NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOHN C. BLANN, :

: Civil Action No. 10-6307 (NLH)

Plaintiff, :

:

v. : OPINION

:

WALTER MITCHELL, :

:

Defendant. :

APPEARANCES:

Plaintiff pro se

John C. Blann

187958

Atlantic County Justice Facility

5060 Atlantic Avenue

Mays Landing, NJ 08330

HILLMAN, District Judge

Plaintiff John C. Blann, currently detained at Atlantic

County Justice Facility in Mays Landing, New Jersey, seeks to

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

alleging violations of his constitutional rights. Based on his

affidavit of indigence, the Court will grant Plaintiff’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.

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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

granted, or because it seeks monetary relief from a defendant who

is immune from such relief.

I. BACKGROUND

The following factual allegations are taken from Plaintiff’s

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

As to the date of the incident alleged in the Complaint,

Plaintiff states only that it occurred on September 6, without

indicating the year. Plaintiff alleges that he was at the 1

corner of Kentucky and Pacific Avenues in Atlantic City, New

Jersey asking for change because he was homeless. He alleges

that he asked Defendant Walter Mitchell for change, after which

Mitchell used racial slurs against Plaintiff. Plaintiff

indicates that he then retaliated in the name calling. Plaintiff

alleges that Mitchell “almost hit” him at a red light. Plaintiff

alleges that he was subsequently stopped by two Atlantic City

Police Officers under suspicion of robbery. He alleges that at

the time of filing this Complaint, he has been charged with armed

robbery and incarcerated. 

For the purposes of review of the instant Complaint, this 1

Court will presume that Plaintiff is not barred by any statute of

limitations.

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Plaintiff names only Walter Mitchell as a defendant in this

action. He seeks relief in the form of compensation in the

amount of $1.7 million to $500,000.

II. STANDARDS FOR A SUA SPONTE DISMISSAL

This Court must dismiss, at the earliest practicable time,

certain in forma pauperis and prisoner actions that are

frivolous, malicious, fail to state a claim, or seek monetary

relief from a defendant who is immune from such relief. See 28

U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C.

§ 1915A (actions in which prisoner seeks redress from a

governmental defendant); 42 U.S.C. § 1997e (prisoner actions

brought with respect to prison conditions).

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).

In addition, any complaint must comply with the pleading

requirements of the Federal Rules of Civil Procedure. Rule

8(a)(2) requires that a complaint contain “a short and plain

statement of the claim showing that the pleader is entitled to

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relief.” A complaint must plead facts sufficient at least to

“suggest” a basis for liability. Spruill v. Gillis, 372 F.3d

218, 236 n.12 (3d Cir. 2004). “Specific facts are not necessary;

the statement need only ‘give the defendant fair notice of what

the ... claim is and the grounds upon which it rests.’” Erickson

v. Pardus, 127 S.Ct. 2197, 2200 (2007) (citations omitted).

While a complaint ... does not need detailed factual

allegations, 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, see Papasan v. Allain, 478 U.S. 265, 286, 106

S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to

dismiss, courts “are not bound to accept as true a

legal conclusion couched as a factual allegation”). 

Factual allegations must be enough to raise a right to

relief above the speculative level ... .

Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007)

(citations omitted).

The Supreme Court then applied these general standards to a

Sherman Act conspiracy claim.

In applying these general standards to a § 1

[conspiracy] claim, we hold that stating such a claim

requires a complaint with enough factual matter (taken

as true) to suggest that an agreement was made. Asking

for plausible grounds to infer an agreement does not

impose a probability requirement at the pleading stage;

it simply calls for enough fact to raise a reasonable

expectation that discovery will reveal evidence of

illegal agreement. And, of course, a well-pleaded

complaint may proceed even if it strikes a savvy judge

that actual proof of those facts is improbable, and

“that a recovery is very remote and unlikely.” ... It

makes sense to say, therefore, that an allegation of

parallel conduct and a bare assertion of conspiracy

will not suffice. Without more, parallel conduct does

not suggest conspiracy, and a conclusory allegation of

agreement at some unidentified point does not supply

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facts adequate to show illegality. Hence, when

allegations of parallel conduct are set out in order to

make a § 1 claim, they must be placed in a context that

raises a suggestion of a preceding agreement, not

merely parallel conduct that could just as well be

independent action.

The need at the pleading stage for allegations

plausibly suggesting (not merely consistent with)

agreement reflects the threshold requirement of Rule

8(a)(2) that the “plain statement” possess enough heft

to “sho[w] that the pleader is entitled to relief.” A

statement of parallel conduct, even conduct consciously

undertaken, needs some setting suggesting the agreement

necessary to make out a § 1 claim; without that further

circumstance pointing toward a meeting of the minds, an

account of a defendant’s commercial efforts stays in

neutral territory. ...

Twombly, 127 S.Ct. at 1965-66 (citations and footnotes omitted).

The Court of Appeals for the Third Circuit has held, in the

context of a § 1983 civil rights action, that the Twombly

pleading standard applies outside the § 1 antitrust context in

which it was decided. See Phillips v. County of Allegheny, 515

F.3d 224, 234 (3d Cir. 2008) (“we decline at this point to read

Twombly so narrowly as to limit its holding on plausibility to

the antitrust context”). In applying Twombly the court said:

Context matters in notice pleading. Fair notice under

Rule 8(a)(2) depends on the type of case -- some

complaints will require at least some factual

allegations to make out a “showing that the pleader is

entitled to relief, in order to give the defendant fair

notice of what the ... claim is and the grounds upon

which it rests.” Indeed, taking Twombly and the

Court’s contemporaneous opinion in Erickson v. Pardus,

127 S.Ct. 2197 (2007), together, we understand the

Court to instruct that a situation may arise where, at

some point, the factual detail in a complaint is so

undeveloped that it does not provide a defendant the

type of notice of claim which is contemplated by

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Rule 8. Put another way, in light of Twombly, Rule

8(a)(2) requires a “showing” rather than a blanket

assertion of an entitlement to relief. We caution that

without some factual allegation in the complaint, a

claimant cannot satisfy the requirement that he or she

provide not only “fair notice,” but also the “grounds”

on which the claim rests.

Phillips, 515 F.3d at 232 (citations omitted).

More recently, the Supreme Court has emphasized that, when

assessing the sufficiency of any civil complaint, a court must

distinguish factual contentions -- which allege behavior on the

part of the defendant that, if true, would satisfy one or more

elements of the claim asserted -- and “[t]hreadbare recitals of

the elements of a cause of action, supported by mere conclusory

statements.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). 

Although the Court must assume the veracity of the facts asserted

in the complaint, it is “not bound to accept as true a legal

conclusion couched as a factual allegation.” Id. at 1950. Thus,

“a court considering a motion to dismiss can choose to begin by

identifying pleadings that, because they are no more than

conclusions, are not entitled to the assumption of truth.” Id.

Therefore, after Iqbal, when presented with a

motion to dismiss for failure to state a claim,

district courts should conduct a two-part analysis. 

First, the factual and legal elements of a claim should

be separated. The District Court must accept all of

the complaint's well-pleaded facts as true, but may

disregard any legal conclusions. Second, a District

Court must then determine whether the facts alleged in

the complaint are sufficient to show that the plaintiff

has a “plausible claim for relief.” In other words, a

complaint must do more than allege the plaintiff's

entitlement to relief. A complaint has to “show” such

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an entitlement with its facts. See Phillips, 515 F.3d

at 234-35. As the Supreme Court instructed in Iqbal,

“[w]here the well-pleaded facts do not permit the court

to infer more than the mere possibility of misconduct,

the complaint has alleged-but it has not

‘show[n]’-‘that the pleader is entitled to relief.’” 

This “plausibility” determination will be “a

context-specific task that requires the reviewing court

to draw on its judicial experience and common sense.”

Fowler v. UPMC Shadyside, 2009 WL 2501662, 5 (3d Cir. August 18,

2009) (citations omitted).

III. ANALYSIS

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).

Section 1983 provides, in pertinent part, that:

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 ... .

It is unclear here what Constitutional violation Plaintiff

may be alleging against Defendant. Even so, Plaintiff has

alleged no facts to suggest that Defendant is a state actor. 

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 Private parties may be liable under § 1983 only when they

have acted under color of law. Mark v. Borough of Hatboro, 51

F.3d 1137, 1141 (3d Cir.), cert. denied, 516 U.S. 858 (1995)

(quoting Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978)). 

The “under color of state law” requirement of 42 U.S.C. § 1983

has been treated identically to the “state action” requirement of

the Fourteenth Amendment. See Mark, 51 F.3d at 1141 (citing

United States v. Price, 383 U.S. 787, 794 n.7 (1966); Lugar v.

Edmondson Oil Co., 457 U.S. 922, 928 (1982); Rendell-Baker v.

Kohn, 457 U.S. 830, 838 (1982)). State action exists under §

1983 only when it can be said that the government is responsible

for the specific conduct of which a plaintiff complains. Mark,

51 F.3d at 1141-42. “Put differently, deciding whether there has

been state action requires an inquiry into whether ‘there is a

sufficiently close nexus between the State and the challenged

action of [the defendants] so that the action of the latter may

fairly be treated as that of the State itself.’” Id. at 1142

(quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)). 

A private entity can be sued under § 1983 where (1) it “has

exercised powers that are traditionally the exclusive prerogative

of the State, Mark, 51 F.3d at 1142; (2) the State and the

private party act in concert or jointly to deprive a plaintiff of

his rights, Adickes v. S.H. Kress & Co., 398 U.S. 144, 170-171

(1970); (3) the State has permitted a private party to substitute

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his judgment for that of the State, Cruz v. Donnelly, 727 F.2d

79, 81-82 (3d Cir. 1984); or (4) the private party and the State

have a symbiotic relationship as joint participants in the

unconstitutional activity, Edmonson v. Leesville Concrete Co.,

Inc., 500 U.S. 614, 620 (1991); Mark, 51 F.3d at 1143.

See also DeShaney v. Winnebago County Dept. of Social

Services, 489 U.S. 189 (1989) (Fourteenth Amendment's "purpose

was to protect the people from the State, not to ensure that the

State protected them from each other"); Van Ort v. Estate of

Stanewich, 92 F.3d 831, 835 (9th Cir. 1996) (“Individuals . . .

have no right to be free from infliction of [constitutional] harm

by private actors”), cert. denied, 519 U.S. 1111 (1997); Jones v.

Arbor, Inc., 820 F. Supp. 205, 208 (E.D. Pa. 1993) (plaintiff did

not allege that defendant corporation was a state actor or had

such a symbiotic relationship with the state so as effectively to

be an instrumentality of the state).

Plaintiff has alleged no facts to indicate that Defendant

Mitchell, a private citizen, was acting under color of state law. 

As such, Plaintiff’s allegations fail to meet the threshold color

of law requirement and the Complaint shall be dismissed for

failure to state a claim. 

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V. CONCLUSION

The Complaint shall be dismissed with prejudice for failure

to state a claim.2

An appropriate order follows.

At Camden, New Jersey /s/ Noel L. Hillman 

Noel L. Hillman

United States District Judge

Dated: August 9, 2011 

Although the Court recognizes that a pro se pleading is 2

held to less stringent standards than more formal pleadings

drafted by attorneys, see Estelle v. Gamble, 429 U.S. 97, 106

(1976); Haines v. Kerner, 404 U.S. 519, 520 (1972), and leave to

amend should be liberally granted, such grant is not warranted

where it is clear from the face of the pleading that the

deficiencies of the litigant’s factual allegations cannot be

cured by allowing amended pleadings. See Grayson v. Mayview

State Hosp., 293 F.3d 103, 110-111 (3d Cir. 2002); Shane v.

Fauver, 213 F. 3d 113, 117 (3d Cir. 2000). In this case, nothing

alleged by Plaintiff indicates that he could cure the

deficiencies in the Complaint by amending it or that any other

basis for federal jurisdiction exists. 

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