United States District Court, D. New Jersey
B. KUGLER United States District Judge
Joseph Francis Bozzelli, was a pretrial detainee lodged at
the Camden County Correctional Facility at the time he filed
his pro se civil rights complaint in this action.
Previously, this Court granted plaintiff's application to
proceed in forma pauperis. (See ECF No. 5).
Court must screen the complaint pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A to determine whether the
complaint is frivolous or malicious, fails to state a claim
upon which relief may be granted, or whether it seeks
monetary relief from a defendant who is immune from suit. For
the following reasons, the complaint will be dismissed in its
entirety with prejudice for failure to state a claim upon
which relief may be granted.
allegations of the complaint will be construed as true for
purposes of this screening opinion. Plaintiff names one
defendant in his complaint, Steven Salinger. The complaint
alleges that Mr. Salinger is plaintiff's criminal defense
attorney and a public defender. Plaintiff alleges that Mr.
Salinger used a racial slur when speaking with plaintiff in
June, 2018. Plaintiff brings this complaint pursuant to 42
U.S.C. § 1983. As relief, plaintiff requests that this
court appoint him new counsel.
the Prison Litigation Reform Act, Pub.L. 104-134,
§§ 801-810, 110 Stat. 1321-66 to 1321-77 (Apr. 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. see 28 U.S.C. §
legal standard for dismissing a complaint for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
is the same as that for dismissing a complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6).” Schreane
v. Seana, 506 Fed.Appx. 120, 122 (3d Cir. 2012) (citing
Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.
2000)); Mitchell v. Beard, 492 Fed.Appx. 230, 232
(3d Cir. 2012) (discussing 42 U.S.C. § 1997e(c)(1));
Courteau v. United States, 287 Fed.Appx. 159, 162
(3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)). That
standard is set forth in Ashcroft v. Iqbal, 556 U.S.
662 (2009) and Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007), as explicated by the United States Court of
Appeals for the Third Circuit. To survive the court's
screening for failure to state a claim, the complaint must
allege ‘sufficient factual matter' to show that the
claim is facially plausible. See Fowler v. UPMC
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)
(quoting Iqbal, 556 U.S. at 678). “[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 Twombly, 550 U.S. at 555).
se pleadings, as always, will be liberally construed.
See Haines v. Kerner, 404 U.S. 519 (1972).
Nevertheless, “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).
plaintiff may have a cause of action under 42 U.S.C. §
1983 for certain violations of 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 or
the District of Columbia, 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 injured in an action
at law, suit in equity, or other proper proceeding for
redress, except that in any action brought against a judicial
officer for an act or omission taken in such officer's
judicial capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or declaratory
relief was unavailable.
to state a claim for relief under § 1983, a plaintiff
must allege first, the violation of a right secured by the
Constitution or laws of the United States, and second, that
the alleged deprivation was committed or caused by a person
acting under color of state law. See Harvey v. Plains
Twp. Police Dep't, 635 F.3d 606, ...