NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

_______________________________

 :

JOE ORR, :

 : Civil Action 

Plaintiff, : 11-318 (FSH)

 :

v. : O P I N I O N 

 :

MR. JOHN SHUST, et al., :

 :

Defendants. :

_______________________________:

 

Hochberg, District Judge:

Plaintiff, who appears to be a civilly committed individual

currently confined at the Anne Klein Forensic Center, 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 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 will order the Clerk 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 granted, or

because it seeks monetary relief from a defendant who is immune

from such relief.

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I. BACKGROUND

Plaintiff named five persons as Defendants in this matter:

“Mr. John Shust,” “Mr. W. Brown,” “Mr. S. Blakey,” “Mr. T. Rivera”1

and “Lt. P. Barber.” See Docket Entry No. 1, at 1. Plaintiff’s

“Statement of Claims” section asserts that Plaintiff was “arrested” 

on August 14, 2009, at a certain hospital located in Elizabeth, New

Jersey. See id. at 5. Plaintiff asserts that his “arresting

officer,” Officer Rivera, wrongly indicated that Plaintiff was

arrested on August 15, 2009, rather than on August 14, 2009, and

that the arrest took place at Newark Beth Israel Hospital (rather

than in a hospital in Elizabeth). See id. Plaintiff further

asserts that, after the arrest, he was taken to the Union County

Jail, where he was “assaulted” by Defendant Barber and a certain

“Sgt. Afonte,” a person not named as Defendant in this matter. See

id. Plaintiff’s Complaint does not elaborate on the nature or

circumstances of the alleged assault. See id. Plaintiff further

alleges that he “never received medical treatment,” but does not

detail the nature of the medical need he had, which allegedly

required a treatment. See id. Plaintiff also asserts that he has

not received any assistance in connection with his efforts to be

released from incarceration, seemingly from the Union County Jail,

even though Plaintiff’s submissions suggest that he is a civilly

 In the body of the Complaint, “T. Rivera” is referred to 1

as “Kenneth Rivera.” Compare Docket Entry No. 1, at 1, to Docket

Entry No. 1, at 5.

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committed individual held at the Anne Klein Forensic Center. The

Complaint does not state any factual challenges against “Mr. W.

Brown” and “Mr. S. Blakey,” and the entire reference to “Mr. Shust”

is limited to the statement that Shust “gave a false statement”

about where and when Plaintiff was arrested, even though the

Complaint allocates such “false statement” to Defendant Rivera. 

See id. at 4 and 5.

II. STANDARD OF REVIEW

 In determining the sufficiency of a complaint, the Court

must be mindful to construe the facts stated in the complaint

liberally in favor of the plaintiff. See Erickson v. Pardus, 551

U.S. 89 (2007); Haines v. Kerner, 404 U.S. 519 (1972); United

States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). Indeed, it is

long established that a court should “accept as true all of the

[factual] allegations in the complaint and 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). However, while a court will

accept well-pled allegations as true, it will not accept bald

assertions, unsupported conclusions, unwarranted inferences, or

sweeping legal conclusions cast in the form of factual

allegations. See id. 

Addressing the clarifications as to the litigant's pleading

requirement stated in the United States Supreme Court in Bell

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Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the Court of Appeals

for the Third Circuit provided the courts in this Circuit with

detailed and careful guidance as to what kind of allegations

qualify as pleadings sufficient to pass muster under the Rule 8

standard. See Phillips v. County of Allegheny, 515 F.3d 224,

230-34 (3d Cir. 2008). Specifically, the Court of Appeals

observed as follows:

“While a complaint . . . does not need detailed

factual allegations, a plaintiff's obligation [is] to

provide the 'grounds' of his 'entitle[ment] to relief'

[by stating] more than labels and conclusions, and a

formulaic recitation of the elements of a cause of

action . . . ." Twombly, 127 S. Ct. at 1964-65 . . .

Rule 8 “requires a 'showing,' rather than a blanket

assertion, of entitlement to relief." Id. at 1965

n.3. . . . “[T]he threshold requirement of Rule

8(a)(2) [is] that the 'plain statement [must] possess

enough heft to 'sho[w] that the pleader is entitled to

relief.'" Id. at 1966. [Hence] “factual allegations

must be enough to raise a right to relief above the

speculative level.” Id. at 1965 & n.3. . . . [Indeed,

it is not] sufficient to allege mere elements of a

cause of action; instead “a complaint must allege

facts suggestive of the proscribed conduct." Id.

Id. at 230-34 (original brackets removed). 

This pleading standard was further refined by the United

States Supreme Court in Ashcroft v. Iqbal, 129 S. Ct. 1937

(2009), where the Court observed:

[In any civil action, t]he pleading standard . . .

demands more than an unadorned [“]the-defendantunlawfully-harmed-me[”] accusation. [Twombly, 550

U.S.] at 555 . . . . A pleading that offers “labels

and conclusions” or “a formulaic recitation of the

elements of a cause of action will not do.” [Id.] at

555. Nor does a complaint suffice if it tenders

“naked assertion[s]” devoid of “further factual

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enhancement." Id. at 557. . . . A claim has facial

plausibility [only] when the plaintiff pleads factual

content . . . . Id. at 556. [Moreover,] the

plausibility standard . . . asks for more than a sheer

possibility that a defendant has acted unlawfully. 

Id. [Indeed, even w]here a complaint pleads facts that

are “merely consistent with” a defendant's liability,

[the so-alleging complaint still] “stops short of

[showing] plausibility of 'entitlement to relief.'” 

Id. at 557 (brackets omitted). [A fortiori,] the tenet

that a court must accept as true all of the

allegations contained in a complaint is inapplicable

to legal conclusions [or to t]hreadbare recitals of

the elements of a cause of action, supported by mere

conclusory statements [,i.e., by] legal conclusion[s]

couched as a factual allegation [e.g.,] the

plaintiffs' assertion of an unlawful agreement [or]

that [defendants] adopted a policy “'because of,' not

merely 'in spite of,' its adverse effects upon an

identifiable group.” . . . . [W]e do not reject these

bald allegations on the ground that they are

unrealistic or nonsensical. . . . It is the

conclusory nature of [these] allegations, rather than

their extravagantly fanciful nature, that disentitles

them to the presumption of truth. . . . [Finally,] the

question [of sufficiency of] pleadings does not turn .

. . the discovery process. Twombly, 550 U.S.] at 559

. . . . [The plaintiff] is not entitled to discovery

[where the complaint alleges any of the elements]

“generally," [i.e., as] a conclusory allegation

[since] Rule 8 does not [allow] pleading the bare

elements of [the] cause of action [and] affix[ing] the

label “general allegation" [in hope to develop facts

through discovery].

Iqbal, 129 S. Ct. at 1949-54.

III. 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

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

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

1994).

IV. DISCUSSION

Here, Plaintiff names two Defendants, “Mr. W. Brown” and “Mr.

S. Blakey,” without stating any factual claim against these

Defendants. Therefore, these claims are facially subject to

dismissal. See Iqbal, 129 S. Ct. at 1949. 

Similarly, Plaintiff’s claims against Defendants Shust and

Rivera are to Plaintiff’s assertion that both these Defendants (or

either one of these Defendants) incorrectly identified the location

and exact date of Plaintiff’s “arrest.” While the date and 2

location of Plaintiff’s arrest may (or may not) have a certain

significance for the purposes of Plaintiff’s criminal prosecution

 The Court is not entirely clear as to the nature of 2

Plaintiff’s “arrest,” since Plaintiff appears to be a civilly

committed individual. However, the Court cannot exclude the

possibility that Plaintiff is receiving a treatment at the Anne

Klein Forensic Center while awaiting for his trial. 

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(or civil commitment proceedings), that is, if such prosecution (or

civil commitment) is pending/underway, Plaintiff’s civil rights

could not have been violated, within the meaning of Section 1983

remedies, by an erroneous designation of the particular hospital

from which Plaintiff was taken into custody/civil commitment or the

date of such taking, since these niceties appear facially

irrelevant to such issues as probable cause, malicious prosecution,

etc. Therefore, Plaintiff’s challenges against Defendants Shust,

Rivera, Brown and Blakey will be dismissed.

Moreover, Plaintiff’s challenges against Defendant Barber

will, too, be dismissed, since Plaintiff’s conclusive statements

that he was “assaulted” by Barber and “never received medical

treatment” prevent the Court from conducting an intelligent

analysis of Plaintiff’s claims against Barber. See Phillips, 515

F.3d at 230-34. Such dismissal, however, will be without

prejudice, and Plaintiff will be allowed an opportunity to: (a)

name “Sgt. Afonte” as Defendant in this action, in the event Afonte

was personally involved in the assault and/or denial of medical

care to Plaintiff; and (b) detail to the Court the circumstances of

the alleged assault, the persons involved, the injuries allegedly

suffered and the nature of medical need experienced but left

unattended. To that effect, the Court stresses that Plaintiff is

obligated to allege the facts underlying his claims, in terms of

who did or said what, and the events surrounding these acts and/or

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verbal exchanges. 

Finally, the Court takes note of Plaintiff’s statement

suggesting Plaintiff’s disappointment with the fact of his

continuous commitment/incarceration. Plaintiff’s implied request

for release from confinement cannot be entertained in the instant

action. Federal law provides two avenues of relief to prisoners:

a petition for habeas corpus and a civil rights complaint. See

Muhammad v. Close, 540 U.S. 749, 750 (2004). “Challenges to the

validity of any confinement or to particulars affecting its

duration are the province of habeas corpus . . . [while] requests

for relief turning on circumstances of confinement [fall within the

realm of] a § 1983 action." The Court of Appeals for the Third 3

Circuit explained the distinction between the availability of civil

rights relief and habeas relief as follows:

[W]henever the challenge ultimately attacks the "core of

habeas" - the validity of the continued conviction or the

fact or length of the sentence - a challenge, however

denominated and regardless of the relief sought, must be

 In a series of cases beginning with Preiser v. Rodriguez, 3

411 U.S. 475 (1973), the Supreme Court analyzed the intersection

of civil rights and habeas corpus. In Preiser, state prisoners

who had been deprived of good-conduct-time credits by the New

York State Department of Correctional Services as a result of

disciplinary proceedings brought a § 1983 action seeking

injunctive relief to compel restoration of the credits, which

would have resulted in their immediate or speedier release. See

id. at 476. The prisoners did not seek compensatory damages for

the loss of their credits. See id. at 494. Assessing the

prisoners' challenge, the Supreme Court held that a prisoner must

bring a suit for equitable relief that, effectively, challenges

“the fact or duration of confinement" as a habeas corpus

petition. See id. at 500.

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brought by way of a habeas corpus petition. Conversely,

when the challenge is to a condition of confinement such

that a finding in plaintiff's favor would not alter his

sentence or undo his conviction, an action under § 1983

is appropriate. 

Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002). 

Therefore, a prisoner must file a petition for a writ of

habeas corpus if he “seek[s] to invalidate the duration of [his]

confinement - either directly through an injunction compelling

speedier release or indirectly through a judicial determination

that necessarily implies the unlawfulness of the [government's]

custody." See Wilkinson v. Dotson, 544 U.S. 74, 81 (2005). In

contrast, a civil complaint is the appropriate form of remedy where 

a judgment in the prisoner's favor would not affect the fact or

duration of his incarceration. See, e.g., Ganim v. Federal Bureau

of Prisons, 235 Fed. App'x 882 (3rd Cir. 2007); Bronson v. Demming,

56 Fed. App'x 551, 553-54 (3rd Cir. 2002). 

In light of the foregoing, Plaintiff’s claims seeking release

from confinement – if such claims were intended – will, too, be

dismissed for lack of jurisdiction. Such dismissal, however, will

be without prejudice to Plaintiff’s filing of an appropriate habeas

application.4

IV. CONCLUSION

For the foregoing reasons, the Court will grant Plaintiff's

 The Court expresses no opinion as to the merits or 4

procedural ripeness of Plaintiff’s habeas action seeking release

from confinement.

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application to file the complaint without prepayment of the filing

fee and will dismiss the Complaint. Such dismissal will be with 5

prejudice with regard to Plaintiff’s claims against all named

Defendants except Defendant Barber. Plaintiff’s claims seeking

release from confinement will be dismissed without prejudice to

initiation of an appropriate habeas action. Plaintiff’s claims

against Defendant Barber will be dismissed without prejudice to

Plaintiff’s filing of amended pleadings detailing the nature of the

assault he suffered and the medical need with regard to which he

was denied medical care. Plaintiff will be allowed to supplement

his amended pleadings by any claims relevant to the aforesaid

claims against Defendant Barber, and Plaintiff will be directed to

name new defendants accordingly and to include “Sgt. Afonte” in the

list of such new defendants, if such inclusion appears warranted in

light of “Sgt. Afonte’s” involvement in the assault and/or denial

of medical care allegedly experienced by Plaintiff. 

An appropriate Order accompanies this Opinion.

s/ Faith S. Hochberg 

FAITH S. HOCHBERG,

United States District Judge

Dated: May 3, 2011

 Since the Court has no clarity as to whether Plaintiff is 5

a pre-trial detainee or a civilly committed individual, the Court

will not direct the Clerk to assess a filing fee against

Plaintiff until and unless this issue is conclusively resolved.

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