BROOKS v. LUTHER et al

Filing 12

OPINION. Signed by Chief Judge Jerome B. Simandle on 2/14/2017. (TH, )

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

HAMEED BROOKS,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 15-6707 (JBS-KMW)

v.
ROBERT LUTHER, et al.,

OPINION
Defendants.

APPEARANCES:
Hameed Brooks, Plaintiff Pro Se
315068C/976364
South Woods State Prison
215 Burlington Road South
Bridgeton, NJ 08302
SIMANDLE, Chief Judge:
INTRODUCTION
Before the Court are letters from Plaintiff Hameed Brooks
(“Plaintiff”) responding to the Court’s dismissal of his civil
rights complaint. March 15 Letter, Docket Entry 10; April 6
Letter, Docket Entry 11. The Court construes these as motions
for reconsideration. For the reasons stated herein, the motions
are granted only to the extent that certain claims of the
complaint shall be dismissed without prejudice instead of with
prejudice.

II.

BACKGROUND
Plaintiff filed a complaint against former Camden County

assistant prosecutor Robert Luther, Investigator Aida Marcello,
Officer C. Cooley, and public defenders William Harris and Chris
Hoffner. Complaint ¶ 4. Plaintiff alleges that on November 2,
2006, he was wrongfully convicted by a jury due to evidence
fabricated by Prosecutor Luther. Id. ¶ 6(1). He states he was
acquitted of a weapons charge for a gun placed on him by Officer
Cooley, who “also never gave Photo Array or Suspect Line up as
Formality.” Id. ¶ 6(2). He further alleges Investigator Marcello
violated his Miranda1 rights on December 29, 2005, when she
forged Plaintiff’s signature. Complaint ¶ 6(3). Plaintiff
further alleges Investigator Marcello lied during the pre-trial
hearing and stated Plaintiff “told on [himself].” Id. ¶¶ 4(C),
6(3).
Plaintiff asserted Harris “did not request Due Process, did
not put motion to suppress or any for that matter, did not relay
deals that were offered and blatantly lied to [Plaintiff] on a
previous case which terminated [his] pending lawsuit with state
troopers.” Id. ¶ 4(E). He claimed Hoffner “did not request for
no type of Due Process rights, no motions for anything or speedy
trial, no bail reduction motions, etc.” Id. ¶ 4(F). He finally

1

Miranda v. Arizona, 384 U.S. 436 (1966).
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alleged Luther gave him an excessive bail. Id. ¶ 6(4). Plaintiff
asked this Court to investigate this matter. Id. ¶ 7.
III. DISCUSSION
As Plaintiff only requested an “investigation” into his
convictions in the complaint and did not ask for monetary
damages, the Court originally concluded that Plaintiff’s claims
must be raised in a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 after he exhausted his state court remedies.2
In his subsequent letters to the Court, however, Plaintiff
indicates he is in fact seeking monetary damages due to his
false conviction in addition to the “investigation” he requested
in the complaint. April 6 Letter. In the interests of justice,
the Court will amend its order to dismiss certain claims of the
complaint without prejudice. Leave to amend is denied at this
time as futile. Grayson v. Mayview State Hosp., 293 F.3d 103,
114 (3d Cir. 2002).
A. Assistant Prosecutor Luther
To the extent Plaintiff brings claims against former
assistant prosecutor Luther based on his prosecution of
Plaintiff, Luther is immune from suit on those claims. The Third
Circuit has held that “‘when [New Jersey] county prosecutors
engage in classic law enforcement and investigative functions,

2

Plaintiff indicated he was in the process of appealing his
post-conviction relief denial. April 6 Letter.
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they act as officers of the State.’” 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));
accord Mikhaeil v. Santos, 646 F. App'x 158, 161 (3d Cir. 2016).
In other words, prosecutors may not be sued in federal court for
actions performed in their investigative or law enforcement
roles. “This includes activity taken while in court, such as the
presentation of evidence or legal argument, as well as selected
out-of-court behavior ‘intimately associated with the judicial
phases’ of litigation.” Kulwicki v. Dawson, 969 F.2d 1454, 1463
(3d Cir. 1992) (quoting Imbler v. Pachtman, 424 U.S. 409, 430
(1976)). The allegations in the complaint that Luther presented
fabricated evidence during trial fall within the scope of
immunized activities. See id. at 1465. To the extent Plaintiff
alleges Luther himself fabricated the evidence, it is not clear
that Luther would have absolute immunity, however. See Yarris v.
Cty. of Delaware, 465 F.3d 129, 138–39 (3d Cir. 2006).
In order to sufficiently plead a due process violation
based on the fabrication of evidence, Plaintiff must set forth
sufficient facts for the Court to plausibly infer that “there is
a reasonable likelihood that, without the use of that evidence,
the defendant would not have been convicted.” Halsey v.
Pfeiffer, 750 F.3d 273, 294 (3d Cir. 2014). “[F]abrication
claims must draw a meaningful connection between [plaintiffs’]
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conviction and the use of fabricated evidence against them.” Id.
294 n.19. Here, Plaintiff has not set forth sufficient facts
supporting his allegation, such as what the alleged fabricated
evidence was, the circumstances regarding Luther’s involvement
in the fabrication, and the ability of that evidence to affect
the result of Plaintiff’s trial. This claim is dismissed without
prejudice; however, Plaintiff is denied leave to amend this
claim at this time as it appears to be barred by Heck v.
Humphrey, 512 U.S. 477 (1994).
Under Heck, a plaintiff may not bring a § 1983 claim that
would necessarily imply the invalidity of his conviction “unless
the plaintiff can demonstrate that the conviction or sentence
has already been invalidated.” 512 U.S. at 487. Success on
Plaintiff’s claim that fabricated evidence used against him at
trial resulted in his conviction, Complaint ¶ 6(1), would
necessarily invalidate that conviction. See Long v. Atlantic
City Police Dep't, 670 F.3d 436, 447 (3d Cir. 2012) (claim that
defendants conspired to obtain a conviction by “committing
perjury and/or fabricating evidence” barred by Heck). As
Plaintiff indicates he is still pursuing post-conviction
remedies, his claim is barred at this time. The fabrication
claim against Luther is dismissed without prejudice.

If his

conviction is set aside, plaintiff may renew this claim against
Luther.
5

The complaint further alleges Luther gave Plaintiff an
“excessive bail.” Complaint ¶ 6(4). Under New Jersey law, bail
amounts and conditions are set by a judge, not prosecutors. See
N.J. Ct. R. 7:4-2(a). This claim is dismissed with prejudice for
failure to state a claim.
B. Public Defenders
Plaintiff has also failed to state a § 1983 claim against
his public defenders, Harris and Hoffner. Courts have
consistently held that public defenders are not “persons” within
the meaning of 42 U.S.C. § 1983. Although paid and ultimately
supervised by the state, “a public defender does not act under
color of state law when performing a lawyer's traditional
functions as counsel to a defendant in a criminal proceeding.”
Polk County v. Dodson, 454 U.S. 312, 325 (1981). Plaintiff,
therefore, cannot sustain a § 1983 claim against his public
defenders because they were not “acting under color of state
law.” All claims against Plaintiff's public defenders must be
dismissed with prejudice.3
C. Investigator Marcello and Officer Cooley

3

Although Plaintiff’s claims against his attorneys are dismissed
with prejudice for purposes of this complaint and § 1983, the
dismissal is without prejudice to his right to raise ineffective
assistance of counsel claims in his post-conviction relief
application in State court, if otherwise timely under the rules.
6

Plaintiff alleges Investigator Marcello violated his
Miranda rights by forging his signature on documents, leading to
his indictment. Complaint ¶ 4(c). He further alleges she
testified falsely at a pretrial hearing. Id. ¶ 6(3).
Investigator Marcello is immune from Plaintiff’s claim
arising from her alleged false testimony. Witnesses have
“absolute immunity with respect to any claim based on the
witness' testimony.” Franks v. Temple Univ., 514 F. App’x 117,
122 (3d Cir. 2013) (emphasis in original) (internal quotation
marks omitted); see also Rehberg v. Paulk, 566 U.S. 356, 366–67
(2012). “We have long held that the doctrine of absolute witness
immunity applies to testimony given at pre-trial hearings.”
Franks, 514 F. App’x at 122. Thus, Plaintiff may not seek
damages from Investigator Marcello on this basis, and this claim
is dismissed with prejudice.
To the extent the complaint alleges the forging of
Plaintiff’s signature by Investigator Marcello violated
Plaintiff’s Fifth Amendment rights, he has failed to state a
claim. “[V]iolations of the prophylactic Miranda procedures do
not amount to violations of the Constitution itself.” Giuffre v.
Bissell, 31 F.3d 1241, 1256 (3d Cir. 1994). “[I]t is the use of
coerced statements during a criminal trial, and not in obtaining
an indictment, that violates the Constitution.” Renda v. King,
347 F.3d 550, 559 (3d Cir. 2003). Plaintiff states the alleged
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coerced confession was used to secure an indictment and was
referenced at his pretrial hearing. Complaint ¶¶ 4(c), 6(3). He
does not allege it was used against him at trial.
Therefore, he has failed to state a claim, and the Court shall
dismiss this claim without prejudice.
To the extent Plaintiff raises a due process fabrication of
evidence claim against Investigator Marcello, he has also failed
to state a claim. As previously noted, plaintiffs raising this
kind of due process challenge must set forth sufficient facts
suggesting “there is a reasonable likelihood that, without the
use of that evidence, the defendant would not have been
convicted.” Halsey v. Pfeiffer, 750 F.3d 273, 294 (3d Cir.
2014). The complaint contains no facts from which the Court
could reasonably make such an inference. This claim is dismissed
without prejudice.4
D. Officer Cooley
Plaintiff alleges Officer Cooley planted a gun on him,
resulting in a weapons charge. Plaintiff was acquitted of that
charge at his 2006 trial. Complaint ¶ 6(1)-(2). He further
alleges neither a photo array nor a suspect line up were

4

As with the fabrication claim against Luther, this claim may be
barred by Heck. In other words, unless plaintiff succeeds in
post-conviction relief to set aside his conviction, any § 1983
claim for money damages that defendant Marcello procured
plaintiff’s guilt by fraudulent acts is barred by Heck.
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conducted. Id. ¶ 6(4). The Court construes the complaint as
raising false arrest, false imprisonment, due process, and
malicious prosecution claims.5 Most of these claims are barred by
the statute of limitations.6
“Claims for false arrest ... typically accrue on the date
of the arrest ... because, at that point, the plaintiff has
reason to know of the injury.” Ostuni v. Wa Wa's Mart, 532 F.
App'x 110, 112 (3d Cir. 2013) (per curiam) (citing Montgomery v.
De Simone, 159 F.3d 120, 126 (3d Cir. 1998)). “An arrestee can
file suit as soon as the allegedly wrongful arrest occurs; the
limitations period begins to run, however, only when the
allegedly false imprisonment ends, that is, when the arrestee
becomes held by legal process, for example, when he is ‘bound
over by a magistrate or arraigned on criminal charges.’” Pittman
v. Metuchen Police Dep't, No. 08-2373, 2010 WL 4025692, at *4
(D.N.J. Oct. 13, 2010) (quoting Wallace v. Kato, 549 U.S. 384,
388–90 (2007)).

5

The malicious prosecution claims against Cooley and Marcello
are discussed separately.
6 See Ostuni v. Wa Wa's Mart, 532 F. App'x 110, 111-12 (3d Cir.
2013) (per curiam) (“Although the running of the statute of
limitations is ordinarily an affirmative defense, where that
defense is obvious from the face of the complaint and no
development of the record is necessary, a court may dismiss a
time-barred complaint sua sponte under § 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim.”).
9

Plaintiff does not indicate the date he was arrested;
however, as his trial concluded November 2, 2006, it is obvious
from the face of his complaint that more than two years have
elapsed since his arrest and before filing this complaint in
2015. Similarly, it is clear that Plaintiff was held pursuant to
legal process well before September 2013, two years before this
complaint was submitted for mailing. As it is apparent from the
face of the complaint that the false arrest and false
imprisonment claims are barred by the statute of limitations,
they are subject to dismissal with prejudice. His due process
claim based on any failure to conduct a photo array is likewise
barred by the statute of limitations. See Pittman, 2010 WL
4025692, at *6 (applying two-year statute of limitations to
claim that police failed to conduct a photo lineup).
E. Malicious Prosecution Claim
Petitioner appears to raise malicious prosecution claims
against Officer Cooley and Investigator Marcello. 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
proceeding.

10

Woodyard v. Cty. of Essex, 514 F. App'x 177, 182 (3d Cir. 2013)
(citing McKenna v. City of Phila., 582 F.3d 447, 461 (3d Cir.
2009)). Malicious prosecution claims do not accrue until charges
are dismissed. Ginter v. Skahill, 298 F. App’x 161, 163 (3d Cir.
2008) (citing Smith v. Holtz, 87 F.3d 108, 111 (3d Cir. 1996)).
Here, Plaintiff was acquitted of the weapons charge and
convicted of some other unidentified first-degree offense.
Complaint ¶ 6(1)-(2). It is not clear from the face of the
complaint whether Plaintiff’s acquittal on this charge
constitutes a favorable termination. “[T]he favorable
termination of some but not all individual charges does not
necessarily establish the favorable termination of the criminal
proceeding as a whole.” Kossler v. Crisanti, 564 F.3d 181, 188
(3d Cir. 2009). “Where, as here, [Plaintiff was] simultaneously
acquitted of some charges and convicted of others, [the Court]
must determine whether ‘the offenses as stated in the statute
and the underlying facts of the case ... indicate that the
judgment as a whole’ reflects the [Plaintiff’s] innocence.”
Kiriakidis v. Borough of Vintondale, 609 F. App'x 713, 717 (3d
Cir. 2015) (quoting Kossler, 564 F.3d at 188). Plaintiff has not
provided enough information about the charges and facts of the
case for the Court to determine whether he has sufficiently pled
the favorable termination element. The malicious prosecution
claims are therefore dismissed without prejudice.
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Although these claims are dismissed without prejudice, the
Court denies leave to amend at this time at the malicious
prosecution claims cannot proceed regardless of whether the
criminal proceeding terminated in Plaintiff’s favor. If it did
not terminate in his favor, his claims are premature under Heck.
If it did, the malicious prosecution claims against Cooley and
Marcello are barred by the statute of limitations as they
accrued at the time of his 2006 acquittal. Ginter, 298 F. App’x
at 163. The two-year statute of limitations therefore expired
some time in 2008. In either situation, the claims cannot go
forward at this point in time, making amendment futile.
F. Wrongful Conviction
Finally, Plaintiff cannot pursue a claim for damages based
on his alleged wrongful conviction at this time as he is barred
by Heck unless and until his conviction is overturned. This
claim is also dismissed without prejudice.
IV.

CONCLUSION
For the reasons stated above, Plaintiff’s motion for

reconsideration is granted only to the extent that certain
claims are dismissed without prejudice. An appropriate order
follows.

February 14, 2017
Date

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

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