BROWN v. COVERT et al

Filing 7

OPINION. Signed by Judge Noel L. Hillman on 4/25/2013. (tf, n.m.)

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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DAVID BROWN,
Plaintiff,
v.
DET. SGT. WILLIAM COVERT,
et al.,

Civil No. 10-6122 (NLH)

OPINION
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Defendants.

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APPEARANCES:
DAVID BROWN, Plaintiff pro se
49 EMBER LANE
WILLINGBORO, NJ 08046
HILLMAN, District Judge
Plaintiff David Brown (“Plaintiff”) initially filed this
action pursuant to 42 U.S.C. § 1983 in November 2010.
Entry No. 1.)

(Docket

At that time, Plaintiff was a pre-trial detainee

and the complaint contains allegations which relate to
evidentiary matters which were about to be introduced and
litigated during his trial.

As a result, this Court determined

that a stay pursuant to Wallace v. Kato, 549 U.S. 384, 127 S.Ct.
1091, 166 L.Ed.2d 973 (2007) was warranted.
3.)

(Docket Entry No.

This Court further ordered that, within ninety days from the

date of completion of Plaintiff’s criminal proceedings, Plaintiff
must notify the Clerk in writing and submit an amended complaint

stating: (1) those claims that Plaintiff wishes to proceed with,
provided that such amended claims are related to the events
asserted in Plaintiff’s original complaint (i.e., to the events
of November 2008); (2) detailing the entirety of the
circumstances of Plaintiff’s November 2008 arrest; and (3)
clarifying the relation between Plaintiff’s challenges raised in
the amended complaint and the evidence presented during
Plaintiff’s trial, if any, provided that such relationship is
known to Plaintiff.

(Id.)

On July 17, 2012, Plaintiff submitted an amended complaint.
(Docket Entry No. 5.)

At this time, the Court will re-open this

case and review the complaint, pursuant to 28 U.S.C. §
1915(e)(2), 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.

For the reasons set

forth below, the Court concludes that the complaint should be
dismissed without prejudice at this time.
I. BACKGROUND
The following factual allegations are taken from the amended
complaint, and are accepted for purposes of this screening only.
The Court has made no findings as to the veracity of Plaintiff’s
allegations.
Plaintiff’s claims relate to his November 2008 arrest and

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subsequent prosecution.

He alleges that on November 27, 2008,

his Miranda rights were violated by Defendants William Covert,
Richard Calabrese, Brandon Roberson, John Harris and Marc
Carnival.

He states that he requested an attorney three times on

the record but his requests were denied.

Also on November 27,

2008, Plaintiff alleges that he was subjected to an illegal
search and seizure by Defendants Mayer, Shaw, Czarzasty,
Calabrese and Obuchowski when they searched his vehicle without
his consent and without a warrant.

Plaintiff alleges that the

items found by Defendants were placed back where they were found
and Defendants lied to a judge so they could obtain a warrant for
the car seven days later.
Plaintiff alleges that Defendants Mayer, Shaw, Vittese,
Covert, Rogers, Carnivale and Roberson all submitted false police
reports regarding various events surrounding Plaintiff’s arrest.
Plaintiff also alleges that Defendants Czarzasty, Covert, Harris,
Roberson, Chorello, Sullivan, Luciano, Unley, Dunn and Scassero
tampered with or destroyed evidence.

Finally, Plaintiff alleges

that Defendants Rogers, Covert and Harris lied to a grand jury
regarding the events.
II.

DISCUSSION

A. Legal Standard
1. Standards for a Sua Sponte Dismissal
The Prison Litigation Reform Act, Pub.L. No. 104-134, §§
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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.

See 28 U.S.C. § 1915(e)(2)(B).

This action is subject to sua sponte screening for dismissal
under 28 U.S.C. § 1915(e)(2)(B) because Plaintiff is proceeding
as an indigent.
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)).
The Supreme Court refined the standard for summary dismissal
of a complaint that fails to state a claim in Ashcroft v. Iqbal,
556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

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 opinion in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) for the
proposition that “[a] pleading that offers ‘labels and

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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 held that, to
prevent a summary dismissal, a civil complaint must now allege
“sufficient factual matter” to show that the claim is facially
plausible.

This then “allows the court to draw the reasonable

inference that the defendant is liable for the misconduct
alleged.”

Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.

2009)(citing Iqbal, 129 S.Ct. at 1948).
The Supreme Court's ruling in Iqbal emphasizes that a
plaintiff must demonstrate that the allegations of his complaint
are plausible.

See Iqbal, 129 S.Ct. at 1949-50.

See also

Twombly, 505 U.S. at 555, & n. 3; Warren Gen. Hosp. v. Amgen
Inc., 643 F.3d 77, 84 (3d Cir. 2011); Bistrian v. Levi, --- F.3d
----, 2012 WL 4335958 (3d Cir. September 24, 2012).

“A complaint

must do more than allege the plaintiff's entitlement to relief. A
complaint has to ‘show’ such an entitlement with its facts.”
Fowler, 578 F.3d at 211 (citing Phillips v. County of Allegheny,
515 F.3d 224, 234-35 (3d Cir. 2008)).
2.

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
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... 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.

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

108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Malleus v. George, 641
F.3d 560, 563 (3d Cir. 2011).
B.

Analysis
This Court’s January 5, 2011 Order advised Plaintiff that

upon completion of his criminal proceedings, he shall submit an
amended complaint that, among other things, “detailed[ed] the
entirety of the circumstances of his November 2008 arrest.”
(Docket Entry No. 3.)

The amended complaint submitted by

Plaintiff fails to comply with the order.

Plaintiff’s original

complaint alleges many claims against many defendants from
different townships and while he provides facts about the
allegations against each defendant, the facts provided are
piecemeal and do not allow this Court to determine the overall
course of events surrounding the arrest and prosecution.

It

appears that there may have been several robberies in different

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towns, in which Plaintiff was implicated, but it is not clear.
Moreover, it is unclear which allegations relate to which
charges.

Plaintiff’s amended complaint does little to clarify

these issues, as the amended complaint only consists of his
original complaint, with an additional letter attached indicating
that he pled guilty to third degree theft of a person on May 15,
2012 and four other charges were dropped.

However, it is

unclear based on the allegations in the complaint which claims
relate to the charges that were dropped and which relate to the
charge to which Plaintiff pled guilty.

Plaintiff also attaches

some documents from his state court case, but the documents are
not complete and do not clarify the course of events.
As such, pursuant to Iqbal and this Court’s January 5th
Order, the Court will dismiss the amended complaint in its
entirety for failure to state a claim upon which relief may be
granted.

Fowler, 578 F.3d at 210; Iqbal, 129 S.Ct. at 1948.

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 will grant Plaintiff leave
to move to re-open this case and to file an amended complaint.1

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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
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III.

CONCLUSION
For the reasons stated above, the complaint will be

dismissed without prejudice in its entirety for failure to state
a claim upon which relief may be granted pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii).

Plaintiff will be granted leave to file an

amended complaint.

Dated: April 25, 2013
At Camden.

s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge

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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