MADRIGAL v. ZUNIGA et al, No. 1:2016cv09415 - Document 10 (D.N.J. 2017)

Court Description: OPINION. Signed by Judge Renee Marie Bumb on 10/23/2017. (tf, n.m.)
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MADRIGAL v. ZUNIGA et al Doc. 10 NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE CELSO LAREDO MADRIGAL, : : : : : : : : : : : : Plaintiff, v. LETICIA ZUNIGA, ESQ. and J. DAVID ALCANTRA, ESQ., Defendants. Civ. Action No. 16-9415 (RMB) OPINION BUMB, District Judge: I. BACKGROUND Plaintiff Celso Laredo Madrigal, a prisoner confined in South Woods State Prison, in Bridgeton, New Jersey, filed a civil rights action on December 21, 2016, without paying the filing fee or submitting a complete application to proceed without prepayment of fees (“IFP application”) under 28 U.S.C. § 1915(a). (Compl., ECF No. 1.) The Court terminated the action, subject to reopening if Petitioner submitted either the filing fee or a properly completed Order, ECF Nos. 3, 4.) complaint under 28 IFP application. (Opinion and Furthermore, the Court pre-screened the U.S.C. § 1915(e)(2)(B) and found that Plaintiff failed to state a cognizable § 1983 claim, and the Court lacked jurisdiction over Plaintiff’s claim to enforce an 1 arbitration award. reopen this application, (Id.) matter and upon The Court permitted Plaintiff to filing further a permitted properly him to completed file an IFP amended complaint if he could cure the jurisdictional defect in the original complaint. II. (Id.) DISCUSSION Plaintiff has filed a properly completed IFP application, which establishes his eligibility to proceed without prepayment of fees under 28 U.S.C. § 1915. (IFP App., ECF No. 9). The Court grants Petitioner’s IFP application. Petitioner, however, has not filed an amended complaint that cures the jurisdictional defect in the complaint he filed on December 21, 2016. Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, the Court must dismiss the case if it finds that the action is: (1) frivolous or malicious; (2) fails to state a claim upon which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. The Court now adopts and incorporates by reference the March 22, 2017 Opinion as the conclusive screening opinion under §§ 1915(e)(2)(B) and 1915A(b). dismissed “state with actors” prejudice under 42 Plaintiff’s § 1983 claims are because U.S.C. § defense attorneys are 1983. Newton City v. not of Wilmington, 676 F. App’x 106, (3d Cir. 2017) (citing Polk County v. Dodson, 454 U.S. 312, 325 (1981) (public defenders are not 2 state actors); Steward v. Meeker, 459 F.2d 669, 670 (3d Cir. 1972) (per curiam) (privately-retained defense counsel is not a state actor)). The Court also lacks jurisdiction over Plaintiff’s claim for enforcement of an arbitration decision by the New Jersey Fee Arbitration Committee because the Federal Arbitration Act does not create independent federal question jurisdiction. Goldman v. Citigroup Global Markets, Inc., 834 F.3d 242, 250 (3d Cir. 2016) (quoting Moses H. Cone Mem’l Hosp., v. Mercury Constr. Corp., 460 U.S. 1, 25 n. 32 (1983). Furthermore, there does not appear to be diversity of citizenship between the plaintiff and defendants, and the amount in controversy is not met. See 28 U.S.C. § 1332. III. CONCLUSION The Court grants Plaintiff’s IFP application and dismisses the Complaint for failure to state a claim under § 1983, and lack of jurisdiction over Plaintiff’s claim to enforce arbitration award. An appropriate order follows. Dated: October 23, 2017 s/Renée Marie Bumb RENÉE MARIE BUMB United States District Judge 3 an