ALLAH v. FERRETTI et al

Filing 19

OPINION. Signed by Judge Faith S. Hochberg on 03/31/2011. (nr, )

-PS ALLAH v. FERRETTI et al

Doc. 19

NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY JUSTICE ALLAH, a/k/a Melvin Baldwin, Plaintiff, v. BRIAN FERRETTI, et al., Defendants. APPEARANCES: Plaintiff pro se Justice Allah C/O Melvin Baldwin 20 Toler Place Newark, NJ 07114 HOCHBERG, District Judge Plaintiff Justice Allah, also known as Melvin Baldwin, a prisoner confined at Delaney Hall in Newark, New Jersey, seeks to bring this action in forma pauperis pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. Based on his : : : : : : : : : :

Civil Action No. 10-3289 (FSH) OPINION

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 to determine whether it should be dismissed as frivolous or

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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

The following factual allegations are taken from Plaintiff's Complaint and are accepted as true for purposes of this review. Plaintiff alleges that Defendant Brian Ferretti, a WalMart employee, stated that he observed Plaintiff stealing two laptop computers and that, a week later, he filed a police report. Plaintiff alleges that Defendant Brian Ferretti "racially profiled" him. Plaintiff alleges that Defendant Linden Police Department Officers Sheehan and Wegrzynek never went to WalMart to investigate or look at videotapes of the alleged shoplifting. alleges that the Union County Prosecutor's Office administratively dismissed the shoplifting complaint on August 24, 2009, but that he never received a first appearance or otherwise appeared before a judge, as required by New Jersey Rules of Court. Plaintiff alleges that these defendants deprived He

him of his constitutional right to due process. Plaintiff names as Defendants Brian Ferretti, WalMart, Gavin Sheehan, Vinc Wegrzynek, the Union County Prosecutor's Office, and Prosecutor Theodore Romankow. damages. Plaintiff seeks monetary

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II.

STANDARDS FOR A SUA SPONTE DISMISSAL

This Court must dismiss, at the earliest practicable time, certain in forma pauperis and prisoner actions that are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant who is immune from such relief. See 28

U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C. § 1915A (actions in which prisoner seeks redress from a governmental defendant); 42 U.S.C. § 1997e (prisoner actions brought with respect to prison conditions). In determining the sufficiency of a pro se complaint, the Court must be mindful to construe it liberally in favor of the plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United The Court must

States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).

"accept as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Morse v. Lower

Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). A complaint is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319,

325 (1989) (interpreting the predecessor of § 1915(e)(2), the former § 1915(d)). The standard for evaluating whether a Deutsch v. United

complaint is "frivolous" is an objective one. States, 67 F.3d 1080, 1086-87 (3d Cir. 1995).

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In addition, any complaint must comply with the pleading requirements of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." A complaint must plead facts sufficient at least to Spruill v. Gillis, 372 F.3d

"suggest" a basis for liability. 218, 236 n.12 (3d Cir. 2004).

"Specific facts are not necessary;

the statement need only `give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (citations omitted). While a complaint ... does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation"). Factual allegations must be enough to raise a right to relief above the speculative level ... . Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (citations omitted). The Supreme Court has demonstrated the application of these general standards to a Sherman Act conspiracy claim. In applying these general standards to a § 1 [conspiracy] claim, we hold that stating such a claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made. Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable 4

expectation that discovery will reveal evidence of illegal agreement. And, of course, a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and "that a recovery is very remote and unlikely." ... It makes sense to say, therefore, that an allegation of parallel conduct and a bare assertion of conspiracy will not suffice. Without more, parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality. Hence, when allegations of parallel conduct are set out in order to make a § 1 claim, they must be placed in a context that raises a suggestion of a preceding agreement, not merely parallel conduct that could just as well be independent action. The need at the pleading stage for allegations plausibly suggesting (not merely consistent with) agreement reflects the threshold requirement of Rule 8(a)(2) that the "plain statement" possess enough heft to "sho[w] that the pleader is entitled to relief." A statement of parallel conduct, even conduct consciously undertaken, needs some setting suggesting the agreement necessary to make out a § 1 claim; without that further circumstance pointing toward a meeting of the minds, an account of a defendant's commercial efforts stays in neutral territory. ... Twombly, 127 S.Ct. at 1965-66 (citations and footnotes omitted). The Court of Appeals for the Third Circuit has held, in the context of a § 1983 civil rights action, that the Twombly pleading standard applies outside the § 1 antitrust context in which it was decided. See Phillips v. County of Allegheny, 515

F.3d 224, 234 (3d Cir. 2008) ("we decline at this point to read Twombly so narrowly as to limit its holding on plausibility to the antitrust context"). Context matters in notice pleading. Fair notice under Rule 8(a)(2) depends on the type of case -- some complaints will require at least some factual 5

allegations to make out a "showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Indeed, taking Twombly and the Court's contemporaneous opinion in Erickson v. Pardus, 127 S.Ct. 2197 (2007), together, we understand the Court to instruct that a situation may arise where, at some point, the factual detail in a complaint is so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8. Put another way, in light of Twombly, Rule 8(a)(2) requires a "showing" rather than a blanket assertion of an entitlement to relief. We caution that without some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only "fair notice," but also the "grounds" on which the claim rests. Phillips, 515 F.3d at 232 (citations omitted). More recently, the Supreme Court has emphasized that, when assessing the sufficiency of any civil complaint, a court must distinguish factual contentions -- which allege behavior on the part of the defendant that, if true, would satisfy one or more elements of the claim asserted -- and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

Although the Court must assume the veracity of the facts asserted in the complaint, it is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. at 1950. 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." Therefore, after Iqbal, when presented with a motion to dismiss for failure to state a claim, 6 Id.

district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts. See Phillips, 515 F.3d at 234-35. As the Supreme Court instructed in Iqbal, "[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not `show[n]'-`that the pleader is entitled to relief.'" This "plausibility" determination will be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citations omitted). Where a complaint can be remedied by an amendment, a district court may not dismiss the complaint with prejudice, but must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34

(1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996). 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:

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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). Finally, a § 1983 action brought against a person in his or her official capacity "generally represent[s] only another way of pleading an action against an entity of which an officer is an agent." Monell, 436 U.S. at 690 n.55. "[I]n an official-

capacity action, ... a governmental entity is liable under § 1983 only when the entity itself is a `moving force' behind the deprivation; thus, in an official capacity suit the entity's `policy or custom' must have played a part in the violation of federal law." Kentucky v. Graham, 473 U.S. 159, 166 (1985)

(internal quotation marks and citations omitted).

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IV. A. Claims against Prosecutors

ANALYSIS

Plaintiff seeks to assert claims against both the Union County Prosecutor's Office and against Prosecutor Theodore Romankow. The claims must be dismissed.

The Eleventh Amendment to the United States Constitution provides that, "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." As a general proposition, a suit by private parties seeking to impose a liability which must be paid from public funds in a state treasury is barred from federal court by the Eleventh Amendment, unless Eleventh Amendment immunity is waived by the state itself or by federal statute. Jordan, 415 U.S. 651, 663 (1974). See, e.g., Edelman v. The Eleventh Amendment

protects states and their agencies and departments from suit in federal court regardless of the type of relief sought. Pennhurst

State School and Hospital v. Halderman, 465 U.S. 89, 100 (1984). Section 1983 does not override a state's Eleventh Amendment immunity. Quern v. Jordan, 440 U.S. 332 (1979).

To determine whether Eleventh Amendment immunity applies to a state agency, a court must consider three factors: (1) the

source of the agency's funding - i.e., whether payment of any

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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. See Flitchik v. New Jersey Transit Rail

Operations, 873 F.2d 655, 659 (3d Cir.) (en banc), cert. denied, 493 U.S. 850 (1989). In Coleman v. Kaye, 87 F.3d 1491 (3d Cir.

1996), the U.S. Court of Appeals for the Third Circuit considered all of these factors in the context of a New Jersey county prosecutor's office and recognized that county prosecutorial offices conduct two distinct sets of functions: (1) the administrative functions of operating their offices and (2) the classic law enforcement and investigative functions for which they are chiefly responsible. The Third Circuit's analysis

culminated in the conclusion that "when [New Jersey count] prosecutors engage in classic law enforcement and investigative functions, they act as officers of the state." Id. at 1505.

Here, Plaintiff's claims challenging prosecutorial actions in connection with his arrest and subsequent court appearances relate to a prosecutor's classic law enforcement functions, from which the Union County Prosecutor's Office is immune under the Eleventh Amendment. Title 28 Sections 1915(e)(2)(B)(iii) and

1915A(b)(2) require this Court to dismiss this action if it "seeks monetary relief from a defendant who is immune from such relief." Accordingly, all claims against the Union County

Prosecutor's Office will be dismissed with prejudice.

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In addition, "a state prosecuting attorney who act[s] within the scope of his duties in initiating and pursuing a criminal prosecution" is not amenable to suit under § 1983. Pachtman, 424 U.S. 409, 410 (1976). Imbler v.

Thus, a prosecutor's

appearance in court as an advocate in support of an application for a search warrant and the presentation of evidence at such a hearing are protected by absolute immunity. U.S. 478, 492 (1991). Burns v. Reed, 500

Similarly, "acts undertaken by a

prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity." U.S. 259, 273 (1993). Buckley v. Fitzsimmons, 509

Accordingly, the claim against Prosecutor

Theodore Romankow must also be dismissed with prejudice. B. Claims Against Officers Gavin Sheehan and Vinc Wegrzynek Plaintiff alleges that Officers Gavin Sheehan and Vinc Wegrzynek failed to properly investigate the alleged shoplifting crime. Plaintiff does not state that the officers arrested him;

nevertheless, this Court can discern no other purported claim from the facts alleged than an attempt to state a claim for arrest without probable cause. It is well established in the Third Circuit that an arrest without probable cause is a Fourth Amendment violation actionable under § 1983. See Walmsley v. Philadelphia, 872 F.2d 546 (3d

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Cir. 1989)(citing cases); see also, Albright v. Oliver, 510 U.S. 266, 274 (1994)(a section 1983 claim for false arrest may be based upon an individual's Fourth Amendment right to be free from unreasonable seizures). Under New Jersey law, false arrest has

been defined as "the constraint of the person without legal justification." Ramirez v. United States, 998 F. Supp. 425, 434

(D.N.J. 1998) (quoting Fleming v. United Postal Service, Inc., 604 A.2d 657, 680 (N.J. Law Div. 1992)). To state a Fourth Amendment claim for false arrest, a plaintiff must allege two elements: (1) that there was an

arrest; and (2) that the arrest was made without probable cause. Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988). To establish the absence of probable cause, a plaintiff

must show "that at the time when the defendant put the proceedings in motion the circumstances were such as not to warrant an ordinary prudent individual in believing that an offense had been committed." (1975). Lind v. Schmid, 67 N.J. 255, 262

"Probable cause . . . requires more than mere suspicion;

however, it does not require that the officer have evidence to prove guilt beyond a reasonable doubt." Orsatti v. New Jersey Rather,

State Police, 71 F.3d 480, 482-83 (3d Cir. 1995).

probable cause exists when the facts and circumstances are "sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense." Gerstein

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v. Pugh, 420 U.S. 103, 111 (1975) (quoting Beck v. State of Ohio, 379 U.S. 89, 91 (1964)); Sharrar v. Felsing, 128 F.3d 810, 817 (3d Cir. 1997). Here, the facts alleged are not sufficient to state a claim for false arrest. Apart from the absence of any facts describing

the circumstances of his arrest, e.g., whether there was a warrant, who effected the arrest, etc., the mere fact that these two officers did not conduct the type of investigation Plaintiff deems appropriate is not sufficient to show that they arrested Plaintiff without probable cause. This is the sort of conclusory This

pleading prohibited by the Twombly/Iqbal line of cases. claim will be dismissed without prejudice. C. Claims Against Brian Ferretti and WalMart

Plaintiff alleges that Brian Ferretti "racially profiled" him. He makes no factual allegations against WalMart. The Court

construes this as an attempt to state a claim that Brian Ferretti violated Plaintiff's equal protection rights under the Fourteenth Amendment to the U.S. Constitution and that WalMart is vicariously liable. As noted above, to state a claim under § 1983, a Plaintiff must assert that the violation was committed by a person acting under color of state law. "[T]he under-color-of-state-law

element of § 1983 excludes from its reach `merely private conduct, no matter how discriminatory or wrongful.'" American

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Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (citations omitted). Nevertheless, "the deed of an ostensibly

private organization or individual" at times may demand to be treated "as if a State has caused it to be performed." Brentwood

Academy v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288 (2001). Specifically, "state action may be found if, though only

if, there is such a `close nexus between the State and the challenged action' that seemingly private behavior `may be fairly treated as that of the State itself.'" Id. (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974)). It is clear that the act of reporting a crime does not convert a private person or entity into a state actor. See,

e.g., District of Columbia v. Carter, 409 U.S. 418, 424 (1973); Bingaman v. Bingaman, 2009 WL 2424641 (M.D. Pa. Aug. 5, 2009) (collecting cases); Awkakewakeyes v. Normalizo-Kopus, 1986 WL 2247 (E.D. Pa. Feb. 14, 1986), aff'd, 810 F.2d 1163 (3d Cir. 1987). In addition, there is no vicarious liability under § 1983. "A defendant in a civil rights action must have personal involvement in the alleged wrongs, liability cannot be predicated solely on the operation of respondeat superior. Personal

involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence." Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations

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omitted).

Accord Robinson v. City of Pittsburgh, 120 F.3d 1286,

1293-96 (3d Cir. 1997); Baker v. Monroe Twp., 50 F.3d 1186, 119091 (3d Cir. 1995). Accordingly, all claims under § 1983 asserted against Brian Ferretti and WalMart must be dismissed with prejudice. V. CONCLUSION

For the reasons set forth above, the Complaint will be dismissed, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), for failure to state a claim.1 However, because it

is conceivable that Plaintiff may be able to supplement his pleading with facts sufficient to state a claim for false arrest, the Court will grant Plaintiff leave to file an amended complaint as to that claim only.2

The Court notes that "`[g]enerally, an order which dismisses a complaint without prejudice is neither final nor appealable because the deficiency may be corrected by the plaintiff without affecting the cause of action.' ... The dispositive inquiry is whether the district court's order finally resolved the case." Martin v. Brown, 63 F.3d 1252, 1257-58 (3d Cir. 1995) (quoting Borelli v. City of Reading, 532 F.2d 950, 951 (3d Cir. 1976)) (other citations omitted). In this case, if Plaintiff can correct the deficiencies of his Complaint, he may file a motion to re-open these claims in accordance with the court rules. Plaintiff should note that when an amended complaint is filed, the original complaint no longer performs any function in the case and "cannot be utilized to cure defects in the amended [complaint], unless the relevant portion is specifically incorporated in the new [complaint]." 6 Wright, Miller & Kane, Federal Practice and Procedure § 1476 (2d ed. 1990) (footnotes omitted). An amended complaint may adopt some or all of the allegations in the original complaint, but the identification of the particular allegations to be adopted must be clear and 15
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An appropriate order follows.

s/Faith S. Hochberg Faith S. Hochberg United States District Judge Dated: March 31, 2011

explicit. Id. To avoid confusion, the safer course is to file an amended complaint that is complete in itself. Id. 16