BRITTINGHAM v. FIORE et al

Filing 8

OPINION. Signed by Judge Noel L. Hillman on 4/23/2018. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
ANDRE BRITTINGHAM,
:
:
Plaintiff,
:
Civ. No. 18-3453 (NLH) (AMD)
:
v.
:
OPINION
:
CHARLES FIORE and NICHOLAS
:
LACAVARA,
:
:
Defendants.
:
______________________________:
APPEARANCE:
Andre Brittingham, No. 61883
Cumberland County Jail
54 West Broad Street
Bridgeton, NJ 08302
Plaintiff Pro se
HILLMAN, District Judge
Plaintiff Andre Brittingham, a prisoner presently
incarcerated at the Cumberland County Jail, in Bridgeton, New
Jersey, seeks to bring a civil rights complaint against
Prosecutor Charles Fiore and Judge Nicholas Lacavara for actions
arising out of his prosecution and conviction for driving with a
suspended license.

ECF No. 1.

Plaintiff fails to identify the

legal basis for his Complaint other than stating “racial
discrimination,” “defamation,” and “maliciousness.”
6.

Id. at 4,

Because Plaintiff is a state prisoner bringing a claim

against state officials, the Court will construe the Complaint
as arising under 42 U.S.C. § 1983.
1

At this time, the Court must review the Complaint pursuant
to 28 U.S.C. §§ 1915(e)(2) 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.

For the reasons set forth below, the Court will dismiss

the Complaint without prejudice for failure to state a claim.
28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1).
I.

BACKGROUND
Plaintiff filed his Complaint on March 8, 2018, which was

docketed on March 12, 2018.

See ECF No. 1, Compl. at 7.

In it,

Plaintiff alleges that he was arrested in 2014 for driving with
a suspended license, a charge on which he proceeded to trial
because he alleges that he was not operating the vehicle.
id. at 6.

See

Plaintiff alleges that he was charged with that

offense on October 17, 2017.

Id.

Plaintiff states that he was

sentenced to ninety (90) days in jail for the offense but
received no credit for time already served. 1

Id.

As to Defendant Judge Lacavara, Plaintiff states that the
judge served him “an injustice by sentencing [him] to a driving
while suspended while not being in control of [the] vehicle”
after the judge said that he would dismiss the charge if the

1

Plaintiff does not appear to raise as a claim in the Complaint
the denial of credit for time already served.
2

officer came to court and testified that the Plaintiff was not
in control of the vehicle.

Id. at 4.

Plaintiff does not allege

that the officer did in fact testify that the Plaintiff was not
in control of the vehicle.

As to Defendant Prosecutor Fiore,

Plaintiff alleges that the prosecutor called his wife a
prostitute and that the prosecutor also agreed to drop the
charge if the officer came to court and testified that Plaintiff
was not in control of the vehicle.
II.

Id. at 6.

STANDARD OF REVIEW
Sections 1915(e)(2) and 1915A requires a court to review

complaints prior to service in cases in which a plaintiff is
proceeding in forma pauperis.

The Court must sua sponte dismiss

any claim that is frivolous, is malicious, fails to state a
claim upon which relief may be granted, or seeks monetary relief
from a defendant who is immune from such relief.

This action is

subject to sua sponte screening for dismissal under 28 U.S.C. §§
1915(e)(2)(B) and 1915A because Plaintiff is proceeding in forma
pauperis and is incarcerated.

See ECF No. 7 (granting in forma

pauperis application).
To survive sua sponte screening for failure to state a
claim, the complaint must allege “sufficient factual matter” to
show that the claim is facially plausible.
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

Fowler v. UPMC
“‘A claim has

facial plausibility when the plaintiff pleads factual content
3

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

Fair Wind

Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

“[A]

pleading that offers ‘labels or conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’”
Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)).
III. DISCUSSION
A. Claims Against Defendant Lacavara
Plaintiff does not specify the sort of legal claim he
wishes to assert against Defendant Judge Lacavara.

He alleges

only that the judge stated that he would dismiss the charges if
the officer who arrested the Plaintiff testified that Plaintiff
was not in control of the vehicle and that the judge sentenced
him to ninety (90) days in jail with no credit for time served.
With respect to any claim asserted against Judge Lacavara,
judicial immunity would bar Plaintiff's suit for money damages
against him.

Mireles v. Waco, 502 U.S. 9, 10 (1991) (per

curiam) (a judge “shall be free to act upon his own convictions,
without apprehension of personal consequences to himself”)
(quoting Bradley v. Fisher, 13 Wall. 335, 347, 20 L. Ed. 646
(1872)).

A plaintiff can overcome judicial immunity only when

the judge takes an action outside of the judge's judicial
4

capacity or in the complete absence of all jurisdiction.
Mireles, 502 U.S. at 11–12.

In deciding whether an act is

entitled to judicial immunity, the relevant inquiry is whether
the nature and function of the act was judicial.

Id. at 13.

Here, Plaintiff’s allegations against the judge are soundly
judicial in nature and Plaintiff makes no allegation that the
judge acted beyond his judicial capacity or in absence of
jurisdiction.

As such, the claim against Judge Lacavara must be

dismissed as he is immune from suit.
B. Claims Against Defendant Fiore
The claims against Prosecutor Fiore must be dismissed for
failure to state a claim.

To recover under 42 U.S.C. § 1983, a

plaintiff must show two elements: (1) the deprivation of a right
secured by the Constitution or laws of the United States, and
(2) that the deprivation was done under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988).
As to the racial discrimination claim, selective
enforcement of the law motivated by an individual's race may
give rise to a violation of the Fourteenth Amendment.

See Whren

v. United States, 517 U.S. 806, 813, (1996); Bradley v. United
States, 299 F.3d 197, 205 (3d Cir. 2002).

To state a claim of

racial discrimination under § 1983, a Plaintiff must show
purposeful discrimination against him on the basis of race.
Batson v. Kentucky, 476 U.S. 79, 93 (1986).
5

Here, Plaintiff

See

includes no allegations to support a claim of racial
discrimination.

Plaintiff does not even allege his race or any

action allegedly motivated by race that Defendant Fiore took.
Plaintiff’s claim thus fails.
Because Plaintiff does not specify under which statute he
seeks to bring his racial discrimination claim, the Court will
also analyze his claim as arising pursuant to 42 U.S.C. § 1981.
To prove a claim of purposeful racial discrimination under §
1981, a plaintiff must establish (1) that he is a member of a
racial minority, (2) the defendant's intent to racially
discriminate, and (3) that the discrimination pertained to an
activity enumerated in § 1981.

Pryor v. Nat'l Collegiate

Athletic Ass'n, 288 F.3d 548, 569 (3d Cir. 2002).

The Court of

Appeals for the Third Circuit has found that a plaintiff may
bring a claim pursuant to § 1981 for improperly race-motivated
law enforcement by a state government official.
Waddle, 564 F.2d 1018, 1027–28 (3d Cir. 1977).

Mahone v.
For the reasons

stated supra regarding the § 1983 racial discrimination claim,
any claim brought pursuant to § 1981 would also fail.
Plaintiff references “maliciousness” in his Complaint,
which the Court will liberally construe as a claim for malicious
prosecution.

See ECF No. 1, Compl. at 6.

A plaintiff may bring

a malicious prosecution claim under the Fourth Amendment
pursuant to § 1983.

See Johnson v. Knorr, 477 F.3d 75, 81–82
6

(3d Cir. 2007).

To prove malicious prosecution under § 1983, a

plaintiff must establish the following elements: (1) the
defendant initiated a criminal proceeding; (2) the criminal
proceeding ended in plaintiff’s favor; (3) the defendant
initiated the proceeding without probable cause; (4) the
defendant 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.

Id.

Without commenting on

whether Plaintiff has alleged the other elements, Plaintiff’s
claim fails because he does not allege that the criminal
proceeding ended in his favor.
Generally, “plaintiffs who file complaints subject to
dismissal under [§ 1915] should receive leave to amend unless
amendment would be inequitable or futile.”

Grayson v. Mayview

State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).

The Court will

grant leave to amend in order to allow Plaintiff an opportunity
to replead his claims.
Plaintiff also asserts a defamation of character claim
under state law, and may also seek to bring a malicious
prosecution claim under state law.

See ECF No. 1, Compl. at 4.

To the extent that he does, the Court declines to exercise
supplemental jurisdiction over those claims in light of the

7

dismissal of the federal claims on which jurisdiction is based. 2
See 28 U.S.C. § 1367(c)(3).
CONCLUSION
For the reasons stated above, the Complaint is dismissed
without prejudice with leave to amend granted.

An appropriate

order follows.

Dated: April 23, 2018
At Camden, New Jersey

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

2

If Plaintiff files an amended complaint that alleges a
cognizable federal claim, the Court will exercise supplemental
jurisdiction over any state law claims that proceed.
8