HIGH v. LEVENBERG et al

Filing 2

OPINION. Signed by Judge Renee Marie Bumb on 2/22/2017. (rtm, )

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
RASHON D. HIGH,

:
:
Plaintiff,
:
:
v.
:
:
:
IGOR LEVENGERG, ESQ., et al., :
:
Defendants.
:
:

Civil Action No. 16-8068(RMB)

OPINION

BUMB, District Judge:
Plaintiff Rashon D. High, a pretrial detainee confined at
Camden County Correctional Facility in Camden, New Jersey, seeks
to bring this action in forma pauperis, pursuant to 42 U.S.C. §
1983.

He alleges violations of his constitutional rights by his

public defender, the Office of the Public Defender, and the
state court judge presiding over his criminal case(s).

Based on

his affidavit of indigence and the absence of three qualifying
dismissals within 28 U.S.C. § 1915(g), 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.
At this time, the Court must review the Complaint pursuant
to to 28 U.S.C. § 1915(e)(2)(B) and § 1915A to determine whether

1 

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.
I. BACKGROUND
Plaintiff

alleged

the

following

in

his

Complaint.

Plaintiff was arrested on April 30, 2016, based on a defective
complaint warrant and an unauthorized detainer for a violation
of probation.

(Compl., ECF No. 1 at 5.)

The Office of the

Public Defender, Camden Region appointed Attorney Igor Levenberg
to represent Plaintiff.

(Id.)

Levenberg has not “moved upon

any request” Plaintiff made in his defense, and has not examined
discovery with Plaintiff in three of his cases.

(Id. at 6.)

Plaintiff has named the Office of the Public Defender as a
defendant because it ignored his requests to remove Levenberg as
his appointed counsel.
against

Judge

Sherrie

(Id. at 4.)
L.

Schweitzer

Plaintiff’s allegation
is

that

she

is

“not

a

neutral and detached hearing body in blatant disregard of the
Supreme Law of the Land’s 5th and 14th Amendments.”
For

relief,

reprimand

the

Plaintiff

asks

defendants,

and

the
for

Court

damages

$500,000.00 (Id.)
II. STANDARDS FOR A SUA SPONTE DISMISSAL

2 

to

(Id. at 6.)

investigate
in

the

amount

and
of

A pleading must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.”
Civ. P. 8(a)(2).

Fed. R.

“To survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as true, to
‘state

a

Ashcroft

claim
v.

to

relief

Iqbal,

556

that

U.S.

is

662,

plausible
678

on

(2009)

its

(quoting

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
has

facial

plausibility

when

the

plaintiff

face.’”
Bell

“A claim

pleads

factual

content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”

Id.

(quoting Twombly, 550 U.S. at 556.)
“[A]

court

must

accept

contained in a complaint.”
conclusions

as

true.

as

Id.

Id.

true

all

of

the

allegations

A court need not accept legal

Legal

conclusions,

together

with

threadbare recitals of the elements of a cause of action, do not
suffice to state a claim.

Id.

Thus, “a court considering a

motion to dismiss can choose to begin by identifying pleadings
that,

because

they

are

no

more

than

conclusions,

entitled to the assumption of truth.” Id. at 679.

are

not

“While legal

conclusions can provide the framework of a complaint, they must
be supported by factual allegations.” Id.

If a complaint can be

remedied by an amendment, a district court may not dismiss the
complaint

with

prejudice,

but

must

permit

the

amendment.

Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir.
3 

2002).

A court must liberally construe a pro se complaint.

Erickson v. Pardus, 551 U.S. 89, 94 (2007).
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

(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255–56 (3d
Cir. 1994).
A.

Judicial Immunity

“A judicial officer in the performance of his duties has
absolute

immunity

from

suit

and

will

not

be

liable

for

his

judicial acts.” Capogrosso v. The Supreme Court of New Jersey,

4 

588 F.3d 180, 184 (3d Cir. 2009) (quoting Azubuko v. Royal, 443
F.3d 302, 303 (3d Cir. 2006)). “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; rather, he will
be subject to liability only when he has acted ‘in the clear
absence of all jurisdiction.’” Id. (citations omitted).
1983

claims

for

injunctive

relief

against

judicial

Section
officers

acting in their judicial capacities are also barred unless the
plaintiff

alleges

declaratory

a

relief

declaratory

decree

was

unavailable.

not

alleged

was

Id.

violated

at

304

or

that

(citing

42

U.S.C. § 1983).
Plaintiff

has

any

facts

that

suggest

Judge

Schweitzer acted in clear absence of jurisdiction in presiding
over his state court cases or that she violated a declaratory
decree or that declaratory relief is unavailable in the state
courts.

Therefore, Judge Schweitzer is immune from Plaintiff’s

§ 1983 claims, and she will be dismissed from this action with
prejudice.
B.

Color of State Law

A public defender is not acting “under color of state law
when

performing

the

traditional
Polk

Co.

v.

functions
Dodson,

of
454

counsel
U.S.

to

312,

a

criminal

defendant.”

325

(1981).

Plaintiff alleges Defendant Levenberg is the public

defender assigned to represent him in state court, and Levenberg
5 

has not adequately performed his duties.

Therefore, Levenberg

was not acting under color of state law, and the Court will
dismiss

the

§

1983

claims,

both

for

damages

and

injunctive

relief, against Defendant Levenberg with prejudice.
C.

Sovereign Immunity

The Eleventh Amendment 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.
The Supreme Court stated:
That a State may not be sued without its
consent
is
a
fundamental
rule
of
jurisprudence having so important a bearing
upon the construction of the Constitution of
the United States that it has become
established by repeated decisions of this
court that the entire judicial power granted
by
the
Constitution
does
not
embrace
authority to entertain a suit brought by
private parties against a State without
consent given . . .
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98
(1984) (quoting Ex parte State of New York No. 1, 256 U.S. 490,
497

(1921)).

“The

State

of

New

Jersey

has

not

waived

its

sovereign immunity with respect to § 1983 claims in federal
court.”

Mierzwa v. U.S., 282 F. App’x 973, 976 (3d Cir. 2008)

(citing Ritchie v. Cahall, 386 F.Supp. 1207, 1209–10 (D.N.J.
1974)).

6 

Eleventh Amendment immunity protects state agencies when
“the state is the real party in interest.”

Beightler v. Office

of Essex County Prosecutor, 342 F. App’x 829, 832 (3d Cir. 2009)
(quoting Fitchik v. New Jersey Transit Rail Operations, 873 F.2d
655, 658 (3d Cir.1989) (en banc), cert. denied, 493 U.S. 850
(1989)).

Courts consider three factors to determine whether

Eleventh Amendment immunity applies to a state agency: “(1) the
source

of

the

agency's

funding—i.e.,

whether

payment

of

any

judgment would come from the state's treasury; (2) the status of
the agency under state law; and (3) the degree of autonomy from
state regulation.” Id. (quoting Fitchik, 873 F.2d at 659)).
District courts considering these three factors have found
the

New

Jersey

Office

of

the

Eleventh Amendment immunity.
cv-764

(CCC),

2016

WL

Public

Defender

is

subject

to

May v. Irvington Police Dept., 15-

236212,

at

*2

(D.N.J.

Jan.

9,

2016)

(finding State Treasury would be source of funds for payment of
judgment against Office of the Public Defender; Office of the
Public

Defender

was

created

by

the

State;

and

the

Public

Defender’s Office must report annually to the New Jersey State
Legislature); Vasilopoulos v. Superior Court of New Jersey, Civ.
Action No. 08-5801 (JAG), 2009 WL 1298419 (D.N.J. May 8, 2009)
(finding Office of the Public Defender is an arm of the state
because it established by the State of New Jersey and must make
an annual report to the Legislature on its operations); see
7 

Chisolm v. McManimon, 275 F.3d 315, 323 (3d 2001) (although no
single

factor

is

dispositive,

“the

most

important

factor

is

whether a judgment resulting from the suit would be paid from
the state treasury”) (citations omitted).

This Court agrees

that the three factors demonstrate the State of New Jersey is
the

real

Defender

party
is

in

sued

interest

under

§

when

the

1983.

Office

Therefore,

of
the

the

Public

Court

will

dismiss the Office of the Public Defender from this action with
prejudice

because

it

has

Eleventh

Amendment

immunity

from

Plaintiff’s claims for damages.
D.

Injunctive Relief

Plaintiff asks this Court to investigate and reprimand the
defendants

in

this

action.

The

Court

construes

this

as

a

request for prospective injunctive relief in the context of this
§ 1983 action.

The Office of the Public Defender is the only

named defendant in this action against whom Plaintiff may seek
prospective injunctive relief under § 1983.

“Allegations of

exposure to illegal conduct in the past alone, without a showing
of continuing adverse effects, do not demonstrate a case or
controversy
relief.”

entitling

a

plaintiff

to

prospective

injunctive

Doe v. Div. of Youth & Family Servs., 148 F.Supp.2d

462, 479 (D.N.J. 2001) (citations omitted). “The plaintiff must
show that [s]he ... is immediately in danger of sustaining some
direct injury as the result of the challenged official conduct
8 

and

the

injury

or

threat

of

injury

must

immediate, not conjectural or hypothetical.”

be

both

real

and

Id. (quoting City

of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983) (citations
and internal quotation marks omitted).
that

the

Office

of

the

Public

Plaintiff’s allegations

Defender

failed

to

grant

his

requests for appointment of a new public defender fail to meet
this

standard.

The

Court

will

dismiss

this

claim

without

prejudice.
IV.

CONCLUSION
The Court will grant Plaintiff’s IFP application.

Pursuant

to 28 U.S.C. § 1915(e)(2)(B) and § 1915A, the Court will dismiss
the

§

1983

claims

against

Judge

Sherri

L.

Schweitzer

and

Attorney Igor Levenberg with prejudice; dismiss the § 1983 claim
for

damages

against

the

Office

of

the

Public

Defender

with

prejudice; and dismiss the § 1983 claim for injunctive relief
against the Office of the Public Defender without prejudice.
An appropriate order follows.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: February 22, 2017

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