NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

 :

SHAR-RIK MOLLEY, :

 :

Plaintiff, :

 :

v. :

 :

JUST 4 WHEELS CAR RENTAL :

OFFICE MANAGER, : 

 :

Defendants. :

 :

Civil No. 11-510 (NLH)

OPINION

APPEARANCES:

SHAR-RIK MOLLEY, Plaintiff pro se

#189299

Atlantic County Justice Facility

5060 Atlantic Avenue

Mays Landing, New Jersey 08330

HILLMAN, District Judge

Plaintiff, Shar-Rik Molley (“Molley”), a state inmate

confined at the Atlantic County Justice Facility in Mays Landing,

New Jersey, at the time he submitted the above-captioned

Complaint for filing, seeks to bring this action in forma

pauperis. Based on his affidavit of indigence, the Court will

grant plaintiff’s application to proceed in forma pauperis

(“IFP”) pursuant to 28 U.S.C. § 1915(a) (1998) and order the

Clerk of the Court to file the Complaint.

At this time, this Court must review the Complaint, pursuant

to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, to determine whether the

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Complaint 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. For the reasons set forth below, the Court

concludes that the Complaint should be dismissed without

prejudice for failure to state a cognizable claim of a federal

constitutional violation at this time, and for failure to assert

facts to support diversity jurisdiction under 28 U.S.C. § 1332.

I. BACKGROUND

Plaintiff Molley brings this civil action, pursuant to 42

U.S.C. § 1983, against the defendant, Just 4 Wheels Car Rentals,

Office Manager. (Complaint, Caption and ¶ 3b). The following

factual allegations are taken from the Complaint, and are

accepted for purposes of this screening only. The Court has made

no findings as to the veracity of plaintiff’s allegations.

Molley alleges that, on or about June 15, 2010, he was

involved in a serious car accident where he allegedly sustained

injuries. Molley admits that the defendant rented the car to a

person named Monique, who then loaned the car to her boyfriend,

who did not have a license. Molley was a passenger in the back

seat of the rental car, when the car was struck by another

vehicle. Molley alleges that his seat belt snapped and he was

unconscious for about ten to twenty minutes. He claims that he

suffered knee, back and neck injuries and has been to the

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hospital and to physical therapy for medical treatment. 

(Complaint, ¶¶ 3b and 4).

Molley seeks monetary compensation from the defendant,

namely, he asks that defendant pay his medical bills and for

future medical treatment. (Complaint at ¶ 5 “Relief”).

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

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

1915(e)(2)(B) and 1915A. This action is subject to sua sponte

screening for dismissal under both 28 U.S.C. § 1915(e)(2)(B) an 

§ 1915A.

In determining the sufficiency of a pro se complaint, the

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

plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94

(2007)(following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and

Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). See also 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

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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

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)). See also Erickson, 551 U.S.

at 93-94 (In a pro se prisoner civil rights complaint, the Court

reviewed whether the complaint complied with the pleading

requirements of Rule 8(a)(2)).

However, recently, the Supreme Court revised this standard

for summary dismissal of a Complaint that fails to state a claim

in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). The issue before

the Supreme Court was whether Iqbal’s civil rights complaint

adequately alleged defendants’ personal involvement in

discriminatory decisions regarding Iqbal’s treatment during

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detention at the Metropolitan Detention Center which, if true,

violated his constitutional rights. Id. The Court examined Rule

8(a)(2) of the Federal Rules of Civil Procedure which provides

that a complaint must contain “a short and plain statement of the

claim showing that the pleader is entitled to relief.” 

Fed.R.Civ.P. 8(a)(2). Citing its recent opinion in Bell 1

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), for the

proposition that “[a] pleading that offers ‘labels and

conclusions' or ‘a formulaic recitation of the elements of a

cause of action will not do,’ “Iqbal, 129 S.Ct. at 1949 (quoting

Twombly, 550 U.S. at 555), the Supreme Court identified two

working principles underlying the failure to state a claim

standard:

First, the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to

legal conclusions. Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do

not suffice ... . Rule 8 ... does not unlock the doors of

discovery for a plaintiff armed with nothing more than

conclusions. Second, only a complaint that states a

plausible claim for relief survives a motion to dismiss. 

Determining whether a complaint states a plausible claim for

relief will ... be a context-specific task that requires the

reviewing court to draw on its judicial experience and

common sense. But where 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.” Fed.

Rule Civ. Proc. 8(a)(2).

Iqbal, 129 S.Ct. at 1949-1950 (citations omitted).

 Rule 8(d)(1) provides that “[e]ach allegation must be 1

simple, concise, and direct. No technical form is required.”

Fed.R.Civ.P. 8(d).

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The Court further explained that

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.

While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations.

When there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they

plausibly give rise to an entitlement to relief.

Iqbal, 129 S.Ct. at 1950.

Thus, to prevent a summary dismissal, civil complaints must

now allege “sufficient factual matter” to show that a claim is

facially plausible. This then “allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Id. at 1948. The Supreme Court’s ruling in

Iqbal emphasizes that a plaintiff must demonstrate that the

allegations of his complaint are plausible. Id. at 1949-50; see

also Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC Shadyside,

578 F.3d 203, 210(3d Cir. 2009).

Consequently, the Third Circuit observed that Iqbal provides

the “final nail-in-the-coffin for the ‘no set of facts’ standard”

set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that 2

applied to federal complaints before Twombly. Fowler, 578 F.3d

 In Conley, as stated above, a district court was 2

permitted to summarily dismiss a complaint for failure to state a

claim only if “it appear[ed] beyond doubt that the plaintiff can

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

him to relief. Id., 355 U.S. at 45-46. Under this “no set of

facts” standard, a complaint could effectively survive a motion

to dismiss so long as it contained a bare recitation of the

claim’s legal elements.

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at 210. The Third Circuit now requires that a district court

must conduct the two-part analysis set forth in Iqbal when

presented with a motion to dismiss:

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. [Iqbal, 129 S.Ct. at 1949-50]. 

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.” [Id.] In

other words, a complaint must do more than allege the

plaintiff’s entitlement to relief. A complaint has to

“show” such 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.’” Iqbal, [129 S.Ct. at

1949-50]. This “plausibility” determination will be “a

context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.” Id.

Fowler, 578 F.3d at 210-211.

 This Court is mindful, however, that the sufficiency of this

pro se pleading must be construed liberally in favor of

Plaintiff, see Erickson v. Pardus, 551 U.S. 89 (2007), a

principle we continue to apply even after Iqbal. Moreover, a

court should not dismiss a complaint with prejudice for failure

to state a claim without granting leave to amend, unless it finds

bad faith, undue delay, prejudice or futility. 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).

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III. SECTION 1983 ACTIONS

Plaintiff brings this action pursuant to 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).

IV. ANALYSIS

It appears from plaintiff’s allegations in his Complaint

that Molley is asserting a general claim of negligence against

the defendant with respect to the car accident. Plaintiff’s

claim of common law negligence fails to state a claim of a

federal constitutional violation. See Davidson v. Cannon, 474

U.S. 344, 345-48 (1986); Schwartz v. County of Montgomery, 843 F.

Supp. 962 (E.D. Pa.), aff’d, 37 F.3d 1488 (3d Cir. 1994) (mere

negligence insufficient to support a § 1983 action for violation

of the Eighth or Fourteenth Amendments). Moreover, plaintiff’s

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allegations show that the named defendant is not a state actor

subject to § 1983 liability. 

Consequently, this action may proceed under federal

jurisdiction only if plaintiff can show diversity jurisdiction,

namely, that plaintiff and defendant are citizens of different

states, or if plaintiff is a citizen of a state and defendant is

a citizen of a foreign state, and the amount in controversy

exceeds the sum of $75,000.00, exclusive of interest and costs. 

28 U.S.C. § 1332. Under § 1332, a corporation is deemed to be a

citizen of the state in which it is incorporated and the state in

which it has its principal place of business.

It has long been recognized that, to found jurisdiction upon

§ 1332, there must be complete diversity among all parties, i.e.,

each plaintiff must be a citizen of a different state from each

defendant. Owen Equipment and Erection Co. V. Kroger, 437 U.S.

365 (1978). In particular, if a sole plaintiff and any one of

several defendants are citizens of the same state, complete

diversity is lacking and the action would have to be dismissed

for lack of jurisdiction. Id.

In the present case, the Complaint fails to state anything

about the citizenship of the defendant, and it appears that the

defendant may be a citizen of the State of New Jersey where the

incident at issue occurred. Molley fails to provide any

information as to defendant’s domicile or residence. However, it

is clear that Molley is confined here in the State of New Jersey. 

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Therefore, the Complaint does not assert complete diversity

between plaintiff and defendant necessary to satisfy § 1332(a). 

Additionally, Molley fails to allege that his matter in

controversy exceeds the sum or value of $75,000.00. 

Accordingly, because the Complaint fails to assert diversity

jurisdiction, pursuant to 28 U.S.C. § 1332(a), and there is no

federal question jurisdiction over any state law claim that may

be construed from the Complaint against the named defendant (who

is not a state actor), pursuant to 28 U.S.C. § 1331, this Court

will dismiss the Complaint without prejudice for failure to

allege sufficient facts to establish federal jurisdiction. The

dismissal, pursuant to 28 U.S.C. § 1915(e), is without prejudice

to plaintiff’s right to file an amended complaint within fortyfive (45) days if there is diversity of citizenship between the

parties, and the amount in controversy exceeds the sum of

$75,000.00, exclusive of interest and costs. In other words,

Molley may seek to reopen this case if he can show facts to

support diversity jurisdiction as set forth above.

IV. CONCLUSION

For the reasons set forth above, the Complaint will be

dismissed without prejudice, in its entirety as against the named

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

1915A(B)(1), for failure to state a claim upon which relief may

be granted at this time, and for failure to support diversity

jurisdiction under 28 U.S.C. § 1332, or federal question

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jurisdiction under 28 U.S.C. § 1331. An appropriate order

follows.

 /s/ Noel L. Hillman 

NOEL L. HILLMAN

United States District Judge

Dated: June 13, 2011

At Camden, New Jersey

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