HARRIS v. RUBIN et al

Filing 15

OPINION filed. Signed by Judge Freda L. Wolfson on 10/18/2011. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CLIFFORD A. HARRIS,
Plaintiff,
v.
ASSISTANT PROSECUTOR ANNE
R. RUBIN, et al.,
Defendants.

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Civil No. 09-3707 (FLW)

O P I N I O N

APPEARANCES:
Clifford A. Harris, Pro Se
295159/807250B
East Jersey State Prison
Lock Bag R
Rahway, NJ 07065
WOLFSON, District Judge
Plaintiff, Clifford A. Harris, currently confined at the
East Jersey State Prison, Rahway, New Jersey, has submitted this
civil complaint, which alleges violations of his constitutional
rights and seeks relief pursuant to 42 U.S.C. § 1983.

Plaintiff

has not paid the filing fee, and seeks permission to proceed in
forma pauperis.

Based on Plaintiff’s affidavit of indigence,

this Court will grant his request.
At this time, the Court must review the complaint to
determine whether it should be dismissed as 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 such relief, pursuant to 28 U.S.C. §§ 1915(e)(2)
and 1915A(b).

For the following reasons, the complaint will be

dismissed, with prejudice.1
BACKGROUND
Plaintiff’s complaint (docket entry 7), names as defendants
Ann Rubin, an Assistant Prosecutor in Union County, New Jersey;
and “Bail Bond.”
Although unclear, it seems that Plaintiff’s allegations
concern his arrest(s).
Rahway, NJ.

He states: “I am being held at EJSP

State Police of NJ tested bullet casings and those

prints found on them w[ere] not mine.”

(Complt., ¶ 6).

He notes

that from 1993 to 1996, no arrest warrant was issued for him.

He

alludes to a mix up with a person who used his name, stating: “I
was arrested when I turn[ed] in myself to the Bronx Police
Department on 10-31-1995 for a New York Charge.

What the

assistant had done was used the arrest of the person who used my
name arrest through the appeals courts in NJ.

The fingerprint #

FBI # that is on the face sheet is not mine.”

(Complt., ¶ 6).

1

Plaintiff’s case, originally filed in 2009, was closed in
August of 2009 for failure to file a proper complaint or an
application to proceed in forma pauperis (“IFP”). Plaintiff
filed certain papers and a motion to dismiss the indictment. On
March 9, 2011, the case was reopened to consider the papers and
motion, and was reclosed. Plaintiff was permitted to file a new
complaint and IFP application, which he has since submitted. The
complaint, filed on April 14, 2011, is the complaint being
screened by this Court.
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As to the “Bail Bond” defendant, Plaintiff asserts that
“they take me from the Bronx court for bail money that was posted
for a person that stole my name and ID in a 1990's shooting of
bail . . . .” (Complt., ¶ 4c).
As to relief, Plaintiff states that there is an illegal
indictment against him, which he asks this Court to dismiss.

He

asks to be returned “to Edison Twp NJ for the now pending
detainer against me that was from 2-7-1995, and send me back to
my place of birth the United States Virgin Islands . . . .”
(Complt., ¶ 7).
Plaintiff has also filed an application for counsel (docket
entry 14).

Attached to his exhibits to the application is a

letter from the Assistant Ombudsman from the State of New Jersey,
dated September 15, 2011, that shows that the Edison detainer was
cleared from his record.
DISCUSSION
A. Standard of Review
The Prison Litigation Reform Act ("PLRA"), Pub.L. No. 104134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996),
requires a district court to review a complaint in a civil action
in which a prisoner is proceeding in forma pauperis or seeks
redress against a governmental employee or entity.

The Court is

required to identify cognizable claims and to sua sponte dismiss
any claim that is frivolous, malicious, fails to state a claim

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upon which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief.
1915(e)(2)(B) and 1915A.

See 28 U.S.C. §§

This action is subject to sua sponte

screening for dismissal under both 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b) because plaintiff is a prisoner and is proceeding as an
indigent.
Recently, in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the
Supreme Court refined the standard for summary dismissal of a
complaint that fails to state a claim.

The Court examined Rule

8(a)(2) of the Federal Rules of Civil Procedure which provides
that a complaint must contain "a short and plain statement of the
claim showing that the pleader is entitled to relief."
Civ. P. 8(a)(2).

Fed. R.

Citing its recent opinion in Bell Atlantic

Corp. v. Twombly, 550 U.S. 544 (2007), for the proposition that
"[a] pleading that offers ‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of action will
not do,’” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at
555), the Supreme Court held that, to prevent a summary
dismissal, a civil complaint must now allege "sufficient factual
matter" to show that the claim is facially plausible.

This then

"allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged."

See id. at

1948; see also Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC
Shadyside, 578 F.3d 203 (3d Cir. 2009).

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The Court of Appeals for the Third Circuit recently provided
detailed and highly instructive guidance as to what type of
allegations qualify as sufficient to pass muster under the Rule 8
pleading standard.

See Phillips v. County of Allegheny, 515 F.3d

224, 230-34 (3d Cir. 2008).

The Court of Appeals explained, in

relevant part:
[T]he pleading standard can be summed up thus:
"stating ... a claim requires a complaint with enough
factual matter (taken as true) to suggest" the required
element. This "does not impose a probability
requirement at the pleading stage[ ]" but . . . "calls
for enough facts to raise a reasonable expectation that
discovery will reveal evidence of" the necessary
element.
Phillips, 515 F.3d at 234 (internal citations omitted).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff.

See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Haines
v. Kerner, 404 U.S. 519, 520-21 (1972)).

See also United States

v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
B.

Section 1983 Actions
A plaintiff may have a cause of action under 42 U.S.C.

§ 1983 for certain violations of his or her constitutional
rights.

Section 1983 provides in relevant part:

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory ... subjects, or causes to be subjected,
any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any
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rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress ... .
Thus, to establish a violation of 42 U.S.C. § 1983, a plaintiff
must demonstrate that the challenged conduct was committed by (1)
a person acting under color of state law and (2) that the conduct
deprived him of rights, privileges, or immunities secured by the
Constitution or laws of the United States.

See Parratt v.

Taylor, 451 U.S. 527, 535 (1981), overruled in part on other
grounds by Daniels v. Williams, 474 U.S. 327 (1986); Adickes v.
S.H. Kress & Co., 398 U.S. 144, 152 (1970); Piecknick v.
Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994).
C.

Plaintiff’s Claims Must Be Dismissed.
1.

Prosecutorial Immunity

Plaintiff's claims against the state prosecutor, defendant
Rubin, must be dismissed because this defendant is absolutely
immune from liability.
“[A] state prosecuting attorney who act[s] within the scope
of his duties in initiating and pursuing a criminal prosecution”
is not amenable to suit under § 1983.
424 U.S. 409, 410 (1976).

See Imbler v. Pachtman,

Thus, a prosecutor's appearance in

court as an advocate in support of an application for a search
warrant and the presentation of evidence at such a hearing are
protected by absolute immunity.
492 (1991).

See Burns v. Reed, 500 U.S. 478,

Similarly, “acts undertaken by a prosecutor in
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preparing for the initiation of judicial proceedings or for
trial, and which occur in the course of his role as an advocate
for the State, are entitled to the protections of absolute
immunity.”

Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993).

A prosecutor is not entitled to absolute immunity, however,
for actions undertaken in some other function.

See, e.g., Kalina

v. Fletcher, 522 U.S. 118 (1997) (stating prosecutor testifying
as complaining witness rather than state's prosecutorial advocate
is protected only by qualified immunity for attesting to truth of
facts found in certification in support of arrest warrant);
Burns, 500 U.S. at 492-96 (provision of legal advice to police
during pretrial investigation is protected only by qualified
immunity); Buckley, 509 U.S. at 276-78 (prosecutor not acting as
advocate, and not entitled to absolute immunity, when holding
press conference or fabricating evidence).
Plaintiff's allegations concerning the indictment against
him and his arrest, which he asserts against defendant Rubin,
fall within the scope of prosecutorial duties in initiating and
pursuing a criminal prosecution.

There is no allegation that

defendant Rubin acted outside the scope of her prosecutorial role
in the criminal proceedings against Plaintiff, or of wrongdoing
or prosecutorial misconduct.

Therefore, the claims against

defendant Rubin must be dismissed for failure to state a claim
and because she is entitled to absolute immunity.

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2.

Claims as to Plaintiff's State Court Convictions Are
Barred.

Plaintiff appears to challenge his state court criminal
indictment and/or convictions.
First, it is unclear whether Plaintiff's state court action
has been concluded or is still pending.

To the extent that the

state court action was concluded and Plaintiff is dissatisfied
with the outcome, his recourse is to directly appeal in state
court, and then, if he has constitutional challenges to his
conviction, file a habeas petition in this Court, pursuant to 28
U.S.C. § 2254.
The exclusive federal remedy for an inmate challenging the
fact or duration of confinement is a petition for a writ of
habeas corpus.

See Preiser v. Rodriguez, 411 U.S. 475 (1973).

“[W]hen a state prisoner is challenging the very fact or duration
of his physical imprisonment, and the relief he seeks is a
determination that he is entitled to immediate release or a
speedier release from that imprisonment, his sole federal remedy
is a writ of habeas corpus.”

Id. at 500; see Wolff v. McDonnell,

418 U.S. 539, 554 (1974); Brown v. Fauver, 819 F.2d 395 (3d Cir.
1987).

Plaintiff cannot challenge his state court criminal

conviction in this § 1983 action.
Further, if Plaintiff's state court action is still pending,
this Court must abstain from exercising jurisdiction under the
Younger abstention doctrine.

See Younger v. Harris, 401 U.S. 37
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(1971).

Younger abstention “reflects a strong federal policy

against federal-court interference with pending state judicial
proceedings.”

Middlesex County Ethics Comm. v. Garden State Bar

Ass'n, 457 U.S. 423, 431 (1982).

Abstention is appropriate

where: (1) there are ongoing state proceedings that are judicial
in nature; (2) the state proceedings implicate important state
interests; and (3) the state proceedings afford an adequate
opportunity to raise the federal claims.

See id. at 432.

Federal courts should abstain when federal adjudication would
disrupt an ongoing state criminal or civil proceeding.

See Moore

v. Sims, 442 U.S. 415, 423 (1979); Younger, 401 U.S. at 43-54.
The Court will abstain from exercising jurisdiction here
under the Younger abstention doctrine, as Plaintiff's New Jersey
state court action (1) appears to be ongoing, (2) implicates
important state interests, and (3) presents an adequate
opportunity to raise federal claims therein.

See Middlesex

County Ethics Comm., 457 U.S. at 435; Younger, 401 U.S. at 43-54.
CONCLUSION
For the foregoing reasons, Plaintiff’s complaint is
dismissed, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii)
and § 1915A(b)(1) and (2).
s/Freda L. Wolfson
FREDA L. WOLFSON
United States District Judge
Dated: October 18, 2011
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