NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ALBERT MOODY, JR., :

: Civil Action No. 11-0940 (RMB)

Plaintiff, :

:

v. : OPINION

:

STEVE CHEPURNY, et al., :

:

Defendants. :

APPEARANCES:

Plaintiff pro se

Albert Moody, Jr.

Camden County Correctional Facility

Camden, NJ 08101

BUMB, District Judge

Plaintiff Albert Moody, Jr., a prisoner confined at Camden

County Correctional Facility in Camden, New Jersey, seeks to

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

1985, and 1988, alleging violations of his constitutional rights. 

Based on his affidavit of indigence and the absence of three

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

At this time, the Court must review the Complaint to

determine whether it should be dismissed as frivolous or

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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.

Plaintiff alleges that Defendants Steve Chepurny and Jane

Doe went onto his property, while he was confined, and stole

certain personal property from him, including business equipment,

confidential medical records, and personal assets. Plaintiff

alleges that the defendants also cashed his checks illegally. 

The defendants are described as individuals residing in

Moorestown, New Jersey.

Plaintiff seeks $71,000.00 in damages.

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).

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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 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, 551 U.S. 89, 93 (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 ... .

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citations 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”).

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

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

4

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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

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, 578 F.3d 203, 210-11 (3d Cir. 2009)

(citations omitted).

Where a complaint can be remedied by an amendment, a

district court may not dismiss the complaint with prejudice, but

5

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must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34

(1992); 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).

III. ANALYSIS

A. SECTION 1983 ACTIONS

A plaintiff may have a cause of action under 42 U.S.C.

§ 1983 for certain violations of his 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 ... 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).

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Here, Plaintiff has alleged that two individuals went on his

property and stole from him. Plaintiff has alleged no facts

suggesting that this alleged deprivation was committed or caused

by persons acting under color of state law.

As an initial matter, the defendants are not alleged to be

employed by any governmental entity. Secondly, private parties

may be liable under § 1983 only when they have acted under color

of state 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)).

7

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A private person or entity can be sued under § 1983 only

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 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.

Here, Plaintiff has alleged no facts that would suggest that

he was deprived of property by persons acting under color of

state law. Accordingly, he has failed to state a claim under

§ 1983.

B. 42 U.S.C. § 1985

Title 42 U.S.C. section 1985 consists of three subsections

dealing with various conspiracies to interfere with civil rights. 

Subsection (1) provides a remedy, generally if two or more

persons conspire to prevent any person from accepting or holding

any office, trust, or place of confidence under the United States

or otherwise to prevent a federal officer from performing his

duties; subsection (2) provides a remedy, generally, if two or

8

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more persons conspire to deter, by force, intimidation, or

threat, any party, witness, or juror in any court of the United

States; subsection (3) provides a remedy, generally, if two or

more persons conspire or go on the premises of another, “for the

purpose of depriving, either directly or indirectly, any person

... of the equal protection of the laws, or of equal privileges

and immunities under the laws... .” Only subsection (3) is

arguably implicated by the facts asserted here.

In general, the conspiracy provision of § 1985(3)

provides a cause of action under rather limited

circumstances against both private and state actors. 

In order successfully to bring an action under

§ 1985(3) for private conspiracy, a plaintiff must

show, inter alia, “(a) that a racial or other class

invidious discriminatory animus lay behind the

coconspirators’ actions, (b) that the coconspirators

intended to deprive the victim of a right guaranteed by

the Constitution against private impairment, and

(c) that that right was consciously targeted and not

just incidentally affected.” In order to prevent the

use of § 1985(3) as a general federal tort law, courts

have been careful to limit causes of action thereunder

to conspiracies that deprive persons of

constitutionally protected rights, privileges and

immunities “that are protected against private, as well

as official encroachment.”

It is well established that § 1985(3) does not

itself create any substantive rights; rather it serves

only as a vehicle for vindicating federal rights and

privileges which have been defined elsewhere. 

Moreover, in the context of actions brought against

private conspirators, the Supreme Court has thus far

recognized only two rights protected under § 1985(3): 

the right to be free from involuntary servitude and the

right to interstate travel.

Brown v. Phillip Morris Inc., 250 F.3d 789, 805 (3d Cir. 2001)

(citations omitted).

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Here, Plaintiff complains of an ordinary deprivation of

property, not a constitutional right protected against private

encroachment. Moreover, Plaintiff has pleaded no facts

suggesting a racial basis for the alleged thefts. Plaintiff has

failed to state a claim under § 1985(3).

C. 42 U.S.C. § 1988

Title 42 section 1988 generally provides for an award of

attorney fees in certain civil rights actions. As Plaintiff has

failed to state a claim under either § 1983 or § 1985(3), he has

failed to establish any entitlement to attorney fees.

V. CONCLUSION

For the reasons set forth above, the Complaint will be

dismissed, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for failure

to state a claim.1 However, because it is conceivable that

Plaintiff may be able to supplement his pleading with facts

sufficient to overcome the deficiencies noted herein, the Court

1

 The Court notes that “‘[g]enerally, an order which

dismisses a complaint without prejudice is neither final nor

appealable because the deficiency may be corrected by the

plaintiff without affecting the cause of action.’ ... The

dispositive inquiry is whether the district court’s order finally

resolved the case.” Martin v. Brown, 63 F.3d 1252, 1257-58 (3d

Cir. 1995) (quoting Borelli v. City of Reading, 532 F.2d 950, 951

(3d Cir. 1976)) (other citations omitted). In this case, if

Plaintiff can correct the deficiencies of his Complaint, he may

file a motion to re-open these claims in accordance with the

court rules.

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will grant Plaintiff leave to move to re-open and to file an

amended complaint.2

 

An appropriate order follows.

s/Renée Marie Bumb 

Renée Marie Bumb

United States District Judge

Dated: October 28, 2011 

2

 Plaintiff should note that when an amended complaint is

filed, the original complaint no longer performs any function in

the case and “cannot be utilized to cure defects in the amended

[complaint], unless the relevant portion is specifically

incorporated in the new [complaint].” 6 Wright, Miller & Kane,

Federal Practice and Procedure § 1476 (2d ed. 1990) (footnotes

omitted). An amended complaint may adopt some or all of the

allegations in the original complaint, but the identification of

the particular allegations to be adopted must be clear and

explicit. Id. To avoid confusion, the safer course is to file

an amended complaint that is complete in itself. Id.

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