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Anderson v. Salerno

United States District Court, D. New Jersey

December 17, 2019

CHARLES B. ANDERSON, JR., Plaintiff,
v.
OFC J. SALERNO, et al., Defendants.

          MEMORANDUM AND ORDER

          HON. BRIAN R. MARTINOTTI United States District Judge

         THIS MATTER is opened to the Court by pro se Plaintiff Charles B. Anderson, Jr., (“Plaintiff”), a prisoner currently confined at Northern State Prison in Newark, New Jersey, upon the filing of an amended civil rights complaint, filed pursuant to 42 U.S.C. § 1983. (ECF No. 3.) Based on his affidavit of indigence (ECF No. 6), the Court grants him leave to proceed in forma pauperis and orders the Clerk of the Court to file the Amended Complaint.

         Federal law requires this Court to screen Plaintiff's Amended Complaint for sua sponte dismissal prior to service, and to dismiss any claim if the claim fails to state a claim upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6) and/or to dismiss any defendant who is immune from suit. See 28 U.S.C. § 1915(e)(2)(B).

         The Court has screened the Complaint in this action for dismissal and determined Plaintiff's claim for excessive force against Defendants Salerno, Wong, Parin, Breddie and Hein, in their individual capacities shall proceed.[1] Plaintiff's claim for sexual assault against Defendant Salerno shall also proceed. Defendants Eichenrauch and Slaughter are dismissed without prejudice because while they are named in the caption, none of the allegations in the body of the Amended Complaint relate to them.

         The failure to protect claim against Defendants Director of Federal Bureau of Prisons, McFarland and Figueroa is also dismissed without prejudice.[2] While Plaintiff alleges he “begged multiple times to be returned back to federal custody with written requests, ” (Am. Compl. 1), there are no allegations he informed these Defendants about any risks to his health or safety. In fact, there are no allegations he provided the Defendants with any reasons why he should be returned to federal custody. Without further information, this claim cannot proceed. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Accordingly, and for good cause appearing, IT IS on this 17th day of December 2019, ORDERED that the Clerk of the Court shall make a new and separate entry marking this matter RE-OPENED; and it is further

         ORDERED that Plaintiff's Application for Leave to Proceed In Forma Pauperis (ECF No. 6) is GRANTED; and it is further

         ORDERED that the Amended Complaint (ECF No. 3) shall be filed; and it is further

         ORDERED that, pursuant to 28 U.S.C. § 1915(b) and for purposes of account deduction only, the Clerk shall serve a copy of this Order by regular mail upon the Attorney General for the State of New Jersey and the warden of Northern State Prison in Newark, New Jersey; and it is further

         ORDERED that Plaintiff is assessed a filing fee of $350.00 and shall pay the entire filing fee in the manner set forth in this Order pursuant to 28 U.S.C. § 1915(b)(1) and (2), regardless of the outcome of the litigation, meaning if Plaintiff's case is administratively terminated or closed, § 1915 does not suspend installment payments of the filing fee or permit refund to the prisoner of the filing fee, or any part of it, that has already been paid; and it is further

         ORDERED that pursuant to Bruce v. Samuels, 136 S.Ct. 627, 632 (2016), if Plaintiff owes fees for more than one court case, whether to a district or appellate court, under the Prison Litigation Reform Act (PLRA) provision governing the mandatory recoupment of filing fees, Plaintiff's monthly income is subject to a simultaneous, cumulative 20% deduction for each case a court has mandated a deduction under the PLRA; i.e., Plaintiff would be subject to a 40% deduction if there are two such cases, a 60% deduction if there are three such cases, etc., until all fees have been paid in full; and it is further

         ORDERED that pursuant to 28 U.S.C. § 1915(b)(2), in each month that the amount in Plaintiff's account exceeds $10.00, the agency having custody of Plaintiff shall assess, deduct from Plaintiff's account, and forward to the Clerk of the Court payment equal to 20% of the preceding month's income credited to Plaintiff's account, in accordance with Bruce, until the $350.00 filing fee is paid. Each payment shall reference the civil docket numbers of the actions to which the payment should be credited; and it is further

         ORDERED that Plaintiff's claim for excessive force against Defendants Salerno, Wong, Parin, Breddie and Hein in their individual capacities shall PROCEED; Plaintiff's claim for sexual assault against Defendant Salerno shall also PROCEED; Defendants Eichenrauch and Slaughter are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A for failure to state a claim upon which relief may be granted; Plaintiff's failure to protect claim against the Director of Federal Bureau of Prisons, McFarland and Figueroa is DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; to the extent Plaintiff wishes to file a second amended complaint to address the deficiencies identified herein, he may to do so in accordance with all federal and local rules; and it is further

         ORDERED that, the Clerk shall mail to Plaintiff a transmittal letter explaining the procedure for completing United States Marshal (“Marshal”) 285 ...


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