DRAKE v. SALUTI et al
OPINION. Signed by Judge Susan D. Wigenton on 4/26/2017. (ld, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KEITH H. DRAKE,
Civil Action No. 17-2643 (SDW)
GERALD M. SALUTI, et al.,
WIGENTON, District Judge:
Presently before the Court is the complaint of Plaintiff, Keith H. Drake. (ECF No. 1). Also
before this Court is Plaintiff’s application to proceed in forma pauperis. (Document 1 attached to
ECF No. 1). Based on Plaintiff’s application, it is clear that leave to proceed in forma pauperis is
warranted in this matter, and therefore this Court will grant Plaintiff’s application to proceed in
forma pauperis. Because this Court is granting that application and because Plaintiff is a state
prisoner suing state employees, however, this Court is required to screen the complaint pursuant
to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. Pursuant to these 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. For the reasons set forth below, this Court will dismiss the
complaint in its entirety.
In his complaint, Plaintiff alleges that, in 2007, he was convicted of second-degree sexual
assault in violation of N.J. Stat. Ann. § 2C:14-2(c)(1). (ECF No. 1 at 4). At sentencing for that
offense in March 2007, the prosecutors argued, and defense counsel apparently agreed, that
Petitioner was subject to the terms of the No Early Release Act (“NERA”), N.J. Stat. Ann. § 2C:431
7.2, which imposes a period of parole ineligibility equal to eighty-five percent of a criminal
defendant’s sentence where he is convicted of certain enumerated first and second degree offenses,
including “subsection b. of [N.J. Stat. Ann. §] 2C:14-2 and paragraph (1) of subsection c. of [N.J.
Stat. Ann. §] 2C:14-2, sexual assault.” N.J. Stat. Ann. § 2C:43-7.2(d)(8). The sentencing judge
therefore found Petitioner subject to NERA, and sentenced Petitioner to an appropriate period of
parole ineligibility in imposing sentence for Petitioner’s sexual assault conviction. (ECF No. 1 at
4). Petitioner appealed, but did not challenge his NERA sentence on appeal. (Id. at 4-5). When
Petitioner complained about counsel’s failure to raise a challenge to the NERA sentence, counsel
responded by telling Petitioner that he had been sentenced correctly under NERA. (Id. at 5).
Petitioner apparently sought relief from his sentence from the state parole board, but was
told that only the courts could grant him relief. (Id.). Petitioner also filed motions or petitions for
several forms of post-conviction relief, ultimately culminating in a motion to correct an illegal
sentence in which he argued that his NERA sentence was improper. (Id.). That motion was denied.
(Id.). Petitioner appealed, and the Superior Court of New Jersey – Appellate Division affirmed
the denial of his motion, explaining as follows:
Under the plain language of [N.J. Stat. Ann. §] 2C:43-7.2, NERA
applies to second-degree sexual assault under [N.J. Stat. Ann. §]
2C:14-2(c)(1). Subsection a. of [N.J. Stat. Ann. §] 2C:43-7.2
requires that “[a] court imposing a sentence of incarceration for a
crime of the first or second degree enumerated in subsection d. of
this section shall fix a minimum term of 85% of the sentence
imposed, during which the defendant shall not be eligible for
parole.” Subsection b. similarly requires that “[t]he minimum term
required by subsection a. of this section shall be fixed as a part of
every sentence of incarceration imposed upon every conviction of a
crime enumerated in subsection d. of this section[.]” [N.J. Stat. Ann.
§] 2C:43-7.2(b)[.] Subsection d. requires that “[t]he court shall
impose sentence pursuant to subsection a. of this section upon
conviction of the following crimes or an attempt or conspiracy to
commit any of these crimes[.]” [N.J. Stat. Ann. §] 2C:43-7.2(d)[.]
Among the “following crimes” “enumerated in subsection d.” is
“paragraph (1) of subsection c. of [N.J. Stat. Ann. §] 2C:14-2, sexual
assault[.]” [N.J. Stat. Ann. §] 2C:43-7.2(d)(8). Because [N.J. Stat.
Ann. §] 2C:14-2(c)(1) is “a crime of the ... second degree
enumerated in subsection d.,” NERA applies. [N.J. Stat. Ann. §]
2C:43-7.2(a), (b), (d).
State v. Drake, 132 A.3d 1270, 1274-75 (N.J. App. Div. 2016). The Appellate Division went on
to reject Plaintiff’s argument that NERA would only apply to a second-degree sexual assault where
there was a violation of both “subsection b. of [N.J. Stat. Ann. §] 2C:14-2 and paragraph (1) of
subsection c. of [N.J. Stat. Ann. §] 2C:14-2,” instead finding that, based upon the legislature’s
intent, the statute merely laid out in section (d)(8) both forms of second degree sexual assault
which individually would require a NERA sentence. Id. at 1275-82.
In his current complaint, Plaintiff contends that NERA is “unconstitutionally vague,” and
that his sentence is therefore illegal. Plaintiff therefore seeks to bring claims for denial of his rights
leading to his incarceration against several judges, prosecutors, and defense attorneys involved in
his case who either imposed, sought to impose, or failed to oppose Petitioner’s NERA sentence.
(ECF No. 1 at 4-6). Petitioner also names as a Defendant the New Jersey Parole Board, apparently
for failing to provide him relief when he sought to have the Board undo his NERA sentence. (Id.).
A. Legal Standard
Per 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. § 1915(e)(2)(B), or seeks
damages from a state employee, see 28 U.S.C. § 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. §§ 1915(e)(2)(B) and 1915A
because Plaintiff is a state prisoner seeking damages from state officials who has been granted in
forma pauperis status.
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)). To
survive sua sponte screening for failure to state a claim 1, 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 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
Plaintiff, in his complaint, seeks to raise claims against the Parole Board, judges,
prosecutors, private defense attorneys, and public defenders, for alleged violations of his
“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C.
§ 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)(1)); Courteau v. United States, 287 F. App’x 159, 162 (3d
Cir. 2008) (discussing 28 U.S.C. § 1915A(b)).
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); see also Woodyard v. Cnty. of Essex, 514 F. App’x 177, 180 (3d
Cir. 2013) (section 1983 provides “private citizens with a means to redress violations of federal
law committed by state [actors]”). “The first step in evaluating a section 1983 claim is to ‘identify
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.’” Nicini, 212 F.3d at 806
(quoting County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998)). Here, Plaintiff attempts
to assert that Defendants denied him Due Process or his right to counsel by “conspiring” to impose
a NERA sentence upon him.
Plaintiff seeks to bring claims against the state courts, prosecutors, and his own defense
attorneys for failing to challenge the imposition of a NERA sentence on his sexual assault
conviction. To the extent Plaintiff attempts to argue that these individuals conspired to impose
upon him an illegal sentence, that argument is clearly foreclosed by the decision of the Appellate
Division finding that NERA clearly did and does apply to Plaintiff’s crime of conviction, and that
all of the parties he now argues denied him his constitutional rights were bound by New Jersey
law to impose upon him his NERA sentence. See Drake, 132 A.3d at 1274-82. Petitioner cannot
claim that he was denied Due Process or his right to counsel by the Defendants he names here
when the sentence imposed upon him was predetermined by New Jersey law. Instead, it is clear
that what Plaintiff is attempting to do with his current civil rights complaint is to relitigate the issue
decided by the Appellate Division – whether his criminal sentence was illegal because NERA was
unconstitutionally vague as relates to his crime of conviction. (See ECF No. 1 at 2, 6).
A federal civil rights suit under 42 U.S.C. § 1983, however, is not the proper vehicle for
such a challenge. The Supreme Court has long held that a prisoner may not use § 1983 as a means
to challenge the fact or duration of his conviction or sentence. See Wilkinson v. Dotson, 544 U.S.
74, 79 (2005) (a federal civil rights action “will not lie when a state prisoner challenges the fact or
duration of his confinement” and § 1983 cannot be used by a prisoner to seek either his “immediate
release” or a “shortening” of his term of confinement); Preiser v. Rodriguez, 411 U.S. 475, 482,
489 (1973). Indeed, the Court has extended this rule to bar not only suits directly seeking to
invalidate a sentence, but also to cases where a plaintiff attempts to raise a claim for money
damages the success of which would impugn the validity of his conviction or sentence. Wilkinson,
544 U.S. at 80-82; Heck v. Humphries, 512 U.S. 477, 486-87 (1994). The Court thus requires that
any civil rights suit seeking money damages from an allegedly improper conviction or sentence be
preceded by a judgment of the state or federal courts invalidating that conviction or sentence.
Wilkinson, 544 U.S. at 81-82. This is because the correct mechanism by which a state prisoner
may seek to invalidate his sentence in federal court is a petition for a writ of habeas corpus, and §
1983 may not be used to circumvent the gatekeeping requirements applicable to such a petition.2
Id. at 80-82. The Supreme Court has thus expressly held that a state prisoner’s civil rights suit “is
barred (absent prior invalidation) – no matter the relief sought (damages or equitable relief), no
matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison
proceedings) – if success in that action would necessarily demonstrate the invalidity of [his]
confinement or its duration.” Id. at 81-82.
It must be noted that Plaintiff has, in fact, already filed a petition for a writ of habeas corpus,
which this Court dismissed with prejudice as time barred. See Drake v. Johnson, No. 15-2837,
2016 WL 1069912 (D.N.J. Mar. 18, 2016). Thus, it appears that the reason Plaintiff is attempting
to raise this argument as a civil rights claim is because he cannot meet the gatekeeping
requirements of the habeas statute.
All of Plaintiff’s claims arise out of his assertion that his sentence was improper because
NERA is allegedly unconstitutionally vague. Plaintiff’s civil rights claims, although couched as
claims for monetary damages, therefore necessarily depend on Plaintiff’s ability to demonstrate
the invalidity of his NERA sentence in order to be successful. As such, they are barred by
Wilkinson unless and until Plaintiff has had his NERA sentence invalidated. Id. Plaintiff’s
complaint must therefore be dismissed. 3
For the reasons stated above, this Court will grant Plaintiff’s application to proceed in
forma pauperis, but will dismiss Plaintiff’s complaint (ECF No. 1) in its entirety. An appropriate
Dated: April 26, 2017
3 The Court also notes that
s/ Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge
Defendants would also most likely be entitled to immunity from liability
for any claim raised under § 1983 were Plaintiff’s claims not barred by Wilkinson. See, e.g., Imbler
v. Pachtman, 424 U.S. 409, 410 (1976) (prosecutors generally immune from suit for actions taken
in connection with initiating and pursuing a criminal prosecution); LeBlanc v. Stedman, 483 F.
App’x 666, 669 (3d Cir. 2012) (same); Walker v. Pennsylvania, 580 F. App’x 75, 78 (3d Cir. 2014)
(public defenders and private attorneys are not state actors when acting as defense counsel and
“are absolutely immune from civil liability under § 1983” for actions taken in that capacity);
Kwasnik v. Leblon, 228 F. App’x 238, 243 (3d Cir. 2007) (judicial officers in the performance of
their duties are absolutely immune from suit, even when acting maliciously or in excess of
authority, unless they acted “in the clear absence of all jurisdiction”); Randolph v. New Jersey
State Parole Office, No. 07-376, 2007 WL 1521189, at *3 (D.N.J. May 21, 2007) (New Jersey
Parole Board is not a person subject to suit under § 1983 and is also entitled to Eleventh
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