SMITH v. CONNOR et al

Filing 8

OPINION. Signed by Judge Noel L. Hillman on 4/3/2017. (rtm, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Plaintiff,
:
:
v.
:
:
MICHAEL DONIO, et al.,
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:
Defendants.
:
___________________________________:
RICHARD L. SMITH, JR.,

Civ. No. 17-269 (NLH)
OPINION

APPEARANCES:
Richard L. Smith, Jr.
837638 922627b
S.S.C.F.
4295 Rt. 47
Delmont, NJ 08314
Plaintiff Pro se

HILLMAN, District Judge
Plaintiff Richard L. Smith, a prisoner confined at Southern
State Correctional Facility in Delmont, New Jersey, seeks to
bring this civil rights action in forma pauperis.
No. 1.)

(Compl., ECF

Based on his affidavit of indigence, the Court will

grant Plaintiff's application to proceed in forma pauperis (“IFP
App.,” ECF No. 1-2), 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 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
relief.
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

must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“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.”

Id.

(quoting Twombly, 550 U.S. at 556.)
“[A] court must accept as true all of the allegations
contained in a complaint.”
conclusions as true. Id.

Id.

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, are not
entitled to the assumption of truth.” Id. at 679.

“While legal

conclusions can provide the framework of a complaint, they must
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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
A.

The Complaint

Plaintiff named the following defendants in his Complaint:
Michael Donio, J.S.C.; 1 Andrew B. Johns, Assistant Attorney
General (“AAG”), New Jersey; Joseph Corbey, Attorney; Terry
Stomel, Attorney; Georgia Curio, Cumberland County Assignment
Judge; and Rosemarie Gallager, C.D.M., Cumberland County.

In

his Statement of Claims, Plaintiff alleges the following facts.
On September 5, 2012, Plaintiff and his wife were arrested.
Plaintiff was arraigned before Judge Michael Donio on September
17, 2012.

Andrew B. Johns acted on behalf of the New Jersey

1

By letter to the Court, Plaintiff seeks to correct an error in
the caption of his Complaint where he had mistakenly named “Michael
Connor,” and he intended to name “Michael Donio” as the first
defendant. (ECF Nos. 2, 3.) The Court will direct the Clerk to
make this correction on the docket.
After filing his Complaint, Plaintiff submitted evidence in
support of his claims. (ECF Nos. 4, 5.) Plaintiff is not required
to submit evidence to the Court at this stage of the litigation.
If Plaintiff wishes to include these documents as part of his
Complaint, which is not required, he should submit an Amended
Complaint, attaching these documents.
3

Attorney General’s Office, and Attorney Joseph Corbey
represented Plaintiff.

Bail was not discussed or set at the

arraignment.
Plaintiff’s criminal matter before Judge Donio, and two
other indictments against him, were transferred to Cumberland
County on October 9, 2012, due to a conflict because Plaintiff’s
father-in-law is a judge in Atlantic County.

Plaintiff did not

receive bail until he agreed to plead guilty on April 29, 2013.
His bail was set at $150,000, and subsequently lowered to
$100,000 at his plea hearing.

AAG Andrew Johns admitted on the

record that a mistake was made in Plaintiff’s bail.
Before his plea hearing, between September 17, 2012 and
April 29, 2013, Plaintiff wrote letters to his attorney, Joseph
Corbey, and to Judges Michael Donio and Georgia Curio, alleging
he was illegally imprisoned.
dismiss in January 2013.

He also submitted a motion to

These issues went unaddressed.

Plaintiff was appointed a “pool attorney,” Terry Stomel, on
April 29, 2013.

Stomel procured Plaintiff’s bail, and allowed

Plaintiff to plead guilty.

Plaintiff alleges Stomel had not

read the discovery, and it was obvious to Stomel that Plaintiff
was “held illegally of an apparent conspiracy.”
No. 1 at 7.)

(Compl., ECF

Plaintiff was forced to plead guilty to have his

wife’s charges dismissed.

He could not post bail because there

was a hold on him in Mercer County.
4

Plaintiff alleges his father-in-law dislikes him and is
friends with “the very judges who failed to set a bail for me
and also worked as an Assistant Attorney General for the [AG’s]
Office.”

(Id.)

Plaintiff attempted to file a civil action on

December 21, 2013, but after learning that he must exhaust his
administrative remedies, he filed a PCR motion, which was
denied. 2
Plaintiff alleges that in his PCR proceedings, the
prosecutors 3 maintained that he had a $150,000 bail, but
Plaintiff alleges they refused to acknowledge that Indictment
No. 09-07-00150 AG “is the Indictment that held me out of Mercer
County and not Indictment #12-12-029457 out of Atlantic County.”
(Id. at 8.)

Plaintiff explains:

2

The Court does not express an opinion at this time whether the
two-year statute of limitations was equitably or otherwise tolled
while Plaintiff pursued his post-conviction remedies in an effort
to exhaust his § 1983 claims.
3

Plaintiff claims that the arguments of the prosecutors, Assistant
Atlantic County Prosecutor Brett Yore and D.A.G. Emily R. Anderson,
whom appeared on behalf of the State at his PCR proceeding on July
19, 2013, were tantamount to conspiracy and malicious prosecution
on behalf of the State of New Jersey Attorney General’s Office and
Atlantic County Prosecutor’s Office. (Compl., ECF No. 1 at 8.)
Plaintiff did not name these individuals as defendants in this
action.
If Plaintiff intended to bring claims against these
individuals, he is required to file an Amended Complaint. However,
Plaintiff should be aware that such a claim is likely to be
dismissed based on absolute prosecutorial immunity. See Kulwicki
v. Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992) (absolute
prosecutorial immunity attaches to activity taken in court, such
as the presentation of evidence and legal argument).
5

Once again, I state that there was a hold on
me on Indictment No. 09-07-00150 AG out of
Mercer County from 9/5/12 through 4/29/13.
Even the A.G. Andrew B. Johns admits this.
I did have a bail out of Atlantic County for
Ind.#12-12029457 but could not post bail due
to the Mercer County hold.
(Id.)
During Plaintiff’s incarceration in the Atlantic County
Justice Facility, he was placed in the highest security, and he
was assaulted numerous times.

For relief, Plaintiff wants the

Court to acknowledge that he was illegally held without bail,
without having been denied bail or having bail revoked, and he
seeks damages for himself and his family.
B.

Section 1983 claims

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
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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,
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).
Plaintiff has not alleged any facts indicating that Judges
Donio and Curio acted in clear absence of jurisdiction in
presiding over his state court cases.

Therefore, Judge Donio

and Judge Curio are immune from Plaintiff’s § 1983 claims, and
they will be dismissed from this action with prejudice.
B.

Prosecutorial Immunity

Prosecutors have absolute immunity for prosecutorial
actions that are “intimately associated with the judicial phase
of the criminal process.”

Van de Kamp v. Goldstein, 555 U.S.

335, 341 (2009) (quoting Imbler v. Pachtman, 424 U.S. 409, 430
7

(1976)). Absolute immunity applies when a prosecutor is acting
“as an officer of the court” but not when a prosecutor engages
in investigative or administrative tasks.

Id. at 342.

A

functional approach should be applied to determine if a
prosecutor’s activity is taken as an officer of the court or is
investigative or administrative.

Id.

Here, Plaintiff alleged AAG Andrew B. Johns “refused to set
bail; request bail.

Knew I had a hold out of Mercer County &

didn’t have it removed after he knew it was there.”
ECF No. 1 at 4.)

(Compl.,

Plaintiff further alleged “I would not receive

bail until I agreed to plead guilty on 4/29/12.”

(Id. at 6.)

Plaintiff states that during the plea hearings Johns “admitted
on record a mistake or a nuance was made in regard to my bail in
between 9/17/12 and 4/29/13.”

(Id.)

“a malicious prosecution tactic.”

Plaintiff asserts this was

(Id.)

After Plaintiff filed

a bail reduction motion, which was heard on December 3, 2013, he
alleges he still did not receive bail or have the Mercer County
hold lifted.

(Id. at 7.)

The Court construes Plaintiff’s claims regarding denial of
bail as a violation of his Fourteenth Amendment right to due
process.

See Tarapchak v. Lackawanna County, 173 F.Supp.3d 57,

82 (E.D. Pa. 2016) (construing § 1983 claim for incarceration
without a bench warrant hearing or bail revocation hearing as
arising under Fourteenth Amendment’s protection of life, liberty
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and property).

At this stage of the proceedings, where the

Court must accept Plaintiff’s factual allegations as true, the
Court cannot determine whether the alleged mistake by Johns was
an administrative act subject to qualified immunity or whether
the prosecutor’s actions or inactions with respect to
Plaintiff’s bail are quasi-judicial in nature and entitled to
absolute prosecutorial immunity.

See Odd v. Malone, 538 F.3d

202, 214 (3d Cir. 2008) (prosecutor’s failure to notify court of
material witness’s custodial status was an administrative
oversight not entitled to absolute prosecutorial immunity);
Light v. Haws, 472 F.3d 74, 77 (3d Cir. 2007) (“state
prosecutors are absolutely immune from liability under § 1983
for actions performed in a quasi-judicial role”) (quoting
Imbler, 424 U.S. at 427, 431.))

Therefore, this claim will be

allowed to proceed.
C.

Joseph Corbey and Terry Stomel

A public defender is not acting “under color of state law
when performing the traditional functions of counsel to a
criminal defendant.”
(1981).

Polk Co. v. Dodson, 454 U.S. 312, 325

“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.”

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

(citing Polk, 454 U.S. at 318)).

Plaintiff’s allegations
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against Attorneys Corbey and Stomel are based on their actions
as his counsel in a criminal matter.

Therefore, Plaintiff’s §

1983 claims against Joseph Corbey and Terry Stomel will be
dismissed with prejudice for failure to state a claim upon which
relief may be granted because they are not state actors.
D.

Rosemarie Gallager

Plaintiff alleges Rosemarie Gallager, Criminal Division
Manager for Cumberland County, refused to file his pro se motion
to dismiss.

The Complaint, however, also alleges Plaintiff was

represented by counsel.

There is no constitutional right of a

criminal defendant to partial or hybrid representation.

State

v. Figeuroa, 186 N.J. 589, 594 (2006); U.S. v. D’Amario, 268 F.
App’x 179, 180 (3d Cir. 2008) (“The Constitution does not confer
a right to proceed simultaneously by counsel and pro se . . .”)
Therefore, Gallager was not required to accept a pro se filing
from Plaintiff.

The Court will dismiss Plaintiff’s § 1983 claim

against Gallager with prejudice for failure to state a claim
upon which relief may be granted.
E.

Conspiracy

Plaintiff alleged his attorney, Terry Stomel, allowed him
to plead guilty although it was apparent to Stomel that
Plaintiff was “held illegally of an apparent conspiracy.”
Liberally construing the Complaint, Plaintiff might be trying to
allege a conspiracy to maliciously prosecute him.
10

Plaintiff’s

conspiracy claim for malicious prosecution is barred by Heck v.
Humphrey, because success on such a claim would invalidate
Plaintiff’s conviction, and he has not shown that his conviction
was reversed or otherwise invalidated.

See Heck v. Humphrey,

512 U.S. 477, 486-87 (1994)); see also Baker v. Wittevrongel,
363 F. App’x 146, 149 (3d Cir. 2010) (holding damages claims for
malicious prosecution and conspiracy were barred by the
favorable termination rule announced in Heck).
Plaintiff further alleges his father-in-law, who is not a
defendant, dislikes him and is friends with “the very judges who
failed to set a bail for me and also worked as an Assistant
Attorney General for the [AG’s] Office.”

Assuming Plaintiff is

alleging a conspiracy to hold him without bail until he plead
guilty, he has failed to state a claim.

The elements of a civil

conspiracy claim under § 1983 are:
a combination of two or more persons acting
in concert to commit an unlawful act, or to
commit a lawful act by unlawful means, the
principal element of which is an agreement
between the parties to inflict a wrong
against or injury upon another, and an overt
act that results in damage.
Adams v. Teamsters, 214 F. App’x 167, 172 (3d Cir. 2007)
(quoting Hampton v. Hanrahan, 600 F.2d 600, 620-21 (7th Cir.
1979) (quoting Rotermund v. U.S. Steel Corp., 474 F.2d 1139 (8th
Cir. 1973) (quotation marks omitted)).

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Plaintiff has not alleged any facts that plausibly suggest
there was an agreement between any of the defendants and/or his
father-in-law to deny Plaintiff a bail hearing.

See Capograsso,

588 F.3d at 185 (“a conspiracy cannot be found from allegations
of judicial error, ex parte communications (the manner of
occurrence and substance of which are not alleged) or adverse
rulings absent specific facts demonstrating an agreement to
commit the alleged improper actions”) (quoting Crabtree v.
Muchmore, 904 F.2d 1475, 1481 (10th Cir. 1990)).

The conspiracy

claims, as construed by this Court, will be dismissed 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
with prejudice the § 1983 claims against Michael Donio, Georgia
Curio, Joseph Corbey, Terry Stomel, and Rosemarie Gallager.
Plaintiff’s § 1983 conspiracy claims will be dismissed without
prejudice.

Plaintiff’s § 1983 claim against AAG Andrew B. Johns

may proceed.
An appropriate order follows.

Dated: April 3, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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