United States District Court, D. New Jersey, Camden Vicinage
RENÉE MARIE BUMB, UNITED STATES DISTRICT JUDGE
matter comes before the Court on its own motion. On April 13,
2018, this Court issued an Order that, amongst other things,
required Plaintiff to show cause why her claims against
Defendant American Movers, Inc. (“American
Movers”) should not be dismissed for failure to state a
claim. [Dkt. No. 153]. The Court, in its Order, warned
Plaintiff that if she failed to respond by May 3, 2018, her
claims against American Movers would be dismissed, with
has not responded to the Court's April 13, 2018
Order. Accordingly, for the reasons stated in the
Court's April 13, 2018 Opinion, [Dkt. No. 152], and
repeated below, Plaintiffs claims against American Movers
will be dismissed, with prejudice, and this matter will be
terminated. In addition, the Court will enter an Order
requiring Plaintiff to, amongst other things, seek leave of
this Court before filing any further pro se lawsuits
related to the loss of her apartment and personal belongings
at Riviera Towers.
withstand a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “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.” Id. at 663.
“[A]n unadorned, the defendant-unlawfully-harmed me
accusation” does not suffice to survive a motion to
dismiss. Id. at 678. “[A] plaintiff's
obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Twombly,
550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S.
265, 286 (1986)).
reviewing a plaintiff's allegations, a district should
conduct a three-part analysis:
First, the court must take note of the elements a plaintiff
must plead to state a claim. Second, the court should
identify allegations that, because they are no more than
conclusions, are not entitled to the assumption of truth.
Third, when there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement for relief.
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011)
(internal citations, quotations, and modifications omitted)
(quoting Iqbal, 556 U.S. at 675, 679).
12(b)(6) requires the district court to “accept as true
all well-pled factual allegations as well as all reasonable
inferences that can be drawn from them, and construe those
allegations in the light most favorable to the
plaintiff.” Bistrian, 696 F.3d 352, 358 n. 1
(3d Cir. 2012). Only the allegations in the complaint and
“matters of public record, orders, exhibits attached to
the complaint and items appearing in the record of the
case” are taken into consideration. Oshiver
v. Levin, Fishbein, Sedran & Berman, 38 F.3d
1380, 1384 n. 2 (3d Cir. 1994) (citing Chester Cty.
Intermediate Unit. v. Pennsylvania Blue Shield, 896 F.2d
808, 812 (3d Cir. 1990)). A court may also “consider an
undisputedly authentic document that a defendant attaches as
an exhibit to a motion to dismiss if the plaintiff's
claims are based on the document.” Pension Ben.
Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d
1192, 1196 (3d Cir. 1993).
district court may sua sponte dismiss a complaint
under Rule 12(b)(6) after service of process, but must
generally afford the plaintiff notice and an opportunity to
respond before doing so. See Bethea v. Nation of
Islam, 248 Fed.Appx. 331, 333 (3d Cir. 2007)(citing
Oatess v. Sobolevitch, 914 F.2d 428, 430 n. 5 (3d
Cir. 1990)). “However, although disfavored, a sua
sponte dismissal may stand even if the plaintiff is not
provided notice and an opportunity to respond where it is
clear that the plaintiff cannot prevail and that any
amendment would be futile.” Bethea, 248
Fed.Appx. at 333 (citing Chute v. Walker, 281 F.3d
314, 319 (1st Cir. 2002))(additional citation omitted).
Moreover, where civil rights claims are concerned, courts
must afford plaintiffs an opportunity to amend before
dismissing with prejudice unless doing so would be
inequitable or futile. See Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir.
alleges that in connection with the foreclosure of her home
American Movers: (1) unlawfully entered her home without a
warrant; (2) “criminally removed property”; and
(3) are currently in possession of “stolen goods”
taken from Plaintiff's condominium unit. Plaintiff avers
that American Movers' alleged actions violate the Fourth
and Fourteenth Amendments of the Constitution, and 18 U.S.C.
§§ 241 and 242.
Plaintiff's claims against American Movers
fails.First, American Movers is not a state
actor, and thus, Plaintiff's constitutional claims fail
as a matter of law. See Blum v. Yaretsky, 457 U.S.
991, 1002 (1982)(noting that Section 1983 excludes from its
reach “merely private conduct, no matter how
discriminatory or wrongful”)(quoting Shelley v.
Kraemer, 334 U.S. 1, 13 (1948)); see also McCabe v.
Mut. Aid Ambulance Serv., Inc., 2015 U.S. Dist. LEXIS
103766, at *15, 2015 WL 4715260 (W.D. Pa. Aug. 7,
2015)(“It is well recognized, that the Constitution
protects citizens from infringement of their rights by the
government, not by private parties.”) (citing Flagg
Bros., Inc. v. Brooks, 436 U.S. 149, 156
to the extent Plaintiff alleges violations of 18 U.S.C.
§§ 241 and 242, these are criminal statutes, and
they do not authorize private rights of action. See,
e.g., Jung v. Bank of Am., N.A., No.
3:16-CV-00704, 2016 WL 5929273, at *3 (M.D. Pa. Aug. 2,