PICOZZI v. CONNOR et al

Filing 9

OPINION. Signed by Judge Noel L. Hillman on 9/26/2013. (nz, )n.m.

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_______________________________
:
:
:
Plaintiff,
:
:
v.
:
:
HONORABLE KYRAN CONNOR et al., :
:
Defendants.
:
_______________________________:
MARK PICOZZI,

Civil Action No.
12-3063 (NLH)
O P I N I O N

Hillman, District Judge:
Plaintiff Mark Picozzi (“Plaintiff”), then being a pre-trial
detainee confined at the Atlantic County Justice Facility, Mays
Landing, New Jersey, commenced this 42 U.S.C. § 1983 action by
submitting a civil complaint unaccompanied by prepayment of his
filing fee.

Following this Court’s order denying him in forma

pauperis status, see Docket Entry No. 3, he submitted a proper
application and now qualifies to proceed in forma pauperis,
pursuant to 28 U.S.C. § 1915(a) (1998).

See Docket Entry No. 5.

Plaintiff’s complaint named, as Defendants, Judge Connor
(the trial judge presiding over Plaintiff’s state prosecution),
Donna Fetzer (the prosecutor representing the State in that
case), and Nellie Marquez and Robern Moran (the public defender
Page -1-

representing Plaintiff and her supervisor).

The complaint

asserted that: (a) Plaintiff’s rights to speedy trial were
violated; (b) during a certain court hearing, the prosecutor
described the content of evidence in the fashion Plaintiff deemed
erroneous; (c) the public defender was not sufficiently prepared;
(d) the public defender’s supervisor was insufficiently involved;
and (e) the trial judge made certain scheduling decisions and
evidentiary findings unfavorable to the Plaintiff.
Entry No. 1, at 4-6.

See Docket

Plaintiff asked this Court to dismiss his

state criminal proceedings or, in alternative, to preside over
Plaintiff’s state prosecution.1

See id. at 11.

Plaintiff made a substantively identical request to the
United States Court of Appeals for the Third Circuit.
Picozzi, 501 F. App’x 103 (3d Cir. 2012).

See In re

The Court of Appeals

denied Plaintiff injunctive relief and explained to him that no
federal court intervention was warranted.2

See id.

The complaint fails to state a claim upon which relief can
be granted.

See Ashcroft v. Iqbal, 556 U.S. 662 (2009) (to

1

Plaintiff did not seek removal of his state prosecution to
the federal forum.
2

As of now, the website of New Jersey Department of
Corrections does not show Plaintiff as a state inmate, thus
suggesting that Plaintiff’s criminal trial took place, and he was
either acquitted or convicted and has served any sentence of
incarceration. See https://www6.state.nj.us/DOC_Inmate/results.
However, the Court cannot rule out that Plaintiff might still be
in confinement and remains in the pre-trial detention stage.
Page -2-

survive dismissal, “a complaint must contain sufficient factual
matter, accepted as true, to state a claim for relief that is
plausible on its face.

A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged”) (citation omitted).
To recover under 42 U.S.C. § 1983, a plaintiff must show two
elements: (1) a person deprived him or caused him to be deprived
of a right secured by the Constitution or laws of the United
States, and (2) the deprivation was done under color of state
law.

See West v. Atkins, 487 U.S. 42, 48 (1988); Adickes v. S.H.

Kress & Co., 398 U.S. 144, 152 (1970).

Here, Plaintiff failed to

make the required showing.
To the extent Plaintiff seeks injunctive relief, such relief
is unwarranted.

The Court of Appeals already extensively

detailed the relevant law to Plaintiff, see In re Picozzi, 501 F.
App’x 103, and repeating that here is unnecessary.3
To the extent Plaintiff’s challenges could be construed as
seeking monetary damages, they are facially deficient, either for

3

If Plaintiff seeks to raise his constitutional challenges
before this Court, the Court’s intervention would run afoul of
the doctrine articulated in Younger v. Harris, 401 U.S. 37, 41
(1971). See Kendall v. Russell, 572 F.3d 126, 130, 52 V.I. 1021
(3d Cir. 2009) (“Younger abstention [prompts the] federal courts
discretion to abstain from exercising jurisdiction over a claim
when resolution of that claim would interfere with an ongoing
state proceeding”).
Page -3-

the reasons of absolute immunity or for the lack of state action.
“[J]udges are immune from suit under section 1983.”

Gallas

v. Supreme Court of Pa., 211 F.3d 760, 768 (3d Cir. 2000); see
also Mireles v. Waco, 502 U.S. 9, 11 (1991) (per curiam)
("judicial immunity is an immunity from suit, not just from
ultimate assessment of damages").

Judicial immunity applies to

all actions that are “judicial” in nature, see Stump v. Sparkman,
435 U.S. 349, 356 n.6 (1978), that is, all “function[s] normally
performed by a judge . . . in his judicial capacity.”
U.S. at 362.

Stump, 435

Since Judge Connor’s decisions were acts “normally

performed by a judge,” these acts were covered by the immunity,
and Plaintiff’s claims must be dismissed, as barred.4
Plaintiff's claims against the prosecutor are similarly
barred because prosecutors are also absolutely immune from
actions under § 1983 for “initiating and pursuing a criminal

4

While Plaintiff believes that Judge Connor is biased
against him or that Judge Connor’s decisions deprived him of his
constitutional rights, Plaintiff’s position is unavailing.
“[Plaintiff’s] allegations of bad faith [and] malice” cannot
overcome [judicial] immunity.” Abulkhair v. Rosenberg, 2012 U.S.
App. LEXIS 494 (3d Cir. Jan. 10, 2012) (quoting Mireles, 502 U.S.
at 11); see also Gallas, 211 F.3d at 769 (explaining “an act does
not become less judicial by virtue of an allegation of malice or
corruption of motive,” or that such action is “unfair” or
“controversial”); accord Stump, 435 U.S. at 363 (“[d]isagreement
with the action taken by the judge, however, does not justify
depriving the judge of his immunity”). “[J]udges . . . are not
liable to civil actions for their judicial acts, even when such
acts are in excess of their jurisdiction, and are alleged to have
been done maliciously or corruptly.” Figueroa v. Blackburn, 208
F.3d 435, 440 (3d Cir. 2000) (quoting Stump, 435 U.S. at 355-56).
Page -4-

prosecution.”

Kalina v. Fletcher, 522 U.S. 118 (1997) (quoting

Imbler v. Pachtman, 424 U.S. 409 (1976)).5
Finally, Plaintiff’s claims against his public defender and
her supervisor are facially deficient for failure to show that
these Defendants acted under the “color of law.”6

See Groman v.

Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995).
Correspondingly, the Court will grant Plaintiff in forma
pauperis status and direct the Clerk to file the complaint.7

The

5

“[A] state prosecuting attorney who act[s] within the
scope of his duties initiating and pursuing a criminal
prosecution” is not amenable to suit under § 1983. Imbler, 424
U.S. at 410. Thus, a prosecutor's appearances and statements
made in court or applications for certain favorable-to-the-State
decisions and the presentation of evidence at hearings and trial
are protected by absolute immunity. See 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).
6

Neither a privately retained counsel nor a court-appointed
public defender who performs a lawyer's traditional function as
counsel to a defendant in a criminal proceeding could be deemed
as acting under the color of law. See Polk County v. Dodson, 454
U.S. 312, 325 (1981). Whether court-appointed or privately
retained, a defense attorney represents only her client and not
the state. See Johnson v. Kafrissen, 1995 U.S. Dist. LEXIS 8072,
at *2 (E.D. Pa. June 5, 1995). In addition, Plaintiff’s claims
against the supervisor are deficient by being based solely on the
theory of respondeat superior. See Iqbal, 556 U.S. at 676
(“Government officials may not be held liable for [the] conduct
of their subordinates under a theory of respondeat superior”).
7

Out of abundance of caution, the Court will direct
assessment of the filing fee against Plaintiff. However, in the
event Plaintiff was released from confinement, no assessment will
ensue.
Page -5-

complaint will be dismissed with prejudice, and no leave to amend
will issue.8
An appropriate Order follows.

s/ Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
Dated: September 26, 2013
At Camden, New Jersey

8

Ordinarily, plaintiff may be granted “leave [to amend,] .
. . when justice so requires.” See Foman v. Davis, 371 U.S. 178,
182 (1962); Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir.
1993). However, “[a]llowing leave to amend where ‘there is a
stark absence of any suggestion by the plaintiffs that they
[might] developed any facts since the action was commenced, which
would, if true, cure the defects in the pleadings . . . , would
frustrate Congress’s objective in enacting this statute of
‘provid[ing] a filter at the earliest stage (the pleading stage)
to screen out lawsuits that have no factual basis.”’ Cal. Pub.
Emples’. Ret. Sys. v. Chubb Corp., 394 F.3d 126, 164 (3d Cir.
2004) (citation omitted). Here, Plaintiff’s claims for
injunctive relief are without merit, and his claims for monetary
damages are barred by the judicial and prosecutorial immunities
or fail for failure to meet the color of law requirement. Thus,
no leave to amend is warranted.
Page -6-