DORN v. AGUILAR et al
Filing
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OPINION. Signed by Judge Noel L. Hillman on 9/1/2015. (tf,n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
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:
:
Plaintiff,
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v.
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:
OMAR AGUILAR, et al.,
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Defendants.
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___________________________________:
TODD DORN,
Civ. No. 15-6011 (NLH)
OPINION
APPEARANCES:
Todd Dorn, # 406042B/776752
South Woods State Prison
215 Burlington Road South
Bridgeton, NJ 08302
Plaintiff pro se
HILLMAN, District Judge
Plaintiff Todd Dorn, a prisoner confined at South Woods
State Prison in Bridgeton, New Jersey, filed this civil rights
action pursuant to 42 U.S.C. § 1983 and submitted an application
to proceed in forma pauperis.
On August 6, 2015, the Court
found Plaintiff’s in forma pauperis application to be complete
and granted Plaintiff leave to proceed without prepayment of
fees. See 28 U.S.C. § 1915.
In its Order granting in forma
pauperis status, the Court noted that summons would not issue
until such time as the Court completed its sua sponte screening.
The Court has had the opportunity to 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. See 28 U.S.C. § 1915(e)(2) (in
forma pauperis actions); 28 U.S.C. § 1915A (actions in which
prisoner seeks redress from a governmental defendant).
For the
reasons set forth below, the Complaint will be dismissed for
failure to state a claim upon which relief will be granted.
I.
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BACKGROUND
In his Complaint, Plaintiff explains that on October 21,
2008, he was in county jail waiting to go to drug treatment when
he was advised by his attorney, Harold Kokes, that a conspiracy
charge was pending against him.
Plaintiff states that he was
not provided with any other information regarding this charge.
However, he was informed by the court that he could not proceed
to the drug program until the pending conspiracy charge was
resolved. (Compl. 6, ECF No. 1).
On February 24, 2008, Plaintiff states that he was called
to court where he met with his attorney, Omar Aguilar.
Plaintiff contends that Mr. Aguilar told Plaintiff that he was
charged with conspiracy and distribution of a controlled
dangerous substance and that the prosecutor had Plaintiff on a
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The Court notes that Plaintiff recently filed a separate action
pursuant to 42 U.S.C. § 1983 which, likewise, is dismissed for
failure to state a claim upon which relief can be granted. See
Dorn v. Hughes, et al., No. 15-6094 (NLH) (Aug. 10, 2015).
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wire tap. (Compl. 6, ECF No. 1).
Plaintiff states that, Mr.
Aguilar informed Plaintiff that he could plead guilty to
distribution and proceed to drug court if he admitted that he
“got drugs from a man name[d] Michael Thompson.” (Id.).
Plaintiff asserts that, despite the fact that he told Mr.
Aguilar that he did not know Michael Thompson, Mr. Aguilar
advised Plaintiff that he could only proceed to the drug program
if he took the plea.
As a result, Plaintiff agreed to the terms
of the plea because he “needed to get to [his] children.” (Id.).
Plaintiff contends that Mr. Aguilar was ineffective in his
representation, thus violating Plaintiff’s Sixth Amendment
rights. (Compl. 7, ECF No. 1).
Plaintiff specifically argues
that Mr. Aguilar failed to get a voice analysis to confirm that
it was Plaintiff’s voice that was captured on the wire tap.
(Id.).
Plaintiff attaches several documents to his Complaint,
including: what appears to be the “Statement of Facts” section
from a petition for Post-Conviction Relief (Compl. 8-9, ECF No.
1); and a partial transcript from an unidentified court
proceeding, (Compl. 10-13, ECF No. 1).
Plaintiff names his public defender, Omar Aguilar, as a
defendant in this action.
Although Plaintiff lists the Atlantic
County Public Defender’s Office in the caption of his Complaint,
he does not provide any factual allegations relating to this
defendant.
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Plaintiff seeks relief “for the five years of
incarceration, and the pain and suffering it caused [him] and
[his] children[.]” (Compl. 14, ECF No. 1).
He values damages at
$50,000 per year, for a total of $250,000. (Compl. 15, ECF No.
1).
He also seeks punitive damages and $500,000 in attorney’s
fees. (Id.).
II.
STANDARDS FOR A SUA SPONTE DISMISSAL
Every complaint must comply with the pleading requirements
of the Federal Rules of Civil Procedure.
Rule 8(a)(2) requires
that a complaint contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
“Specific facts are not necessary; the statement need only ‘give
the defendant fair notice of what the ... claim is and the
grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89,
93 (2007) (citations omitted).
While a complaint ... does not need detailed factual
allegations, a plaintiff’s obligation to provide the
“grounds” of his “entitle[ment] to relief” requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will
not do ... . Factual allegations must be enough to
raise a right to relief above the speculative level
... .
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations omitted).
That is, a complaint must assert “enough facts to state a
claim to relief that is plausible on its face.” Id. at 570.
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“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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550
U.S. at 556).
The determination of whether the factual
allegations plausibly give rise to an entitlement to relief is
“‘a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.’” Bistrian v.
Levi, 696 F.3d 352, 365 (3d Cir. 2012) (citations omitted).
Thus, a court is “not bound to accept as true a legal conclusion
couched as a factual allegation,” and “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678
(citations omitted).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to accept its factual allegations as true,
see James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir.
2012), and to construe it liberally in favor of the plaintiff,
see Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United States
v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
In general, where a complaint subject to statutory
screening can be remedied by amendment, a district court should
not dismiss the complaint with prejudice, but should permit the
amendment. Denton v. Hernandez, 504 U.S. 25, 34 (1992); Grayson
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v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002)
(noting that leave to amend should be granted “in the absence of
undue delay, bad faith, dilatory motive, unfair prejudice, or
futility of amendment”), cited in Thomaston v. Meyer, 519 F.
App’x 118, 120 n.2 (3d Cir. 2013); 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 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, 108
S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988); Malleus v. George, 641
F.3d 560, 563 (3d Cir. 2011).
IV.
ANALYSIS
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Even construing Plaintiff’s pro se submission liberally,
there are no factual allegations present in the Complaint which
could form the basis of a cause of action under § 1983.
Plaintiff has named as defendants in this action his public
defender, Omar Aguilar, and the Atlantic County Public
Defender’s Office.
However, public defenders are not “persons”
within the meaning of 42 U.S.C. § 1983. See Polk Cnty. v.
Dodson, 454 U.S. 312, 325, 102 S. Ct. 445, 70 L. Ed. 2d 509
(1981) (holding 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 also Vermont v. Brillon, 556
U.S. 81, 91, 129 S.Ct. 1283, 173 L.Ed.2d 231 (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 or the public defender’s office because they
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were not “acting under color of state law.”
Accordingly, the
Complaint must be dismissed with prejudice.
V.
CONCLUSION
For the reasons set forth above, the Complaint will be
dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) for failure
to state a claim.
Because any amendment to the Complaint would
be futile, the dismissal shall be with prejudice. See Grayson,
293 F.3d at 108 (a district court may deny leave to amend under
Rule 15(a) when amendment is futile).
An appropriate Order follows.
____s/ Noel L. Hillman____
NOEL L. HILLMAN
United States District Judge
Dated: September 1, 2015
At Camden, New Jersey
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