ROBERSON v. SZOTAK et al

Filing 2

OPINION. Signed by Judge Dennis M. Cavanaugh on 8/5/13. (gmd, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SHARIFE ROBERSON,
Civ, No. 13-1942 (DMC) (JAD)

Plaintiff,
V.

OPINION

OFFICER P. SZOTAK, et al,,
Defendants.

DENNIS M, CAVANAUGH, U.S,D.J.
I.

INTRODUCTION

Plaintiff is a state prisoner incarcerated at the Union County Jail in Elizabeth, New
Jersey. In February, 2013, Plaintiff flied apro se complaint in the Superior Court of New Jersey,
Union County. In March, 2013, Defendants removed the complaint to this Court asserting that
the complaint raises federal questions. Because the Plaintiff is a prisoner and has named
governmental employees as Defendants, the screening provision of the Prisoner Litigation
Reform Act (“PLRA”) at 28 U.S.C.

§

review the complaint pursuant to

191 5A to determine whether it should be dismissed as

§

1915A applies. Therefore, at this time, the Court must

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 suit. For the reasons set forth
below, the complaint will be dismissed with leave to amend.
II,

BACKGROUND

Plaintiff brings this civil action against defendants Officer P. Szotak, Officer
McDonough, Officer Lawal and Sergeant Polyviou of the Elizabeth Police Department. The

I

following factual allegations are taken from the complain
t, and are accepted as true for purposes
of screening the complaint only.
Plaintiffs complaint arises from his arrest on October 11,
2012, for carjacking and
robbery. Plaintiff was stopped by Elizabeth Police on
October 11, 2012 while he was in a
vehicle. Plaintiff was afraid during this stop because
he knew that Elizabeth Police were known
for their use of excessive force and racial profiling. Duri
ng the search of the vehicle, the
victim’s celiphone was found by the officers and Plain
tiff was taken to the police precinct and
charged. Plaintiff alleges he was not read is Miranda warn
ings nor provided an attorney at that
time.
Plaintiff claims that he should not have been arrested and
incarcerated because there was
a lack of probable cause to arrest him since he had the car
title and keys to the car in question
when he was stopped. He claims that Officers McDonou
gh, Lawal and Sergeant Polyviou were
present at the time of the purported constitutional misc
onduct. Plaintiff further states that Officer
Szotak is the supervisor and should have known of the
inconsistencies and false information that
led to Plaintiffs arrest, including a lack of probable caus
e.
The complaint states that the probable cause used to arres
t him was from the statement of
the victim. Indeed, Plaintiff states in the complaint that Law
al took a statement from the victim
that “Plaintiff ‘had pulled a handgun on him.” (Compl.
¶ 25.) Plaintiff further alleges that
“Union County A/P Debbie White be liable for her delib
erate willful deliberate indifferent acts
and non-action on part of defendants’ violation of plain
tiffs constitutional rights.” (Compi.
53.)

¶

Plaintiff seeks $50,000 in damages from each defendant
as well as $500 for each day he
has been in “captivity” from each defendant. Plaintiff
asserts claims for false arrest/false

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imprisonment, illegal search and seizure, lack of Mira
nda warnings, racial profiling and that he
suffered cruel and unusual punishment. (Compi.
¶ 50.)
III.

STANDARD OF REVIEW

A. Standards for Sua Sponte Dismissal
The PLRA requires a district court to review a com
plaint in a civil action in which a
prisoner seeks redress against a governmental emp
loyee or entity. See 28 U.S.C.

§

191 5A(a),

The Court is required to identify cognizable claims
and to sua sponte dismiss any claim that is
frivolous, malicious, fails to state a claim upon whic
h relief may be granted, or seeks monetary
relief from a defendant who is immune from such relie
f. See id. § 1915A(b).
According to the Supreme Court’s decision in Ashc
roft v. Iqbal, “a pleading that offers
‘labels or conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not
do.” 556 U.S. 662, 678 (2009) (quoting Bell Atla
ntic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To survive sua sponte screening for failu
re to state a claim, the complaint must allege
“sufficient factual matter” to show that the claim is
facially plausible. Fowler v. UPMS
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation
omitted). “A claim has facial plausibility
when the plaintiff pleads factual content that allow
s the court to draw the reasonable inference
that the defendant is liable for the misconduct alleg
ed.” Belmont v. MB mv. Partners, Inc., 708
F.3d 470, 483 n.17 (3d Cir. 2012) (quoting Iqba
l, 556 U.S. at 678). Moreover, while prose
pleadings are liberally construed, ‘pro se litigants
still must allege sufficient facts in their
complaints to support a claim.” Mala v. Crown
Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.
2013) (citation omitted) (emphasis added).

B. 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 198
3 provides in relevant part:
Every person who, under color of any
statute, ordinance,
regulation, custom, or usage, of any
State or Territory or the
District of Columbia, subjects, or
causes to be subjected, any
citizen of the United States or other
person within the jurisdiction
thereof to the deprivation of any righ
ts, privileges, or immunities
secured by the Constitution and laws,
shall be liable to the party
injured in an action at law, suit in equ
ity, or other proper
proceeding for redress, except that in
any action brought against a
judicial officer for an act or omission
taken in such officer’s
judicial capacity, injunctive relief sha
ll not be granted unless a
declaratory decree was violated or dec
laratory relief was
unavailable.
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. See Har
vey v. Plains Tp.
Police Dep’t, 635 F.3d 606, 609 (3d
Cir. 2011) (citations omitted); see also
West v. Atkins, 487
U.S. 42, 48 (1988)).

IV.

DISCUSSION

A. False Arrest/False Imprisonment
Plaintiff first asserts claims of false arre
st and false imprisonment stemming
from his
arrest and detention in October, 2012.
“To state a claim for false arrest under
the Fourth
Amendment, a plaintiff must establis
h: (1) that there was an arrest; and (2)
that the arrest was
made without probable cause.” James
v. City of Wilkes-Barre, 700 F.3d 675
, 680 (3d Cir. 2012)
(citing Groman v. Twp. ofManalapa
n, 47 F.3d 628, 634 (3d Cir. 1995); Dow
ling v. City of
Phila., 855 F.2d 136, 141 (3d Cir. 198
8)). A claim for false imprisonment
arises when a person
is arrested without probable cause and
is subsequently detained pursuant to
that unlawful arrest.
4

See Adams v. Officer Eric Selhorst, 449 F.
App’x 198, 201 (3d Cir. 2011) (per curiam)
(citing
Groman, 47 F.3d at 636). Thus, a claim
of false imprisonment in this context is deriv
ative of a
claim for arrest without probable cause.
See Johnson v, Camden Cnty. Prosecuto
rs’ Office, No.
11-3588, 2012 WL 273887, at 4 n.2 (D.N
.J. Jan. 31, 2012) (citing Groman, 47 F.3d
at 636).
“Probable cause to arrest exists when the
facts and the circumstances within the arres
ting
officer’s knowledge are sufficient in them
selves to warrant a reasonable person to belie
ve that an
offense has been or is being committed by
the person to be arrested,” Merkie v. Upp
er Dublin
Sch. Dist,, 211 F.3d 782, 788 (3d Cir. 2000
) (quoting Orsatti v. New Jersey State Pol
ice, 71 F.3d
480, 482 (3d Cir. 1995)); see also Minatee
v. Phila. Police Dep’t, 502 F. App’x 225,
228 (3d Cir.
2012) (citation omitted). The arresting offic
er must only reasonably believe at the time
of the
arrest that an offense is being committed,
a significantly lower burden than proving
guilt at trial,

See Wright v. City ofPhila., 409 F.3d 595, 602
(3d Cir. 2005); see also Minatee, 502 F. App
’x at
228 (citation omitted).
The complaint fails to state a false arrest/fals
e imprisonment claim because it does not
allege that probable cause was lacking durin
g the arrest. “The issue of whether there is prob
able
cause is generally a question for the jury; how
ever, ‘a district court may conclude that prob
able
cause did exist as a matter of law if the evidence
, viewed most favorable to plaintiff, reaso
nably
would not support a contrary factual find
ing[.j” Boothby v. Drake, 441 F. App’x 905,
908 (3d
Cir. 2011) (quoting Estate ofSmith v. Ma
rasco, 318 F.3d 497, 514 (3d Cir. 2003) (quo
ting
Sherwood v. Mulvhill, 113 F.3d 396, 401
(3d Cir. 1997))).
Plaintiff admits that he was arrested pursuant
to a victim statement whereby the victim
stated to the police that Plaintiff had “pulled
a handgun on him.” (Compi. 25.) Furtherm
ore,
¶
Plaintiff admits that the alleged victim’s
cellphone was found in the vehicle that Pla
intiff was in

5

when he was stopped by police. The
police had the victim’s statement that
implicated Plaintiff
as the perpetrator as well as corroborating
evidence in light of the victim’s alleged
cell phone
being found in the vehicle. Under thes
e circumstances, Plaintiff has failed
to allege that the
police lacked probable cause to arrest
1
him. Accord Merkie v. Upper Dub
lin Sch, Dist., 211 F.3d
782 (3d Cir. 2000) (holding that “credib
le report from credible eyewitness” who
witnessed crime
and that defendant told him he intende
d to deprive district of its property was
sufficient to
establish probable cause to arrest for thef
t); Brockington, No. 11-6429, 2013
WL 1811903, at * 5
(D.N.J, Apr. 29, 2013) (finding that
complaint failed to allege probable cau
se where plaintiff
acknowledged he was arrested pursua
nt to a witness/victim complaint and
composite sketch and
witness/victim identification). Additio
nally, it is also worth noting that superv
ising officials
cannot be held liable for the actions of
their subordinates unless the litigant
asserts facts showing
these supervisors’ personal involveme
nt in the alleged wrongs. See Iqbal, 556
U.S. at 676
(“Government officials may not be held
liable for the unconstitutional conduc
t of their
subordinates under a theory of respond
eat superior.”). In this case, it appears
as if Plaintiff is
attempting to rely on such a theory aga
inst defendant Szotak. This does not
state a claim.
B. Lack of Miranda warnings
Plaintiff asserts that he was not given
his Miranda warnings upon his arrest.
The
Supreme Court’s opinion in Miranda
v. Arizona, 384 U.S. 436 (1966), pro
hibits the government
from using “statements, whether exc
ulpatory or inculpatory, stemming from
custodial
interrogation of the defendant unless
it demonstrates the use of procedural
safeguards effective to
Plaintiff’s failure to allege a lack of pro
bable cause also precludes a finding that
that Plaintiff
stated a claim for unlawful search and
seizure. See Rodwell v. Weaver, No.
12-989, 2012 WL
4955249, at *2 (D.N.J. Oct. 10, 2012)
(“[Aj search or seizure without probab
le cause may form
the basis of a Section 1983 claim based
on the Fourth Amendment.”) (citing Ree
dy v. Evanson,
615 F.3d 197 (3d Cir. 2010) (emphasis
added); United States v. Silveus, 542
F.3d 993, 999 (3d
Cir. 2008); Groman, 47 F.3d at 636)).
6

secure the privilege against self-incrimination.
” Id. at 444. Miranda requires that, “[p]r
ior to
any questioning, the person must be warned
that he has a right to remain silent, that any
statement he does may be used as evidence
against him, and that he has a right to the prese
nce of
an attorney, either retained or appointed.”
Id. Nevertheless, “questioning a plaintiff in
custody
without providing Miranda warnings is not
a basis for a § 1983 claim as long as the plain
tiff’s
statements are not used against [him] at trial.
” Renda v. King, 347 F.3d 550, 557-58 (3d
Cir.
2003). The complaint does not allege what
statements Plaintiff made to the police whil
e in
custody, nor does it allege that statements
were used against him at trial. Accordingly,
Plaintiff
does not state a Miranda claim.
C. Racial Profiling
Plaintiff also asserts a general claim of racia
l profiling.
To make a Fourteenth Amendment equal pro
tection claim based
upon selective enforcement or racial profiling,
a plaintiff must
show that law enforcement actions: “(1) had
a discriminatory
effect and (2) were motivated by a discrimin
atory purpose.”
Bradleyv. United States, 299 F.3d 197, 205
(3d Cir. 2002). To
prove discriminatory effect, a plaintiff mus
t “show that he is a
member of a protected class and that he was
treated differently
from similarly situated individuals in an unp
rotected class.” Id. at
206. That effect “may be proven by naming
similarly situated
members of an unprotected class who were
not selected for the
same [treatment] or, in some cases, by subm
itting statistical
evidence of bias.” Id. See also Alvin v. Cal
abrese, 455 F. App’x
171, 177 (3d Cir. 2011); Suber v. Guinta, No.
10-3 156, F. Supp.
2d. -,2013 WL 754694, at *13 (E.D. Pa. Feb.
28, 2013).
-

Brockington, 2013 WL 1811903, at *5; see
also Carrasca v. Pomeroy, 313 F.3d 828,
834 (3d
Cir. 2002) (“To prevail on an equal protection
claim in the racial profiling context, Plaintiffs
would have to show that the challenged law
enforcement practice had a discriminatory
effect and
was motivated by a discriminatory purpos
e. To prove discriminatory effect, Plaintiffs
must
.

.

7

show that they are members of a protect
ed class and similarly situated’ person
s in an
unprotected class were not prosecuted[j”)
(internal citation omitted).
In this case, the complaint lacks factual
allegations to support a racial profiling
claim.
The complaint only alleges a bare lega
l conclusion without sufficient factual
allegations to show
that a racial profiling claim is at least
facially plausible. This is insufficient to
state a racial
profiling claim under Iqbal. Accord Bro
ckington, 2013 WL 181 1903, at * 5 (fin
ding that plaintiff
failed to state a racial profiling claim whe
re complaint only alleged bare legal con
clusions
without “sufficient factual matter”); Mit
chell v. Twp. ofFemberton, No. 09-810
, 2010 WL
2540466, at *6 (D.N.J. June 17, 2010)
(“The Supreme Court’s and, according
ly, the Third
Circuit’s recent clarification of the stan
dard for reviewing a complaint to determi
ne whether a
valid claim has been advanced instruc
ts that a plaintiff, such as Plaintiff in this
case, cannot
merely claim that a racial profiling pol
icy or custom caused a constitutional vio
lation, without a
single fact, aside from Plaintiffs particu
lar incident, to support such a claim.”).
D. Cruel and Unusual Punishment
Plaintiff also vaguely asserts that he suff
ered cruel and unusual punishment upo
n his
arrest. This claim is analyzed under the
Due Process Clause of the Fourteenth
Amendment. See
Tapp v. Proto, 404 F. App’x 563, 566 (3d
Cir. 2010) (per curiam) (noting that plai
ntiffs claims
that arise when he is a pretrial detainee
are prosecuted under the Due Process
Clause). A pre
trial detainee is entitled to at least those
constitutional rights that are enjoyed by
convicted
prisoners. See Bell v. WoUlsh, 441 U.S
. 520, 545 (1979).
In this case, Plaintiff does not state in the
complaint what conditions of confinemen
t
purportedly violated the Fourteenth Am
endment. His conclusory and bare alle
gations that he
suffered “cruel and unusual punishment,
” without more, do not satisfy the Jqb
al standard that

8

this claim is facially plausible. According
ly, the complaint does not state a claim und
er the Due
Process Clause of the Fourteenth Amend
ment with respect to the conditions of confine
ment.
E. Assistant Prosecutor White
While not listed as a Defendant in the cap
tion, Plaintiff alleges in the complaint that
Assistant Prosecutor Debbie White sho
uld be liable for “her deliberate willful deli
berate
indiftèrent and non-action on part of defend
ants violation of plaintiff’s constitutional righ
ts.”
(Compi. ¶ 53.) For the following reasons
, to the extent that Plaintiff is also seekin
g to raise a
claim against White, his allegations fail
to state a claim upon which relief may be gran
ted.
A state prosecuting attorney who acts wit
hin the scope of her duties in initiating and
pursuing a criminal prosecution is not ame
nable to suit under § 1983. See Imbler v. Pac
htman,
424 U.S. 409, 410 (1976); see also Arsad
v. Means, 365 F. App’x 327, 329 (3d Cir, 201
0) (per
curiam). A prosecutor’s appearance in cou
rt as an advocate of the state’s position or
the
presentation of evidence at a hearing is pro
tected by absolute immunity. See Burns
v. Reed, 500
U.s. 478, 492 (1991). Moreover, “acts und
ertaken by a prosecutor in preparing for the
initiation
ofjudicial proceedings or for trial, and whi
ch occur in the course of his role as an adv
ocate for
the State, are entitled to the protections of
absolute immunity.” Buckley v. Fitzsim
mons, 509
U.s. 259, 273 (1993).
The Court construes Plaintiff’s allegati
ons as asserting that White was responsible
for
approving the charges levied against him.
The acts Plaintiff complains of as to Wh
ite are acts
undertaken by her in preparation for judicia
l proceedings. Accordingly, immunity pro
tects her
from suit in this case.

9

________________

V.

CONCLUSION

Before dismissing the complaint for
failure to state a claim upon which
relief may be
granted, the Court must grant Pla
intiff leave to amend the complaint
unless amendment would be
futile, See Grayson v. Mayview Sta
te Hosp., 293 F.3d 103, 114 (3d Cir
. 2002). In this case,
because it is possible that Plaint
iff may be able to supplement his com
plaint with facts sufficient
to overcome the deficiencies noted
herein, the complaint will be dism
issed without prejudice
with leave to amend. If Plaintiff
chooses to file an amended complai
nt, it should be complete on
its face because an amended complai
nt supersedes the original complaint.
An appropriate order
will be entered.

DATE
DENNIS M. CAVANAU
United States District J
e

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