United States District Court, D. New Jersey
Berroa, Plaintiff Pro se.
L. HILLMAN, U.S.D.J.
Harry Berroa, a prisoner presently incarcerated at Federal
Correctional Institution (“FCI”) Fort Dix in Fort
Dix, New Jersey, intends to bring a civil rights action
pursuant to Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971), against Defendants Kitchen
Officer Sumner and Warden Ortiz, both of FCI Ft. Dix. Instead
of filing a complaint, Plaintiff has filed a “Notice of
Intent to File Suit.” ECF No. 1.
time, the Court must review Plaintiff's filing, pursuant
to 28 U.S.C. §§ 1915(e)(2) 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 such relief. For the reason set forth below, the
Court will dismiss the Notice without prejudice for failure
to state a claim. 28 U.S.C. §§ 1915(e)(2)(b)(ii)
filed a “Notice of Intent to File Suit and Litigation
Preservation Request of Video Evidence” (the
“Notice”), docketed by the Clerk of the Court as
a complaint, on July 5, 2017. ECF No. 1. Plaintiff's
Notice is only one page long, and there is only a single
factual allegation: “On 6/24/2017 AT 11.20 Plaintiff
was in the East side of Fort Dix prison, inside food service
‘30' receiving his lunch. While the Plaintiff was
exiting the food line Officer Sumner called the Plaintiff a
FAGOT because he asked why his food was missing meat.”
Notice, ¶ 1. The Plaintiff also states in his Notice
that, “You [defendants] have now been served with
Notice that will conclude with a law suit AFTER exhaustion of
AVAILABLE remedies have been concluded.” Notice, ¶
1915(e)(2) and 1915A require a court to review complaints
prior to service in cases in which a plaintiff is proceeding
in forma pauperis and in which a plaintiff is
incarcerated. 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) and 1915A because
Plaintiff is proceeding in forma pauperis and is
also incarcerated. See ECF No. 9 (granting in
forma pauperis application).
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). “‘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) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)). “[A] pleading that offers ‘labels or
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”
Iqbal, 556 U.S. at 678 (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
extent Plaintiff's Notice was construed by the Clerk of
the Court as a complaint under Rule 3 of the Federal Rules of
Civil Procedure and filed as such it must be dismissed
without prejudice for failure to state a claim upon which
relief may be granted. Plaintiff has plainly intended to file the
Notice as a litigation hold notice to Defendants and not as a
civil action, as the Notice by its own terms provides that a
lawsuit will follow after Plaintiff exhausts his
administrative remedies. See Notice, ¶ 2. Under
the Federal Rules of Civil Procedure, there is only one form
of action, the civil action, see Fed.R.Civ.P. 2,
which may only be commenced by filing a complaint,
see Fed.R.Civ.P. 3. The Federal Rules provide no way
to commence a civil action pre-complaint. For this reason,
the Notice must be dismissed.
addition, Plaintiff's Notice must be dismissed because
even if it were styled as a complaint, it fails to provide
sufficient factual allegations to establish a cognizable
legal claim. Here, Plaintiff's only allegation is that
Defendant Kitchen Officer Sumner called him a
“faggot.” Name-calling does not rise to the level
of a constitutional violation. “Verbal harassment of a
prisoner, without more, does not violate the Eighth
Amendment.” Brown v. Deparlos, 492 F.
App'x 211, 215 (3d Cir. 2012). See also DeWalt v.
Carter, 224 F.3d 607, 612 (7th Cir. 2000)
(“Standing alone, simple verbal harassment does not
constitute cruel and unusual punishment, deprive a prisoner
of a protected liberty interest or deny a prisoner equal
protection of the laws”). For this additional reason,
the Notice must be dismissed.
the Court generally grants leave to amend a complaint
pursuant to Grayson v. Mayview State Hosp., 293 F.3d
103, 114 (3d Cir. 2002), unless such amendment would be
inequitable or futile, the Court declines to grant leave to
amend here. Because the Plaintiff states that his filing ...