CREAIG v. STATE OF NEW JERSEY et al
OPINION. Signed by Chief Judge Jerome B. Simandle on 11/9/2015. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
HONORABLE JEROME B. SIMANDLE
No. 15-5939 (JBS-KMW)
STATE OF NEW JERSEY, et al.,
Andre Creaig, Plaintiff Pro Se
South Woods State Prison
215 Burlington Road South
Bridgeton, NJ 08302
SIMANDLE, Chief Judge:
Before the Court is Plaintiff Andre Creaig’s (“Plaintiff”),
submission of a civil rights complaint pursuant to 42 U.S.C. §
1983. (Docket Entry 1).
By Order dated August 11, 2015, this
Court granted Plaintiff’s motion to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915(a) and ordered the Clerk to file
the complaint. (Docket Entry 3).
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
immune defendants, 28 U.S.C. § 1915(e)(2)(B)(iii).
Plaintiff brings this civil rights action against the State
of New Jersey and the Camden County Prosecutor’s Office
(“CCPO”). (Docket Entry 1). The following factual allegations
are taken from the complaint and are accepted for purposes of
this screening only.
The Court has made no findings as to the
veracity of Plaintiff’s allegations.
Plaintiff states that on September 16, 2011, he was
detained in Winslow Township, Camden County on a receiving
stolen property charge. (Docket Entry 1 at 6). While he was
detained, Officer Barrett of Winslow Township and Officer R.
Nicollei from the CCPO questioned him about a murder that
occurred on September 13, 2011. (Docket Entry 1 at 6). On
September 21, 2011, Plaintiff was charged with that murder and
four other offenses. On September 26, 2012, he was indicted for
murder, reckless manslaughter, aggravated manslaughter,
“person’s prohibited,” possession of a firearm, and third-degree
escape. (Docket Entry 1 at 6). Plaintiff indicates CCPO Deputy
First Assistant Joshua M. Ottenberg presented the charges to the
grand jury. (Docket Entry 1 at 6).
Plaintiff proceeded to trial in front of Judge Michelle Fox
on June 9, 2015. (Docket Entry 1 at 6). He states all but the
escape charge were dismissed on July 2, 2015. (Docket Entry 1 at
6). He was sentenced on the escape charge on August 7, 2015 and
committed to the custody of the New Jersey Department of
Corrections. (Docket Entry 1 at 6). Plaintiff also states
“investigators of state went to place of employment and made
references and inferences about a firearm that was [purportedly]
hidden in a locker at my place of employment.” (Docket Entry 1
Plaintiff filed the instant complaint on July 20, 2015.
(Docket Entry 1). On August 11, 2015, this Court granted his
application to proceed in forma pauperis. (Docket Entry 2). When
the Court’s order was returned as undeliverable by the United
States Post Office, (Docket Entry 4), the Court administratively
terminated the complaint. (Docket Entry 5). Plaintiff submitted
a change of address to the Clerk’s Office, (Docket Entry 6), and
the Court reopened the case for consideration on September 16,
Plaintiff seeks compensation for lost wages, defamation of
character, and “exhausted resources” dating back to the date of
his charges. (Docket Entry 1 at 7). He also seeks punitive
III. 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 relief from a
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
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,1 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.” 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).
B. Section 1983 Actions
“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)).
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 ....
§ 1983. 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.
Plaintiff does not specifically state the alleged
constitutional violation committed by Defendants. The Court
infers from the facts set forth by Plaintiff that he is alleging
malicious prosecution by the State and the CCPO.
To prevail on a § 1983 malicious prosecution claim,
Plaintiff must set forth facts indicating:
(1) the defendants initiated a criminal proceeding; (2)
the criminal proceeding ended in the plaintiff's favor;
(3) the proceeding was initiated without probable cause;
(4) the defendants acted maliciously or for a purpose
other than bringing the plaintiff to justice; and (5)
the plaintiff suffered deprivation of liberty consistent
with the concept of seizure as a consequence of a legal
Woodyard v. Cnty. of Essex, 514 F. App'x 177, 182 (3d Cir.
2013)(citing McKenna v. City of Phila., 582 F.3d 447, 461 (3d
A. State of New Jersey
The State of New Jersey is generally not a proper defendant
under 42 U.S.C. § 1983.
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. Section 1983 “does not
provide a federal forum for litigants who seek a remedy against
a State for alleged deprivations of civil liberties. The
Eleventh Amendment bars such suits unless the State has waived
its immunity, or unless Congress has exercised its undoubted
power under § 5 of the Fourteenth Amendment to override that
immunity.” Will v. Mich. Dep't of State Police, 491 U.S. 58, 66
The Supreme Court made clear in Will that Congress did not
abrogate sovereign immunity when it passed § 1983. See ibid.
There is no indication New Jersey has consented to Plaintiff's
suit. Plaintiff’s § 1983 claims against the State of New Jersey
must therefore be dismissed with prejudice as it is immune from
suit, 28 U.S.C. § 1915(e)(2)(B)(iii).
The county prosecutor is immune from suit under § 1983 for
the investigation and prosecution of alleged criminal activity.
Sovereign immunity also “extends to state agencies and state
officers, ‘as long as the state is the real party in interest.’
It does not extend to counties and municipalities.” Estate of
Lagano v. Bergen Cnty. Prosecutor's Office, 769 F.3d 850, 857
(3d Cir. 2014) (quoting Fitchik v. N.J. Transit Rail Operations,
873 F.2d 655, 659 (3d Cir. 1989)). In the case of county
prosecutor offices, such as the CCPO, the Third Circuit has
applied Eleventh Amendment immunity when their actions “are
clearly law enforcement functions.” Woodyard v. Cnty. of Essex,
514 F. App'x 177, 182 (3d Cir. 2013) (citing Fitchik, 873 F.2d
at 659). “Eleventh Amendment immunity may not apply when
prosecutorial defendants perform administrative tasks unrelated
to their strictly prosecutorial functions, such as ... personnel
decisions.” Ibid. (alteration in original) (internal quotation
In this case, Plaintiff's complaints about the CCPO appear
to concern the investigation and prosecution of the criminal
case against Plaintiff, the ultimate law enforcement function of
the office. The claim against the CCPO must therefore be
dismissed as the office is immune from relief.2
C. State law claims
Plaintiff also raises defamation claims under state law.
(Docket Entry 1 at 6-7). As the federal claims are being
dismissed, the Court declines to exercise supplemental
jurisdiction over the state law claims. 28 U.S.C. § 1367(a).
This dismissal is without prejudice to Plaintiff’s right to
pursue relief in the state courts.3
D. Leave to Amend
As it is not clear to the Court that amendment of the
complaint would be futile, see Grayson v. Mayview State Hosp.,
293 F.3d 103, 114 (3d Cir. 2002), Plaintiff may move for leave
to file an amended complaint within 30 days of the date of this
Plaintiff does not specifically name Officer Nicollei and CCPO
Deputy First Assistant Ottenberg as defendants. Under the set of
facts set forth in the complaint, they would also be entitled to
Eleventh Amendment immunity as investigating crimes and
presenting evidence to a grand jury are “clearly law enforcement
functions[.]” Woodyard, 514 F. App'x at 182. The Court will
reassess the immunity issue for all named defendants, except the
State of New Jersey, in the event Plaintiff submits an amended
3 The Court expresses no opinion as to the merits of the state
claims or whether Plaintiff meets the state courts’ filing
order. Any motion for leave to amend must be accompanied by a
proposed amended complaint, and it must not repeat the same
allegations against the State of New Jersey or the CCPO that
have been deemed insufficient in this Opinion.
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). An amended complaint may adopt some or all of the
allegations in the original complaint, but the identification of
the particular allegations to be adopted must be clear and
explicit. Ibid. To avoid confusion, the safer course is to file
an amended complaint that is complete in itself. Ibid. Plaintiff
may not resubmit those claims that have been dismissed with
dismissed for seeking relief against immune defendants, 28 U.S.C.
November 9, 2015
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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