COOPER v. COOK et al
OPINION. Signed by Chief Judge Jerome B. Simandle on 4/20/2015. (nz, )n.m.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MORRIS M. COOPER,
HONORABLE JEROME B. SIMANDLE
No. 15-1293 (JBS/AMD)
TERRENCE COOK, et al.,
Morris Cooper, Plaintiff Pro Se
Atlantic County Justice Facility
5060 Atlantic Avenue
Mays Landing, NJ 08330
SIMANDLE, Chief Judge:
Plaintiff Morris Cooper, a pretrial detainee currently
confined at Atlantic County Justice Facility (“ACJF”), Mays
Landing, New Jersey, seeks to bring a civil rights complaint
pursuant to 42 U.S.C. § 1983 and to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915. Based on his affidavit of
indigence, the Court will grant Plaintiff's application to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) and
order the Clerk of the Court to file the Complaint. (Docket
At this time, the Court must review the complaint, pursuant
to 28 U.S.C. §§ 1915(e)(2) and 1915A 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
For the reasons set forth below, the Court concludes
that the complaint will be dismissed for failure to state a
claim upon which relief can be granted and for seeking damages
from entities that are immune from suit. See 28 U.S.C. §§
1915(e)(2). Plaintiff shall, however, be permitted to amend
certain claims of his complaint.
Plaintiff brought this civil rights action against
Defendants Terrence Cook, J.S.C., Michael V. Luciano, Philip G.
Pagano, Lawrence Artis (improperly pled as “Artist”) Warden of
Burlington County Jail, Kevin Walke, Gina Y. Holmes, Amelia
Estrella Rodriguez, Billie J. Moore, C.J.M.C., Atlantic City
Police Department, Willingboro Township Municipal Court, Kenneth
S. Domzalski, J.S.C., Joseph E. Krakora, H. Warner, J.M.C.,
Atlantic City Municipal Court, Officer Christoph Smith, Officer
R. Wagner, Atlantic County Superior Court Law Division,
Geraldine Cohen, Atlantic County Justice Facility, Teresa
Ungaro, Julio Mendez, A.J.S.C., and Mark Sandson, J.S.C. (Docket
Plaintiff states in his complaint:
Officers of BURLINGTON County in Conspiracy acting under
color of law who have cause[d] me to be subjected to the
deprivation of substantive due process and equal
protection rights, [privileges] and immunities secured
by the Constitution and laws of the United States and
Constitution and laws of the State of New Jersey who
have interfered by threat, intimidation and coercion
through procedural rules of presumption while acting
outside the bounds of their authority and jurisdiction
manifesting a conscious disregard of risk and intent to
cause harm pursuant to state-created theory.1
(Docket Entry 1 at 3). He elaborates:
Officers of BURLINGTON County has failed to reveal the
correct communication sentence structure “Parse-Syntax”
grammar2 for the voidance of the purgery [sic] and fraud
under Title ~ 18 for false and misleading statements.
The State has also failed to state a claim upon which
relief can be granted and lacks subject matter
Jurisdiction over the person.
(Docket Entry 1 at 6).
Plaintiff seeks $50,000 compensatory and $50,000 punitive
damages from each defendant, as well as injunctive relief.
(Docket Entry 1 at 3-4, 10; Docket Entry 6 at 1).
By Order dated February 24, 2015, this Court
administratively terminated the complaint for failing to comply
with the standard to proceed in forma pauperis as set forth in
28 U.S.C. § 1915. (Docket Entry 2). Plaintiff submitted a new
IFP application on March 10, 2015, (Docket Entry 3), and
He makes identical allegations
and officers. (Docket Entry 1 at
2 A “language” invented by David
Nat. Trust Co. v. Halajian, 2012
as to the Atlantic County courts
Wynn Miller. See Deutsche Bank
WL 1076218, *4 (E.D. Cal. Mar.
submitted a motion to file an amended complaint, (Docket Entry
5), and for consolidation of this case with another matter
pending before this Court. (Docket Entry 4).
A. 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 42 U.S.C. § 1997e.
PLRA directs district courts 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.
This action is subject to sua
sponte screening for dismissal under 28 U.S.C. §§ 1915(e)(2)(b)
and 1915A because Plaintiff is a prisoner proceeding in forma
pauperis and seeks redress against governmental employees and
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)); see also
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
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
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,3 the complaint must
allege “sufficient factual matter” to show that the claim is
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.” Fair Wind
Sailing, Inc. v. Dempster, 764 F.3d 303, 308 (3d Cir. 2014)
(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.”
“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 Fed. Appx.
120, 122 (3d Cir. 2012) (citing Allah v. Seiverling, 229 F.3d
220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 Fed. Appx. 230,
232 (3d Cir. 2012) (discussing 28 U.S.C. § 1997e(c)(1));
Courteau v. United States, 287 Fed. Appx. 159, 162 (3d Cir.
2008) (discussing 28 U.S.C. § 1915A(b)).
Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.
B. 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
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
(1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011);
Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994).
Plaintiff seeks to sue Terrence Cook, Billie J. Moore, Kenneth
S. Domzalski, H. Warner, Julio Mendez, and Mark Sandson, all of
whom are judges of New Jersey’s Superior and Municipal Courts.
However, “[i]t is a well-settled principle of law that judges are
generally ‘immune from a suit for money damages.’” Figueroa v.
Blackburn, 208 F.3d 435, 440 (3d Cir. 2000) (quoting Mireles v.
Waco, 502 U.S. at 11, 9 (1991)). “A judge will not be deprived of
maliciously, or was in excess of his authority.” Stump v. Sparkman,
435 U.S. 349, 356 (1978). Furthermore, “[a] judge is absolutely
immune from liability for his judicial acts even if his exercise
of authority is flawed by the commission of grave procedural
errors.” Id. at 359.
Judicial immunity also extends to suits brought under 42
U.S.C. § 1983. See Pierson v. Ray, 386 U.S. 547, 553–55 (1967).
circumstances.” Mireles, 502 U.S. at 11. “First, a judge is not
immune from liability for nonjudicial acts, i.e., actions not taken
in the judge's judicial capacity.” Ibid. In determining whether an
act qualifies as a “judicial act,” courts looks to “the nature of
the act itself, i.e., whether it is a function normally performed
by a judge, and to the expectation of the parties, i.e., whether
they dealt with the judge in his judicial capacity.” Stump, 435
U.S. at 362. “Second, a judge is not immune for actions, though
jurisdiction.” Mireles, 502 U.S. at 12.
Plaintiff has set forth no facts that suggest the named judges
acted outside of their judicial capacity or in the absence of all
jurisdiction.4 Therefore they are entitled to complete judicial
immunity, and the complaint must be dismissed with prejudice.
Claim against Public Defenders
Philip G. Pagano, Kevin Walke, and Joseph Krakora. In Polk Co. v.
Dodson, 454 U.S. 312, 325 (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 when performing the
traditional functions of counsel to a criminal defendant.” See
considered a state actor); Angelico v. Lehigh Valley Hosp., Inc.,
184 F.3d 268, 277 (3d Cir. 1999) (private attorneys were not acting
under color of state law when they issued subpoenas); Calhoun v.
Young, 288 Fed. Appx. 47, 49-50 (3d Cir. 2008) (public defender
representing criminal defendant is not acting under color of state
law); Thomas v. Howard, 455 F.2d 228 (3d Cir. 1972) (courtappointed pool attorney does not act under color of state law).
Indeed the documents submitted by Plaintiff in support of his
motions indicate Plaintiff objects to the state courts’ failure
to grant his motions for Parse-Syntax and other relief. (See
generally Docket Entry 6). These documents clearly support a
finding that the judicial officers were performing their normal
functions and in their judicial capacity. Stump, 435 U.S. at
Therefore, because it appears that Defendants Pagano, Walke,
and Krakora were not acting under color of state law, the claims
against them must be dismissed with prejudice.
Eleventh Amendment Immunity
Plaintiff's claims against Defendants Willingboro Township
County Superior Court Law Division must be dismissed, as these
defendants are immune to suit.
The Eleventh Amendment to the United States Constitution
provides: “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.” U.S.
Const. amend. XI.
Eleventh Amendment immunity “protects both states and state
agencies ‘as long as the state is the real party in interest.’”
Woodyard v. Cnty. of Essex, 514 Fed. Appx. 177, 182 (3d Cir. 2013)
(per curiam) (quoting Fitchik v. N.J. Transit Rail Operations, 873
F.2d 655, 659 (3d Cir. 1989) (en banc)). In determining whether
immunity applies, a court examines: “(1) the source of the money
that would pay for the judgment; (2) the status of the entity under
state law; and (3) the entity's degree of autonomy.” Haybarger v.
Lawrence Cnty. Adult Prob. & Parole, 551 F.3d 193, 1978 (3d Cir.
2008) (citing Fitchik, 873 F.2d at 659).
It has been held that “the New Jersey Superior Court is an
‘arm’ of the state entitled to share in the state's sovereign
immunity.” Johnson v. State of New Jersey, 869 F. Supp. 289, 296
(D.N.J. 1994). This principle applies to the municipal courts of
this state as well. See Madison v. Neifeild, 576 Fed. Appx. 96,
96 (3d Cir. 2014) (per curiam) (citing Benn v. First Judicial Dist.
of Pa., 426 F.3d 233, 241 (3d Cir. 2005)).
As Plaintiff’s claims against Gina Y. Holmes and Teresa
Ungaro are in their official capacity as court clerks, they are
entitled to Eleventh Amendment immunity as well. A suit against
a public official “‘in his or her official capacity is not a
suit against the official but rather is a suit against the
official's office . . . .’” Printz v. United States, 521 U.S.
898, 930–31 (1997) (quoting Will v. Mich. Dep't of State Police,
491 U.S. 58, 71 (1989)). The Will Court concluded that “neither
a State nor its officials acting in their official capacities
are ‘persons' under § 1983.” 491 U.S. at 71; see also Smith v.
New Jersey, 908 F. Supp. 2d 560, 563-64 (D.N.J. 2012).
Plaintiff’s claims against Michael V. Luciano, a Burlington
County Prosecutor, must also be dismissed. The Third Circuit has
held that “‘when [New Jersey] county prosecutors engage in
classic law enforcement and investigative functions, they act as
officers of the State.’ When county prosecutors perform
administrative functions ‘unrelated to the duties involved in
criminal prosecution,’ however, they act as county officials.”
Estate of Lagano v. Bergen Cnty. Prosecutor's Office, 769 F.3d
850, 855 (3d Cir. 2014 (quoting Coleman v. Kaye, 87 F.3d 1491,
1505-06 (3d Cir. 1996)). The documents submitted by Plaintiff in
support of his motions indicate he objects to Luciano’s actions
law enforcement actions. (See generally Docket Entry 6). He is
therefore entitled to Eleventh Amendment immunity.
F. Entities Not “Persons”
Plaintiff names the ACJF as a defendant.
however, must be dismissed from this action because a jail is
not a “person” amenable to suit under § 1983. See, e.g., Grabow
v. Southern State Corr. Facility, 726 F. Supp. 537, 538-39
(D.N.J. 1989) (correctional facility is not a “person” under §
1983). The Atlantic City Police Department is likewise not a
“person” subject to liability under § 1983. See Will, 491 U.S.
at 71; Jackson v. City of Erie Police Dep’t, 570 Fed. Appx. 112,
114 n.2 (3d Cir. 2014) (“Although local governmental units may
constitute ‘persons’ against whom suit may be lodged under 42
U.S.C. § 1983, a city police department is a governmental subunit that is not distinct from the municipality of which it is a
As amendment of the Complaint as to these defendants would
be frivolous, the complaint shall be dismissed against them with
As to remaining defendants Artis, Cohen, Rodriguez, Smith,
and Wagner, Plaintiff’s claim of conspiracy must be dismissed for
failure to state a claim.
“To make out a conspiracy claim under § 1983, [Plaintiff]
must show that ‘persons acting under color of state law conspired
to deprive him of a federally protected right.’ As a threshold
matter, however, a § 1983 conspiracy claim only arises when there
has been an actual deprivation of a right.” Perano v. Twp. of
Tilden, 423 Fed. Appx. 234, 239 (3d Cir. 2011) (quoting Ridgewood
Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 254 (3d Cir.
Here, Plaintiff has not alleged facts that establish that
Defendants agreed to do anything unlawful or that there “has been
an actual deprivation of a right.” Ibid. (citing Andree v. Ashland
Cnty., 818 F.2d 1306, 1311 (7th Cir. 1987); Dixon v. City of
Lawton, 898 F.2d 1443, 1449 (10th Cir. 1990)). As Plaintiff may be
able to allege facts that would meet the pleading standard,
however, he shall be given leave to amend his conspiracy claim.5
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).
complaint may adopt some or all of the allegations in the original
complaint, but the identification of the particular allegations to
Denial of “Parse-Syntax” grammar
Plaintiff alleges the defendants have “failed to reveal the
correct communication sentence structure ‘Parse-Syntax’ grammar .
. . .” (Docket Entry 6).6 Other courts have dismissed similar
claims as being made in bad faith and abusive of the judicial
process. See, e.g., Brooker v. United States, 107 Fed. Cl. 52, 58
(2012); United States v. Pflum, 2013 WL 4482706, *1 (D. Kan. Aug.
21, 2013) (citing cases); Deutsche Bank Nat. Trust Co. v. Halajian,
2012 WL 1076218, *4 (E.D. Cal. Mar. 29, 2012). This Court is
inclined to agree, and this claim is dismissed as frivolous, and
Plaintiff shall not be permitted to amend this claim. See Hill v.
City of Scranton, 411 F.3d 118, 134 (3d Cir. 2005).
Finally, Plaintiff’s complaint alleges Defendants acted
with “conscious disregard of risk and intent to cause harm,” and
states there have been “threats, intimidation, and coercion.”
(Docket Entry 1 at 3, 9). As Plaintiff has not set forth any
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.
6 On April 1, 2015, Plaintiff filed a “Prayer for Relief and
Parse-Syntax” consisting of 297 pages of motions ostensibly
filed with the New Jersey state courts requesting Parse-Syntax
and citing irrelevant statutes. (Docket Entry 6). The Court
cautions Plaintiff that such vexatious behavior will not be
permitted in federal court. See 28 U.S.C. § 1927.
other facts, it is unclear as to what constitutional right
Plaintiff alleges has been violated.
Plaintiff’s reference to “state-created theory” seems to
suggest he is alleging a “state-created danger.” See Kneipp v.
Tedder, 95 F.3d 1199, 1205 (3d Cir. 1996) (holding § 1983
liability may attach where the state acts to create or enhance a
danger that deprives the plaintiff of his or her Fourteenth
Amendment right to substantive due process). If this is indeed
the case, the claim must still be dismissed as Plaintiff has not
met the pleading standard under Iqbal.7 In order to succeed on
this theory of liability, Plaintiff must indicate precisely was
what the harm caused, and demonstrate
“1) the harm ultimately caused was foreseeable and
2) a state actor acted with a degree of culpability
that shocks the conscience;
3) a relationship between the state and the plaintiff
existed such that the plaintiff was a foreseeable
victim of the defendant's acts, or a member of a
discrete class of persons subjected to the potential
harm brought about by the state's actions, as opposed
to a member of the public in general; and
4) a state actor affirmatively used his or her
authority in a way that created a danger to the
citizen or that rendered the citizen more vulnerable
to danger than had the state not acted at all.”
Iqbal v. Ashcroft, 556 U.S. 662, 678 (2009).
Morrow v. Balaski, 719 F.3d 160, 177 (3d Cir.), as amended (June
14, 2013), (quoting Bright v. Westmoreland Cnty., 443 F.3d 276,
281 (3d Cir.2006)), cert. denied, 134 S. Ct. 824 (2013).
This Court must dismiss Plaintiff’s blanket allegation for
failure to state a claim. Mala v. Crown Bay Marina, Inc., 704
F.3d 239, 245 (3d Cir. 2013)(“[P]ro se litigants still must
allege sufficient facts in their complaints to support a
claim.”). As with Plaintiff’s conspiracy claim, Plaintiff shall
be given leave to amend his complaint.
Motion to Consolidate
Plaintiff has requested this Court consolidate this action
with his other pending § 1983 claim, 1:15-cv-00575. (Docket Entry
questions of law or fact. Fed. R. Civ. P. 42(a)(1). In his other
complaint, Plaintiff alleged he was assaulted by an officer of
ACJF, denied medical care, and retaliated against for filing
lawsuits. (Civil No. 1:15-cv-00575 (JBS), Docket Entry 1). As the
two complaints do not consist of common questions of law or fact,
the Court will deny this request.
For the reasons stated above, the Plaintiff’s application to
proceed in forma pauperis will be granted, and the Clerk of the
Court will be ordered to file the complaint. The complaint is
dismissed with prejudice against Defendants Cook, Luciano, Pagano,
Walke, Holmes, Moore, Atlantic City Police Department, Willingboro
Township Municipal Court, Domzalski, Krakora, Warner, Atlantic
City Municipal Court, Atlantic County Superior Court Law Division,
Atlantic County Justice Facility, Ungaro, Mendez, and Sandson. The
complaint is dismissed without prejudice as to Defendants Cohen,
Artis, Rodriguez, Smith and Wagner for failure to state a claim
upon which relief can be granted, but Plaintiff shall be given
leave to amend. Plaintiff’s motion to consolidate this case with
Civil No. 1:15-cv-00575 (JBS) is denied.
An appropriate order
April 20, 2015
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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