BELIZAIRE v. HOLMES et al

Filing 3

OPINION. Signed by Judge Jose L. Linares on 9/9/15. (cm )

*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
FRANCEAU BELIZAIRE,
Civil Action No. 15-6482 (JLL)

Plaintiff,

v.

:

OPINION

S.D.A.G./A.A.P. BRUCE HOLMES, et al.,
Defendants.

LINARES, District Judge.

Currently before the Court is the complaint of Plaintiff, Franceau Belizaire (ECF No. 1)
and Plaintiffs application to proceed in forma pauperis (ECF No. 1-1). Plaintiffs complaint
raises several claims brought pursuant to 42 U.S.C.

§ 1983. Based on the information contained

in Plaintiffs application to proceed in forma pauperis, this Court finds that leave to proceed in this
Court without prepayment of fees is authorized, 28 U.S.C.

§ 1915, and will therefore order the

Clerk of the Court to file Plaintiffs Complaint. As the Court grants Plaintiffs application to
proceed in forma pauperis, this Court must screen Plaintiffs complaint pursuant to 28 U.S.C.

§

191 5(e)(2)(B) and 191 5A. Pursuant to the statutes, this Court must dismiss Plaintiff’s claims if
they are frivolous, malicious, fail to state a claim for relief, or seek damages from a defendant who
is immune. 28 U.S.C.

§ 19l5(e)(2)(B). As Plaintiffs complaint fails to state a claim for which

relief can be granted and seeks damages from a defendant who is immune, this Court will dismiss
Plaintiffs complaint without prejudice.

1.

BACKGROUND
Plaintiff, Franceau Belizaire, is a state pre-trial detainee currently confined in the Union

County Jail in Elizabeth, New Jersey.

(ECF No. 1 at 2-3).

Defendants are all prosecutors,

investigators, and doctors who were either directly or indirectly involved in investigating and
ultimately prosecuting Plaintiff for second degree manslaughter, a prosecution which remains
ongoing at this time. (Id. at 4-15). Plaintiff makes the following allegations in his complaint.
Prior to the prosecution which Plaintiff seeks to challenge, he was already incarcerated in
the Union County Jail for an apparently unrelated offense. (Id. at 15). While so incarcerated,
Plaintiff was transported to the Union County Prosecutor’s Office for questioning by two
detectives, one of whom was Defendant Ramos.

LId.).

Upon their arrival, these detectives

questioned Plaintiff regarding an incident which had occurred on June 1, 2014, at a motel in
Elizabeth, New Jersey, which played some part in the death of George Russo. (Id. at 18, 21).
Plaintiff alleges that he was not “read his Miranda rights” during that interrogation, and that he
requested an attorney on multiple occasions. (Id.). Plaintiff further alleges that Detective Ramos
attempted to coerce him into giving a statement which she wished to record with her phone, but
Plaintiff refused.

(Id.). A supervisor of the detectives then entered the room and ended the

interrogation because of Plaintiffs request for an attorney, and Plaintiff was transported back to
the Union County Jail. (Id.). Plaintiff was thereafter charged with second degree manslaughter
on or about October 15, 2014. (Id.).
Following his initial appearance in court in October, Plaintiff was scheduled to again
appear on November 17, 2014. (Id.). Plaintiff instead next appeared on November 3, 2014.
(Id.).

During that appearance, Plaintiffs attorney requested all discovery related to the
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manslaughter charge. (Id. at 16). When the state failed to provide discovery by December 2014,
the trial judge ordered the state to provide the relevant discovery by January 5, 2014.

(Id.).

Plaintiff, due to scheduling issues, would not appear again until June 2015. (Id.).
In January 2015, Plaintiff met with his attorney and was given copies of police reports,
investigations reports, medical reports, and witness reports related to the manslaughter charge.
(Id.). Plaintiff, however, was not provided with toxicology reports or the grand jury transcript,
which he asserts contained exculpatory evidence, at that time. (Id.). Plaintiff contends that these
toxicology reports may have provided information regarding the cause of the death with which he
was charged, but does not allege that these reports contained information showing he was not
responsible. (Id.).
Plaintiff’s lawyer ultimately provided him with the grand jury transcripts on or about June
28, 2015. (id. at 17). Plaintiff alleges that, in the police reports, there were several varying
descriptions of the suspect, none of which matched him. (Id.).
however, were offered to the grand jury.

(Id.).

None of these descriptions,

Plaintiff also alleges that there was some

confusion in the grand jury transcripts regarding the relationship between Defendants Ramos and
Barnwell. (Id.). Plaintiff’s main concern with the grand jury transcripts, however, appears to be
that Rarnos testified that although there was a video that was somehow relevant to Plaintiff’s
prosecution, that video had been “recorded over or deleted.” (Id.). It is not clear what this video
contained,

who

possessed

destructionlrerecording.

(Id.).

it,

who

recorded

it,

or

who

was

responsible

for

its

Plaintiff, however, alleges that there was some manner of

exculpatory evidence on the tape which was destroyed. (Id.). Plaintiff’s final issue with the
grand jury transcripts appears to be that there was a statement by the prosecutor, Defendant
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Holmes, that “a few pages [were) removed” from some unknown document relevant to the grand
jury proceedings.

(Id. at 18).

Plaintiff does not clarify from what document pages were

removed, how they were relevant to his case, or how these documents were exculpatory, but again
asserts that this amounts to the destruction of exculpatory evidence. (Id.).
Plaintiff alleges that the reports of several doctors contained in the discovery related to his
criminal case do not support the conclusion that he caused the death of George Russo. (Id.).
Plaintiff alleges that Russo underwent surgery on June 2, 2014. (Id.). Dr. Zaboski examined
Russo before his surgery and granted him clearance to undergo surgery.

(Id.).

Zaboski

apparently stated in his reports that after surgery, Russo initially was doing well and was slated for
discharge from the hospital, but eventually turned for the worst and ultimately passed away
approximately a week later due to respiratory failure. (Id.). Dr. Zaboski’s report apparently also
stated that, due to Russo’s age and health problems, which included bronchial issues, fibroses of
the lungs, irregular nodes in the lungs, and “parenchymal and pleural densities in the right lung,”
there was a risk of death associated with whatever surgery he underwent on June 2, 2014. (Id.).
Based on these statements, Plaintiff asserts that Defendant Holmes was negligent in failing to
probe the cause of death of Russo and acted improperly in choosing to pursue manslaughter
charges against Plaintiff. KId.).

II.

DISCUSSION

A. Legal Standard

Per the Prison Litigation Reform Act, Pub. L. No. 104-134,

§ 801-810, 110 Stat. 1321-

66 to 132 1-77 (April 26, 1996) (“PLRA”), district courts must review complaints in those
civil

4

actions in which a prisoner is proceeding informa pauperis, see 28 U.S.C.
seeks damages from a state employee, see 28 U.S.C.

§ 1915(e)(2)(B), or

§ 1915A. The PLRA directs district courts

to 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.
§l915(e)(2)(B) and 1915A because Plaintiff is a prisoner who has been granted informa
pauperis status and raises claims against state employees.

According to the Supreme Court’s decision in Ashcroft 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Indeed, “the legal standard for dismissing a complaint for failure to state a claim
pursuant to

§ 191 5A is identical to the legal standard employed in ruling on 1 2(b)(6) motions.”

Courteau v. United States, 287 F. App’x 159, 162 (3d Cir. 2008) (citing Allah v. Seiverling, 229

F.3d 220, 223 (3d Cir. 2000)). Thus, to survive a sua sponte screening for failure 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) (quoting Iqbal, 556
U.S. at 677). “A claim has facial plausibility when the plaintiff pleads factual content 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
Iqbal, 556 U.S. at 678). Moreover, while pro se 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).
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B. Analysis

Plaintiff seeks to make claims against defendants for alleged violations of his
constitutional rights pursuant to 42 U.S.C.

§ 1983. “To establish a claim under 42 U.S.C. §

1983, a plaintiff must demonstrate a violation of a right protected by the Constitution or laws of
the United States that was committed by a person acting under the color of state law.” Nicini v.
Morra, 212 F.3d 798, 806 (3d Cir. 2000). “The first step in evaluating a section 1983 claim is

to ‘identifSr the exact contours of the underlying right said to have been violated’ and to
determine ‘whether the plaintiff has alleged a deprivation of a constitutional right at all.” Id. at
806 (quoting County ofSacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998)). Here, Plaintiff
asserts claims for malicious prosecution,’ for violations of his Miranda rights, and for the
withholding or destruction of exculpatory evidence.

1. Plaintiff’s claims against Drs. Kline and Zaboski must be dismissed as Plaintiff has not
pled that they were acting under color of state law

Plaintiff attempts to make claims against two doctors, Kline and Zaboski, who treated the
deceased, for violations of Plaintiff’s Fourteenth Amendment rights because Plaintiff was
Although Plaintiff does assert that he has been “incarcerated illegally” this Court does not
construe him as asserting claims for false arrest and false imprisonment separate and apart from
his claims for malicious prosecution because Plaintiff specifically alleges that he had already
been legally incarcerated on another charge during the period where he was charged and
ultimately arraigned on the manslaughter charges. See, e.g., Smiley v. James, No. 06-1244,
2006 WL 2347815, at *4 (D.N.J. Aug. 10, 2006) (unpublished) (stating that “there was no arrest
or seizure of plaintiff because he was already incarcerated on other charges.. [and tjherefore
cannot establish a requisite element of a false arrest claim.”).
.

6

ultimately charged with the death of their patient. Plaintiff has pled no facts, however, which
suggest that these doctors, apparently private medical practitioners, were acting under color of
state law at the time that they treated Russo. A claim pursuant to
2

§ 1983 requires that “the

defendant acted under color of state law, in other words, that there was state action.” Great
W.
Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 175-76 (3d Cir. 2010). The
actions of a private medical practitioner or hospital can only said to occur under color of state
law where those actions are “fairly attributable to the State.” Turner v. Children ‘s Hosp. of
Philadelphia, 378 F. App’x 124, 126 (3d Cir. 2010) (unpublished) (quoting Lugar v. Edmondson
Oil Co, 457 U.S. 922, 937 (1982)). As Plaintiff has pled no facts which would support an
inference that either doctors’ actions could be fairly attributed to the state, Plaintiff’s

§ 1983

claims against the doctors must be dismissed without prejudice.

2.

Plaintiff’s claim that he was interrogated without Miranda warnings is not actionable

under

§

1983

Plaintiff also asserts a claim against Detective Ramos for alleged violations of his rights
pursuant to Miranda v. Arizona, 384 U.S. 436, 444 (1966). Specifically, Plaintiff alleges that
Ramos and another detective questioned him without providing Miranda warnings and continued
to question him after he requested a lawyer. Plaintiff also pleads, however, that despite coercion
from Ramos, he refused to give a statement. However, “violations of the prophylactic Miranda
procedures do not amount to violations of the Constitution itself
2

The right protected under the

Unlike all other Defendants, Plaintiff does not plead that these defendants conspired with
Holmes to maliciously prosecute Plaintiff.
7

Fifth Amendment is the right not to be compelled to be a witness against oneself in a criminal
prosecution, whereas the ‘right to counsel’ during custodial interrogation.

.

.

is merely a

procedural safeguard, and not a substantive right.” Giiffre v. Bissell, 31 F.3d 1241, 1256 (3d
Cir. 1994). A violation of Miranda is therefore not actionable under

§ 1983 unless statements

resulting from that violation are used against a plaintiff in his criminal trial. See Renda v. King,
347 F.3d 550, 5 57-58 (3d Cir. 2003); see also Brown v. SEPTA, 539 F. App’x 25, 28 (3d Cir.
2013). As Plaintiff made no statement, and does not allege any statement taken in violation of
Miranda has been used against him in a criminal trial, his constitutional rights have not been
violated and he fails to state a claim for relief against Detective Ramos on that basis under

§

1983.

3.

Plaintiff’s malicious prosecution claims must be dismissed as he has failed to show that

he has received a favorable termination

Plaintiff also attempts to plead a claim for malicious prosecution against Defendant
Holmes, and for conspiracy to maliciously prosecute against all remaining defendants other than
Doctors Kline and Zaboski. To successfully plead malicious prosecution under

§ 1983, a

plaintiff must allege that:
(1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in
plaintiff’s favor; (3) the proceeding was initiated without probable cause; (4) the
defendants acted maliciously or for a purpose other than bringing the plaintiff to justice;
and; (5) that plaintiff suffered a deprivation of liberty consistent with the concept of
seizure as a consequence of a legal proceeding. as a result.
Kossler v, Crisanti, 564 F.3d 181, 186 (3d Cir. 2009). There can therefore be no actionable
malicious prosecution claim until such time as the plaintiff receives a favorable termination of
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the underlying criminal proceedings. Id. at 186-87. This requires that the proceeding “must
have been disposed of in a way that indicates the innocence of the accused.” Id. at 187.
Plaintiff alleges here that his prosecution for manslaughter is ongoing and has not yet resolve
d,
and certainly has not yet resolved in his favor. His claims for malicious prosecution and
conspiracy to maliciously prosecute must therefore be dismissed without prejudice at this
time.

4. Defendant Holmes is immune from suit to the extent that Plaintiff seeks to bring
claims
for failure to turn over exculpatory evidence against him

Plaintiffs final

§ 1983 claims are claims asserted against Defendant Holmes for the
3

withholding or destruction of certain alleged evidence in Plaintiff’s criminal trial. Specif
ically,
Plaintiff claims that Holmes failed to turn over a toxicology report, failed to turn over
a video
somehow related to Plaintiffs criminal matter which was “recorded over”, and asserts
a vague
claim related to a statement by Holmes that certain pages were removed from an unkno
wn
document submitted to the grand jury. “State prosecutors are afforded absolute immun
ity from
civil suit under

§ 1983 for the initiation and pursuit of criminal prosecutions.” Moore v.

Middlesex Cnty. Prosecutors Office, 503 F. App’x 108, 109 (3d Cir. 2012) (unpub
lished) (citing
Imbler v. Pachtman, 424 U.S. 409, 431 (1976)). Moreover, “[ajithough a prosec
utor’s
deliberate destruction of exculpatory evidence is not entitled to absolute immunity,
the decision

It is unclear from Plaintiffs complaint whether he intends to assert any of these claims
against
the remaining defendants, who instead only appear to have been named based upon
how their
investigations contributed to the bringing of charges which Plaintiff alleges amoun
ts to malicious
prosecution. As such, this Court construes Plaintiff as only raising his claims
for the
withholding or destruction of evidence against Defendant Holmes.
9

to withhold such evidence from the defense while functioning as an advocate for the state is
protected by absolute immunity.” Id.; see also Yarns v. Cnty. ofDelaware, 465 F.3d 129, 137
(3d Cir. 2006). Thus, to the extent that Plaintiff claims that Holmes failed to turn over
toxicology reports, the alleged video, and the “removed” pages, Holmes is absolutely immune
from suit under

§ 1983. To the extent that Plaintiff instead wished to claim that Holmes

destroyed the video or the pages which were not submitted to the grand jury, Holmes would not
be immune only to the extent that Plaintiff has asserted that the destruction of that evidence was
deliberate or that the prosecutor knowingly failed to preserve that evidence.

Yarns, 465 F.3d at

136-37.
Here Plaintiff has made no allegation which would support an inference that Holmes
deliberately destroyed evidence. Plaintiff has provided only vague references to portions of
a
grand jury transcript which state that a video, which is somehow related to Plaintiff’s charge
s,
was “recorded over.” Plaintiff provides no information or allegations as to who recorded over
this video, nor what was on the video. Plaintiff has thus provided no more than a conclu
sory
allegation that his rights were violated, and certainly nothing which suggests Holmes deliber
ately
had the video destroyed or knowingly failed to preserve it. As to the removed pages, Plainti
ff
provides even less. There is no indication as to what document Plaintiff claims had pages
removed, only that Holmes told the grand jury that a certain document presented to them
had had
pages removed prior to its presentation. Plaintiff fails to allege what this docum
ent was,
whether it was otherwise provided to him in discovery, whether the version, if any, provid
ed in
discovery was missing pages, or the like. Plaintiff has provided no information
which would
support the supposition that this document was partially deliberately destroyed or that
Holmes
10

knowingly failed to preserve the document. Plaintiff has therefore failed to plead facts which
would suggest that Defendant Holmes was not immune, and this Court will thus dismiss
Plaintiffs claims for the withholding or destruction of exculpatory evidence. Because it is
possible, however, that Plaintiff could allege facts sufficient to establish deliberate destruction,
this Court will dismiss these claims without prejudice.

III. CONCLUSION

For the reasons stated above, Plaintiffs application to proceed

in forma pauperis

is

GRANTED, and the complaint shall be filed. As all of Plaintiffs claims either fail to state a claim
for which relief can be granted or seek damages from defendants who are immune from such relief,
Plaintiffs complaint shall be DISMISSED WITHOUT PREJUDICE.

Ho,os&L. Lina?ès,
fi1ed States District Judge

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