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Smalls v. Riviera Towers Corp.

United States District Court, D. New Jersey, Camden Vicinage

July 19, 2018

PATRICIA SMALLS, Plaintiff,
v.
RIVIERA TOWERS CORP., et al., Defendants.

          OPINION

          RENÉE MARIE BUMB, UNITED STATES DISTRICT JUDGE

         This 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 prejudice.[1]

         Plaintiff has not responded to the Court's April 13, 2018 Order.[2] 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.

         I. Legal Standard

         To 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)).

         In 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).

         Rule 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).

         A 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. 2007).

         II. Analysis

         Plaintiff 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.

         Each of Plaintiff's claims against American Movers fails.[3]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 (1978)).[4]

         Moreover, 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, ...


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