GREGORY v. GONZALEZ

Filing 6

OPINION. Signed by Chief Judge Jerome B. Simandle on 7/14/2014. (bdk, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

HOWARD GREGORY,
Plaintiff,
v.
RALPH A. GONZALEZ,
Defendant.

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Civil No. 14-1008 (JBS)

OPINION

APPEARANCES:
Howard Gregory, Pro Se
255265
Camden County Correctional Facility
330 Federal Street
Camden, NJ 08102
SIMANDLE, Chief Judge
Plaintiff, Howard Gregory, incarcerated at the Camden County
Correctional Facility, Camden, New Jersey seeks to bring this action
in forma pauperis (“IFP”). Based on his affidavit of indigence, the
Court will grant Plaintiff's application to proceed IFP pursuant to
28 U.S.C. § 1915(a) and order the Clerk of the Court to file the
Complaint.1
1

On February 26, 2014, this Court administratively terminated
this matter because Plaintiff failed to provide the filing fee or
a complete IFP application. On April 11, 2014, Plaintiff provided

The Court must now review the Complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B) and § 1915A(b), 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 Plaintiff's Complaint must be
dismissed for failure to state a claim.
BACKGROUND
Plaintiff seeks to sue his lawyer, Defendant Ralph A. Gonzalez,
because in the course of his criminal proceedings, Plaintiff feels
that Defendant is “being very disrespectful.” (Complt., ¶ 4b). He
asserts that Defendant is violating his due process rights by
refusing to submit motions pertaining to his criminal case and has
violated his right to effective assistance of counsel by not
including Plaintiff in the discovery process so that Plaintiff can
decide whether to accept a plea or go to trial. (Complt., ¶ 6).
Plaintiff asks this Court to remove Defendant as his attorney
“due to unethical representation of counsel” and for an investigation
to be done. (Complt., ¶ 7).

the necessary IFP paperwork, and on June 2, 2014, this case was
reopened (Docket Items 4, 5).
2

DISCUSSION
1. Standards for a Sua Sponte Dismissal
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 prisoner is proceeding in forma pauperis, see 28 U.S.C. §
1915(e)(2)(B), 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(e) and § 1915A because Plaintiff is a prisoner
and is proceeding as an indigent.
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,2 the complaint must allege “sufficient
2

“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
3

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 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).
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 ...
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
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)).
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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.
SeeWest v. Atkins, 487 U.S. 42, 48 (1988); Malleus v. George, 641
F.3d 560, 563 (3d Cir. 2011).
3.

The Complaint Must be Dismissed.
“Although a [person] may cause a deprivation of ... a right,

[he] may be subjected to liability under § 1983 only when [he] does
so under color of law.” Mark v. Borough of Hatboro, 51 F.3d 1137,
1141 (3d Cir. 1995) (quoting Flagg Brothers, Inc. v. Brooks, 436 U.S.
149, 156 (1978)). In Polk County v. Dodson, 454 U.S. 312 (1981), the
Supreme Court held that a public defender, although paid and
ultimately supervised by the state, does not act under color of state
law for the purposes of § 1983 when performing the traditional
functions of counsel to a criminal defendant. See Vermont v. Brillon,
556 U.S. 81, 91 (2009) (“Unlike a prosecutor or the court, assigned
counsel ordinarily is not considered a state actor”). This principle
has been applied to private attorneys, too. See Angelico v. Lehigh
Valley Hospital, Inc., 184 F.3d 268, 277 (3d Cir. 1999) (private
attorneys were not acting under color of state law when they issued
subpoenas); Thomas v. Howard, 455 F.2d 228 (3d Cir. 1972)
(court-appointed pool attorney does not act under color of state
law); see also Murphy v. Bloom, 443 F. App'x 668 (3d Cir.
5

2011)(neither privately-retained nor court-appointed attorney were
federal actors for purposes of suit under Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the federal
counterpart to 42 U.S.C. § 1983).
Because the acts and omissions complained of in regard to
Defendant concern the traditional functions of a criminal defense
attorney, Defendant was not acting under color of state law, and the
Complaint fails to state a claim under 42 U.S.C. § 1983.3 Because the
named defendant is not subject to suit under § 1983 for alleged
violation of Plaintiff's constitutional rights, this Court will
dismiss the Complaint for failure to state a claim upon which relief
may be granted.
CONCLUSION
For the reasons stated above, Plaintiff’s Complaint must be
dismissed,

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.

An appropriate Order follows.

s/ Jerome B. Simandle
JEROME B. SIMANDLE, Chief Judge
United States District Court
Dated:

July 14, 2014

3

To the extent Plaintiff claims that Defendant denied his right
to the effective assistance of counsel pursuant to the Sixth
Amendment, such a claim may only be brought under 28 U.S.C. § 2254
after the exhaustion of state court remedies. See Preiser v.
Rodriguez, 411 U.S. 475 (1973).
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