Complaint § III. The sole factual
allegation in the complaint states: “Slept on
Floor.” Even accepting this statement as true for
screening purposes only, there is not enough factual support
for the Court to infer a constitutional violation has
Plaintiff may be able to amend his complaint to address the
deficiencies noted by the Court, the Court shall grant
Plaintiff leave to amend the complaint within 30 days of the
date of this order.
Plaintiff should note that when an amended complaint is
filed, the original complaint no longer performs any function
in the case and cannot be utilized to cure defects in the
amended complaint, unless the relevant portion is
specifically incorporated in the new complaint. 6 Wright,
Miller & Kane, Federal Practice and Procedure 1476 (2d
ed. 1990) (footnotes omitted). An amended complaint may adopt
some or all of the allegations in the original complaint, but
the identification of the particular allegations to be
adopted must be clear and explicit. Id. To avoid
confusion, the safer course is to file an amended complaint
that is complete in itself. Id.
the reasons stated above, the claims arising from
Plaintiff's 2002 confinement are barred by the statute of
limitations and therefore are dismiss with prejudice. The
remainder of the complaint is dismissed without prejudice for
failure to state a claim. The Court will reopen the matter in
the event Plaintiff files an amended complaint within the
time allotted by the Court.