NELSON v. THE STATE OF NEW JERSEY et al

Filing 9

OPINION DOCKETED FOR INFORMATIONAL PURPOSES ONLY. Signed by Chief Judge Jerome B. Simandle on 4/24/2012. (nz, )n.m.

NOT

FOR

PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

KHALI MAJEED NELSON,
Civil No. 12-1779 (JBS-AMD)
Plaintiff,
v.

MEMORANDUM OPINION

OFC. JAMES KARINS, et al.,
Defendants.

IT APPEARING THAT:
1.

On March 16, 2010, an individual referring to himself as
“Khali Majeed Nelson” (“Khali”) submitted for filing a civil
complaint that gave rise to Nelson v. New Jersey, Civil
Action No. 10-1374 (JBS) (“Nelson-I”).

Khali indicated that

he was a pre-trial detainee held at the Atlantic County
Justice Facility (“ACJF”) and that his prison identification
number was “182019.”

See Nelson-I, Docket.

Khali’s

complaint in Nelson-I arrived unaccompanied by his filing
fee or by a complete in forma pauperis (“IFP”) application.
See id., Docket Entry No. 1.

Therefore, this Court denied

Khali IFP status without prejudice.
Nos. 2 and 3.

See id., Docket Entries

Thereafter, Khali filed a curative IFP

application [Docket Entry No. 4], but the Clerk’s mailing of
this Court’s order directing reopening of Nelson-I was
returned as undeliverable [Docket Entries Nos. 5 and 6], and

– on June 18, 2010, the Court dismissed Nelson-I on the
grounds of failure to prosecute.
2.

See Docket Entry No. 7.

On February 29, 2012, the Clerk received another civil
complaint.

See Nelson v. Atlantic County, Civil Action No.

12-1231 (JBS) (“Nelson-II”), Docket Entry No. 1.

That other

civil complaint was submitted by an individual who referred
to himself as “Khaleaf Majeed Nelson” (“Khaleaf”) and
indicated that he was a pre-trial detainee held, too, at the
ACJF, although his prison identification number was
“183904.”

See Nelson-II, Docket.

Much like the civil

complaint submitted by Khali in Nelson-I, the civil
complaint submitted by Khaleaf in Nelson-II arrived
unaccompanied by the applicable filing fee or a complete IFP
application.

See id., Docket Entry No. 1.

Therefore, like

in Nelson-I, this Court denied Khaleaf IFP status without
prejudice.

See id., Docket Entry No. 2.

For the purposes

of determining whether Khaleaf qualified for conditional IFP
status on the basis of being exposed to imminent danger to
his health or life, the Court surveyed Khaleaf’s assertions
raised in Nelson-II and summarized them as follows:
[Khaleaf’s] Complaint asserts that, on January 25,
2012, [Khaleaf’s] brother was subjected to: (a) a
search without probable cause; and (b) excessive
force, both in violation of [Khaleaf’s] brother’s
Fourth Amendment rights; [Khaleaf] maintains that
witnessing these events caused him severe
emotional distress. [Khaleaf stated that he was]
seek[ing] “justice to prevent policemen from
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stopping innocent people and ridiculing them” and
monetary damages in an unspecified amount defined
as “nice settlement from the city and the State.”
Id. at 2 (citations to docket and original brackets
omitted).1

In addition, while assessing Khaleaf’s IFP

application, the Court noted:
[Khaleaf] asserts that – while being incarcerated
– he, nonetheless, keeps receiving $210 in cash
and $200 in food-stamps, as welfare assistance.
Moreover, while [Khaleaf’s] Complaint suggests
that he is receiving the aforesaid assistance
because of his obligation to support his two
children, [Khaleaf’s] affidavit of poverty states
that he uses these funds and food-stamps for
purposes other than providing for his children,
namely: (a) to support his mother (by, allegedly,
giving her these $200 in food-stamps); and (b) to
channel some of the cash funds to his brother
(explaining his election to so channel these finds
by stating that his “brother had 2 surgeries
recently for a bone infection”). However, at this
juncture, the Court need not determine whether the
statements provided in [Khaleaf’s] affidavit of
poverty qualify him for in forma pauperis status,
since [Khaleaf’s] failure to submit his certified
account statement already precludes [Khaleaf] from
obtaining such status at the instant juncture.
Id. at 3-4, n. 1 (emphasis in original).
3.

On March 22, 2012, that is, about two weeks after receiving
the civil complaint in

Nelson-II, the Clerk received one

more civil complaint; that submission gave rise to the
instant matter.
Entry No. 1.

See Instant Matter (“Nelson-III”), Docket
The complaint in Nelson-III was submitted by

1

No statement in Khaleaf’s civil complaint indicated that
Khaleaf himself was subjected to excessive force or to an undue
search. See Nelson-II, Docket Entry No. 1.
3

an individual who, like the plaintiff in Nelson-I, referred
to himself as “Khali Majeed Nelson” (hereinafter, “Majeed” –
to be distinguished from “Khali”) and stated that he, too,
was held at the ACJF, although he had a prison
identification number different from those of Khali and
Khaleaf’s, i.e., “202907.”

See Nelson-II, Docket.

The

civil complaint submitted in Nelson-III arrived accompanied
by a duly executed IFP application.2
No. 1-1.

See id., Docket Entry

The complaint in Nelson-III alleged:

On 1/25/12, [Majeed] and [Majeed’s] twin brother
arrived in A[tlantic] C[ity] about 11:15 - 11:30
pm, and walked 4 blocks from the terminal to
[Majeed’s] twin’s muslimah [sic] friend apartment.
She offered [them] shelter for the night and
hospitality, [as] far as cooking some shrimps but
[they] wanted more than just shrimps. A little
after midnight on the 26th [they] briefly intended
to go to McDonald[’]s which was a block away from
the terminal. A block and a half into [their]
walk a police squad car ultimately stopped besides
[them] on Ar[c]tic Avenue . . . . The officers
jumped out on [them], as [the officers’] 1st words
were, “we’re looking for guns.” [Majeed] felt
racial[ly] profiled because [Majeed] and
[Majeed’s] brother are the only two black men
walking ar[c]tic Ave[nue] . . . and just became
suspects. Did these cops get a dispatch on their
radio saying someone was robbed at gunpoint near
[Majeed and Majeed’s brother’s] location? The
officers were treating [Majeed and Majeed’s
brother] as if [they a]re not just tourists
visiting their hometown, and [Majeed and Majeed’s
brother] committed a crime demanding that [Majeed

2

The application in Nelson-III did not state that Majeed
was receiving any funds in the form of transfer of welfare
assistance received by his brother. See, generally, Nelson-III,
Docket Entry No. 1-1.
4

and Majeed’s brother] put [their] hands on [their]
heads. . . . [Majeed] did not comply fast enough
to Of[ficer] Abrams[’] demands, so [Officer
Abrams] punched [Majeed] in the face by [Majeed’s]
left eye. Then [Majeed] believe[s that Officer
Abrams] and Of[ficer] Karins slammed [Majeed] on
the ground and handcuffed [Majeed]. This is
racial profiling and assault. . . . [Majeed]
would like all charges against [him] to be
exon[e]rated or dismissed by lack of prosecution
in plain error, and [Majeed] need[s] to be
compensated for [his] injuries] and every day [he]
suffered in [ACJF] away from [his] family and
loved ones.
Nelson-III, Docket Entry No. 1, at 4-6.
4.

The submissions made in Nelson-I, Nelson-II and Nelson-III
suggest, though without allowing the Court to determine the
same with absolute certainty, that: (a) Khali and Majeed
might be the same person (and the difference in Khali and
Majeed’s prison numbers stated in Nelson-I and Nelson-III is
merely a result of this person’s different incarcerations,
one in 2010, and another in 2012); and (b) Khaleaf might be
that person’s twin brother.3

3

The records of New Jersey Department of Corrections
indicates that a certain individual known as both “Khali M.
Nelson” and “Khaleaf M. Nelson,” born on January 12, 1985, was
convicted in the Superior Court of New Jersey, Law Division,
Atlantic County, on the basis of crimes of assault and
possession of controlled substances committed on March 16, 2006,
and also distributing controlled substances on school property on
August 24, 2007. See <<https://
www6.state.nj.us/DOC_Inmate/details?x=1400386&n=0>>. The records
of New Jersey Department of Corrections also indicate that an
individual known as “Khalid Nelson” and born on July 21, 1976,
was convicted for distributing controlled substances on school
property. See
<<https://www6.state.nj.us/DOC_Inmate/details?x=1064058&n=1>>.
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5.

While noting its concern with the discrepancy in information
provided in the seemingly interrelated Majeed and Khaleaf’s
IFP applications, this Court will grant Majeed conditional
IFP status on the basis of his affidavit of indigence and
the absence of three qualifying dismissals within 28 U.S.C.
§1915(g).

See 28 U.S.C. § 1915(a).

The Court, therefore,

will order the Clerk of the Court to file the Complaint in
Nelson-III, while directing Majeed to file a written
statement clarifying: (a) whether he and Khali is the same
person; (b) whether Khaleaf is his twin brother who was
involved in the events asserted in Majeed’s Complaint; and
(c) whether Majeed receives any financial assistance from
Khaleaf, which Majeed omitted to stated in his IFP
application.
6.

At this time, the Court must review Majeed’s 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.
1915(e)(2) and 28 U.S.C. § 1915A.

See 28 U.S.C. §

In determining the

sufficiency of a pro se complaint, the Court must be mindful

The Court has no certainty how these “Khali M. Nelson” a/k/a
“Khaleaf M. Nelson” and “Khalid Nelson” relate, if at all, to
Khali, Khaleaf and Majeed who submitted their complaints in
Nelson-I, Nelson-II and Nelson-III.
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to construe it liberally in favor of the plaintiff.

See

Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United States
v. Day, 969 F.2d 39, 42 (3d Cir. 1992).

Therefore, the

Court must “accept as true all of the allegations in the
complaint.”

Morse v. Lower Merion School Dist., 132 F.3d

902, 906 (3d Cir. 1997).

However, 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 – from “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Thus, the

screening court is “not bound to accept as true a legal
conclusion couched as a factual allegation.”

Id. at 1950.

Correspondingly, “[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).

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7.

Here, Majeed asserts three lines of claims, namely, that:
(a) a “racial profiling” claim; (b) an excessive force
claim; and (c) a false arrest claim.
Nelson-III, Docket Entry No. 1.

See, generally,

In connection with this

last claim, Majeed raises a related challenge, maintaining
that he was searched without probable cause.
8.

See id.

Selective enforcement of the law, colloquially referred to
as “racial profiling,” is a violation of the Equal
Protection Clause, since the Clause “prohibits selective
enforcement of the law based on considerations such as
race.”

Whren v. United States, 517 U.S. 806, 813 (1996).

As the Court of Appeals explained in Carrasca v. Pomeroy,
313 F.3d 828 (3d Cir. 2002), “[even t]he fact that there was
no Fourth Amendment violation does not mean that one was not
discriminatorily selected for enforcement of a law. . . .
[E]qual protection claims under the Fourteenth Amendment
require a wholly separate analysis from . . . claims under
the Fourth Amendment.”

Id. at 836 (internal citations

omitted); accord Gibson v. Superintendent of N.J. Dep't of
Law and Pub. Safety, 411 F.3d 427, 440-41 (3d Cir. 2005).
“To prevail on an equal protection claim in the racial
profiling context, [a p]laintiffs would have to show that
the challenged law enforcement practice had a discriminatory
effect and [in addition] was motivated by a discriminatory

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purpose.”

Carrasca, 313 F.3d at 834.

For the purposes of

the first prong of this inquiry, the plaintiff must “show
that [(s)he] is a member of a protected class and [in
addition,] that [(s)he] was treated differently from
similarly situated individuals in an unprotected class.”
Bradley v. U.S., 299 F.3d 197, 206 (3d Cir. 2002).

The

second prong of this inquiry was expressly examined by the
Supreme Court in Iqbal, where the Court pointed out that the
plaintiff asserting an equal protection claim “must plead
[facts showing] that the defendant acted with a
discriminatory purpose” to permit the court’s reasonable
inference that the government-official defendant acted “for
the purpose of discriminating on account of race.”

Iqbal,

556 U.S. at 676-77.
9.

Here, Majeed’s Complaint merely asserted that he “felt
racial[ly] profiled” because he and his brother were the
only African-Americans pedestrians walking through a quiet
residential area of Atlantic City after midnight.

Majeed’s

Complaint neither asserts that all other pedestrians were of
a different race, nor even suggests that there were any
other pedestrians walking through the same area at the same
hour.

Therefore, Majeed’s Complaint fails to meet the first

prong of the selective-enforcement-of-the-law test.
Moreover, if the Court were to turn its attention to the

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second prong of the test, Majeed’s Complaint fares even
worse, since it fails to offer this Court a single fact
permitting reasonable inference that Defendants acted “for
the purposes of discriminating on the basis of race.”

In

fact, all Majeed pleads is that he experienced a feeling of
being “racially profiled”; however, his purely subjective
feeling, expressing nothing bit a bold conclusion, cannot
operate as plausible factual allegation required by Iqbal.
Therefore, Majeed’s allegations of “racial profiling” will
be dismissed for failure to state a claim upon which relief
can be granted.
10.

However, Majeed’s other two lines of claims do not warrant
sua sponte dismissal even though his Complaint came
dangerously close to pleading Majeed out of court.

Accord

Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir. 1997)
(“[A] plaintiff can plead himself out of court by alleging
facts which show that he has no claim, even though he was
not required to allege those facts.

. . .

Allegations in a

complaint are binding admissions . . . and admissions can of
course admit the admitter to the exit from the federal
courthouse”) (quoting Jackson v. Marion County, 66 F.3d 151,
153 (7th Cir. 1995)).
11.

The Fourth Amendment’s objective reasonableness standard
controls where a police officer allegedly uses excessive

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force during an arrest.
397 (1989).

See Graham v. Connor, 490 U.S. 386,

To establish a claim for excessive force as an

unreasonable seizure, a plaintiff must show that: (a) a
seizure occurred; and (b) that seizure was unreasonable.
See Rivas v. City of Passaic, 365 F.3d 188, 198 (3d Cir.
2004) (citing Curley v. Klem, 298 F.3d 271, 279 (3d Cir.
2002)).

Proper application of this objective reasonableness

standard “requires careful attention to the facts and
circumstances of each particular case, including the
severity of the crime at issue, whether the suspect poses an
immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting to
evade arrest by flight.”
205 (2001).

See Saucier v. Katz, 533 U.S. 194,

Ultimately, “the question is whether the

officers’ actions [were] ‘objectively reasonable’ in light
of the facts and circumstances confronting them.”

Graham v.

Connor, 490 U.S. 386, 397 (1989).
12.

Here, Majeed asserted that Defendants’ actions were not only
consistent with their good faith belief that Majeed and his
brother were armed but also indicative of Defendants’ acting
upon an information that Majeed and his brother had just
committed an armed robbery and presented an immediate threat
to the safety of Defendants and the general public.

Read

jointly with Majeed’s admission that failed to promptly

11

comply with Defendants’ directive to place Majeed’s hands on
his head, the facts asserted by Majeed come close to
suggesting that Officer Abrams was justified in his decision
to apply physical force to Majeed in order to handcuff and
arrest him.

However, taking notice of Majeed’s statements

suggesting that neither he nor his brother were attempting
to evade arrest or flee from the place of the incident, and
being mindful of Majeed’s status of pro se litigant (and,
hence, of the possibility that Majeed omitted to detail
facts illustrating the disparity by the physical force
applied to him and the lack of threat he was presenting),
the Court finds that Majeed’s excessive force claim does not
warrant sua sponte dismissal.4

The Court, therefore, will

direct Defendants answer as to this claim.
13.

In the same vein, Majeed’s false arrest claim does not
warrant sua sponte dismissal.

The Fourth Amendment

provides: “The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no

4

Majeed’s Complaint is silent as to any injury Majeed
suffered as a result of allegedly excessive force. See,
generally, Nelson-III, Docket Entry No. 1. However, the
complaint submitted by Khaleaf in Nelson-II asserts that
Khaleaf’s brother (who might have been Majeed) was “transported
to A[tlantic] C[ity M]edical [C]enter” at 2 a.m., that is, about
an hour and a half after the incident. See Nelson-II, Docket
Entry No. 1, at 2.
12

Warrants shall issue, but upon probable cause, supported by
Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.”
U.S. Const. amend. IV.

Correspondingly, the Fourth

Amendment prohibits a police officer from seizing a citizen
except on probable cause.
266, 274-75 (1994).

See Albright v. Oliver, 510 U.S.

Conversely, “when an officer has

probable cause to believe a person committed even a minor
crime . . . the balancing of private and public interests is
not in doubt [and t]he arrest is constitutionally
reasonable.”

Virginia v. Moore, 553 U.S. 164, 171 (2008).

To establish a claim for unlawful arrest in violation of the
Fourth Amendment, a plaintiff must state “the facts [showing
that under the] circumstances within [the officer’s]
knowledge, a reasonable officer could not have believed that
an offense had been or was being committed by the person to
be arrested.” Mosley v. Wilson, 102 F.3d 85, 94-5 (3d Cir.
1996); accord Revell v. Port Authority of New York, New
Jersey, 598 F. 3d 128, 137 n.16 (3d Cir. 2010).

“Probable

cause requires more than bare suspicion, but need not be
based on evidence sufficient to support a conviction, nor
even a showing that the officer’s belief is more likely true
than false.”

Hughes v. Meyer, 880 F. 2d 967, 969 (7th Cir.

1989).

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13.

Here, Majeed’s Complaint presents a close call, since Majeed
himself states that Defendants acted as if they were
proceeding on the basis of their belief that Majeed and his
brother were in possession of firearm and had just committed
an armed robbery.

However, since the statements made by

Majeed do not indicate that Defendants’ belief was more
likely true than false, the Court finds Majeed’s false
arrest claim unsuitable for sua sponte dismissal.5

5

A claim for false arrest “covers . . . only . . . the
time of detention until the issuance of process or arraignment,
and not more.” Montgomery v. De Simone, 159 F.3d 120, 126 (3d
Cir. 1998) (citing Heck v. Humphrey, 512 U.S. 477, 484 (1994)).
Therefore, Majeed’s assertions that Defendants might be liable to
him for “every day [he] suffered in [ACJF]” are facially without
merit: his false arrest challenges apply only a brief period of
detention, i.e., from his arrest to arraignment. Analogously,
Majeed’s related claim of illegal search is facially deficient.
“It is well settled under the Fourth and Fourteenth Amendments
that a search conducted without a warrant issued upon probable
cause is . . . subject . . . to a few specifically established
and well-delineated exceptions.’” Schneckloth v. Bustamonte, 412
U.S. 218, 219 (1973) (quoting Katz v. United States, 389 U.S.
347, 357 (1967)). Those exceptions include search incident to
arrest, search made in “hot pursuit,” and search pursuant to
consent. See Katz, 389 U.S. at 357-58. “When an arrest is made,
it is reasonable for the arresting officer to search the person
arrested in order to remove any weapons that the latter might
seek to use in order to resist arrest or effect his escape . . .
. In addition, it is entirely reasonable for the arresting
officer to search for and seize any evidence on the arrestee’s
person in order to prevent its concealment or destruction.”
Chimel v. California, 395 U.S. 752, 762-763 (1969); see also
United States v. Myers, 308 F.3d 251, 266 (3d Cir. 2002) (search
incident to arrest is proper if it is “limited to the arrestee’s
person and to the area within his immediate control, meaning the
area from which he might gain possession of a weapon or
destructible evidence”) (citation omitted). Here, Majeed’s
Complaint makes it clear that he was searched incident to his
arrest, and the search was limited to his person. Therefore, his
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14.

In light of the foregoing, Majeed’s claims for damages based
on his false arrest and excessive force allegations will
proceed past the sua sponte dismissal stage – with regard to
his claim for damages.

In contrast, Majeed’s claim for

injunctive relief (in the form of this Court’s order
directing withdrawal of criminal charges currently pending
against him in the state court) will be denied, pursuant to
the doctrine of abstention.
37 (1971).

See Younger v. Harris, 401 U.S.

The doctrine “espouse[s] a strong federal policy

against federal-court interference with pending state
judicial proceedings absent extraordinary circumstances.”
Middlesex County Ethics Committee v. Garden State Bar Ass'n,
457 U.S. 423, 431 (1982) (emphasis supplied).

“Younger

abstention,” as the Court’s teaching is known, “is premised
on the notion of comity, a principle of deference and
‘proper respect’ for state governmental functions in our
federal system.”6

Evans v. Court of Common Pleas, Delaware

allegations fail to state a claim upon which relief can be
granted.
6

These comity concerns are clearly present when such
ongoing state governmental function is a criminal proceeding.
See Evans, 959 F.2d at 1234. Correspondingly, federal courts
rarely, if ever, entertain § 1983 complaints filed by those
individuals who are challenging various aspects of their ongoing
state criminal proceedings because the state court systems in
this nation present such forums where criminal defendants enjoy
full and ample opportunity to litigate all their federal
challenges associated with their criminal prosecution, conviction
and sentencing.
15

County, Pa., 959 F.2d 1227, 1234 (3d Cir. 1992), cert.
dismissed, 506 U.S. 1089 (1993).

The specific elements of

the Younger abstention are: “(1) there are ongoing state
proceedings that are judicial in nature; (2) the state
proceedings implicate important state interests; and (3) the
state proceedings afford an adequate opportunity to raise
federal claims.”

Schall v. Joyce, 885 F.2d 101, 106 (3d

Cir. 1989) (emphasis supplied).

Here, Majeed’s Complaint

makes it abundantly clear that he is facing a criminal
prosecution, which aim is to vindicate an important state
interest (i.e., punishing criminal conduct), and New Jersey
state courts offer Majeed an adequate opportunity to raise
his federal claims, if any.

Therefore, Majeed’s application

for injunctive relief will be denied.
15.

For the foregoing reasons, Majeed will be granted
conditional IFP status, subject to his timely filing of a
written statement clarifying his relationship to Khali and
Khaleaf and averring, under penalty of perjury, that he is
not receiving any funds other than those indicated in his
IFP application.

The Clerk will be directed to file

Majeed’s Complaint, and the applicable filing fee will be
assessed against him.

Majeed’s challenges asserting racial

profiling and illegal search will be dismissed, as facially
meritless.

His false arrest and excessive force claims will

16

be proceeded past the sua sponte dismissal stage, and
Defendants will be directed to answer these challenges for
the purposes of establishing liability for a damages.

The

Court will abstain from entertaining Majeed’s claim for
injunctive relief.

An appropriate Order accompanies this

Memorandum Opinion.

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

Date:

April 24, 2012

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