WALKER v. ATLANTIC COUNTY PROSECUTORS OFFICE et al
Filing
2
OPINION. Signed by Judge Noel L. Hillman on 6/13/2011. (bdk, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
:
:
Plaintiff,
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v.
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ATLANTIC COUNTY PROSECUTOR’S :
OFFICE, et al.,
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Defendants.
:
:
CORY WALKER,
Civil No. 10-6208 (NLH)
OPINION
APPEARANCES:
CORY WALKER, Plaintiff pro se
#186139
Atlantic County Justice Facility
5060 Atlantic Avenue
Mays Landing, New Jersey 08330
HILLMAN, District Judge
Plaintiff, Cory Walker, a state inmate confined at the
Atlantic County Justice Facility in Mays Landing, New Jersey, at
the time he submitted the above-captioned Complaint for filing,
seeks to bring this action in forma pauperis.
Based on his
affidavit of indigence, the Court will grant plaintiff’s
application to proceed in forma pauperis (“IFP”) pursuant to 28
U.S.C. § 1915(a) (1998) and order the Clerk of the Court to file
the Complaint.
At this time, this Court must review the Complaint, pursuant
to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, to determine whether the
Complaint 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.
I.
BACKGROUND
Plaintiff, Cory Walker (“Walker”), brings this civil action,
pursuant to 42 U.S.C. § 1983, against the following defendants:
the Atlantic County Prosecutor’s Office, Theodore F.L. Housel,
head prosecutor; the Atlantic City Police Department; and the
Atlantic County Jail.
(Complaint, Caption and ¶ III.B).
The
following factual allegations are taken from the Complaint, and
are accepted for purposes of this screening only.
The Court has
made no findings as to the veracity of plaintiff’s allegations.
Walker alleges that he has been held at the Atlantic County
Justice Facility for more than six months by the defendant for a
crime he did not commit.
He claims that he was not in the area
of the crime when it happened and that he has “alibis and
witnesses to prove [his] story.”
(Complaint, ¶ IV).
Walker
alleges that the prosecutor refuses to talk to the witnesses.
(Id.).
He makes no allegations against the defendants Atlantic
City Police Department and the Atlantic County Jail.
He
generally asserts a claim of malicious prosecution and false
imprisonment.
2
Walker asks for his immediate release from custody1 and for
monetary damages to compensate him for the time he has been
falsely incarcerated.
II.
(Compl., ¶ V).
STANDARDS FOR A SUA SPONTE DISMISSAL
The Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104134, §§ 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.
1915(e)(2)(B) and 1915A.
28 U.S.C. §§
This action is subject to sua sponte
screening for dismissal under both 28 U.S.C. § 1915(e)(2)(B) an
§ 1915A.
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) and
Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
See also United
The Court must
“accept as true all of the allegations in the complaint and all
1
The Court notes that any claim for release from custody
is more properly asserted in a petition for a writ of habeas
corpus, and not in a civil complaint for damages.
3
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).
The Court
need not, however, credit a pro se plaintiff’s “bald assertions”
or “legal conclusions.”
Id.
A complaint is frivolous if it “lacks an arguable basis
either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319,
325 (1989) (interpreting the predecessor of § 1915(e)(2), the
former § 1915(d)).
The standard for evaluating whether a
complaint is “frivolous” is an objective one.
Deutsch v. United
States, 67 F.3d 1080, 1086-87 (3d Cir. 1995).
A pro se complaint may be dismissed for failure to state a
claim only if it appears “‘beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief.’”
Haines, 404 U.S. at 521 (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)).
See also Erickson, 551 U.S.
at 93-94 (In a pro se prisoner civil rights complaint, the Court
reviewed whether the complaint complied with the pleading
requirements of Rule 8(a)(2)).
However, recently, the Supreme Court revised this standard
for summary dismissal of a Complaint that fails to state a claim
in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009).
The issue before
the Supreme Court was whether Iqbal’s civil rights complaint
adequately alleged defendants’ personal involvement in
discriminatory decisions regarding Iqbal’s treatment during
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detention at the Metropolitan Detention Center which, if true,
violated his constitutional rights.
Id.
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).2
Citing its recent opinion in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), for the
proposition that “[a] pleading that offers ‘labels and
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 identified two
working principles underlying the failure to state a claim
standard:
First, the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice ... . Rule 8 ... does not unlock the doors of
discovery for a plaintiff armed with nothing more than
conclusions. Second, only a complaint that states a
plausible claim for relief survives a motion to dismiss.
Determining whether a complaint states a plausible claim for
relief will ... be a context-specific task that requires the
reviewing court to draw on its judicial experience and
common sense. But where 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.” Fed.
Rule Civ. Proc. 8(a)(2).
Iqbal, 129 S.Ct. at 1949-1950 (citations omitted).
2
Rule 8(d)(1) provides that “[e]ach allegation must be
simple, concise, and direct. No technical form is required.”
Fed.R.Civ.P. 8(d).
5
The Court further explained that
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.
While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.
When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.
Iqbal, 129 S.Ct. at 1950.
Thus, to prevent a summary dismissal, civil complaints must
now allege “sufficient factual matter” to show that a claim is
facially plausible.
This then “allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”
Id. at 1948.
The Supreme Court’s ruling in
Iqbal emphasizes that a plaintiff must demonstrate that the
allegations of his complaint are plausible.
Id. at 1949-50; see
also Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC Shadyside,
578 F.3d 203, 210(3d Cir. 2009).
Consequently, the Third Circuit observed that Iqbal provides
the “final nail-in-the-coffin for the ‘no set of facts’ standard”
set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),3 that
applied to federal complaints before Twombly.
3
Fowler, 578 F.3d
In Conley, as stated above, a district court was
permitted to summarily dismiss a complaint for failure to state a
claim only if “it appear[ed] beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief. Id., 355 U.S. at 45-46. Under this “no set of
facts” standard, a complaint could effectively survive a motion
to dismiss so long as it contained a bare recitation of the
claim’s legal elements.
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at 210.
The Third Circuit now requires that a district court
must conduct the two-part analysis set forth in Iqbal when
presented with a motion to dismiss:
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. [Iqbal, 129 S.Ct. at 1949-50].
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.” [Id.] 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.’” Iqbal, [129 S.Ct. at
1949-50]. This “plausibility” determination will be “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Id.
Fowler, 578 F.3d at 210-211.
This Court is mindful, however, that the sufficiency of this
pro se pleading must be construed liberally in favor of
Plaintiff, see Erickson v. Pardus, 551 U.S. 89 (2007), a
principle we apply even after Iqbal.
Moreover, a court should
not dismiss a complaint with prejudice for failure to state a
claim without granting leave to amend, unless it finds bad faith,
undue delay, prejudice or futility. See Grayson v. Mayview State
Hosp., 293 F.3d 103, 110-111 (3d Cir. 2002); Shane v. Fauver, 213
F.3d 113, 117 (3d Cir. 2000).
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III.
SECTION 1983 ACTIONS
Plaintiff brings this action pursuant to 42 U.S.C. § 1983.
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).
Here, Walker names the Atlantic County Jail as a defendant
in this action.
However, the Atlantic County Jail must be
dismissed from this lawsuit because it is not a “person” subject
to liability under § 1983.
See Grabow v. Southern State
Correctional Facility, 726 F. Supp. 537, 538-39 (D.N.J.
1989)(correctional facility is not a person under § 1983).;
Mitchell v. Chester County Farms Prison, 426 F. Supp. 271, 274
(D.C. Pa. 1976).
The Court turns now to discuss the claims
asserted by plaintiff as against the remaining named defendants.
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IV.
A.
ANALYSIS
Prosecutorial Immunity
Walker appears to assert a claim against the prosecutor
defendants, the Atlantic County Prosecutor’s Office and Theodore
F.L. Housel, with respect to their prosecution of plaintiff.
To
the extent that Walker is asserting that these defendants
violated his constitutional rights in his ongoing prosecution of
plaintiff, such claim must be dismissed.
“[A] state prosecuting attorney who act[s] within the scope
of his duties in initiating and pursuing a criminal prosecution”
is not amenable to suit under § 1983.
U.S. 409, 410 (1976).
Imbler v. Pachtman, 424
Thus, a prosecutor’s appearance in court
as an advocate in support of an application for a search warrant
and the presentation of evidence at such a hearing are protected
by absolute immunity.
Burns v. Reed, 500 U.S. 478, 492 (1991).
Similarly, “acts undertaken by a prosecutor in preparing for the
initiation of judicial proceedings or for trial, and which occur
in the course of his role as an advocate for the State, are
entitled to the protections of absolute immunity.”
Buckley v.
Fitzsimmons, 509 U.S. 259, 273 (1993).
A prosecutor is not entitled to absolute immunity, however,
for actions undertaken in some other function.
See Kalina v.
Fletcher, 522 U.S. 118 (1997) (prosecutor is protected only by
qualified immunity for attesting to the truth of facts contained
in certification in support of arrest warrant, as in her
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provision of such testimony she functioned as a complaining
witness rather than a prosecutorial advocate for the state);
Burns, 500 U.S. at 492-96 (the provision of legal advice to
police during pretrial investigation is protected only by
qualified immunity); Buckley, 409 U.S. at 276-78 (prosecutor is
not acting as an advocate, and is not entitled to absolute
immunity, when holding a press conference or fabricating
evidence).
See also Yarris v. County of Delaware, 465 F.3d 129
(3d Cir. 2006)(where the Court of Appeals for the Third Circuit
presents a detailed and nuanced analysis of when a prosecuting
attorney is, and is not, entitled to absolute immunity for
allegedly wrongful acts in connection with a prosecution,
holding, for example, that a prosecutor is not entitled to
absolute immunity for deliberately destroying highly exculpatory
evidence, but is entitled to immunity for making the decision to
deliberately withhold exculpatory evidence before and during
trial, but not after the conclusion of adversarial proceedings).
Here, Walker’s general allegations against the prosecutor
defendants plainly fall within the scope of their prosecutorial
duties in initiating and pursuing a criminal prosecution against
plaintiff.
There are no allegations that appear to fall outside
the scope of the defendants’ prosecutorial role, and this Court
is hard-pressed to find any allegation of wrongdoing or
prosecutorial misconduct of any kind.
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Accordingly, the claim against the prosecutor defendants for
their conduct and actions during the investigation, indictment
and prosecution of plaintiff must be dismissed with prejudice for
failure to state a cognizable claim under § 1983.
Moreover, even if Walker had pleaded facts establishing an
actionable claim of prosecutorial misconduct, which the Complaint
does not, such claim must first be raised in plaintiff’s ongoing
state criminal proceedings.
A federal court generally will not
intercede to consider issues that the plaintiff has an
opportunity to raise before the state court.
See Younger v.
Harris, 401 U.S. 37 (1971).
To the extent that Walker’s state criminal trial is no
longer pending, and he has been sentenced on any state charges,
which also is not apparent from the Complaint, any claim of
prosecutorial misconduct in this regard must first be exhausted
via state court remedies, i.e., by direct appeal or other
available state court review; and then, if appropriate, by filing
a federal habeas application, under 28 U.S.C. § 2254, to assert
any violations of federal constitutional or statutory law.
Preiser v. Rodriguez, 411 U.S. 475 (1973).
Therefore, plaintiff’s Complaint asserting any liability
against the prosecutor defendants under § 1983 must be dismissed
in its entirety.
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B.
Malicious Prosecution
It next appears that Walker is attempting to assert a
general claim of malicious prosecution by the defendants,
Atlantic County Prosecutor’s Office, Theodore F.L. Housel, and
the Atlantic City Police Department.
A constitutional claim for
malicious prosecution in the Third Circuit requires a plaintiff
to establish five elements: (1) the defendants initiated a
criminal proceeding; (2) the criminal proceeding ended in
plaintiff’s favor; (3) the proceeding was initiated without
probable cause; (4) the defendants acted maliciously or for a
purpose other than bringing the plaintiff to justice; and (5) the
plaintiff suffered deprivation of liberty consistent with the
concept of seizure as a consequence of a legal proceeding.”
Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009)(citing
Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003)).
See also Johnson v. Knorr, 477 F.3d 75, 81–82 (3d Cir. 2007);
Pittman v. Duffy, 240 Fed. App’x. 524, 526 (3d Cir. 2007); Helmy
v. City of Jersey City, 178 N.J. 183, 836 A.2d 802, 806 (N.J.
2003)(citing Lind v. Schmid, 67 N.J. 255, 337 A.2d 365, 368 (N.J.
1975).
“‘Failure to prove any one of these ... elements denies
the plaintiff a cause of action for malicious prosecution.’”
Wilson v. N.J. State Police, No. 04-1523, 2006 U.S. Dist. LEXIS
60514, *28, 2006 WL 2358349 (D.N.J. Aug. 15, 2006)(quoting Wiltz
v. Middlesex County Office of the Prosecutor, No. 05-3915, 2006
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U.S. Dist. LEXIS 46821, *24, 2006 WL 1966654 (D.N.J. July 12,
2006)).
The second element of malicious prosecution, favorable
termination, is established when the plaintiff is “innocent of
the crime charged in the underlying prosecution.”
Hector v.
Watt, 235 F.3d 154, 156 (3d Cir. 2000); see also Freeman v.
State, 347 N.J. Super. 11, 27, 788 A.2d 867 (N.J. App.Div.
2002)(“The inquiry into whether a termination was favorable
focuses on whether it was dispositive as to the accused’s
innocence of the crime for which they were charged.”). “If the
prosecutor drops the charges as part of a compromise with the
accused, the accused will fail the favorable termination prong
....”
Pittman v. Metuchen Police Dep’t, No. 08–2373, 2010 WL
4025692, at *7 (D.N.J. Oct.13, 2010).
Under New Jersey law, “[a] malicious prosecution action
arising out of a criminal prosecution requires proof: (1) that
the criminal action was instituted by the defendant against the
plaintiff, (2) that it was actuated by malice, (3) that there was
an absence of probable cause for the proceeding, and (4) that it
was terminated favorably to the plaintiff.”
Campanello v. Port
Auth. of N.Y. & N.J., No. 07–4929, 2010 WL 3429571, at *2 (D.N.J.
Aug.27, 2010)(citing Lind v. Schmid, 67 N.J. 255, 262, 337 A.2d
365 (1975)).
It is well settled that in circumstances where a
criminal charge is withdrawn or a prosecution is abandoned
pursuant to an agreement or compromise with the accused, the
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termination is viewed as indecisive and insufficient to support a
cause of action for malicious prosecution.
Mondrow v. Selwyn,
172 N.J. Super. 379, 384, 412 A.2d 447 (N.J. App.Div. 1980);
Thomas v. N.J. Inst. of Tech., 178 N.J. Super. 60, 61, 427 A.2d
1142 (N.J. Law Div. 1981).
A plaintiff attempting to state a malicious prosecution
claim must also allege that there was “‘some deprivation of
liberty consistent with the concept of seizure.’” Gallo v. City
of Philadelphia, 161 F.3d 217, 222 (3d Cir. 1998)(quoting Singer
v. Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir. 1995)); see
Albright v. Oliver, 510 U.S. 266 (1994).
Ordinarily, the statute
of limitations on a malicious prosecution claim begins to run on
the date plaintiff receives a favorable termination of his prior
criminal proceeding.
Heck v. Humphrey, 512 U.S. 477, 489 (1994).
In this case, Walker has not alleged that his state criminal
proceedings have been terminated in his favor, a necessary
element of a malicious prosecution claim.
Therefore, because the
outcome of Walker’s state criminal proceedings is not yet
determined, any malicious prosecution claim he asserts against
defendants, Atlantic County Prosecutor’s Office; Theodore F.L.
Housel, and the Atlantic City Police Department must be dismissed
without prejudice at this time.
The Court further finds that the Complaint must be dismissed
without prejudice as against the defendant, the Atlantic City
Police Department, because Walker fails to assert any allegations
14
of wrongdoing or constitutional violations by that defendant.
In
fact, the Complaint makes no allegations against the Atlantic
City Police Department.
Accordingly, where plaintiff alleges
nothing more than mere conclusory statements of liability with no
factual support to meet the pleading threshold as set forth in
Iqbal, 129 S.Ct. at 1949-50, the Complaint must be dismissed
without prejudice, in its entirety, as against defendant Atlantic
City Police Department.
IV.
CONCLUSION
For the reasons set forth above, the Complaint will be
dismissed with prejudice, in its entirety, as against defendant
Atlantic County Jail, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
and 1915A(b)(1), for failure to state a claim upon which relief
may be granted.
Further, plaintiff’s claim of prosecutorial
misconduct will be dismissed with prejudice, in its entirety as
against the named defendants, the Atlantic County Prosecutor’s
Office and Theodore F.L. Housel, pursuant to 28 U.S.C. §§
1915(e)(2)(B)(iii) and 1915A(B)(2), because it seeks monetary
relief from a defendant who is immune from such relief.
Finally,
with respect to plaintiff’s claim of malicious prosecution,
generally asserted against defendants, the Atlantic County Police
Department, the Atlantic County Prosecutor’s Office and Theodore
15
F.L. Housel, such claim will be dismissed without prejudice for
failure to state a claim at this time.
An appropriate order
follows.
/s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
Dated: June 13, 2011
At Camden, New Jersey
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