MCKINNIE v. FERRARO et al
Filing
36
MEMORANDUM OPINION. Signed by Judge Claire C. Cecchi on 4/12/16. (cm )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DERECK MCKINNIE,
Civil Action No. 15-0452 (CCC)
Plaintiff,
v.
MEMORANDUM OPINION
HOBOKEN PROSECUTOR SUSAN
FERRARO,etaL,
Defendants.
CECCHI, District Judge.
Plaintiff has filed a civil rights complaint pursuant to 42 U.S.C.
§ 1983. The Court
previously dismissed the Complaint without prejudice for failing state a claim upon which relief
maybe granted. (ECF No. 29 at 5.) The Court found Plaintiff’s claims did not state any violation
of a federal right, because Plaintiff did not have a right to compel the State to initiate prosecution
against third parties. (Id.) The Court afforded Plaintiff an opportunity to amend. (Id. at 6.)
Presently before the Court is Plaintiff’s Amended Complaint. (ECF No. 31.) Plaintiff
again asserts claims against Defendants for “never charg[ing] someone with a crime or civil
violation and seek criminal conviction or a civil judgment.” (Id. at 2.) For the same reasons as
the Court stated in its prior opinion, these allegations do not state a claim upon which relief may
be granted. (See ECF No. 29 at 5.)
Plaintiff also, for the first time, asserts Defendant William Conklin, an administrative
assistant for an unspecified organization, denied Plaintiff’s right to appeal in a federal case filed
in this district court, McKinnie v. Hudson Cty. Prosecutor Office, Case No. 13-7290 (D.N.J. filed
Nov. 22, 2013). (ECF No. 31 at 5.) However, the Court is not aware of any individual with that
name who works in this district court. Given that Plaintiff must file his appeal in his federal case
with this district court, the Court is unsure how Conklin could have violated Plaintiffs rights. “A
finding of liability under 42 U.S.C.
§ 1983 requires that the defendant.
.
.
have exercised power
possessed by virtue ofstate law and made possible only because the wrongdoer is clothed with the
authority of state law.” Zelinski v. Pa. State Police, 108 F. App’x 700, 703 (3d Cir. 2004) (quoting
Bonenberger v. Plymouth Twp., 132 F.3d 20, 23 (3d Cir. 1997)) (emphasis added). Since Conklin
is not an employee of this district court, he did not have the power to accept any appeal Plaintiff
may have filed in this district court, let alone deny Plaintiffs right to appeal in a federal case.
Therefore, Plaintiff has failed to state a claim upon which relief may be granted against Conklin.
To the extent Plaintiff can cure the deficiencies identified in this Opinion and this Court’s
prior February 29, 2016 Opinion (ECF No. 30), the Court will allow Plaintiff one more opportunity
to amend his Amended Complaint.
Within thirty (30) days from the date of entry of the
accompanying Order, Plaintiff may submit to the Court an amended complaint that is consistent
with the holdings of this Opinion, and one that satisfies the pleading requirements under Rule 8 of
the Federal Rules of Civil Procedure.
1
(
Claire C. Cecchi
United States District Judge
Date:
1
Because the Court is dismissing the Complaint, Defendants’ motion to dismiss, ECF No.
33, is denied as moot.
2
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