MADRIGAL v. ZUNIGA et al

Filing 3

OPINION. Signed by Judge Renee Marie Bumb on 3/22/17. (jbk, )

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
CELSO LAREDO MADRIGAL,

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Plaintiff,
v.

LETICIA ZUNIGA, ESQ. and
J. DAVID ALCANTRA, ESQ.,
Defendants.

Civ. Action No. 16-9415 (RMB)

OPINION

BUMB, District Judge:
Plaintiff

Celso

Laredo

Madrigal,

a

prisoner

confined

in

South Woods State Prison, in Bridgeton, New Jersey, filed a
civil rights action without paying the filing fee or submitting
a complete application to proceed without prepayment of fees
(“IFP application”) under 28 U.S.C. § 1915(a).

(Compl., ECF No.

1.)
The Prison Litigation Reform Act of 1995 (the “Act”), which
amends

28

U.S.C.

§

1915,

establishes

certain

financial

requirements for prisoners who are attempting to bring a civil
action in forma pauperis. Under the Act, a prisoner bringing a
civil

action

including

a

in

forma

statement

of

pauperis
all

assets,

prisoner is unable to pay the fee.
1 

must

submit
which

an

states

affidavit,
that

the

28 U.S.C. § 1915(a)(1).

The

prisoner also must submit a certified copy of his inmate trust
fund

account

statement

for

the

six-month

preceding the filing of his complaint.

period

immediately

28 U.S.C. § 1915(a)(2).

The prisoner must obtain this statement from the appropriate
official of each prison at which he was or is confined.

Id.

The entire fee to be paid in advance of filing a civil
complaint is $400.

That fee includes a filing fee of $350 plus

an administrative fee of $50, for a total of $400.
who

is

granted

in

forma

pauperis

status

will,

A prisoner
instead,

be

assessed a filing fee of $350 and will not be responsible for
the $50 administrative fee.

If in forma pauperis status is

denied, the prisoner must pay the full $400, including the $350
filing fee and the $50 administrative fee, before the complaint
will be filed.
If the prisoner is granted in forma pauperis status, the
prisoner must pay the full amount of the $350 filing fee.
U.S.C. § 1915(b)(1).

28

In each month that the amount in the

prisoner’s account exceeds $10.00, until the $350.00 filing fee
is paid, the agency having custody of the prisoner shall assess,
deduct from the prisoner’s account, and forward to the Clerk of
the Court, payment equal to 20% of the preceding month’s income
credited to the prisoner’s account.
Plaintiff

may

not

have

28 U.S.C. § 1915(b)(2).

known

when

he

submitted

his

complaint that he must pay the filing fee in installments, and
2 

that even if the full filing fee, or any part of it, has been
paid, the Court must dismiss the case if it finds that the
action is: (1) frivolous or malicious; (2) fails to state a
claim upon which relief may be granted; or (3) seeks monetary
relief against a defendant who is immune from such relief.
U.S.C. § 1915(e)(2)(B).

28

If the Court dismisses the case for any

of these reasons, the Act does not permit the prisoner to get
his filing fee back.
After Plaintiff completes his IFP application by submitting
his inmate trust fund account statement for the six-month period
immediately preceding the filing of his complaint, if he chooses
to do so, the Court must review the complaint pursuant to 28
U.S.C.

§

1915(e)(2)(B)

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.1
I. STANDARDS FOR A SUA SPONTE DISMISSAL
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

1

This Court’s conclusive screening of Plaintiff’s claims is
reserved until he pays the filing fee or obtains in forma
pauperis status. See Izquierdo v. New Jersey, 532 F. App’x 71,
72-73 (3d Cir. July 25, 2013) (district court may decide whether
to dismiss the complaint under 28 U.S.C. § 1915(e)(2) after
leave to proceed IFP is granted).
3 

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

a

Ashcroft

claim
v.

to

relief

Iqbal,

556

that

U.S.

is

plausible

662,

678

on

(2009)

its

(quoting

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

facial

plausibility

when

the

plaintiff

face.’”

pleads

Bell

“A claim
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.
2002).

A court must liberally construe a pro se complaint.

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

DISCUSSION
4 

A.

The Complaint

Plaintiff alleges the following in the Complaint. (ECF No.
1.)

In 2010 and 2011, he paid retainers to two attorneys,

Leticia

Zuniga

and

J.

David

Alcantra,

and

they

did

not

adequately represent him in his criminal matter in New Jersey.
Plaintiff arbitrated his claims before the Supreme Court of New
Jersey District 1 Fee Arbitration Committee.

He received two

Arbitration Determinations dated September 17, 2015.

(Exs. A

and B, ECF No. 1.)
Plaintiff
Zuniga.
against

was

awarded

$5,000

(Ex. A, ECF No. 1-1 at 4.)
J.

David

Alcantra.

(Ex.

against

Attorney

Leticia

He was denied an award
B.,

ECF

No.

1-2

at

5.)

Plaintiff did not receive payment from Zuniga.2
Plaintiff also seeks relief under 42 U.S.C. § 1983, based
on his allegation that Zuniga and Alcantra provided inadequate
representation.

Zuniga

did

not

appear

for

two

status

conferences (ECF No. 1-1 at 8), and Alcantra failed to appeal
(Ex. B, ECF No. 1-2 at 8.)
B.

For relief, Plaintiff seeks $10,500.

Section 1983 claims

2

The Arbitration Determinations explained the next steps in the
arbitration procedure, appeal and enforcement under New Jersey
Court Rule 1:20A-3 and Rule 1:20-15(j), (k). (Ex. A and B, ECF
No. 1.) It is not clear whether Plaintiff took any of these
steps.
5 

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).
C.

Inadequate Assistance of Counsel

“It is well established that defense attorneys, no matter
whether

they

are

privately

retained,

court-appointed,

or

employed as public defenders, do not act under color of state
law.”
(citing

Deangelo v. Brady, 185 F. App’x 173, 175 (3d Cir. 2006)
Polk

County

v.

Dodson,

454

U.S.

312,

318

(1981)).

Therefore, Plaintiff’s § 1983 claims against Zuniga and Alcantra

6 

will be dismissed with prejudice for failure to state a claim
because they are not state actors subject to liability under §
1983.
D.

Enforcement of Arbitration Decision

The

Federal

federal

question

Arbitration

Act

jurisdiction.

does

not

Goldman

create

v.

independent

Citigroup

Global

Markets, Inc., 834 F.2d 242, 250 (3d Cir. 2016) (quoting Moses
H. Cone Mem’l Hosp., v. Mercury Constr. Corp., 460 U.S. 1, 25 n.
32 (1983).

The Complaint seeks enforcement of an arbitration

award, a basic contract claim under state law.
claim does not have a basis in federal law.

Plaintiff’s

Further, the Court

will not exercise supplemental jurisdiction over a state law
claim where the alleged § 1983 claim must be dismissed because
the defendants are not state actors.
(“district

courts

may

decline

See 28 U.S.C. § 1367(c)(3)
to

exercise

supplemental

jurisdiction . . . if . . . the district court has dismissed all
claims over which it has original jurisdiction.)
Diversity Jurisdiction may also provide a basis for federal
court jurisdiction over a state law claim.

28 U.S.C. § 1332

provides, in relevant part:
(a) The district courts shall have original
jurisdiction of all civil actions where the
matter in controversy exceeds the sum or
value of $75,000, exclusive of interest and
costs, and is between--

7 

(1) citizens of different States;3
(2) citizens of a State and citizens or
subjects of a foreign state, except
that the district courts shall not have
original
jurisdiction
under
this
subsection
of
an
action
between
citizens of a State and citizens or
subjects of a foreign state who are
lawfully
admitted
for
permanent
residence in the United States and are
domiciled in the same State;
(3) citizens of different States and in
which citizens or subjects of a foreign
state are additional parties; and
(4) a foreign state, defined in section
1603(a) of this title, as plaintiff and
citizens of a State or of different
States.
(b) Except when express provision therefor
is otherwise made in a statute of the United
States, where the plaintiff who files the
case originally in the Federal courts is
finally adjudged to be entitled to recover
less than the sum or value of $75,000,
computed without regard to any setoff or
counterclaim to which the defendant may be
adjudged to be entitled, and exclusive of
interest and costs, the district court may
deny
costs
to
the
plaintiff
and,
in
addition, may impose costs on the plaintiff.

3

For
purposes
of
diversity
jurisdiction,
prisoners
“presumptively retain their prior citizenship.”
Mala v. Crown
Bay Marina, Inc., 704 F.3d 239, 247 (3d Cir. 2013) (citations
omitted).
If Plaintiff resided in New Jersey before going to
prison and if either defendant is also a citizen of New Jersey,
there is no diversity of jurisdiction. Lincoln Property Co. v.
Roche, 546 U.S. 81, 89 (2005) (28 U.S.C. § 1332(a)(1) requires
complete diversity between all plaintiffs and all defendants).
8 

Plaintiff does not appear to meet the amount in controversy
requirement.

On the face of the Complaint, this Court lacks

jurisdiction to enforce Plaintiff’s New Jersey Fee Arbitration
Committee Determination.4

If Plaintiff chooses to complete his

IFP application and reopen this matter, he may wish to file an
Amended Complaint, if he can establish a basis for federal court
jurisdiction.
III. CONCLUSION
The Court will administratively terminate this matter
without prejudice, including the pending motion to appoint pro
bono counsel, because Plaintiff failed submit a complete IFP
application under 28 U.S.C. § 1915(a)(2).

An appropriate order follows.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: March 22, 2017

4

The Court notes that New Jersey Court Rules 1:20A-3(e) and
1:20-15(k) govern enforcement of Plaintiff’s arbitration awards,
and require that the matter be referred to the director of the
program. The director may make a motion to the Board, which, in
turn, may recommend the attorney’s suspension by the New Jersey
Supreme Court until the award is paid.
9