IANTOSCA v. MAGNONE et al
OPINION. Signed by Judge Madeline Cox Arleo on 07/17/2017. (ek)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 16-9497 (MCA)
LAURA MAGNONE, ESQ.,
ARLEO, United States District Judge:
This matter has been opened to the Court by Plaintiff’s filing of a civil action pursuant to
1983. This Court previously granted Plaintiffs application to proceed informa
pauperis. Federal law requires this Court to screen Plaintiff’s Complaint for sua sponte
dismissal prior to service, and to dismiss any claim if that claim fails to state a claim upon which
relief may be granted under Fed. R. Civ. P. 12(b)(6) and/or to dismiss any defendant who is
immune from suit. See 28 U.S.C.
will dismiss with prejudice the
1915(e)(2)(B). For the reasons explained below, the Court
1983 claims raised in the Complaint. The Court will also deny
Plaintiffs request to convert this matter to a habeas case. Because it is not clear whether
Plaintiff has any additional
1983 claims against the Defendants identified in his Complaint or
against individuals referenced in his numerous filings, the Court will permit Plaintiff to submit
an amended complaint within 30 days of the date of the Order accompanying this Opinion.
The Court recounts only the facts necessary to this Opinion. Plaintiff has sued Laura
Magnone, who is identified in the Complaint as an Assistant Prosecutor with Morris County
Prosecutor’s Office, and Robert Scrivo, Esq., who is identified in the Complaint as an “Attorney
at Law” with the law firm of McElroy, Deusch, Mulvaney & Carpenter, LLP, for alleged
violations of his civil rights under 28 U.S.C.
1983. (ECF No. 1, Compl. at page 4.) Plaintiff
appears to be a convicted prisoner and alleges that prior to his acceptance of a plea deal for
unspecified state court charges, Scrivo asked Magnone if Plaintiff could apply for the Pre-Trial
Intervention Program (“PTI”). (Id. at 5.) Magnone allegedly replied: “Absolutely not, he can
not (sic) apply.” (Id.) She also allegedly stated to Plaintiff that she would make sure that he did
not get PTI. (Id.) Plaintiff alleges that Magnone’s conduct violated his rights by discriminating
against him and showing bias. He further alleges that Scrivo violated his rights by providing
ineffective assistance of counsel for not objecting to the denial of PTI and by advising Plaintiff to
take a plea deal. (Id.) Plaintiff seeks damages in the amount of $1,750,000.00. (Id. at 6.)
STANDARD OF REVIEW
Pursuant to the Prison Litigation Reform Act, Pub. L. No. 104-134,
801-810, 110 Stat.
1321-66 to 1321-77 (April 26, 1996) (“PLRA”), district courts must review complaints in those
civil actions in which a prisoner is proceeding in forma pauperis, see 28 U.S.C.
seeks redress against a governmental employee or entity, see 28 U.S.C.
claim with respect to prison conditions, see 42 U.S.C.
191 5A(b), or brings a
1997e. 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. “The legal standard for dismissing a complaint for failure to state a claim pursuant to 28
The New Jersey PTI program is a state-wide program which serves as “an alternative to
criminal prosecution.” Fernandez v. City ofElizabeth, 468 F. App’x 150, 154 (3d Cir. 2012)
(citing Davis v. Grusemeyer, 996 F.2d 617, 620 (3d Cir. 1993), overruled on other grounds by
Rob v. City Investing Co. Liquidating Trust, 155 F.3d 644 (3d Cir. 1998)).
1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012)
(citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App’x
230, 232 (3d Cir. 2012) (discussing 28 U.S.C.
1997e(c)(l)); Courteau v. United States, 287 F.
App’x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C.
Here, Plaintiffs Complaint is subject to screening under 28 U.S.C.
1915A(b). When reviewing a motion to dismiss under Fed. R. Civ. P. 12(b)(6),
courts first separate the factual and legal elements of the claims, and accept all of the wellpleaded facts as true. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210—11 (3d Cir. 2009).
All reasonable inferences must be made in the plaintiffs favor. See In re Ins. Brokerage
Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). The complaint must also 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 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).
Courts are required to liberally construe pleadings drafted by pro se parties. Tucker v.
Hewlett Packard, Inc., No. 14-4699 (RBKJKMW), 2015 WL 6560645, at *2 (D.N.J. Oct. 29,
2015) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). Such pleadings are “held to less
strict standards than formal pleadings drafted by lawyers.” Id. Nevertheless, pro se litigants
must still allege facts, which if taken as true, will suggest the required elements of any claim that
is asserted. Id. (citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013)). To
do so, [a plaintiffj must plead enough facts, accepted as true, to plausibly suggest entitlement to
relief.” Gibney v. Fitzgibbon, 547 F. App’x 111, 113 (3d Cir. 2013) (citing Bistrian v. Levi, 696
F.3d 352, 365 (3d Cir. 2012)). Furthermore, “[l]iberal construction does not, however, require
the Court to credit a pro se plaintiffs ‘bald assertions’ or ‘legal conclusions.’ Id. (citing Morse v.
Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). That is, “[ejven apro se complaint
may be dismissed for failure to state a claim if the allegations set forth by the plaintiff cannot be
construed as supplying facts to support a claim entitling the plaintiff to relief. Id. (citing
Milhouse v. Carison, 652 F.2d 371, 373 (3d Cir. 1981)).
As explained below, the Court construes Plaintiff to allege claims pursuant to 42 U.S.C.
1983 against Defendants Magnone and Scrivo. The Court considers the
§ 1983 claims against
each Defendant as alleged in the Complaint and separately addresses Plaintiffs additional
a. Claims against Defendant Magnone
Plaintiff alleges that that Defendant Magnone discriminated against him by refusing to
allow him to apply to PTI and by stating that she would deny his PTI application. The Court
construes Plaintiff to allege
§ 1983 claims of malicious and/or selective prosecution against
Defendant Magnone. Under federal law, however, prosecutors have absolute immunity from
civil liability, i.e., damages, for their conduct in their role as prosecutors. See Newsome v. City
ofNewark, No. 13-CV-06234 CCC, 2014 WL 4798783, at *2 (D.N.J. Sept. 25, 2014) (citing
1mb/er v. Pachtman, 424 U.S. 409, 427—28 (1976)). It is well established that prosecutors sued
The Court does not construe Plaintiff to allege any supplemental state law claims. To the
extent Plaintiff seeks to raise state law claims, he must do so by way of an amended complaint.
Although Plaintiff recently wrote to the Court seeking injunctive relief, his Complaint seeks
only damages for his alleged injuries, and the Court confines its analysis to Plaintiffs Complaint.
1983 enjoy absolute immunity for their conduct in “initiating a prosecution and in
presenting the State’s case.” Imbler, 424 U.S. at 431. This immunity extends to any acts the
prosecutor undertakes “as the state’s ‘advocate,” Yarns v. County ofDelaware, 465 F.3d 129,
136 (3d Cir. 2006), and is not defeated by allegations that the prosecutor acted in bad faith, see
Ernst v. Child & Youth Servs., 108 F.3d 486, 502 (3d Cir.1997), or “commit[ted] perjury or
falsifie[dj evidence,” Davis v. Grusemeyer, 996 F.2d 617, 630 n. 27 (3d Cir.1993), overruled on
other grounds by Rob v. City Investing Co. Liquidating Trust, 155 F.3d 644 (3d Cir.1998); see
also Tindell v. Pennsylvania, 398 F. App’x 696, 698 (3d Cir. 2010) (explaining same).
In Davis, 996 F.2d at 631, an indictee sued both the prosecutors and detective for their
efforts to deny him access to PTI, and their decision to instead continue with criminal
prosecution. Id. at 627—29. The Third Circuit found that the decision to continue a criminal
prosecution through trial “is at the heart of the prosecutorial decision-making process
should therefore be immune from civil liability. Id. at 629. Further, the Court held that a
detective performing investigative work in connection with a criminal prosecution receives the
same absolute immunity as would the prosecutor. Id. at 631—32. Thus, under well-established
Third Circuit precedent, Defendant Magnone is entitled to prosecutorial immunity for her
decision to deny Plaintiff PTI and continue with his prosecution, which ultimately resulted in a
plea deal. As such, the Court will dismiss with prejudice Plaintiff’s
1983 claim premised on
Defendant Magnone’s alleged denial of Plaintiff’s access to PTI, as she is entitled to
prosecutorial immunity on this claim.
b. Defendant Scrivo
Plaintiff also contends in his Complaint that his defense attorney, Defendant Scrivo,
afforded him ineffective assistance of counsel under the Sixth Amendment in connection with
the denial of PTI and the plea deal. “To state a claim under
1983, a plaintiff must allege a
violation of a right secured by the Constitution or laws of the United States committed by a
person acting under color of state law.” Mikhaeil v. Santos, 646 F. App’x 158, 161—62 (3d Cir.
2016) (citing West v. Atkins, 487 U.S. 42, 48 (1988). It is axiomatic that “[a] Section 1983 claim
requires state action.” McKinney v. Prosecutor’s Office, No. CIV. 13-2553 KM MCA, 2014 WL
2574414, at *8 (D.N.J. June 4, 2014). Here Defendant Scrivo is identified as a retained attorney
with the law firm of McElroy, Deusch, Mulvaney & Carpenter LLP. (ECF No. 1, Compi. at 4.)
Privately-retained counsel are not state actors for purposes of § 1983. See Steward v. Meeker,
459 F.2d 669 (3d Cir. 1972) (privately-retained counsel does not act under color of state law
when representing client). Although private individuals may nonetheless be liable under
if they have conspired with or engaged in joint activity with state actors, see Bierley v. Abate,
661 F. App’x 208, 209 (3d Cir. 2016) (citing Dennis v. Sparks, 449 U.S. 24, 27—28 (1980)),
Plaintiff has not alleged in the Complaint that Defendant Scrivo is a state actor or that he
engaged in a conspiracy or joint activity with any state actors.
Further, even if Defendant Scrivo were a public defender or pool attorney who provided
ineffective assistance of counsel to Plaintiff prior to and during his plea negotiations, Plaintiff’s
claim would be subject to dismissal because “ineffective assistance of appointed counsel in
representing a defendant is not actionable under
Introcaso v. Meehan, 338 F. App’x
139, 142 (3d Cir. 2009) (citingPolkCounryv. Dodson, 454 U.S. 312, 324-25 (1981) (no state
To the extent that Plaintiff may be attempting to set forth either a legal malpractice claim or an
ineffective assistance of counsel claim against his attorney, neither claim is properly brought as a
§ 1983 action. See generally Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (petition for writ of
habeas corpus proper for ineffective assistance of counsel claim); Shaw V. Stackhouse, 920 F.2d
1135 (3d Cir. 1990) (sS 1983 is designed to address constitutional deprivations, not torts). The
Court does not construe the amended complaint as raising legal malpractice claims under state
action for the purposes of § 1983 where public defender represented defendant in criminal
matter)); see also Angelico v. Lehigh Valley Hospital, Inc., 184 F.3d 268, 277 (3d Cir. 1999)
(private attorneys were not acting under color of state law when they issued subpoenas); Calhoun
v. Young, 2008 WL 2944638 (3d Cir. Aug. 1, 2008) (public defender representing criminal
defendant is not acting under color of state law); Thomas v. Howard, 455 F.2d 228 (3d Cir.
1972) (court-appointed pool attorney does not act under color of state law); Amponsah v. Boney,
No. CIV.A. 08-4992 (MLC), 2008 WL 4754869, at *23 (D.N.J. Oct. 27, 2008) (same). For
these reasons, the Court will dismiss with prejudice Plaintiff’s Sixth Amendment claims of
ineffective assistance of counsel against Defendant Scrivo.
c. Plaintiff’s Letters
After filing his Complaint, Plaintiff submitted numerous statements and letters that
purport to add “evidence” to his “case file”. These letters provide new facts regarding the above6
named Defendants and other individuals. Plaintiff apparently believes that he is free to submit
For instance, Plaintiff’s letters complain about Defendant Magnone’s alleged violations of the
New Jersey Court Rules at Plaintiff’s sentencing on September 16, 2016 (ECF No. 7) and
Defendant Scrivo’s alleged refusal to file an appeal on his behalf. (See ECF No. 9.) Such
conduct, however, is not the basis for a § 1983 action and is more properly addressed to the state
For instance, Plaintiff submitted an undated statement, which was docketed on January 6, 2017
(ECF No. 5), that alleges that he was improperly contacted via text message by the uncle of his
accuser, Anthony Bocchi, Esq., who Plaintiff identifies as an “Officer of the Court.” (Id. at 3-5;
see also ECF No. 12.) Plaintiff does not identify Mr. Bocchi as a Defendant or refer to this
statement as an amended complaint, and the Court does not construe the statement as such. The
Court notes that even if Mr. Bocchi’s alleged conduct violated the Rules of Professional Conduct
(“RPCs”), it does not provide any basis for a civil rights action under § 1983. The statement also
alleges that the law firm of McElroy, Deusch, Mulvaney & Carpenter, LLP previously
represented the family of Plaintiffs accuser. Although such representation may amount to a
conflict of interest under the RPCs, it does not amount to a violation of § 1983, which requires a
deprivation of Plaintiff’s constitutional rights by a state actor. Furthermore, violations of Rules
of Professional Conduct do not, standing alone, give rise to an action in tort. See Sommers v.
McKinney. 287 N.J. Super. 1, 13 (App. Div. 1996); Baxt V. Liloia, 155 N.J. 190, 197-98 (1998)
(explaining that “purpose of the Model Rules [is] to regulate lawyer conduct through the
additional information to the Court regarding his case in the form of letters; however, any
attempt to amend or supplement his Complaint must conform to Federal Rule of Civil Procedure
15, and an amended complaint, once accepted by the Court, replaces the original complaint and
renders it inoperative. The Court has reviewed these letters and declines to permit Plaintiff to
supplement his Complaint in this piecemeal fashion and notes that the additional information
does alter the Court’s dismissal of his section
1983 claims against Defendants Magnone and
Scrivo. Although the Court has dismissed the claims alleged in the Complaint with prejudice, it
will, out of an abundance of caution, permit Plaintiff to file an Amended Complaint to the extent
he has other
1983 claims against Defendants Magnone and/or Scrivo that have not been
addressed in the instant Opinion. To the extent Plaintiff elects to submit an Amended
Complaint, he must submit all facts in support of his claim(s) in a single Amended Complaint.
d. Plaintiff’s Request to “Convert” the Case
Finally, the Court denies Plaintiffs request to convert this action to a habeas petition. On
July 5, 2017, Plaintiff wrote to the Court asking whether the Court “has determined there has
been enough evidence thus far to have moved the cause of this case from a ‘42
1983’ to a
‘Habeas Corpus” and seeks an injunction vacating the allegedly illegal sentence imposed by the
Morris County Superior Court. (See ECF No. 23.)
Federal law provides two avenues of relief to prisoners: a petition for habeas corpus and a
civil rights complaint. See Muhammad v. Close, 540 U.S. 749, 750 (2004).
“[c]hallenges to the validity of any confinement or to particulars affecting its duration are the
disciplinary process, not to serve as a basis for civil liability”) (citing Legislative History of the
Model Rules of Professional Conduct: Their Development in the ABA House of Delegates 20
province of habeas corpus
[fall within the realm of] a
custody cannot use a
[while] requests for relief turning on circumstances of confinement
1983 action.” Id. It is well established that a prisoner in state
1983 action to challenge “the fact or duration of his confinement.”
Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). Thus, state prisoners “must use habeas corpus
(or similar state) remedies when they seek to invalidate the duration of their confinement
directly through an injunction compelling speedier release or indirectly through a judicial
determination that necessarily implies the unlawfulness of the State’s custody.” Wilkinson v.
Dotson, 544 U.S. 74, 81(2005).
Although Plaintiff’s Complaint seeks only monetary damages, his recent letter asks the
Court to convert the matter to a habeas case and invalidate his conviction. Plaintiff’s request to
have his conviction invalidated by this Court is barred in a
1983 action because that judicial
determination necessarily implies the unlawfulness of the State’s custody. Wilkinson, 544 U.S.
at 81. This type of relief, if sought in federal court, may only be brought through a habeas
petition after exhausting all available state court remedies. Here, however, it is clear from
Plaintiff’s filings that he was recently sentenced on the relevant charges and has not yet
completed his direct appeal in state court. Under these circumstances, any habeas petition filed
in federal court would be subject to dismissal for failure to exhaust state court remedies. As
such, Plaintiff’s request to convert the instant matter into a habeas case is denied at this time.
The denial of his request is without prejudice to his filing of a timely habeas petition pursuant to
2254 after he exhausts his habeas claims to the highest level of the New Jersey state
For the reasons explained in this Opinion, the Court dismisses the claims alleged in the
Complaint with prejudice. The Court also denies Plaintiff’s request to convert this matter to a
habeas case at this time. Because it is not clear whether Plaintiff has additional
against the Defendants identified in his Complaint, the Court will permit him to submit an
amended complaint within 30 days of the date of the Order accompanying this Opinion. An
appropriate Order follows.
Madehice Cox Arleo, U.S.D.J.
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