ALFRED v. STATE OF NEW JERSEY et al

Filing 5

OPINION. Signed by Judge Robert B. Kugler on 8/29/2013. (bdk, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MICHELLE E. ALFRED,
Plaintiff,
v.
STATE OF NEW JERSEY, et al.,
Defendants.

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Civil Action No. 13-0332 (RBK)

OPINION

APPEARANCES:
Michelle E. Alfred
655 Absecon Blvd.
Apt. 606
Atlantic City, NJ 08401
Plaintiff pro se

KUGLER, District Judge
Plaintiff Michelle E. Alfred seeks to bring this action in forma pauperis pursuant to 42
U.S.C. § 1983, alleging violations of her constitutional rights. 1
At this time, the Court must review the 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.
1

Based on her affidavit of indigence, the Court will grant Plaintiff’s application to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915(a) and will order the Clerk of the Court to file the
Complaint.

I. BACKGROUND
The following factual allegations are taken from Plaintiff’s Complaint, and supplemental
Letters, and are accepted as true for purposes of this review.
Plaintiff alleges that she is being harassed by Harvy Broughton and his friends Catherine
Thacker and Ibhade Ibhadedifdon. 2 Of these three individuals, only Ibhade Ibhadedifdon is
named as a Defendant here; 3 In general terms, Plaintiff alleges that Ibhade Ibhadedifdon has
stolen Plaintiff’s identity.
Although Plaintiff’s Complaint is not entirely clear, it appears that she is alleging that
Ms. Ibhadedifdon made a false report that Plaintiff was harassing her. Plaintiff further alleges
that Defendant Atlantic County Court Administrator Bryant Tetter knows that Ms. Ibhadedifdon
“files a lot of false claims in court.” Plaintiff alleges that she was subject to a “false arrest” on
September 1, 2012, when she was arrested pursuant to a warrant issued against her on October 8,
2009, for a violation of N.J.S.A. 2C:33-4A (Harassment), a copy of which is attached to one of
Plaintiff’s supplemental Letters (Docket Entry No. 2). The document is a computer printout
entitled “COPY OF WARRANT,” is addressed “TO ANY POLICE OFFICER,” and directs
arrest as follows:
YOU ARE HEREBY COMMANDED TO ARREST THE DEFENDANT
WHOSE NAME AND ADDRESS ARE SHOWN BELOW AND BRING HIM
BEFORE THIS COURT TO ANSWER A COMPLAINT CHARGING AN
OFFENSE IN THE JURISDICTION OF THIS COURT OR HOLD THE
DEFENDANT TO BAIL BEFORE AN AUTHORIZED OFFICIAL IF AN
AMOUNT OF BAIL IS SHOWN ABOVE.
(Docket Entry No. 2, Letter, Att.) The warrant states that it is issued by Order of Judge G. Bruce

2

Plaintiff’s handwritten submissions are not particularly legible. Accordingly, the spelling of
proper names in this Opinion may not be accurate.
3

Plaintiff alleges that she has obtained a restraining order against Mr. Broughton.
2

Ward, a judge of the Atlantic County Municipal Court, and is “authorized” by Court
Administrator Brian W. Jetter. 4 The warrant further sets a bail amount of $500, not subject to
bond. Plaintiff alleges that she was released on September 8, 2012. She alleges that she suffered
chest pain while she was confined and that she believes she had a heart attack.
In the original Complaint, Plaintiff names the following Defendants: the State of New
Jersey, the Atlantic City Police Department, the Atlantic City Municipal Court, Judge Bruce
Ward, Court Administrator Bryant Tetter, Clerk to Judge Ward Ms. Cotice WitherspoonStanford, Atlantic City Police Department Sgt. Brennum, Littlefield City Lawyer Brian Braun,
Ms. Ibhade Ibhadedifdon, Mayor L. Langford, Chief of Police Mr. Earnest Jubilee, Captain of
Police Mr. Vanenburg, Detective Lori Nylam, Detective Stephen Rando, Investigator Charlotte
Berries, the Atlantic City Prosecutors Office, Ms. Tina Lolita, Ms. Diana Licki of the
Prosecutors’ Office, James Lenard (lawyer for Harry Broughton), State Parole Officer Mr. B.
Smith, Sgt. McGrafe of the Criminal Justice Unit, and Mr. Charles Cresenzo of the Criminal
Justice Unit.
In a Letter [3] to the Court dated July 15, 2013, Plaintiff seeks leave to add Ventnor
Prosecutor Mr. Mosca who allegedly interviewed her at the courthouse on March 26, 2013, the
day that charges against her were dropped. Plaintiff alleges that Mr. Mosca asked her for
identification and asked her to tell him “what happened.” It is not clear whether Mr. Mosca is
alleged to have interviewed Plaintiff before or after the charges were dropped or whether he had
any participation in the criminal action against her.
Plaintiff demands that a grand jury be convened and that federal criminal corruption
charges be brought against all those involved. She also seeks damages in the amount of $50

4

The Court notes that this spelling is different than that employed by Plaintiff: Bryant Tetter.
3

million for malicious prosecution, false reports, defamation, and emotional suffering.
II. STANDARDS FOR A SUA SPONTE DISMISSAL
A.

Screening Standard
Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321-

66 to 1321-77 (April 26, 1996) (“PLRA”), district courts must review complaints in those civil
actions in which a person is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B), or in
which a prisoner seeks redress against a governmental employee or entity, see 28 U.S.C.
§ 1915A(b), or brings a claim with respect to prison conditions, see 28 U.S.C. § 1997e. The
PLRA directs district courts to sua sponte dismiss any claim that is frivolous, is 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. This action is subject to sua sponte screening for dismissal under 28
U.S.C. § 1915 because Plaintiff sought and has been granted leave to proceed in forma pauperis.
According to the Supreme Court’s decision in Ashcroft v. Iqbal, “a pleading that offers
‘labels or conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not
do.’” 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To survive sua sponte screening for failure to state a claim 5, the complaint must allege
“sufficient factual matter” to show that the claim is facially plausible. Fowler v. UPMS
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted). “‘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.’” Belmont v. MB Inv. Partners, Inc., 708
5

“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012) (citing
Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App’x 230, 232
(3d Cir. 2012) (discussing 28 U.S.C. § 1997e(c)(1)); Courteau v. United States, 287 F. App’x
159, 162 (3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)).
4

F.3d 470, 483 n.17 (3d Cir. 2012) (quoting Iqbal, 556 U.S. at 678). Moreover, while pro se
pleadings are liberally construed, “pro se litigants still must allege sufficient facts in their
complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.
2013) (citation omitted) (emphasis added).
B.

General Pleading Standards
In addition, Rule 10(b) of the Federal Rules of Civil Procedure provides:
A party must state its claims ... in numbered paragraphs, each limited as far as
practicable to a single set of circumstances. ... If doing so would promote clarity,
each claim founded on a separate transaction or occurrence ... must be stated in a
separate count or defense.
Rule 18(a) controls the joinder of claims. In general, “[a] party asserting a claim ... may

join as independent or alternative claims, as many claims as it has against an opposing party.”
Fed.R.Civ.P. 18(a).
Rule 20(a)(2) controls the permissive joinder of defendants in civil actions:
Persons ... may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction, occurrence, or
series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the
action.
(emphasis added). See, e.g., Pruden v. SCI Camp Hill, 252 F. App’x 436 (3d Cir. 2007); George
v. Smith, 507 F.3d 605 (7th Cir. 2007).
In actions involving multiple claims and multiple defendants, Rule 20 operates
independently of Rule 18.
Despite the broad language of rule 18(a), plaintiff may join multiple
defendants in a single action only if plaintiff asserts at least one claim to relief
against each of them that arises out of the same transaction or occurrence and
presents questions of law or fact common to all. If the requirements for joinder of
parties have been satisfied, however, Rule 18 may be invoked independently to
permit plaintiff to join as many other claims as plaintiff has against the multiple
5

defendants or any combination of them, even though the additional claims do not
involve common questions of law or fact and arise from unrelated transactions.
7 Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice and Procedure,
§ 1655 (3d ed. 2009).
The requirements prescribed by Rule 20(a) are to be liberally construed in the interest of
convenience and judicial economy. Swan v. Ray, 293 F.3d 1252, 1253 (11th Cir. 2002).
However, the policy of liberal application of Rule 20 is not a license to join unrelated claims and
defendants in one lawsuit. See, e.g., Pruden v. SCI Camp Hill, 252 F. App’x 436 (3d Cir. 2007);
George v. Smith, 507 F.3d 605 (7th Cir. 2007); Coughlin v. Rogers, 130 F.3d 1348 (9th Cir.
1997). 6
Where a complaint can be remedied by an amendment, a district court may not dismiss
the complaint with prejudice, but must permit the amendment. Denton v. Hernandez, 504 U.S.
25, 34 (1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002) (dismissal
pursuant to 28 U.S.C. § 1915(e)(2)); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000)
(dismissal pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg County Police Dept., 91
F.3d 451, 453 (3d Cir. 1996).
III. SECTION 1983 ACTIONS
A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of
6

The Court will take this opportunity to note that the Complaint fails utterly to comply with the
requirements of Rules 10, 18, and 20. The Complaint lists all Defendants at the beginning, then
asserts minimal factual allegations regarding only a few of the named Defendants, and asserts no
factual allegations that would suggest that “any question of law or fact common to all defendants
will arise in the action.” This Court will assess the viability of the various claims asserted by
reference to the facts asserted against specific Defendants.
Because of the deficiencies of the various claims Plaintiff attempts to assert here, this
Court need not dismiss the Complaint for failure to comply with these pleading requirements.
To the extent Plaintiff seeks leave in the future to file an amended complaint, however, she must
submit a pleading that complies with the Federal Rules of Civil Procedure.
6

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 ... 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); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
IV. ANALYSIS
A.

False Arrest
Plaintiff alleges in conclusory language that she was subject to a “false” arrest for

harassment on September 1, 2012, when she was arrested pursuant to the warrant issued in 2009
by Judge Bruce Ward and “authorized” by Court Administrator Bryant Tetter, who allegedly
knows that Ibhade Ibhadedifdon makes many false claims.
It is well established in the Third Circuit that an arrest without probable cause is a Fourth
Amendment violation actionable under § 1983. See Berg v. County of Allegheny, 219 F.3d 261,
268-69 (3d Cir. 2000) (collecting cases); see also, Albright v. Oliver, 510 U.S. 266, 274 (1994)(a
section 1983 claim for false arrest may be based upon an individual’s Fourth Amendment right
to be free from unreasonable seizures). Under New Jersey law, false arrest has been defined as
“the constraint of the person without legal justification.” Mesgleski v. Oraboni, 330 N.J. Super.
10, 24 (App. Div. 2000).
To state a Fourth Amendment claim for false arrest, a plaintiff must allege two elements:
“(1) that there was an arrest; and (2) that the arrest was made without probable cause.” James v.
7

City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir. 2012) (citing Groman v. Twp. of Manalapan,
47 F.3d 628, 634 (3d Cir. 1995) and Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir.
1988)). To establish the absence of probable cause, a plaintiff must show “that at the time when
the defendant put the proceedings in motion the circumstances were such as not to warrant an
ordinary prudent individual in believing that an offense had been committed.” Lind v. Schmid,
67 N.J. 255, 262 (1975). “Probable cause . . . requires more than mere suspicion; however, it
does not require that the officer have evidence to prove guilt beyond a reasonable doubt.”
Orsatti v. New Jersey State Police, 71 F.3d 480, 482-83 (3d Cir. 1995). Rather, probable cause
exists when the facts and circumstances are “sufficient to warrant a prudent man in believing that
the defendant had committed or was committing an offense.” Gerstein v. Pugh, 420 U.S. 103,
111 (1975) (quoting Beck v. State of Ohio, 379 U.S. 89, 91 (1964)); Sharrar v. Felsing, 128 F.3d
810, 817 (3d Cir. 1997).
Here, as is apparent from the face of the arrest warrant, it was issued after a criminal
complaint had been filed against Plaintiff, who was, therefore, a defendant in a pending criminal
action, not a mere suspect. Plaintiff has failed to allege any facts regarding the genesis of the
criminal complaint, the nature of the information provided by the alleged victim, or the nature of
the investigation that preceded the filing of the criminal complaint. She has failed to allege the
identity of the arresting officer or the information known to that person. She has failed to allege
anything regarding the responsibilities or authority of Court Administrator Bryant Tetter, who
allegedly “authorized” the issuance of the warrant, other than naming his title, which suggests
only that he performed a routine judicial support task of producing a copy of a court record. The
allegation that he knows that Ibhade Ibhadedifdon has made other false allegations in court,
unsupported by any underlying facts or time frame, is not sufficient to demonstrate that he had

8

any involvement in the initiation of this criminal complaint against Plaintiff, pursuant to which
issuance of the arrest warrant would appear to have been completely proper.
Moreover, Plaintiff cannot rely on the subsequent dismissal of the charges against her to
establish that she was falsely arrested. “The Constitution does not guarantee that only the guilty
will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted indeed, for every suspect released.” Baker v. McCollan, 443 U.S. 137, 145 (1979). See also
Lynn v. Christner, 184 F. App’x 180, 183-84 (3d Cir. 2006) (“The proper inquiry in a 1983 claim
based on false arrest … is not whether the person arrested in fact committed the offense but
whether the arresting officers had probable cause to believe the person arrested had committed
the offense.” (citations and internal quotation marks omitted)).
Finally, to the extent Plaintiff seeks to direct her § 1983 claim at Ibhade Ibhadedifdon,
based on her alleged false statements, Plaintiff has not alleged that this defendant is a state actor.
Accordingly, in the face of the criminal complaint that had been filed before the arrest
warrant was issued, the skeletal factual allegations contained in the Complaint are not sufficient
to raise Plaintiff’s alleged right to relief against any state actor above a speculative level. See
Bell Atlantic Corp. v. Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a
right to relief above the speculative level.”). This claim will be dismissed without prejudice for
failure to state a claim. Cf. Kline v. Hall, Civil Action No. 12-1727, 2013 WL 1775061, *3
(M.D. Pa. Apr. 25, 2013) (dismissing, as “conclusory,” false arrest claim based on allegations
that arresting officer conducted field sobriety test “in a thoroughly flawed and incomplete
fashion,” and that the sobriety checkpoint was flawed “procedurally and substantively”).
B.

Malicious Prosecution
In order to state a prima facie case for a § 1983 claim of malicious prosecution in

9

violation of the Fourth Amendment, a plaintiff must establish the elements of the common law
tort as it has developed over time, and that there has been some deprivation of liberty consistent
with a “seizure” in violation of the Fourth Amendment. See 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));
Johnson v. Knorr, 477 F.3d 75, 81-85 (3d Cir. 2007); Gallo v. City of Philadelphia, 161 F.3d
217, 222 (3d Cir. 1998). 7 The common law elements of the tort of malicious prosecution action
arising out of a criminal prosecution are: (1) the criminal action was instituted by the defendant
against the plaintiff, (2) it was actuated by malice, (3) there was an absence of probable cause for
the proceeding, and (4) the criminal proceeding was terminated favorably to the plaintiff. See
Wiltz v. Middlesex County Office of Prosecutor, 249 F. App’x 944, 949 (3d Cir. 2007) (citing
Johnson v. Knorr, 477 F.3d at 82); Lind v. Schmid, 67 N.J. 255, 262 (1975). As noted above, a
plaintiff attempting to state a Fourth Amendment malicious prosecution claim under § 1983 must
also allege that there was "‘some deprivation of liberty consistent with the concept of seizure.’"
Gallo, 161 F.3d at 222 (citation omitted).

See also Carney v. Pennsauken Twp. Police Dept.,

Civil Action No. 11-7366, 2013 WL 2444043, *3 (D.N.J. June 3, 2013) (also noting that, to state
a Fourth Amendment malicious prosecution claim, a plaintiff must allege both the common law
elements of the tort of malicious prosecution and a deprivation of liberty sufficient to constitute a
“seizure” within the meaning of the Fourth Amendment, but further noting that it is appropriate
for federal courts deciding Fourth Amendment malicious prosecution claims to consider state

7

In Gallo, the Court noted that prosecution without probable cause probably is not, in and of
itself, a constitutional tort based on a violation of substantive due process. "Instead, the
constitutional violation is the deprivation of liberty accompanying the prosecution," which raises
a claim of violation of the Fourth Amendment right not to be subjected to unreasonable seizures.
It is for this reason that a § 1983 claim for unconstitutional malicious prosecution must include
an allegation that there was a seizure within the meaning of the Fourth Amendment. 161 F.3d at
222 (citing Albright v. Oliver, 510 U.S. 266 (1994)).
10

cases interpreting the elements of the common law tort, which have been “adopted” by federal
courts).
Here, Plaintiff is not clear about the state actor who allegedly instituted the criminal
prosecution against her. Although Plaintiff has adequately alleged that she was seized, and that
the criminal proceeding terminated in her favor after she filed the original Complaint, she has
failed to allege facts demonstrating that any state actor acted with malice in instituting the
proceeding against her or, as noted previously, that any state actor instituted the action without
probable cause. It is not sufficient to state, in conclusory fashion, that there was no probable
cause for the prosecution. Instead, she must state facts regarding the information known to the
person who instituted the proceeding, from which facts it could be concluded that the
prosecution was instituted without probable cause. See, e.g., Carney, 2013 WL 2444043, *3-*4;
Pitman v. Ottehberg, Civil Action No. 10-2538, 2011 WL 6935274, *11, *13-14 (D.N.J. Dec. 30
2011). Accordingly, this claim will be dismissed without prejudice for failure to state a claim.
Cf. Jacobs v. City of Bridgeton, Civil Action No. 09-3035, 2009 WL 2016300, *3 (D.N.J. July 2,
2009) (holding that the plaintiff’s self-serving, conclusory repeats of the phrase that “each
Defendant ‘violat[ed] Plaintiff[‘]s 5th and 6th amendments [and] subjecting Plaintiff to frivolous
litigation and malicious prosecution’” did not meet the Iqbal pleading requirements); Basinger v.
Wentz, Civil Action No. 08-1545, 2009 WL 1675274, *3 (M.D. Pa. June 15, 2009) (dismissing
malicious prosecution claim based on “sweeping, conclusory legal statements condemning
Defendants” for, e.g., bringing “baseless charges” against the plaintiff). 8
C.

Vicarious Liability
Plaintiff has named as Defendants, here, a plethora of remote actors, against whom no

8

Again, as Ibhade Ibhadedifdon is not a state actor, she cannot be held liable under § 1983 for
any alleged constitutional violation.
11

specific factual allegations are made, including the Atlantic City Police Department, Atlantic
City Police Department Sgt. Brennum, Littlefield City Lawyer Brian Braun, Mayor L. Langford,
Chief of Police Earnest Jubilee, Captain of Police Mr. Vanenburg, and Detectives Lori Nylam
and Stephen Rando.
Local government units and supervisors are not liable under § 1983 solely on a theory of
respondeat superior. See Connick v. Thompson, 131 S.Ct. 1350, 1358-61 (2011); City of
Oklahoma City v. Tuttle, 471 U.S. 808, 824 n.8 (1985); Monell v. New York City Department of
Social Services, 436 U.S. 658, 690-91, 694 (1978) (municipal liability attaches only “when
execution of a government’s policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official policy, inflicts the injury”
complained of); Natale v. Camden County Correctional Facility, 318 F.3d 575, 583-84 (3d Cir.
2003). “A defendant in a civil rights action must have personal involvement in the alleged
wrongs, liability cannot be predicated solely on the operation of respondeat superior. Personal
involvement can be shown through allegations of personal direction or of actual knowledge and
acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations omitted).
Accord Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293-96 (3d Cir. 1997); Baker v. Monroe
Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995).
To establish municipal liability under § 1983, “a plaintiff must show that an official who
has the power to make policy is responsible for either the affirmative proclamation of a policy or
acquiescence in a well-settled custom.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990),
quoted in Woodwind Estates, Ltd. v. Gretkowski, 205 F.3d 118, 126 (3d Cir. 2000), and cited in
Olivieri v. County of Bucks, 502 F. App’x 184, 189 (3d Cir. 2012). A plaintiff must demonstrate
that, through its deliberate conduct, the municipality was the moving force behind the plaintiff’s

12

injury. Monell, 436 U.S. at 689.
A policy is made “when a decisionmaker possess[ing] final authority to establish
municipal policy with respect to the action issues a final proclamation, policy or
edict.” A custom is an act “that has not been formally approved by an appropriate
decisionmaker,” but that is “so widespread as to have the force of law.”
There are three situations where acts of a government employee may be
deemed to be the result of a policy or custom of the governmental entity for
whom the employee works, thereby rendering the entity liable under § 1983. The
first is where “the appropriate officer or entity promulgates a generally applicable
statement of policy and the subsequent act complained of is simply an
implementation of that policy.” The second occurs where “no rule has been
announced as policy but federal law has been violated by an act of the
policymaker itself.” Finally, a policy or custom may also exist where “the
policymaker has failed to act affirmatively at all, [though] the need to take some
action to control the agents of the government ‘is so obvious, and the inadequacy
of existing practice so likely to result in the violation of constitutional rights, that
the policymaker can reasonably be said to have been deliberately indifferent to the
need.’”
Natale, 318 F.3d at 584 (footnote and citations omitted).
Here, Plaintiff has failed to allege any facts that would suggest that any of the abovereferenced remote actors was personally involved in the alleged violations of her constitutional
rights or that any of them, or any municipality or government agency with which any of them is
associated, is responsible for any policy or custom that contributed to the alleged violations of
Plaintiff’s constitutional rights. Accordingly, the claims against these Defendants will be
dismissed without prejudice for failure to state a claim.
D.

Judicial Immunity
Plaintiff has named as Defendants here Judge Bruce Ward, his clerk Ms. Cotice

Witherspoon-Stanford, Ms. Tina Lolita (described as the person who “oversees” the Atlantic and
Cape May courthouses), 9 and Court Administrator Bryant Tetter.

9

Plaintiff has made no factual allegations regarding Ms. Cotice Witherspoon-Stanford or Ms.
Lolita. For this reason, alone, the claims against them are dismissible.
13

As a general rule, judges acting in their judicial capacity are absolutely immune (in both
their individual and official capacities) from suit for monetary damages under the doctrine of
judicial immunity. See Mireles v. Waco, 502 U.S. 9, 9 (1991), cited and followed in Howell v.
Young, No. 13-1281, 2013 WL 3481759 (3d Cir. July 3, 2013). Judicial immunity can be
overcome only for actions not taken in a judicial capacity, Mireles, 502 U.S. at 9, or for actions
taken in a complete absence of all jurisdiction, id. at 11-12. Allegations that actions were
undertaken with an improper motive diminishes neither their character as judicial actions nor the
judge’s immunity. See Forrester v. White, 484 U.S. 219, 227 (1988). Any action taken by Judge
Bruce Ward in issuing the arrest warrant was clearly taken in his judicial capacity. Accordingly,
the claim against Judge Ward will be dismissed with prejudice on grounds of immunity.
In addition, quasi-judicial immunity may extend to professionals who assist courts in
their judicial function. 10 See Hughes v. Long, 242 F.3d 121 (3d Cir. 2001). In Antoine v. Byers
& Anderson, Inc., 508 U.S. 429 (1993), the Supreme Court held that judicial immunity may be
extended to officials other than judges "because their judgments are ‘functional[ly]
comparab[le]’ to those of judges--that is, because they, too, ‘exercise a discretionary judgment’
as a part of their function." 508 U.S. at 436 (citations omitted). Under this "functional"
approach, courts must look to the nature of the function performed and not to the identity of the
actor performing it, to determine if immunity is appropriate. See Buckley v. Fitzsimmons, 509
U.S. 259, 269 (1993); Keystone Redevelopment Partners, LLC v. Decker, 631 F.3d 89, 103 (3d
Cir. 2011) (“[D]eciding whether to extend quasi-judicial immunity to an official involves a legal
determination that focuses on the legal and structural components of the job function ….”)

10

The immunity analysis is the same whether the suit is brought against state actors pursuant to
42 U.S.C. § 1983 or against federal actors in a Bivens-type action. Antoine v. Byers Anderson,
Inc., 508 U.S. at 433 n.5 (1993).
14

(citing Dotzel v. Ashbridge, 438 F.3d 320, 325 (3d Cir. 2006) (internal quotation marks omitted).
There is no binding Third Circuit authority on the question of whether court clerks are
entitled to absolute immunity for conduct such as that charged here—“authorizing” the
production of an arrest warrant issued by a judge. 11 However, courts in this Circuit and others
have extended quasi-judicial immunity to court clerks who are alleged to have acted incorrectly
or improperly in carrying out their official duties. 12 Moreover, the Third Circuit has reached
similar conclusions in several unpublished decisions. See, e.g., Wicks v. Lycoming Co., 456 F.
App’x 112, 115 (3d Cir. 2012) (finding that court administrator was entitled to absolute
immunity for transferring case from one judge to another); Wallace v. Abell, 217 F. App’x 124
(3d Cir. 2007) (holding Clerk of Court absolutely immune from a suit for damages for
discretionary acts, and that court personnel are qualifiedly immune for nondiscretionary acts
such as entering orders and notifying parties). Court Administrator Tetter’s actions challenged
here, by Plaintiff, appear integral to the judicial function and within the responsibility assigned to
court personnel. Thus, he is, at the least, entitled to qualified immunity, in the absence of any
factual allegations that suggests he did anything other than properly perform a task in support of
the judicial function.

11

Immunity analysis is the same whether the suit is brought against state actors pursuant to 42
U.S.C. § 1983 or against federal actors in a Bivens-type action. Antoine v. Byers & Anderson,
Inc., 508 U.S. at 433 n.5 (1993).
12

See, e.g., Fischer v. United States, Civil Action No. 02-0691, 2003 WL 21262103, *4-*5 (C.D.
Cal. 2003) (unpublished) (finding that court clerks were immune from claims that they had
obstructed justice and encouraged organized crime by not entering defaults, by entering motions
to dismiss as answers, by entering prohibited pre-trial motions, or by altering the sequence of
events (numbers and entry dates) while supposedly correctly docketing a case); Davis v.
Philadelphia County, 195 F.Supp.2d 686, 688 (E.D. Pa. 2002); Harris v. Suter, 3 F. App’x 365
(6th Cir. 2001); McGann v. Lange, Civil Action No. 96-0859, 1996 WL 586798 (E.D.N.Y.
1996) (unpublished).
15

Similarly, in the post-Antoine era, courts have continued to afford quasi-judicial
immunity to judicial law clerks, insofar as their challenged actions involve official duties that are
integral to the judicial function. See, e.g., Jackson v.Pfau, Civil Action No. 12-0324, 2013 WL
1338712 (2d Cir. Apr. 4, 2013); Jallali v. Florida, 404 F. App’x 455 (11th Cir. 2010). In the
absence of any factual allegations regarding law clerk Cotice Witherspoon-Stanford, she is
entitled to quasi-judicial immunity.
For the foregoing reasons, all claims against Judge Bruce Ward, Court Administrator
Tetter, and law clerk Cotice Witherspoon-Stanford will be dismissed with prejudice. As Plaintiff
has made no factual allegations from which Ms. Lolita’s general responsibilities can be gleaned,
it is not possible to determine whether she may be entitled to quasi-judicial immunity.
E.

Prosecutorial Immunity
Plaintiff has named as a Defendant Ms. Diana Licki, who is described as an Assistant

Prosecutor. 13 In addition, she has sought leave to amend the Complaint to add as a defendant
Mr. Mosca, who is described as a prosecutor of the Ventnor courthouse, and who is alleged to
have interviewed Plaintiff at the courthouse on the day the charges against her were dropped.
(Docket Entry 3, Letter.)
"[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 42 U.S.C. § 1983. Imbler v.
Pachtman, 424 U.S. 409, 410 (1976). 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

13

In the text of the Complaint, though not in the caption, Plaintiff also lists as employees of the
Prosecutors Office Chief Prosecutor Mr. McClain and Assistant Prosecutor Mr. Edmund Burgos.
It is not clear whether Plaintiff seeks to proceed against these individuals. To the extent she
intended to name these two individuals as defendants, the discussion herein regarding Defendant
Diana Licki applies equally to them.
16

an advocate for the State, are entitled to the protections of absolute immunity." Buckley v.
Fitzsimmons, 509 U.S. 259, 273 (1993). See B.S. v. Somerset County, 704 F.3d 250, 269 (3d
Cir. 2013).
Here, the only facts alleged regarding Plaintiff’s prosecution are that a criminal complaint
was filed, that a judicial officer set bail, and that the charges were later dismissed. There is
nothing in Plaintiff’s allegations to suggest that any of the referenced prosecutors were acting
outside the scope of their duties. Rather, they were pursuing a criminal prosecution.
Accordingly, they are entitled to absolute immunity. The request to amend the Complaint will
be denied as futile.
F.

Eleventh Amendment Immunity
Plaintiff has named as defendants several entities that are immune from suit in federal

court under the Eleventh Amendment to the U.S. Constitution, including the State of New Jersey,
Atlantic City Municipal Court, and the Atlantic City Prosecutors Office.
The Eleventh Amendment provides that, "The Judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted against one of
the United States by citizens of another State, or by Citizens or Subjects of any Foreign State."
As a general proposition, a suit by private parties seeking to impose a liability which must be
paid from public funds in a state treasury is barred from federal court by the Eleventh
Amendment, unless Eleventh Amendment immunity is waived by the state itself or by federal
statute. See, e.g., Edelman v. Jordan, 415 U.S. 651, 663 (1974). The Eleventh Amendment
protects states and their agencies and departments from suit in federal court regardless of the
type of relief sought. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100
(1984). Section 1983 does not override a state’s Eleventh Amendment immunity. Quern v.

17

Jordan, 440 U.S. 332 (1979). See also Hurst v. City of Rehoboth Beach, 288 F. App’x 20, 24-25
(3d Cir. 2008) (citing Edelman, Pennhurst, and Quern). Thus, the State of New Jersey is
immune from suit here.
To determine whether Eleventh Amendment immunity applies to a state agency, a court
must consider three factors: (1) the source of the agency’s funding - i.e., whether payment of
any judgment would come from the state’s treasury, (2) the status of the agency under state law,
and (3) the degree of autonomy from state regulation. See Flitchik v. New Jersey Transit Rail
Operations, 873 F.2d 655, 659 (3d Cir.) (en banc), cert. denied, 493 U.S. 850 (1989).
In Coleman v. Kaye, 87 F.3d 1491 (3d Cir. 1996) (abrogated on other grounds), the U.S.
Court of Appeals for the Third Circuit considered all of these factors in the context of a New
Jersey county prosecutor’s office. The circuit held that, “when [New Jersey] county prosecutors
engage in classic law enforcement and investigative functions, they act as officers of the state."
Id. at 1505. See Woodyard v. County of Essex, Civil Action No. 12-2945, 2013 WL 791634, at
*3 (citing same). The circuit further held, however, that “Eleventh Amendment immunity may
not apply when prosecutorial defendants perform administrative tasks unrelated to their strictly
prosecutorial functions, such as … personnel decisions.” Coleman, 87 F.3d at 1505. Here, there
is no suggestion that the Atlantic City Prosecutors Office was engaging in anything but classic
law enforcement functions in the prosecution of Plaintiff for harassment. Accordingly, that
office is an executive agency of the State of New Jersey entitled to Eleventh Amendment
immunity. See Smith v. New Jersey, Civil Action No. 12-0478, 2012 WL 5185611, *3-*4
(D.N.J. Oct. 18, 2012); Pitman v. Ottehberg, Civil Action No. 10-2538, 2011 WL 6935274, *4*8 (D.N.J. Dec. 30, 2011) (collecting cases).
In addition, this Court has previously held that municipal courts, as part of the judicial

18

branch of the State of New Jersey, are entitled to Eleventh Amendment immunity. See, e.g.,
Hernandez v. Switzer, Civil Action No. 09-2758, 2009 WL 4730182, *3 (D.N.J. Dec. 4, 2009);
Beckett v. Vega, Civil Action No. 05-3443, 2006 WL 1320043, *2 (D.N.J. 2006). Furthermore,
neither states, nor governmental entities that are considered arms of the state for Eleventh
Amendment purposes, are persons within the meaning of § 1983. Will v. Michigan Dept. of
State Police, 491 U.S. 58, 64, 70-71 and n.10 (1989); Willliamson v. Atlantic County Superior
Court, Civil Action No.12-7345, 2013 WL 1934517, *1 (D.N.J. May 8, 2013) (prosecutor’s
office is not a “person” within the meaning of § 1983); Hernandez v. Switzer, 2009 WL
4730182, *3 n.5 (municipal court is not a “person” within the meaning of § 1983).
For all the foregoing reasons, the claims against the State of New Jersey, the Atlantic
City Prosecutors Office, and the Atlantic City Municipal Court will be dismissed with prejudice.
Plaintiff could not cure the deficiencies in the claims against these defendants by any further
amendment of the Complaint.
G.

Criminal Charges
Plaintiff asks this Court to convene a grand jury and pursue criminal charges against the

Defendants. Authorities are in agreement, however, that the submission by a private party of a
civil rights complaint, or a purported criminal complaint, in federal court is not the appropriate
manner in which to initiate criminal proceedings.
A private person may not prosecute a federal criminal complaint.
Prosecution of a federal crime is the prerogative of the United States through the
attorney general and his delegates, the United States attorneys. 28 U.S.C. § 516
("Except as otherwise authorized by law, the conduct of litigation in which the
United States, an agency, or officer thereof is a party, or is interested, and
securing evidence therefor, is reserved to officers of the Department of Justice,
under the direction of the Attorney General."); The Confiscation Cases, 74 U.S.
454, 457 (1868) ("Public prosecutions, until they come before the court to which
they are returnable, are within the exclusive direction of the district attorney,
[...]"); ...; United States ex rel. Savage v. Arnold, 403 F.Supp. 172, 174 (E.D. Pa.
19

1975); United States v. Panza, 381 F.Supp. 1133, 1133-35 (W.D. Pa. 1974)
(reciting history of rule); ... .
Peters v. Beard, 2006 WL 2174707 (M.D. Pa. June 13, 2006) (Report and Recommendation)
(citations omitted), adopted by, 2006 WL 2175173 (M.D. Pa. Aug. 1, 2006). See also Higgins v.
Neal, 52 F.3d 337, 1995 WL 216920 (10th Cir. 1995) (unpubl.) (collecting cases); Caracter v.
Avshalumov, Civil Action No. 06-4310, 2006 WL 3231465 (D.N.J. Nov. 8, 2006) (collecting
cases); Stoll v. Martin, 2006 WL 2024387 (N.D. Fla. July 17, 2006) (collecting cases).
Nevertheless, if a purported criminal complaint warrants action, a court may refer it to the
United States Attorney for action. Savage, 403 F.Supp. at 174. The commencement of a
criminal action is governed in part by Federal Rules of Criminal Procedure 3 and 4, which
provide some guidance in determining whether a purported criminal complaint merits reference
to the United States Attorney. Rule 3 provides, "The complaint is a written statement of the
essential facts constituting the offense charged. ... [I]t must be made under oath before a
magistrate judge or, if none is reasonably available, before a state or local judicial officer." Rule
4 provides, in pertinent part, "If the complaint or one or more affidavits filed with the complaint
establish probable cause to believe that an offense has been committed and that the defendant
committed it, the judge must issue an arrest warrant to an officer authorized to execute it."
Here, Plaintiff’s allegations are not sufficient to establish probable cause to believe that
any Defendant here violated any federal criminal statute. This Court perceives no reason, on the
basis of the facts before it, to refer this matter to the United States Attorney.
G.

Pendent State Law Claims
To the extent the Complaint could be construed to assert state tort claims, for defamation,

for example, they will be dismissed without prejudice.
Pursuant to 28 U.S.C. § 1367(c)(3), where a district court has dismissed all claims over
20

which it has original jurisdiction, it may decline to exercise supplemental jurisdiction over a
related state law claim. The Court of Appeals for the Third Circuit has held that, where all
federal claims are dismissed before trial, “the district court must decline to decide the pendent
state claims unless considerations of judicial economy, convenience, and fairness to the parties
provide an affirmative justification for doing so.” Hedges v. Musco, 204 F.3d 109, 123 (3d Cir.
2000) (citation omitted, alteration in original), quoted in White v. Camden Bd. of Ed., No. 123743, 2013 WL 3115208, *2 (3d Cir. June 20, 2013). As no such extraordinary circumstances
appear to be present, this Court will dismiss any state law claims without prejudice.
V. CONCLUSION
For the reasons set forth above, all claims will be dismissed, pursuant to 28 U.S.C.
§ 1915(e)(2)(B). All claims against Defendants Judge Bruce Ward, Ms. Cotice WitherspoonStandford, Bryant Tetter, Ms. Diana Licki, the State of New Jersey, Atlantic City Municipal
Court, and the Atlantic City Prosecutors Office are dismissed with prejudice. However, because
it is conceivable that Plaintiff may be able to supplement her pleading with facts sufficient to
overcome the deficiencies described herein, the Court will grant Plaintiff leave to file an
application to re-open accompanied by a proposed amended complaint. 14
An appropriate order follows.
s/Robert B. Kugler
Robert B. Kugler
United States District Judge
Dated: August 29, 2013
14

Plaintiff should note that when an amended complaint is filed, it supersedes the original and
renders it of no legal effect, unless the amended complaint specifically refers to or adopts the
earlier pleading. See West Run Student Housing Associates, LLC v. Huntington National Bank,
No. 12-2430, 2013 WL 1338986, *5 (3d Cir. Apr. 4, 2013) (collecting cases). See also 6 Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1476 (3d ed. 2008). To avoid
confusion, the safer practice is to submit an amended complaint that is complete in itself. Id.
21