BRITTON v. STATE OF NEW JERSEY

Filing 3

OPINION. Signed by Chief Judge Jerome B. Simandle on 8/11/2015. (TH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

LONNIE BRITTON,

HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 15-3933 (JBS-AMD)

v.
STATE OF NEW JERSEY,

OPINION
Defendant.

APPEARANCES:
LONNIE BRITTON, Plaintiff pro se
#227788
Atlantic County Justice Facility
5060 Atlantic Avenue
Mays Landing, New Jersey 08330

SIMANDLE, Chief Judge:
INTRODUCTION
Plaintiff Lonnie Britton, 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. By order dated June 23, 2015, this
Court granted his application to proceed in forma pauperis and
directed the Clerk to file the complaint. (Docket Entry 2).
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
relief. For the reasons set forth below, the Court concludes
that the complaint will be dismissed for seeking relief from
defendants who are immune from relief and as frivolous.
BACKGROUND
According to documents attached to the complaint, Plaintiff
was arrested on July 30, 2014 after allegedly robbing a Bank of
America in Atlantic City, New Jersey. (Docket Entry 1-2 at 11).
Plaintiff was interviewed and admitted to robbing the bank.
(Docket Entry 1-2 at 11). Plaintiff was charged with firstdegree robbery for threatening the immediate use of a deadly
weapon, N.J.S.A. 2C:15-1(a)(1); and third-degree terroristic
threats for threatening to kill one of the bank tellers,
N.J.S.A. 2C:12-3(b). (Complaint No. 0102-W-2014-003641, Docket
Entry 1-4 at 39). On October 23, 2014, an Atlantic County grand
jury indicted Plaintiff for first-degree robbery, N.J.S.A.
2C:15-1; and third-degree terroristic threats, N.J.S.A. 2C:123(b). (Docket Entry 1-2 at 17-24; Indictment No. 14-10-3177,
Docket Entry 1-5 at 1-4).
Plaintiff filed various motions before the Superior Court,
including a motion to dismiss the charges based on fraudulent
concealment and the necessity of separating the “flesh and
blood, real, lawful, living being,” from the “legal fictitious
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party” named in the complaint and indictment, (Docket Entry 1-5
at 46-55), and a motion to proceed pro se during his trial,
(Docket Entry 1-2 at 29).1 Plaintiff filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241, which this Court
dismissed on January 15, 2015. Britton v. Warden Atl. Cnty.
Justice Facility, No. 14-7876 (JBS) (D.N.J. Jan. 15, 2015).
Plaintiff thereafter filed the instant complaint and
petition for removal of his criminal case on June 10, 2015.
(Docket Entry 1). He alleges Defendant State of New Jersey “has
failed to provide the contract or document involving the nature
and cause of this accusation that gives [Atlantic County
Superior Court] subject matter jurisdiction over the claims.”
(Docket Entry 1 at 1). He further alleges that the Superior
Court judge presiding over his criminal matter has “fraudulently
concealed the true nature and cause, and has failed to have the
State’s attorney produce the contract to which I am a party . .
. supporting the state’s subject matter jurisdiction over this
matter . . . .” (Docket Entry 1 at 1). He also claims the
prosecutor and his appointed public defender “have been shown to
have unclean hands and seeks to enforce the statute of frauds
and there is no standard proof of evidence to support the
charges and offense by ‘memorandum’ or ‘contract’ committed to

1

The Superior Court appointed the Public Defender’s office to
represent Plaintiff. (Docket Entry 1-2 at 16).
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writing and signed by the party to be charged.” (Docket Entry 1
at 1).
STANDARD OF REVIEW
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.

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)(2)(b) and 1915A because Plaintiff is a prisoner
proceeding in forma pauperis and is seeking redress against a
governmental entity.
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).
4

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 factual matter” to show that the claim is
facially plausible. Warren Gen. Hosp. v. Amgen Inc., 643 F.3d
77, 84 (3d Cir. 2011) (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 n.3 (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.”
Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013)
(citation omitted) (emphasis added).

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 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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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).
DISCUSSION
A. Petition for Removal
Plaintiff’s complaint also contains a “Petition for
Removal” pursuant to 28 U.S.C. §§ 1441, 1446, 1447, and 1455
(Docket Entry 1 at 1). Sections 1441, 1445, and 1447 concern the
removal of civil actions originally filed in state courts. As no
civil actions have been filed in the state courts, those
sections are irrelevant.
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Section 1443 “provides for the removal of a criminal
prosecution commenced in a state court where the defendant ‘is
denied or cannot enforce in the courts of such State a right
under any law providing for the equal civil rights of citizens
of the United States, or of all persons within the jurisdiction
thereof.’” In re Ingris, 601 F. App'x 71, 75 (3d Cir. 2015)
(quoting 28 U.S.C. § 1443(1)). The Court has examined the
complaint and attached exhibits and finds that removal should
not be permitted as Plaintiff has failed to set forth valid
grounds for removal, and there is no indication he is being
deprived of any rights by the state courts. 28 U.S.C. §§
1443(1), 1455(b)(4). Plaintiff’s criminal action shall be
remanded to the state courts.3
B. Eleventh Amendment Immunity
Plaintiff has named the State of New Jersey as the sole
defendant. 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

3

The Court also notes Plaintiff’s petition is untimely under 28
U.S.C. § 1455(b)(1) (requiring notices for removal to be filed
“shall be filed not later than 30 days after the arraignment in
the State court, or at any time before trial, whichever is
earlier . . . .”). Plaintiff has not shown good cause as to why
he should be permitted to file a notice of removal over six
months after his arraignment, which occurred on November 18,
2014. 28 U.S.C. § 1455(b)(1); (Docket Entry 1-2 at 25).
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Citizens of another State, or by Citizens or Subjects of any
Foreign State.” U.S. Const. amend. XI. Plaintiff may not
therefore bring a civil suit against the State in the absence of
a waiver by the State. There is nothing in the complaint that
would permit this Court to conclude the State has waived its
immunity to suit, thus the complaint against the State of New
Jersey must be dismissed with prejudice.
C. Judicial Immunity
To the extent the complaint could be read as attempting to
raise claims against the Superior Court judge for “fraudulently
conceal[ing] the true nature and cause, and has failed to have
the State’s attorney produce the contract to which I am a party
. . . supporting the state’s subject matter jurisdiction over
this matter . . . ” (Docket Entry 1 at 1), those claims must
also be dismissed as judges are likewise immune from suit.
“It 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 immunity because the action he took was in error, was done
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

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his exercise of authority is flawed by the commission of grave
procedural errors.” Id. at 359.
“[Judicial] immunity is overcome in only two sets of
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 judicial in nature, taken in the
complete absence of all jurisdiction.” Mireles, 502 U.S. at 12.
Plaintiff has set forth no facts that suggest the Superior
Court judge acted outside of his judicial capacity or in the
absence of all jurisdiction.4 The judge is therefore entitled to
complete judicial immunity, and the complaint must be dismissed
with prejudice.

4

Indeed the documents submitted by Plaintiff in support of his
complaint indicate Plaintiff objects to the state judge’s
failure to grant his motions. Ruling on motions is an integral
part of the judicial function. These documents clearly support a
finding that the judge was performing his normal functions in
his judicial capacity. Stump, 435 U.S. at 362.
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D. Prosecutorial Immunity
To the extent the complaint could be read as attempting to
raise claims against the Atlantic County Prosecutor’s Office,
those claims 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 complaint indicate he objects to the prosecutor’s
law enforcement actions, specifically his prosecution of the
criminal case against Plaintiff. (See generally Docket Entry 1).
The prosecutor is therefore entitled to Eleventh Amendment
immunity.
E. Claim against Public Defender
To the extent the complaint could be read as seeking
damages from Plaintiff’s public defender, the claims must be
dismissed as public defenders are not “persons” within the
meaning of 42 U.S.C. § 1983. In Polk County v. Dodson, the
Supreme Court held that a public defender, although paid and
ultimately supervised by the state, “does not act under color of
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state law when performing the traditional functions of counsel
to a criminal defendant.” 454 U.S. 312, 325 (1981). See also
Vermont v. Brillon, 556 U.S. 81, 91 (2009) (“Unlike a prosecutor
or the court, assigned counsel ordinarily is not considered a
state actor.”); Gause v. Haile, 559 F. App'x 196, 198 (3d Cir.
2014); Xenos v. Slojund, 424 F. App'x 80, 81 (3d Cir. 2011) (per
curiam) (“A defense attorney ‘does not act under color of state
law when performing a lawyer's traditional functions as counsel
in a criminal proceeding.’” (quoting Polk Cnty., 454 U.S. at
325)); Calhoun v. Young, 288 F. App'x 47, 49 (3d Cir. 2008)
(public defender representing criminal defendant is not acting
under color of state law). Plaintiff, therefore, cannot sustain
a § 1983 claim against his public defender because the public
defender was not “acting under color of state law.” Any claims
against Plaintiff’s public defender must be dismissed with
prejudice.
F. Frivolous Complaint
Even if all of the conceivable defendants were not immune
from suit, the complaint would still be dismissed as a frivolous
filing. Generally, a complaint may be dismissed as frivolous
“where it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim is
considered legally frivolous “where ‘[none] of the legal points
[are] arguable on their merits.’” Ibid. (quoting Anders v.
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California, 386 U.S. 738, 744 (1967)). “A claim is considered
factually frivolous where the facts alleged are clearly
baseless, a standard that encompasses allegations that are
fanciful, . . . fantastic, . . . and delusional[.]” Ackerman v.
Mercy Behavior Health, No. 15-1822, 2015 WL 3960893, at *1 (3d
Cir. June 30, 2015) (internal citations and quotation marks
omitted) (alterations in original).
Contrary to Plaintiff’s assertions that he has not been
informed of the nature of the proceedings against him, (Docket
Entry 1 at 1, 4, 8), the documents attached to the complaint
indicate that Plaintiff has received the initial complaint filed
against him immediately following his arrest, (Docket Entry 1-4
at 5); the transcript of the grand jury proceedings, (Docket
Entry 1-2 at 17-24); the indictment, (Docket Entry 1-5 at 1-4);
and police reports setting forth in detail the State’s evidence
against him, (Docket Entry 1-2 at 11; Docket Entry 1-4 at 1-28).
His claims of “concealment of the nature of the proceedings
against him” lack any foundation in either law or fact. Even
construing the complaint liberally, there are no factual
allegations from which this Court could reasonably infer that
Plaintiff has an actionable claim for relief.5

5

Plaintiff’s arguments based on the contract law doctrines of
“unclean hands” and “fraudulent concealment” are inapplicable to
the matter at hand and frivolous. The Court notes Plaintiff
previously filed a petition for writ of habeas corpus pursuant
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Generally, pro se plaintiffs would be granted leave to
amend the complaint in order to correct the deficiencies of the
complaint. Leave to amend may be denied, however, when such
amendment would be futile or inequitable. See Grayson v. Mayview
State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). The Court
concludes amendment of the complaint would be futile as all of
the prospective defendants are immune from suit, and the claims
raised are patently frivolous. The complaint is therefore
dismissed with prejudice.
CONCLUSION
For the reasons stated above, the complaint is dismissed
with prejudice in its entirety. An accompanying Order will be
entered.

August 11, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

to 28 U.S.C. § 2241 raising similar “patently frivolous
allegations regarding ‘admiralty/maritime jurisdiction’ and
trademark infringement based on his status as a ‘vessel or
thing’ and treatment of his ‘trademarked name and property as an
offender.’” Britton v. Warden Atl. Cnty. Justice Facility, No.
14-7876 (JBS), slip. op at 1 n.2 (D.N.J. Jan. 15, 2015).
13