HIGH v. LEVENBERG et al
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NOT FOR PUBLICATION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
RASHON D. HIGH,
IGOR LEVENGERG, ESQ., et al., :
Civil Action No. 16-8068(RMB)
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. §
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).
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
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
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
Plaintiff was arrested on April 30, 2016, based on a defective
complaint warrant and an unauthorized detainer for a violation
(Compl., ECF No. 1 at 5.)
The Office of the
Public Defender, Camden Region appointed Attorney Igor Levenberg
to represent Plaintiff.
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.
(Id. at 4.)
neutral and detached hearing body in blatant disregard of the
Supreme Law of the Land’s 5th and 14th Amendments.”
II. STANDARDS FOR A SUA SPONTE DISMISSAL
(Id. at 6.)
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).
“To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
(quoting Twombly, 550 U.S. at 556.)
contained in a complaint.”
A court need not accept legal
threadbare recitals of the elements of a cause of action, do not
suffice to state a claim.
Thus, “a court considering a
motion to dismiss can choose to begin by identifying pleadings
entitled to the assumption of truth.” Id. at 679.
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
Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir.
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. §
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
“A judicial officer in the performance of his duties has
judicial acts.” Capogrosso v. The Supreme Court of New Jersey,
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
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).
acting in their judicial capacities are also barred unless the
U.S.C. § 1983).
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
Therefore, Judge Schweitzer is immune from Plaintiff’s
§ 1983 claims, and she will be dismissed from this action with
Color of State Law
A public defender is not acting “under color of state law
Plaintiff alleges Defendant Levenberg is the public
defender assigned to represent him in state court, and Levenberg
has not adequately performed his duties.
was not acting under color of state law, and the Court will
relief, against Defendant Levenberg with prejudice.
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
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
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,
sovereign immunity with respect to § 1983 claims in federal
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.
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
Courts consider three factors to determine whether
Eleventh Amendment immunity applies to a state agency: “(1) the
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
Eleventh Amendment immunity.
May v. Irvington Police Dept., 15-
(finding State Treasury would be source of funds for payment of
judgment against Office of the Public Defender; Office of the
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
Chisolm v. McManimon, 275 F.3d 315, 323 (3d 2001) (although no
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
dismiss the Office of the Public Defender from this action with
Plaintiff’s claims for damages.
Plaintiff asks this Court to investigate and reprimand the
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.
exposure to illegal conduct in the past alone, without a showing
of continuing adverse effects, do not demonstrate a case or
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
immediate, not conjectural or hypothetical.”
Id. (quoting City
of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983) (citations
and internal quotation marks omitted).
requests for appointment of a new public defender fail to meet
The Court will grant Plaintiff’s IFP application.
to 28 U.S.C. § 1915(e)(2)(B) and § 1915A, the Court will dismiss
Attorney Igor Levenberg with prejudice; dismiss the § 1983 claim
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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