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Freeman v. McDow

United States District Court, D. New Jersey

May 24, 2018

DONELL FREEMAN, Plaintiff,
v.
MATTHEW MCDOW, Defendant.

          OPINION

          HON. BRIAN R. MARTINOTTI United States District Judge.

         Before this Court its pro se prisoner Donnell Freeman's (“Plaintiff”) filing of a civil rights complaint pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Based on his affidavit of indigence (ECF No. 7), the Court will grant him leave to proceed in forma pauperis and order the Clerk of the Court to file the Complaint.

         At this time, the Court must review the Complaint, 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 reasons set forth below, the Court concludes the Complaint should be dismissed without prejudice.

         I. BACKGROUND

         According to the Complaint, on June 29, 2015, Plaintiff entered a grocery store in Cliffwood, New Jersey pretending to buy groceries.[1] (Comp. ¶ 6.) He asked the cashier for money and when she said no, he went around and ripped out the cash drawer. (Id.) Later, the police arrested Plaintiff and he cooperated. (Id.) Plaintiff “next got the complaint, ” which stated he walked up to the cashier with his hand in his right pocket and pointed it at her while demanding money. (Id.) The complaint also stated Plaintiff physically pushed the cashier and two other employees out of the way, then ripped out the cash drawer. (Id.)

         Defendant McDow was the investigating officer who took witness statements, reviewed the video surveillance and “wrote up the charges.” (Id.) Plaintiff later reviewed the victim's statement taken the day after the incident by follow up officer Detective Nanna, wherein the victim reported that Plaintiff never physically pushed or assaulted her in any way. (Id.) The video surveillance also shows no assault on anyone. (Id.) Officer McDow failed to present this evidence to the prosecutor or grand jury. (Id.)

         Plaintiff was charged with first degree robbery, but later pled guilty to second degree robbery. (Compl. ¶ 7.) Plaintiff is seeking monetary compensation. (Id.)

         II. LEGAL STANDARD

         A. Standard for a Sua Sponte Dismissal

         Pursuant to the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 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 42 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. This action is subject to sua sponte screening for dismissal under 28 U.S.C. § 1915(e)(2)(B) and 1915A because Plaintiff is a prisoner who is proceeding as indigent.

         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. 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.” 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 are liberally construed, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted).

         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 ... 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 ...

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