MOORE v. MIDDLESEX COUNTY PROSECUTORS et al
Filing
24
OPINION. Signed by Judge Jose L. Linares on 9/18/2013. (nr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LEROY T.
MOORE,
Plaintiff,
:
Civil Action No. :
11—281
(JLL)
:
Civil Action No. : 11—6198
(JLL)
v.
PAULA T.
DOW,
et al.,
Defendants.
-
LEROY T.
and
-
MOORE,
Plaintiff,
v.
:
OPINION
MIDDLESEX COUNTY PROSECUTOR’S,:
et al.,
Defendants.
APPEARANCES:
LEROY T.
MOORE,
Plaintiff pro se
100 River Run, #V-8
Carteret, New Jersey 07008
ERIC L.
HARRISON, ESQ.
METHPESSEL & WERBEL, PC
3 Ethel Road, Suite 300, P.O. Box 3012
Edison, New Jersey 08818-3012
Counsel for Defendants, Middlesex County Prosecutor’s
Office,
Middlesex County Prosecutor Bruce J. Kaplan, Assistant
Prosecutor Christopher Kuberiet, Valerie Lispano, Joseph
Celentano, Sergeant Scott, Investigator Craig Marchak,
Investigator Rodriguez and Investigator Ellmyer
GARY S.
SPAGNOLA, ESQ.
GOLDEN, ROTHSCHILD, SPAGNOLA, LUNDELL, LEVITT & BOYLAN, PC
1011 Route 22 West, Suite 300, P.O. Box 6881
Bridgewater, New Jersey 08807-0881
Counsel for Defendants, Carteret Police Department, Larissa
Lilavois (formerly Berrios) (Incorrectly Pleaded as Lisa
Berrios), and Michael Dammaan
LINARES, District Judge
Presently before the Court in these consolidated matters is a
motion for summary judgment
(Docket entry # 79)’ filed on behalf of
Defendants, Middlesex County Prosecutor’s Office, Middlesex County
Prosecutor Bruce J.
Kuberiet,
Kaplan,
Valerie Lispano,
Assistant Prosecutor Christopher
Joseph Celentano,
Sergeant Scott,
Investigator Craig Marchak, Investigator Rodriguez and Investigator
Ellmyer,
(hereinafter “Middlesex County Prosecutor’s Office
Defendants” or “MCPO Defendants”)
to the MCPO Defendants’
motion.
.
Plaintiff filed an opposition
(Dkt.
## 83,
84.)
The MCPO
Defendants also filed a reply in support of their motion.
81.)
(Dkt.
#
2
1 The Court’s reference to documents by docket entry number pertains
to the docket record in Civil No. 11-281 (JLL)
Where appropriate,
the Court also will identify the corresponding docket entry number
in the consolidated case, Civil No. 11—6198 (JLL)
In this instance,
the corresponding docket entry number for the identical summary
judgment motion by the Mercer County Prosecutor’s Office Defendants
is Docket number 21.
2 Civil No. 11—6198 (JLL) (Dkt. # 22)
.
.
On January 23,
2013, counsel for Defendants, Lisa Berrios,
Carteret Police Department and Michal Damman
“Carteret Defendants”)
(hereinafter the
filed a motion for summary judgment
essentially relying on the motion filed by the MCPO Defendants.
(Dkt.
# 80.)
These motions are decided on the papers without oral
argument pursuant to Federal Rule of Civil Procedure 78.
reasons set forth below,
For the
summary judgment will be granted and the
Complaints in both Civil Nos.
11-281
(JLL)
and 11—6198
(JLL)
will
be dismissed.
I.
A.
BACKGROUND
Procedural History
On or about January 18, 2011, Plaintiff, Leroy T. Moore,
this civil rights Complaint, pursuant to 42 U.S.C.
§ 1983,
filed
against
the following defendants: Paula T. Dow, Attorney General of the State
of New Jersey;
Bruce Kaplan,
Middlesex County Prosecutor; Valerie
Lispano; Joseph Celentano; Sgt. Scott; Investigator Craig Marchak;
Investigator Rodriguez; Investigator Ellmyer; Lisa Berrios; Michael
Dammaan; Carteret Police Department; Middlesex County Prosecutor’s
Office;
Chief of Carteret Police Department;
Stenetella; and Christopher Kuberiet, Esq.
Caption)
.
Officer Paul
(Dkt.
# 1, Complaint,
The Complaint alleges that, on August 28, 2009, the MCPO
Defendants and officers of the Carteret Police Department entered
Plaintiff’s residence pursuant to a search warrant purportedly
3
forged by Defendant Celentano.
The Complaint also alleges that the
officers entered Plaintiff’s apartment with an unleashed and
unsupervised K-9 dog,
and grabbed Plaintiff’s young daughter,
tossing her to the ground.
(Id., ¶I C.l, C.2.)
alleges that Defendants Dammaan,
Plaintiff further
Celentano and Stenetella used
excessive force against Plaintiff by striking Plaintiff’s head with
a police scanner,
and choking Plaintiff while he was handcuffed.
Plaintiff did not allege any injuries from the assault.
C.2.)
(Id.,
¶
The Complaint also asserted general claims of failure to train
and/or supervise based on supervisory liability against Defendants,
then-Attorney General Dow, Middlesex County Prosecutor Kaplan, and
the Chief of the Carteret Police Department.
A malicious
prosecution claim was asserted against Defendant Kuberiet.
In an Opinion and Order issued on June 2,
2011,
(Id.)
the Court
dismissed the Complaint without prejudice as to the supervisory
Defendants,
Dow,
Kaplan,
and the Carteret Chief of Police.
The
malicious prosecution claims asserted against Defendants Kuberiet
and Lispano were also dismissed without prejudice, and the Complaint
was dismissed without prejudice as to Defendant Ellmyer for failure
to allege any facts sufficient to state a cognizable claim of
constitutional deprivation.
Finally,
the Court dismissed with
prejudice Plaintiff’s excessive force claim for failure to state
a
4
3
claim.
However,
the Court allowed Plaintiff’s Fourth endment
unlawful search and seizure claim to proceed,
but issued an Order
directing the parties to show cause why the claim should not be stayed
until completion of Plaintiff’s state criminal proceedings.
(Dkt.
# 19.)
By Order entered on August 9,
2011,
this matter was stayed
pending conclusion of the state criminal proceedings against
Plaintiff.
(Dkt.
# 40.)
On October 20,
2011,
this Court denied
Plaintiff’s application to amend his Complaint without prejudice
until Plaintiff’s state criminal prosecution was resolved.
(Dkt.
# 48.)
On September 1, 2011, Plaintiff filed a civil complaint in the
Superior Court of New Jersey,
Law Division,
captioned Moore v.
Middlesex County Prosecutor’s Office, et al., Docket No. L-6329-11,
against Defendants Middlesex County Prosecutor’s Office, Assistant
Prosecutor Christopher Kuberiet,
and Investigator Celentano.
The
Complaint alleged claims of prosecutorial misconduct regarding
Plaintiff’s then-ongoing state criminal proceeding, namely, a claim
that Defendants breached a plea agreement.
Counsel for Defendants
removed the action to this District Court, which was docketed under
3 The Court had acknowledged that
Plaintiff had two prior
opportunities to set forth allegations sufficient to state an
excessive force claim, but failed to do so on both occasions.
(Dkt.
# 18 at 13-15; see also Franklin, et al. v. Borough of Carteret, et
al., Civil No. 10-1467 (JLL) (Dkt. # 4 at 11-13)).
5
Moore v. Middlesex County Prosecutor’s Office, et al.,
11—6198
(JLL) .
On January 17,
consolidating Civil No.
11-6198
2012,
Civil No.
the Court entered an Order
(JLL) with Civil No. 11-281
(JLL),
finding that the allegations in Civil No. 11-6198 arise from the same
circumstances and events of Plaintiff’s arrest, which is the subject
of Civil No. 11-281.
Civil No. 11-281.)
On March 21,
(Dkt. # 15 in Civil No. 11-6198; Dkt. # 52 in
The consolidated action remained stayed.
2012,
(Id.)
the stay was lifted upon Plaintiff’s
representation that the state criminal proceeding had concluded.
(Dkt. # 55.)
However, the Court reinstated the stay by Order entered
on May 12, 2012, after Defendants’
counsel informed the Court that
the state criminal proceedings had not yet concluded.
(Dkt. # 59.)
Despite the stay, on November 19, 2012, the Court allowed Defendants
to file a motion for summary judgment and a motion for default
judgment in Civil Nos.
11-281 and 11-6198,
respectively.
(Dkt.
#
70.)
The MCPO Defendants filed this motion for summary judgment
on
January 9, 2013.
(Dkt. # 79; Dkt. # 21 in Civil No. 11-6198 (JLL) .)
The Carteret Defendants filed their motion for summary
judgment in
Civil No. 11-281
(JLL), on January 18, 2013, essentially relying on
the motion filed by the MCPO Defendants.
(Dkt.
# 80.)
Plaintiff
filed an opposition to Defendants’ motion on January 17, 2013.
6
(Dkt.
# 83.)
The MCPO Defendants thereafter filed a reply with exhibits.
(Dkt. ## 81, 82.)
2013.
B.
(Dkt.
Plaintiff submitted a further response on May 14,
# 95.)
Statement of Facts
The following facts are derived from the Defendants’ Statement
of Material Facts, submitted with their motion for summary judgment,
pursuant to Fed.R.Civ.p.
56(c).
(Dkt.
# 79—4.)
Plaintiff’s
opposition to the motion for summary judgment did not contain a
separate Statement of Material Facts,
but it appears that he is
relying on his opposition response to identify material facts in
dispute.
1.
Factual Allegations in Civil No.
11-281
(JLL)
Plaintiff has filed four separate civil rights actions pursuant
to 42 U.S.C.
§ 1983,
each stemming from his arrest and subsequent
drug charges filed in the Superior Court of New Jersey in 2009.
actions include:
(1)
al., Civil No. 10-1467
Franklin,
(JLL)
v.
Borough of Carteret,
et
(dismissed without prejudice, pursuant
to 28 U.S.C. § 1915(e) (2) (B) (ii)
2010);
et al.
These
and 1915A(b) (1), on November 15,
(2) Moore v. Dow, et al., Civil No.
11-281
(JLL);
(3) Moore
v. Middlesex County Prosecutor’s Office, et al., Civil
No.
11-6198
4 It appears that an incomplete duplicate copy
of Plaintiff’s
opposition also was docketed in this matter.
(Dkt. # 84.)
On
January 28, 2013, Plaintiff also filed an opposition to the
summary
judgment motion in Civil No. 11-6198 (JLL).
(Dkt. # 23.)
7
(JLL); and (4) Moore v. Middlesex County Prosecutor’s Office, et al.,
Civil No.
11-3879
(JLL)
(dismissed with prejudice, pursuant to 28
U.S.C. § 1915(e) (2) (B) (iii)
and 1915A(b) (2), on May 10,
2012).
In the present action, Civil No. 11—281 (JLL), Plaintiff alleges
that, on August 28, 2009, members of the MCPO and the Carteret Police
Department unlawfully entered his apartment pursuant to a search
warrant allegedly forged by Defendant Celentano.
Plaintiff alleges
that the officers entered his apartment with an unleashed and
unsupervised K-9 dog, and that the officers grabbed Plaintiff’ s young
daughter and tossed her to the ground.
He further alleges that
Celentano hit Plaintiff on the head with a police scanner and choked
him while he was handcuffed, but Plaintiff does not allege any
injuries from the incident.
On June 2,
2011,
(Dkt.
# 1 at ¶I C.l, C.2.)
this Court dismissed without prejudice
Plaintiff’s claims asserting (a)
Defendants Dow and Kaplan;
supervisor liability against
(b) malicious prosecution against
Defendants Lispano and Kuberiet; and (c) unspecified claims against
Defendant Ellmyer.
(Dkt.
# 18.)
Plaintiff’s Fourth Amendment
claim alleging unlawful search and seizure was allowed to
proceed,
but the Court issued an Order directing the parties to
show cause
why the claim should not be stayed until completion of
Plaintiff’s
state criminal proceedings.
(Dkt.
# 19.)
matter shortly thereafter on August 9,
8
The Court stayed this
2011.
(Dkt.
# 40.)
2.
Factual Allegations in Civil No.
In the consolidated case,
alleges that,
on October 8,
with the MCPO,
Civil No.
2009,
11-6198
11—6198
(JLL)
(JLL),
Plaintiff
he agreed to a plea arrangement
which would enable Plaintiff to “work his sentence
down” to probation by aiding the police as an informant.
21-3 at Exhibit D,
Factual Background, ¶ 1.)
(Dkt.
#
On January 28, 2010,
Plaintiff alleges that he spoke with Defendant Celentano by
telephone
regarding an upcoming “ongoing transaction.”
their phone conversation,
(Id.,
¶ 4.)
During
Plaintiff informed Celentano that he had
a required court appearance on the same day as the upcoming
transaction,
and Plaintiff alleges that Celentano told Plaintiff
that he would “cancel said date
[sic] don’t
[sic] worry about it.”
Plaintiff was arrested later for failure to appear in court and was
charged with jumping bail.
(Id., ¶ 4, 5.)
Plaintiff alleges that
Celentano “purposely misled” Plaintiff, causing Plaintiff to receive
additional charges,
in violation of Plaintiff’s Eighth and
Fourteenth Amendment rights.
(Id.,
¶ 7.)
Plaintiff also alleges
that Defendant Kuberiet breached the plea agreement
by stating that
Plaintiff did not provide enough assistance.
(Id.,
¶ 6.)
On January 23, 2012, the Superior Court of New Jersey
allowed
Plaintiff to withdraw his guilty plea, move for a hearing to
determine
whether Plaintiff had provided substantial assistance,
9
or
re—negotiate his plea agreement.
5
[was]
The state court found that “there
an issue as to the prosecutor’s actual recommendation at
sentencing and the terms of the negotiated plea.”
(Id.,
Ex.
F.)
Citing State v. Gems, 145 N.J. 216 (1996), the state
court commented
that a plea agreement should define the terms of cooperation
to make
certain that the defendant fully understands the penal
consequences
of his plea.
(Id.)
The state court concluded that Plaintiff did
not understand the extent of the cooperation in the
plea agreement,
and the plea agreement failed to include the prosecutor’ s
recommended
sentence or the sentence that Plaintiff would receive if he
cooperated to the satisfaction of the prosecutor.
On February 14, 2012,
that “on February 6, 2012,
(Id.)
Plaintiff wrote to this Court to inform
[Plaintiff’s] attorney advised the court
that [he] will be withdrawing said plea and proceeding for
a trial.”
(Dkt.
# 53.)
On January 2, 2013, Plaintiff filed a fifth related lawsuit
in
the Superior Court of New Jersey,
under Docket No. MID-L-39-13,
in the present case.
Law Division, Middlesex County,
against many of the same Defendants
On February 15, 2013, the named Defendants in
that case removed the state action to this Court, and
Plaintiff did
5 This Court took judicial notice of the state
court’s January 23,
2012 Opinion and Order.
10
not seek to remand the case back to state court.
Carteret Police Department,
et al.,
Civil No.
In Plaintiff’s most recent case,
See Moore v.
13-943
Civil No.
(JLL).
13—943
(JLL),
Plaintiff asserts a claim of malicious prosecution stemming from
the
filing of a new indictment by Defendant Kuberiet against Plaintiff,
on December 20, 2012, after Superior Court Judge Toto dismissed
the
2009 grand jury indictment for failure to establish a prima
facie
case of possession of a controlled dangerous substance.
81, 82, Exhibit Q.)
(Dkt.
##
In its December 17, 2012 written decision, the
court noted that, during the grand jury presentation, Officer Reyes
testified that “a search incident to arrest of Defendant revealed
a twenty dollar bill with a white powdery substance on it as
well
as a small amount of marijuana,” and that “the white powdery
substance
was
‘known’
to be cocaine.”
(Dkt.
# 82,
Ex.
R.)
The state court
found that the grand jury indicted Plaintiff on the charge of
possession of a controlled dangerous substance solely on the
testimony of Officer Reyes, and that the State had not submitted
any
further evidence to support the conclusion that the white
powdery
substance on the twenty dollar bill was in fact cocaine.
Thus, the
court concluded that the State failed to establish a prima facie
case
as to the first element of N.J.S.A.
the indictment without prejudice.
2C:35—1Q(a) (1),
and dismissed
The court expressly stated,
however, that it did not grant dismissal of the indictment
on grounds
11
of “vindictive prosecution,
selective prosecution, malicious
prosecution, or violation of Defendant’ s Constitutional rights under
the
th
5
th
8
3.
or
th
4
j
Amendments”
(Id.)
Previous Lawsuits Subject to 28 U.S.C.
Defendants’
§ l915(g)
motion for summary judgment includes a motion to
revoke Plaintiff’s in forma pauperis status, pursuant to 28
U.S.C.
§ 1915 (g)
.
The Court notes that Plaintiff has filed the following
cases in federal court,
U.S.C.
§ 1915(e) (2) (B):
•
3
-
Moore v. Comba, et al., Civil No. 03—2521
dismissal pursuant to 28 U.S.C.
1915A(b) (1)
•
on June 13,
-
(Dkt.
4
—
-
(WHW)
(Dkt. ## 2,
2003)
Moore v.
on December 17,
04-963
(KSH)
Shaw, et al.,
on June 27,
Civil No. 04—3343
2005)
12
§
2004)
dismissal pursuant to 28 U.S.C.
1915A(b) (1)
Civil No.
dismissal with prejudice pursuant to 28 U.S.C.
1915(e) (2) (B) (ii)
6
and
2003)
Moore v. Abortion Clinic, et al.,
## 3,
•
(Dkt. ## 2,
dismissal pursuant to 28 U.S.C. § 1915(e) (2) (3) on October
2003 and December 10,
•
(WHW)
§ 1915(e) (2) (B) (ii)
Moore v. Abode, et al., Civil No. 03-3259
3 and 4
6,
which have been dismissed pursuant to 28
(MLC)
(Dkt. ## 5,
§ 1 (2) (B) (ii)
915(e)
and
Franklin, etal. v. Boroughof Carteret Police Dept., etal.,
Civil No. 10-1467 (JLL)
§ 1915(e) (2) (B) (ii)
(Dkt. ## 4, 6
-
and 1915A(b) (1)
dismissal pursuant to 28 U.S.C.
on November 15,
2010)
Further, on February 18, 2005, Plaintiff filed a civil Complaint
seeking in forma pauperis status in Moore v. State of N.J., et
al.,
Civil No. 05-1134 (FLW)
2005,
.
In an Opinion and Order entered on May 12,
the Honorable Freda L. Wolfson granted Plaintiff in forma
pauperis status and dismissed all claims asserted by Plaintiff except
a denial of access to the courts claim, which was allowed to
proceed
against several defendants.
(Dkt. ## 2, 3.)
However, on July 19,
2005, the defendants filed a motion to dismiss the complaint and to
revoke Plaintiff’s in forma pauperis status pursuant to 28 U.S.C.
l5(g)
§ 19
the “three—strikes” ban.
entered on October 3,
motion,
2005,
(Dkt.
# 6.)
In an Order
Judge Wolfson granted the defendants’
dismissed the complaint and denied Plaintiff’s in forma
pauperis status.
incarcerated,
The Court found that Plaintiff,
while
had at least three prior civil actions dismissed by
a federal court pursuant to 28 U.S.C. § 1915(e) (2) (B),
namely, Moore
v. Abode, et al., Civil No. 03-3259 (WHW), Moore v. Abortion
Clinic,
et al., Civil No. 04-963 (KSH), and Moore v. Shaw, et al.,
Civil No.
04-3343
(MLC),
and that Plaintiff had not shown that he was in
imminent danger of serious physical injury at the time he
filed his
complaint.
(Dkt.
# 14.)
13
II.
A.
ANALYSIS
The Consolidated Cases Are Ripe for Disposition
In allowing Defendants to move for summary judgment, the Court
directed that Defendants explain why the cases are ripe for summary
disposition.
argue that:
With regard to Civil No.
(1)
11-281
(JLL),
Defendants
Plaintiff was barred from bringing a civil action
without prepayment of the filing fee if he has incurred three strikes
pursuant to 28 U.S.C. § 1 (2) the outcome of the state criminal
915(g);
proceeding has no relevance to Plaintiff’s federal civil litigation
history,
which is the only evidence needed to resolve Defendant’s
motion pursuant to 28 U.S.C. § l915(g); and (3) the motion presents
only a legal question that can be resolved solely by reference
to
court records without the need for fact discovery.
As to Civil No.
11—6198
(JLL),
Defendants contend that this
matter is ripe for summary disposition because the New Jersey state
court’s decision allowing Plaintiff to retract his guilty plea, which
Plaintiff did so retract, is wholly dispositive of Plaintiff’ s
breach
of his plea agreement claim.
Finally,
this Court notes that the state criminal proceeding
concluded when,
on December 17,
indictment without prejudice.
2012,
Judge Toto dismissed the
For all of these reasons, the Court
concludes that both matters are ripe for disposition.
B.
Plaintiff’s In Forma Pauperis Status is Barred
14
The Prison Litigation Reform Act of 1995
April 26,
1996,
prohibits a prisoner from bringing a civil action
in forma pauperis,
has,
(“PLRA”), enacted on
pursuant to 28 U.S.C.
on 3 or more prior occasions,
§ 1915,
“if the prisoner
while incarcerated or detained
in any facility, brought an action or appeal in a court of the United
States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical
injury.”
----,
28 U.S.C. § 1915(g); see also Ball v. Famiglio,
2013 WL 4038562,
*
1
(3d Cir.
Board of Probation & Parole,
2013); Keener v.
128 F.3d 143,
144-45
---
F.3d
Pennsylvania
(3d Cir.
1997)
(holding that frivolousness dismissals prior to enactment of PLRA
count as “strikes” under § 1915(g)).
The federal in forma pauperis statute,
designed to ensure that indigent litigants,
28 U.S.C.
§ 1915,
is
including prisoners,
have meaningful access to the federal courts.
Ball,
supra.
However, because prisoner litigation represents an “outsized share
of filings” in federal courts, the PLRA was enacted to “filter out
the bad claims and facilitate consideration of the good.”
(quoting Jones v. Bock, 549 U.S. 199, 203, 204
(2007)).
Id.
One of the
“filter” measures includes the “three—strikes” provision under §
1915 (g), which was created “to limit the number of lawsuits brought
by prisoners with a history of meritless litigation.”
15
Ball, supra.
Thus,
if a prisoner previously has incurred three strikes pursuant
to dismissals based on § 1915 Ce) (2) (B),
another lawsuit in forma pauperis,
and he attempts to bring
the court should deny indigent
status and dismiss the complaint without prejudice to the prisoner’s
right to re-file upon pre-payment of the full filing fee.
City of Philadelphia,
331 F. App’x 898,
899
(3d Cir.
Brown v.
2009).
Analysis under the “three-strikes rule” of § 1915(g)
must be
made at the time of commencement of the action.
Lopez v. U.S. Dept.
of Justice, 228 F. App’x 218, 219 (3d Cir. 2007)
(citing Abdul—Akbar
v. McKelvie, 239 F.3d 307, 313 (3d Cir. 2001)).
“[O]nly the strikes
actually earned up to that time are relevant.
The statute does not
authorize courts to revoke in forma pauperis status if a prisoner
later earns a third strike.”
Additionally,
“[a]
Lopez,
228 F. App’x at 219.
dismissal does not qualify as a
‘strike’
for
§ 1915 (g) purposes unless and until a litigant has exhausted or waived
his or her appellate rights.”
Id.
at 218.
The three-strikes provision of § l
15(g)
9
prisoner’s access to the federal courts.
does not block a
Rather, it only denies the
litigant the privilege of filing before he has acquired the requisite
filing fee.
Ball,
2013 WL 4038562 at *2.
Further, a prisoner who
has three or more such dismissals may be excused from this
rule only
if he is “under imminent danger of serious physical injury.”
supra.
Keener,
When deciding whether an inmate meets the “imminent danger”
16
requirement, a court must examine the situation faced by the inmate
at the time of the filing of the complaint, and a showing of danger
in the past is insufficient to demonstrate “imminent danger.”
Abdul-Akbar,
239 F.3d at 312.
As indicated by Defendants,
Plaintiff has filed five earlier
civil actions in the District of New Jersey that were dismissed for
failure to state a claim pursuant to 28 U.S.C. § 1915(e) (2) (B) (ii)
and l915A(b) (1).
These cases are Moore v. Comba, et al., Civil No.
03-2521 (WHW); Moorev. Abode, etal., Civil No. 03-3259 (WRW); Moore
v. Abortion Clinic, et al., Civil No. 04-963
et al., Civil No. 04-3343
(KSH); Moore v.
Shaw,
(MLC); and Franklin, et al. v. Borough of
Carteret Police Dept., et al., Civil No.
10-1467
(JLL).
Moreover,
Plaintiff had another action dismissed after the district court
determined,
upon defendant’s motion,
three strikes under 28 U.S.C. § l915(g)
et al., Civil No. 05-1134 (FLW)
that Plaintiff had incurred
.
(Dkt. # 14)
SeeMoore v. State of N.J.,
.
Accordingly, Plaintiff
is deemed a litigant with “three strikes” under 28 U.S.C.
§ l915(g)
because he has passed the statutory limit set forth in that statute.
6
6 The Court also acknowledges Defendants’ argument concerning the
vexatious nature of Plaintiff’s civil complaints.
(Dkt. # 79—5 at
11, n. 2.)
In particular, Defendants contend that Plaintiff is
“precisely the sort of serial frivolous litigant that Congress had
in mind when it enacted 28 U.S.C. § l915(g) to ‘limit the filing
of
frivolous and vexatious prisoner lawsuits.’”
(Id.)
Defendants
further note that Plaintiff has displayed contemptuous and vexatious
conduct in his state criminal proceedings by using obscene language
17
Plaintiff is now precluded from seeking in forma pauperis status
pursuant to § 1915 (g) ‘s “three strikes” rule unless he alleges facts
to show that he is in “imminent danger of serious physical injury,”
which would excuse him from the restrictions under § l915(g).
In his Complaint, Plaintiff makes no allegations or claims of
“imminent danger.”
Rather,
the Complaint merely asserts a Fourth
Amendment unlawful search and seizure claim with regard to
Plaintiff’s 2009 arrest and indictment for drug possession.
Consequently, because the Complaint in this action does not contain
sufficient allegations reasonably suggesting that Plaintiff is in
“imminent danger of serious physical injury,” which would excuse him
from the restrictions under § 1915 (g), Plaintiff may not proceed
in
forma pauperis.
Accordingly,
this Court will grant Defendants’
motion to revoke Plaintiff’s in forma pauperis status and dismiss
the Complaint in Civil No.
11-281
(JLL)
reinstate his action in Civil No. 11-281
.
Plaintiff may seek to
(JLL) only upon submission
of the full filing fee pursuant to 28 U.S.C.
§ l914(a).
C.
(JLL)
Summary Judgment as to Civil No.
1.
11-6198
Summary Judgment Standard
Summary judgment is appropriate if the record shows “that
there
is no genuine dispute as to any material fact and the
movant is
in addressing the state judge and referring to Defendant
Kuberiet
and his wife as “murderers” after they tragically lost
their daughter
in a car accident.
(Id.)
18
entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a);
see
also Azur v. Chase Bank, USA, Nat’l Ass’n, 601 F.3d 212, 216
(3d Cir.
2010)
.
A district court considers the facts drawn from the
wmaterials in the record,
including depositions,
electronically stored information,
affidavits
..
documents,
or other
.
materials” and must “view the inferences to be drawn from the
underlying facts in the light most favorable to the party opposing
the motion.” Fed.R.Civ.p. 56(c) (1) (A); Curley v. Klem, 298 F.3d 271,
27 6—77 (3d Cir. 2002)
(internal quotations omitted)
.
The Court must
determine “whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.”
Anderson v.
Lobby, 477 U.S. 242, 251—52, 106 S.Ct. 2505, 91 L.Ed.2d 202
More precisely,
Liberty
(1986)
summary judgment should only be granted if the
evidence available would not support a jury verdict in favor of the
nonmoving party.
Id.
at 248-49.
“[T]he mere existence of some
alleged factual dispute between the parties will not defeat
an
otherwise properly supported motion for summary judgment;
the
requirement is that there be no genuine issue of material fact.”
at 247—48.
“To be material, a fact must have the potential to alter
the outcome of the case.”
463 F. App’x 117,
2.
Id.
119
DeShields v.
(3d Cir.
2012)
Int’l Resort Props.
(citation omitted)
Plaintiff’s Breach of Contract Claim is Moot
19
Ltd.,
In the Complaint filed in Civil No. 11-6198, Plaintiff alleges
that on October 8,
2009, he had entered into a plea agreement with
the MCPO allowing Plaintiff to “work his sentence down” to probation
in return for providing assistance and information to law
enforcement.
(CivilNo. 11-6198 (JLL) atDkt. #21-3, Ex. D—Factual
Background at ¶ 1.)
Plaintiff asserts that Defendant Kuberiet
breached this plea agreement by stating that Plaintiff failed to
provide enough assistance.
Defendants now contend that this claim
is rendered moot by the state court’s January 2012 decision
which
allowed Plaintiff either to withdraw his guilty plea, move for
a
hearing to determine whether his cooperation with the MCPO was
of
substantial benefit to the State, or re-negotiate a plea agreement.
Plaintiff chose to withdraw his plea agreement in February 2012.
The Third Circuit has held that where a criminal defendant
asserts a claim for breach of a plea agreement, his sole remedy
is
to seek specific performance or to withdraw the guilty plea.
States v. Williams, 510 F.3d 416, 426-27
(3d Cir. 2007)
.
United
The Third
Circuit has further held that the government is in breach
of a plea
agreement only where there is a showing that the government
evaluated
the defendant’s assistance in bad faith.
314 F. App’x 467,
471
(3d Cir. 2008)
.
United States v.
Ortiz,
Under New Jersey state law,
where the prosecutor has the authority to assess defendant’s
cooperation under a plea agreement, the defendant has the
right to
20
a hearing in state court to determine whether the cooperation was
adequate under the terms of the plea agreement.
145 N.J.
216,
228-29
(1996)
See State v. Gems,
(citing New Jersey Attorney General
Guidelines)
Here, it is clear that Plaintiff has obtained the relief to which
he was entitled in state court.
Specifically, in a written decision
rendered on January 23, 2012, Judge Toto allowed Plaintiff to retract
his guilty plea.
Plaintiff did so on February 6,
2012.
Further,
on January 18, 2012, this Court declared in an Order granting
a stay
of this matter, Civil No. 11—6198 (JLL), that “[s]hould the
Superior
Court permit Plaintiff to withdraw his guilty plea,
the plea
agreement which is the subject of the instant litigation will be null
and void,
making the matter moot and defeating this Court’s
jurisdiction over the matter.”
(Dkt. #15 at ¶ 4.)
Therefore, since
the Superior Court of New Jersey has allowed Plaintiff to
retract
his guilty plea,
February 6,
2012,
and Plaintiff has withdrawn his guilty plea on
his claim of breach of the plea agreement is
rendered moot and will be dismissed accordingly.
3.
Eighth Amendment Claim
Plaintiff also asserts that the actions of Defendants Kuberiet
and Celentano, in stating that Plaintiff failed to
provide adequate
cooperation and in telling Plaintiff that he did not have
to attend
a scheduled court appearance, violated his Eighth
Amendment rights.
21
The Eighth Amendment prohibits cruel and unusual punishment and
was
designed to protect convicted prisoners.
Specifically, the Eighth
Amendment’s prohibition against cruel and unusual punishment
generally pertains to the actions or conduct of prison officials
with
respect to a prisoner’s confinement, such as prohibiting the
use of
excessive force, and imposing a duty to provide “humane conditions
of confinement.”
249
(3d Cir.
Here,
See Betts v. New Castle Youth Dev. Ctr., 621 F.3d
2010)
Plaintiff has not made any allegations that he suffered
any instances of excessive force while confined,
or that he was
subjected to unconstitutional conditions of confinement during
his
period of incarceration.
Therefore, the Court holds that Plaintiff
has not stated a cognizable claim for relief under the
Eighth
Amendment,
4.
and this claim will be dismissed.
Fourteenth Amendment Claim
The Court likewise finds that Plaintiff has failed to
state a
cognizable claim under the Fourteenth Amendment.
Plaintiff alleges
only that Defendant Kuberiet “continued purposely
[P]laintiff of the benefit he was entitled to
...
[to deprivej
purposely to obtain
a benefit for himself,” and that Defendant Celentano
“purposely
misled” Plaintiff regarding the adjournment of a court
date, which
Celentano did not adjourn,
in violation of Plaintiff’s Eighth and
22
Fourteenth Amendment rights.
Background at ¶I 4,
(Dkt.
# 21-3,
Ex.
D,
Factual
5 and 6.)
Defendants argue that the Fourteenth Amendment claim must be
dismissed under the “more-specific-provision” rule because
Plaintiff alleges the very same facts in support of his
Eighth
Amendment claim to support his Fourteenth Amendment claim.
Betts v.
New Castle Youth Dev.
cart. denied,
---
U.S.
----,
Ctr.,
621 F.3d 249
(3d Cir.
See
2010),
131 S.Ct. 1614, 179 L.Ed.2d 502 (2011)
The Betts court addressed the Supreme Court’s
“more—specific-provision” rule,
which states that “if a
constitutional claim is covered by a specific constitutional
provision,
such as the Fourth or Eighth Amendment,
the claim must
be analyzed under the standard appropriate to that
specific
provision,” and not under the Fourteenth Amendment’ s
substantive due
process standard.
Id.
In Betts,
the plaintiff supported his
Fourteenth Amendment claims with the same evidence he relied
on to
support his Eighth Amendment claim.
Id.
The Third Circuit held
that plaintiff may not challenge the very same conduct
under both
substantive due process and the Eighth Amendment, and dismissed
the
Fourteenth Amendment claims accordingly.
Id.
at 261.
Here, the Complaint contains no facts to support
a cognizable
Fourteenth Amendment claim separate and apart from
the Eighth
Amendment claim.
Therefore,
the Court holds that Plaintiff’s
23
Fourteenth Amendment claim is barred pursuant to the
“more-specific-provision” rule, and the Fourteenth Amendment claim
will be dismissed.
CONCLUS ION
For the foregoing reasons,
the Court will grant the MCPO and
Carteret Defendants’ motions for summary judgment,
(Dkt. ## 79, 80),
as to Civil No. 11—281 (JLL), dismissing the action in its
entirety,
pursuant to 28 U.S.C.
15(g),
§ 19 without prejudice to Plaintiff’s
right to re-file his Complaint with prepayment of the
full filing
fee as required under 28 U.S.C. § 1914(a).
Further, the Court grants
the MCPO Defendants’
motion for summary judgment
respect to Civil No.
11—6198
(Dkt.
#21),
with
(JLL), and dismisses the Complaint in
its entirety as to all named Defendants.
An appropriate Order
follows.
ed States District Court
24
01
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