GILBERT v. ALL-STOR SELF STORAGE Doc.

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Case 2:06-cv-00997-FSH-PS Document 2 Filed 03/15/2006 Page 1 of 6

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

BRIAN N. GILBERT, :
: Civil Action No. 06-997 (FSH)
Plaintiff, :
:
v. : OPINION
:
ALL-STOR SELF STORAGE, :
:
Defendant. :

APPEARANCES:

BRIAN N. GILBERT, Plaintiff pro se

#11205
Passaic County Jail
11 Marshall Street
Paterson, New Jersey 07503

HOCHBERG, District Judge

Plaintiff Brian N. Gilbert (“Gilbert”), currently confined

at the Passaic County Jail in Paterson, New Jersey, seeks to

bring this action in forma pauperis pursuant to 42 U.S.C. § 1983.

Based on his affidavit of indigence and current absence of three

qualifying dismissals within 28 U.S.C. § 1915(g), the Court will

grant Gilbert’s application to proceed in forma pauperis pursuant

to 28 U.S.C. § 1915(a) and order the Clerk of the Court to file

the Complaint.

At this time, the Court must review the Complaint to

determine whether it should be dismissed as frivolous or

malicious, for failure to state a claim upon which relief may be

Dockets.Justia.com
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granted, or because it seeks monetary relief from a defendant who

is immune from such relief. For the reasons stated below, the

Court finds that the Complaint should be dismissed in its

entirety with prejudice.

I. BACKGROUND

The following factual allegations are taken from the

Complaint and are accepted as true for purposes of this review.

Gilbert alleges that the defendant, All-Stor Self Storage, a

private entity, allowed another private citizen, Lisa Barrett, to

take valuable property belonging to plaintiff while it was stored

by defendant, without plaintiff’s permission. He claims his

property had sentimental value to him and was worth $10,000.00.

Gilbert seeks to recover $60,000.00 from defendant.

II. STANDARDS FOR A SUA SPONTE DISMISSAL

The Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-

134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996),

requires a district court to review a complaint in a civil action

in which a prisoner is proceeding in forma pauperis or seeks

redress against a governmental employee or entity. The Court is

required to identify cognizable claims and to sua sponte dismiss

any claim that is frivolous, malicious, fails to state a claim

upon which relief may be granted, or seeks monetary relief from a

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defendant who is immune from such relief. 28 U.S.C. §§

1915(e)(2)(B) and 1915A.1

In determining the sufficiency of a pro se complaint, the

Court must be mindful to construe it liberally in favor of the

plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United

States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court must

“accept as true all of the allegations in the complaint and all

reasonable inferences that can be drawn therefrom, and view them

in the light most favorable to the plaintiff.” Morse v. Lower

Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). The Court

need not, however, credit a pro se plaintiff’s “bald assertions”

or “legal conclusions.” Id.

A complaint is frivolous if it “lacks an arguable basis

either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,

325 (1989) (interpreting the predecessor of § 1915(e)(2), the

former § 1915(d)). The standard for evaluating whether a

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Gilbert should also be aware that the PLRA requires Courts
to determine whether a prisoner has, on three or more prior
occasions while incarcerated or detained in any facility, brought
an action or appeal in federal court that was dismissed as
frivolous, malicious, or for failure to state a claim upon which
relief may be granted. If so, the prisoner is precluded from
bringing an action in forma pauperis unless he or she is under
imminent danger of serious physical injury. 28 U.S.C. § 1915(g).
It appears that Gilbert may have had at least one lawsuit
dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, but
he has not yet accrued three strikes under § 1915(g) at this
time.

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complaint is “frivolous” is an objective one. Deutsch v. United

States, 67 F.3d 1080, 1086-87 (3d Cir. 1995).

A pro se complaint may be dismissed for failure to state a

claim only if it appears “‘beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle

him to relief.’” Haines, 404 U.S. at 521 (quoting Conley v.

Gibson, 355 U.S. 41, 45-46 (1957)); Milhouse v. Carlson, 652 F.2d

371, 373 (3d Cir. 1981). However, where a complaint can be

remedied by an amendment, a district court may not dismiss the

complaint with prejudice, but must permit the amendment. Denton

v. Hernandez, 504 U.S. 25, 34 (1992); Alston v. Parker, 363 F.3d

229 (3d Cir. 2004)(complaint that satisfied notice pleading

requirement that it contain short, plain statement of the claim

but lacked sufficient detail to function as a guide to discovery

was not required to be dismissed for failure to state a claim;

district court should permit a curative amendment before

dismissing a complaint, unless an amendment would be futile or

inequitable); Grayson v. Mayview State Hospital, 293 F.3d 103,

108 (3d Cir. 2002) (dismissal pursuant to 28 U.S.C.

§ 1915(e)(2)); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir.

2000) (dismissal pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v.

Harrisburg County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).

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III. ANALYSIS

Gilbert states that he is bringing this action under 42

U.S.C. § 1983. 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
injured in an action at law, suit in equity, or other
proper proceeding for redress ... .

Thus, 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. West v. Atkins, 487 U.S. 42, 48

(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.

1994).

Here, the Complaint alleges that defendant, All-Stor Self

Storage, allowed another private citizen to take property

belonging to plaintiff that was stored by defendant. The

defendant, however, is a private company and clearly was not

acting under color of state law so as to make it liable to

plaintiff under § 1983. Therefore, the defendant is not subject

to § 1983 liability and any claims asserted under § 1983 must be

dismissed for failure to assert a cognizable claim upon which

relief may be granted.

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Moreover, to the extent that Gilbert is alleging a state law

tort claim against the defendant, such claim is subject to

dismissal for lack of jurisdiction. Subject matter jurisdiction

may be predicated on federal question jurisdiction under 28

U.S.C.§ 1331, or diversity jurisdiction under 28 U.S.C. § 1332.

Here, there is no diversity of citizenship between the plaintiff,

who is incarcerated in New Jersey, and the defendant, a private

business entity doing business in Paterson, New Jersey. The

matter in controversy also does not exceed the amount of

$75,000.00. 28 U.S.C. § 1332(a). Therefore, the Court must

dismiss the Complaint for lack of subject matter jurisdiction

because plaintiff does not meet the statutory requirements for

diversity jurisdiction.

IV. CONCLUSION

For all of the reasons set forth above, the Complaint must

be dismissed with prejudice in its entirety as against defendant,

All-Stor Self Storage, for failure to state a cognizable § 1983

claim, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and

1915A(b)(1), and for lack of subject matter jurisdiction with

respect to the alleged state law tort claim. An appropriate

Order follows.

/s/ Faith S. Hochberg

United States District Judge
Dated: March 14, 2006