GORDON v. BERKELEY TWP POLICE DEPT. et al
Filing
8
OPINION. Signed by Judge Joel A. Pisano on 6/27/2011. (gxh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
_______________________________
:
:
:
Plaintiff,
:
:
v.
:
:
BERKELEY TWP POLICE et al.,
:
:
Defendants.
:
_______________________________:
DARRIN M. GORDON,
Civil Action
10-5061 (JAP)
O P I N I O N
Pisano, District Judge:
Plaintiff Darrin M. Gordon (“Plaintiff”), a pre-trial
detainee, seeks to bring this 42 U.S.C. § 1983 action in forma
pauperis (“IFP”), without prepayment of fees, pursuant to 28
U.S.C. § 1915.
See Docket Entries Nos. 1 and 2.
Following this
Court’s order directing submission of a proper IFP application,
Plaintiff cured the deficiencies of his original submission.
Docket Entries Nos. 3 and 5.
See
Plaintiff also submitted for filing
his amended complaint (“Complaint”), correcting and superceding
his initial pleading.
See Docket Entry No. 4.
Based on Plaintiff’s affidavit of indigence and the absence
of three qualifying dismissals within 28 U.S.C. § 1915(g), the
Court will grant Plaintiff's application to proceed in forma
pauperis, pursuant to 28 U.S.C. § 1915(a), and order the Clerk to
file the Complaint.
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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.
For the reasons detailed below, the Complaint will be
dismissed for failure to state a claim upon which relief can be
granted.
I.
STANDARD OF REVIEW
In determining the sufficiency of a complaint, the Court
must be mindful to construe the facts stated in the complaint
liberally in favor of the plaintiff.
See Erickson v. Pardus, 551
U.S. 89 (2007); Haines v. Kerner, 404 U.S. 519 (1972); United
States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
Indeed, it is
long established that a court should “accept as true all of the
[factual] allegations in the
complaint and reasonable inferences
that can be drawn therefrom, and view them in the light most
favorable to the plaintiff.”
Morse v. Lower Merion School Dist.,
132 F.3d 902, 906 (3d Cir. 1997).
However, while a court will
accept well-pled allegations as true, it will not accept bald
assertions, unsupported conclusions, unwarranted inferences, or
sweeping legal conclusions cast in the form of factual
allegations.
See id.
Addressing the clarifications as to the litigant's pleading
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requirement stated in the United States Supreme Court in Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the Court of Appeals
for the Third Circuit provided the courts in this Circuit with
detailed and careful guidance as to what kind of allegations
qualify as pleadings sufficient to pass muster under the Rule 8
standard.
See Phillips v. County of Allegheny, 515 F.3d 224,
230-34 (3d Cir. 2008).
Specifically, the Court of Appeals
observed as follows:
“While a complaint . . . does not need detailed
factual allegations, a plaintiff's obligation [is] to
provide the 'grounds' of his 'entitle[ment] to relief'
[by stating] more than labels and conclusions, and a
formulaic recitation of the elements of a cause of
action . . . .” Twombly, 127 S. Ct. at 1964-65 . . .
Rule 8 “requires a 'showing,' rather than a blanket
assertion, of entitlement to relief.” Id. at 1965
n.3. . . . “[T]he threshold requirement of Rule
8(a)(2) [is] that the 'plain statement [must] possess
enough heft to 'sho[w] that the pleader is entitled to
relief.'” Id. at 1966. [Hence] “factual allegations
must be enough to raise a right to relief above the
speculative level.” Id. at 1965 & n.3. . . . [Indeed,
it is not] sufficient to allege mere elements of a
cause of action; instead “a complaint must allege
facts suggestive of the proscribed conduct.” Id.
Id. at 230-34 (original brackets removed).
This pleading standard was further refined by the United
States Supreme Court in its recent decision Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009):
[In any civil action, t]he pleading standard . . .
demands more than an unadorned [“]the-defendantunlawfully-harmed-me[“] accusation. [Twombly, 550
U.S.] at 555 . . . . A pleading that offers “labels
and conclusions” or “a formulaic recitation of the
elements of a cause of action will not do.” [Id.] at
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555. Nor does a complaint suffice if it tenders
“naked assertion[s]” devoid of “further factual
enhancement.” Id. at 557. . . . A claim has facial
plausibility [only] when the plaintiff pleads factual
content . . . . Id. at 556. [Moreover,] the
plausibility standard . . . asks for more than a sheer
possibility that a defendant has acted unlawfully.
Id. [Indeed, even w]here a complaint pleads facts that
are “merely consistent with” a defendant's liability,
[the so-alleging complaint still] “stops short of
[showing] plausibility of 'entitlement to relief.'”
Id. at 557 (brackets omitted). [A fortiori,] the tenet
that a court must accept as true all of the
allegations contained in a complaint is inapplicable
to legal conclusions [or to t]hreadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements [,i.e., by] legal conclusion[s]
couched as a factual allegation [e.g.,] the
plaintiffs' assertion of an unlawful agreement [or]
that [defendants] adopted a policy “'because of,' not
merely 'in spite of,' its adverse effects upon an
identifiable group.” . . . . [W]e do not reject these
bald allegations on the ground that they are
unrealistic or nonsensical. . . . It is the
conclusory nature of [these] allegations, rather than
their extravagantly fanciful nature, that disentitles
them to the presumption of truth. . . . [Finally,] the
question [of sufficiency of] pleadings does not turn .
. . the discovery process. Twombly, 550 U.S.] at 559
. . . . [The plaintiff] is not entitled to discovery
[where the complaint alleges any of the elements]
“generally,” [i.e., as] a conclusory allegation
[since] Rule 8 does not [allow] pleading the bare
elements of [the] cause of action [and] affix[ing] the
label “general allegation” [in hope to develop facts
through discovery].
Iqbal, 129 S. Ct. at 1949-54.
II.
PLAINTIFF’S FACTS AND CLAIMS
Although the goals of Plaintiff’s Complaint appear fairly
obvious and – in addition – the facts asserted by Plaintiff,
while stated in a bit of a convoluted manner, are reasonably
clear, the nature of Plaintiff’s claims is not exactly selfPage -4-
evident.
The events discussed in the Complaint seemingly began to
unfold during the morning hours of April 13, 2008, when Plaintiff
and a certain woman were at a certain location in the Berkley
Township, New Jersey.
It appears that the woman had her hands
tied or duck-taped by Plaintiff (and, perhaps, had her mouth
duct-taped too), and she was physically assaulted by Plaintiff a
number of times; apparently, either some or, perhaps, all of
these assaults were of such force that they rendered her
continuously unconscious.1
It also appears that the township
police and the Ocean County SWAT team were dispatched to that
location, and a “stand-off” between Plaintiff and law enforcement
officers occurred and lasted for a few hours.2
Apparently, around 1 p.m. or so, the “stand-off” was over,
Plaintiff was apprehended, and the woman was taken to a hospital.
According to the Complaint, one of the police officers took
possession of a box cutter, a sheetrock knife and duct tape that
were either taken from Plaintiff or found at the scene (or, with
respect to the duct tape, it could have been taken off the
1
It appears that the woman is expected to be the State’s
key witness in Plaintiff’s upcoming criminal trial based on these
events.
2
Plaintiff does not seem to contest the very fact of that
“stand-off”; rather, he appears to allege that the “stand-off”
lasted not four hours, as he expects the State to maintain during
his upcoming criminal proceedings, but some other period of time.
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victim’s hands and/or mouth); Plaintiff also believes that –
after taking possession of these items – this police officer
headed to the hospital to take photographs of Plaintiff’s victim.
Plaintiff appears to be of opinion that these box cutter, a
sheetrock knife and duct tape could be exculpatory to Plaintiff.3
In addition, since Plaintiff seems to be of opinion that the
State will maintain, during Plaintiff’s upcoming criminal trial,
that Plaintiff was beating his victim on the head with a toilet
tank lid, Plaintiff would like to have the lid of the toilet tank
examined for the victim’s blood, in hope that lack of blood
traces would show that the victim was assaulted by other means.
Finally, Plaintiff also wishes to obtain the photographs, which
the police officer might have taken of the victim in hospital on
the date of the assault, because Plaintiff hopes that these
pictures could suggest that the victim’s injuries were not very
serious.
In addition to the foregoing allegations, Plaintiff’s
Complaint – occasionally switching from the events of April 13,
2008, to the events of December 10, 2009 (which appears to be the
date of either Plaintiff’s grand jury proceedings or one of the
hearings conducted in preparation to Plaintiff’s criminal trial)
3
It appears that Plaintiff hopes that the duct tape not
show traces of the victim’s saliva, suggesting that the victim’s
mouth was not duct-taped. The Complaint does not explain how the
box cutter or the sheetrock knife could serve as exculpatory
evidence.
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– asserts that a certain police officer testified during these
proceedings/hearing that the officer did not know whether the
victim’s mouth was duct taped but he knew about the victim’s
hands being tied and he also knew that the victim’s body
“wiggled” at one point when the victim was regaining conscious
between the beatings.
Plaintiff is of opinion that: (a) the part
of the officer’s testimony about the victim’s body “wiggling” was
perjurious because the office could not have had first-hand
knowledge of the events that took place while the “stand-off”
lasted; and (b) that the prosecutor knowingly allowed this
alleged perjury.
Furthermore, without specifying the exact or even
approximate dates, Plaintiff asserts that he requested his
defense attorney to seek production of these photographs of the
victim in the hospital, the box cutter, sheetrock knife, duct
tape and toilet tank lid (or requested his defense attorney to
seek production of only some of these items or, perhaps,
production of some other items), but his defense counsel informed
Plaintiff that the items Plaintiff wished to have produced did
not exist.
Plaintiff construed this statement of his defense
counsel as a statement indicative of his prosecutor’s refusal to
produce Brady material.
Plaintiff also construed the aforesaid
statement of his defense counsel as indicating that the local
Office of the Prosecutor and/or the law enforcement officers of
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the township or the County must have either failed to collect
some physical evidence that might be favorable to Plaintiff or
that the enforcement officers failed to preserve this evidence,
or that they destroyed them.
From the foregoing, Plaintiff, in
turn, deduced that his inability to have these non-existing
evidence at his disposal during Plaintiff’s upcoming criminal
proceedings might prevent him from casting doubt as to the
victim’s credibility.
Projecting that he might be convicted on
the grounds of his assault of the victim, Plaintiff closed his
Complaint with a request for $750,000 in damages from each
natural Defendant (clarifying that these amounts must be deducted
from these Defendants’ wages), $2,000,000 from the Police
Department and $2,000,000 from the Office of the Prosecutor.
III. DISCUSSION
A.
Entities That Are Not “Persons”
Here, Plaintiff asserts that the Police Department and/or
the Sheriff’s Department and/or the Prosecutor’s Office violated
his rights by not preserving or by destroying the box cutter,
sheetrock knife, duct tape and the lid of the toilet tank
involved in Plaintiff’s assaults of the victim, and by not taking
(or not preserving, or destroying) the victim’s post-attack
photographs.
However, neither the Police Department nor the
Sheriff’s Department, or the Prosecutor’s Office is a “person”
within the meaning of a Section 1983 suit.
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See Will v. Michigan
Dep't of State Police, 491 U.S. 58 (1989); Monell v. Dep't of
Social Services of City of New York, 436 U.S. 658, 688-90 (1978);
Martin v. Red Lion Police Dep't, 146 F. App'x, 558, 562 n.3 (3d
Cir. 2005); see also Johnson v. Runyon, 1999 U.S. Dist. LEXIS
5748 (W.D. Mich. Apr. 22, 1999).
Therefore, Plaintiff’s claims
against the Police Department, the Sheriff’s Department and the
Office of the Prosecutor will be dismissed.4
B.
Persons Sued in Their Supervisory Capacity
Absent consent by a state, the Eleventh Amendment bars
federal court suits for money damages against state officers in
their official capacities, see Kentucky v. Graham, 473 U.S. 159,
169 (1985), and – in addition – supervising officials cannot be
held liable for actions of their subordinates unless the litigant
asserts facts showing these supervisors’ personal involvement in
the alleged wrongs.
See Iqbal, 129 S. Ct. 1937; Monell v.
Department of Social Services, 436 U.S. 658 (1978); Rizzo v.
Goode, 423 U.S. 362 (1976); Durmer v. O'Carroll, 991 F.2d 64, 69
4
Alternatively, Plaintiff’s challenges are subject to
dismissal under the Eleventh Amendment. A suit may be barred by
the Eleventh Amendment even though a state is not named a party
to the action as long as the state is the real party in interest.
See Fitchik v. N.J. Transit Rail Operations, 873 F.2d 655, 659
(3d Cir. 1989) (citing Edelman v. Jordan, 415 U.S. 651, 663
(1974)). For instance, a prosecutor's office, when acting in its
law enforcement capacity, is an arm of the State. See Wright v.
State, 169 N.J. 422, 455 (2001). Thus, a suit against such
office is a suit against the State itself and is prohibited by
the Eleventh Amendment immunity. See MCI Telecomm. Corp. v. Bell
Atl.-Pa. Serv., 271 F.3d 491, 503 (3d Cir. 2001).
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n.14 (3d Cir. 1993).
With the same token, claims against the supervisors are
subject to dismissal to the degree they are based solely on the
respondeat superior theory.
See Natale v. Camden County Corr.
Facility, 318 F.3d 575, 584 (3d Cir. 2003) (because respondeat
superior or vicarious liability cannot be a basis for liability
under 42 U.S.C. § 1983, a corporation – even if it is operation
under contract with the state – cannot be held liable for the
acts of its employees and agents under those theories).
Here, the Complaint clarifies that many natural persons
named as Defendants in this action are sued solely on the grounds
of the respondeat superior theory.5
Therefore, such claims as
those raised against Defendants Weinlein, James Smith, Burton and
Phil Smith will be dismissed.
5
Specifically, as to Defendant John Weinlein, the Complaint
asserts that he “[f]ailed to act in the duty to properly train
and supervise the officers, detectives and patrolman involved in
the proper techniques and procedures required and used in crime
investigations”; as to Defendant James Smith, the Complaint
identically asserts that he “[f]ailed to act in the duty to
properly train and supervise the detectives and patrolmen
involved in the proper techniques and procedures required and
used in standard crime investigations”; as to Defendant Ken
Burton, the Complaint also asserts that he “[f]ailed to act in
the duty to properly train and supervise detectives and patrolmen
involved in the proper techniques and procedures used in standard
crime investigations”; and as to Defendant Phil Smith the
Complaint too asserts that he “[f]ailed to act in the duty to
properly train and supervise the detectives and officers in the
proper techniques used in crime investigations.” Docket Entry
No. 4, at 3-5.
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c.
Claims Suggesting Malicious Prosecution Challenges
With regard to the remaining law enforcement officers,
Plaintiff asserts that they violated his rights by “[f]ail[ing]
to act in the duty to collect, find and process the crime scene
[and] to preserve, conduct or allow testing of evidence favorable
to [P]laintiff.”
Docket Entry No. 4, at 4-6 (paraphrasing the
same as to Defendants Stoker, Roth, Hess, etc.)
Plaintiff does not enlighten this Court as to the
constitutional nature of law enforcement officers’ duty to search
a crime scene with any particular degree of diligence.
With a
substantial stretch of imagination, this Court may construe
Plaintiff’s allegations to this effect as an attempt to state a
malicious prosecution claim (alleging that the actions of the law
enforcement officers maliciously triggered criminal prosecution
of Plaintiff, in the sense that his prosecution would not have
been initiated had the evidentiary matter (allegedly not
collected/preserved by law enforcement officers) been collected,
preserved and provided to the prosecutors).
A constitutional claim for malicious prosecution in the
Third Circuit requires a plaintiff to establish five elements:
(1) the defendants triggered 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
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the plaintiff to justice; and (5) the plaintiff suffered
deprivation of liberty consistent with the concept of seizure as
a consequence of a legal proceeding.6
See Kossler v. Crisanti,
564 F.3d 181, 186 (3d Cir. 2009) (citing Estate of Smith v.
Marasco, 318 F.3d 497, 521 (3d Cir. 2003)); see also Johnson v.
Knorr, 477 F.3d 75, 81-82 (3d Cir. 2007); Pittman v. McDuffy, 240
Fed. App'x 524, 526 (3d Cir. 2007); Helmy v. City of Jersey City,
178 N.J. 183 (2003) (citing Lind v. Schmid, 67 N.J. 255 (1975)).
“‘Failure to prove any one of these . . . elements denies the
plaintiff a cause of action for malicious prosecution.’”
Wilson
v. N.J. State Police, 2006 U.S. Dist. LEXIS 60514, at *28 (D.N.J.
Aug. 15, 2006) (quoting Wiltz v. Middlesex County Office of the
Prosecutor, 2006 U.S. Dist. LEXIS 46821, at *24 (D.N.J. July 12,
2006)).
The second element of malicious prosecution, favorable
termination, is established when the plaintiff is “innocent of
the crime charged in the underlying prosecution.”
Hector v.
Watt, 235 F.3d 154, 156 (3d Cir. 2000); see also Freeman v.
State, 347 N.J. Super. 11, 27 (N.J. Super. Ct. App. Div. 2002)
6
Analogously, under New Jersey law, “[a] malicious
prosecution action arising out of a criminal prosecution requires
proof: (1) that the criminal action was instituted by the
defendant against the plaintiff, (2) that it was actuated by
malice, (3) that there was an absence of probable cause for the
proceeding, and (4) that it was terminated favorably to the
plaintiff.” Campanello v. Port Auth. of N.Y. & N.J., 2010 U.S.
Dist. LEXIS 88785 (D.N.J. Aug. 27, 2010) (citing Lind, 67 N.J. at
262).
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(“The inquiry into whether a termination was favorable focuses on
whether it was dispositive as to the accused's innocence of the
crime for which they were charged”).
Even “[i]f the prosecutor
drops the charges as part of a compromise with the accused, the
accused will fail the favorable termination prong”; rather the
accused has to be actually acquitted of the charges at issue,
Pittman v. Metuchen Police Dep't, 2010 U.S. Dist. LEXIS 108898,
(D.N.J. Oct.13, 2010), since it is well settled that in
circumstances where a criminal charge is withdrawn or a
prosecution is abandoned pursuant to an agreement or compromise
with the accused, the termination is viewed as indecisive and
insufficient to support a cause of action for malicious
prosecution.
See Mondrow v. Selwyn, 172 N.J. Super. 379, 384
(N.J. Super. Ct. App. Div. 1980); Thomas v. N.J. Inst. of Tech.,
178 N.J. Super. 60, 61 (N.J. Super. Ct. 1981).
Here, it is self-evident that the charges underlying
Plaintiff’s upcoming criminal prosecution were not dismissed in
any fashion, moreover in the fashion showing that Plaintiff is
innocent of these charges.
Therefore, Plaintiff’s malicious
prosecution claims (that is, if such claims were intended or if
they could be, somehow, deduced from Plaintiff’s factual
allegations) must be dismissed for Plaintiff’s failure to
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establish the second element of his claim.7
D.
Time-Barred Claims
As noted in the preceding discussion, the legal nature of
Plaintiff’s claims asserting that law enforcement officers were,
somehow, obligated to collect “some” or “more” exculpatory
evidence for Plaintiff does not fit neatly – or even
approximately – within the realm of any constitutional claim
cognizable in Section 1983 proceedings (that is, short of the
above-discussed malicious prosecution construction).
That being said, this Court cannot rule out the possibility
that legal minds, if called to ponder at length over ways to
construe Plaintiff’s challenges based on the events immediately
following Plaintiff’s “stand-off” with authorities (e.g.,
Plaintiff’s challenges alleging insufficient search of the crime
scene by law enforcement officers or their failure to photograph
the victim in hospital, or their mishandling/loss of evidence),
might still fancy a constitutional cause of action other than
that of malicious prosecution.
However, such possibility cannot
7
Analogously, the seemingly undisputed circumstances
underlying Plaintiff’s prosecution, that is, the alleged-byPlaintiff multi-hour “stand-off” between Plaintiff and law
enforcement officers, Plaintiff’s tying/duct-taping of the
victim, Plaintiff’s continuous beating of the victim so she was
rendered unconscious time and again, Plaintiff’s possession of
box cutter and knife, etc., indicate that Plaintiff cannot
establish the third element of malicious prosecution claim, since
it cannot be argued that Plaintiff’s prosecution was initiated
without probable cause regardless of what evidence would be
collected at the crime scene.
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salvage Plaintiff’s challenges based on these events because all
these challenges are facially time barred.
For purposes of the statute of limitations, Section 1983
claims are characterized as personal injury actions.
v. Garcia, 471 U.S. 261, 275 (1983).
See Wilson
Accordingly, New Jersey's
two-year limitations period on personal injury actions, N.J.
Stat. Ann. § 2A:14-2, governs Plaintiff's claims.
See Montgomery
v. DeSimone, 159 F.3d 120, 126 & n.4 (3d Cir. 1998); Cito v.
Bridgewater Township Police Dept., 892 F.2d 23, 25 (3d Cir.
1989).
Under N.J. Stat. Ann. § 2A:14-2, an action for an injury to
the person caused by a wrongful act, neglect, or default must be
commenced within two years of accrual of the cause of action.
See Cito, 892 F.2d at 25; accord Brown v. Foley, 810 F.2d 55, 56
(3d Cir. 1987).
“[A] federal cause of action accrues when the
plaintiff discovers, or with due diligence should have
discovered, the injury that forms the basis for the claim.”
Disabled in Action of Pennsylvania v. Southeastern Pennsylvania
Transp. Authority, 539 F.3d 199, 209 (3d Cir. 2008).
Here, the events of Plaintiff’s “stand-off” with law
enforcement authorities and their examination of the crime scene
(and of the victim) took place on April 13, 2008.
Plaintiff’s
original complaint in this matter, however, was executed on
August 27, 2010, and – thus – it could not have been submitted by
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Plaintiff to his prison officials for mailing to this Court prior
to that (August 27, 2010) date.
Therefore, Plaintiff’s
challenges based on all events that took place (or were
discoverable with reasonable diligence) prior to August 28, 2008,
are time barred.8
Consequently, all Plaintiff’s challenges
associated with the circumstances of Plaintiff’s “stand-off,”
with the officers’ examination of the crime scene, with the
victim’s transfer to a hospital, with the victim’s examination by
police in that hospital, etc. are subject to dismissal, since all
these events took place many months prior to August 28, 2008.
E.
Claims Barred by Witness Immunity
As noted supra, in addition to his challenges based on the
events of April 13, 2008, Plaintiff also asserts that Defendant
Roth committed (perjury during a certain December 10, 2009,
proceeding pertaining to Plaintiff’s currently ongoing
prosecution) when Roth, allegedly, testified that he “knew [the
victim’s body] wiggled when she woke up from one of the beatings
she took.”
Docket Entry No. 4, at 8.
8
While Plaintiff’s Complaint details his efforts undertaken
in connection with his criminal proceedings and interactions with
his defense counsel, no statement made in the Complaint indicates
that Plaintiff was prevented, by some extraordinary means or
Defendants’ actions, from timely submission of his original
complaint in this matter. Therefore, no equitable considerations
applicable to statute of limitations analysis are triggered in
this action.
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However, the Supreme Court, in Briscoe v. LaHue, 460 U.S.
325, 330-46 (1983), held that trial witnesses are absolutely
immune from civil liability under § 1983.
See also Peterson v.
Bernardi, 719 F. Supp. 2d 419, 430 (D.N.J. 2010) (applying
Briscoe absolute immunity to a § 1983 claim that state police's
forensic expert gave false testimony at the plaintiff's criminal
trial); Ali v. Person, 904 F. Supp. 375, 377-78 (D.N.J. 1995)
(finding that Briscoe absolute immunity barred § 1983 claim
premised on the assertion that a police officer gave false
testimony during grand jury proceedings).
This testimonial
immunity “applies equally to the testimony of 'ordinary citizens'
and law enforcement officials,” and “the Supreme Court adopted
the immunity mindful that it would shield even witnesses who give
knowingly false testimony to unjustly convict an innocent
criminal defendant.”9
Peterson, 719 F. Supp. 2d at 430 (citing
Briscoe, 460 U.S. at 342 n.27, 345).
Therefore, all Plaintiff’s claims based on the alleged
9
No statement made in this Opinion examining Plaintiff’s
claims based on the alleged “perjury” should be construed as
expressing this Court’s opinion that Defendant Roth actually
committed perjury or that Plaintiff is innocent of the charges
underlying his criminal proceedings. These matters, as well as
all matters relating to the legal validity of past, current and
future stages of Plaintiff’s criminal prosecution are subject to
determination by Plaintiff’s current state tribunal and those
tribunals that might, in some point in time, preside over
Plaintiff’s direct appellate and/or collateral state challenges,
and/or federal habeas challenges, that is, if any of such
challenges are actually undertaken by Plaintiff in the future.
Page -17-
perjurious testimony will be dismissed.
F.
Claims Barred by Prosecutorial Immunity
In connection with the above-discussed claims asserting that
Defendant Roth committed perjury, Plaintiff also maintains that
Defendant Hillary Bryce, the prosecutor of State charges in
Plaintiff’s currently ongoing criminal proceedings, also violated
Plaintiff’s rights by allowing Roth to commit the above-detailed
alleged perjury.
In addition, Plaintiff also asserts that Bryce
violated Plaintiff’s rights by not providing Plaintiff with a
certain Brady material (or by not preserving that material).10
However, all Plaintiff’s challenges are barred by
prosecutorial immunity.
The Third Circuit has held that “[t]he
decision to initiate a prosecution is at the core of a
prosecutor's judicial role.
A prosecutor is absolutely immune
when making this decision, even where he acts without a good
faith belief that any wrongdoing has occurred.”
Kulwicki v.
Dawson, 969 F.2d 1454, 1463-64 (3d Cir. 1992) (citations
omitted).
The same applies to all pre-trial and trial stages of
criminal proceedings during which the prosecutor acts as advocate
10
As noted earlier, it appears that Plaintiff is complaining
about Bryce’s alleged failure to provide to Plaintiff’s defense
counsel the evidence which – according to Plaintiff’s defense
counsel – does not exist; such abstract evidence might include
either: (a) the box cutter, sheetrock knife, duct tape, lid of
the toilet tank and victim’s photographs taken in the hospital on
the date of the crime; or (b) only a few of these items; or (c)
any combination of these items and any other unspecified items;
or (d) such unspecified items only.
Page -18-
for the State.
See Kalina v. Fletcher, 522 U.S. 118 (1997)
(relying on Imbler v. Pachtman, 424 U.S. 409 (1976)).
That rule
applies to allegations asserting witnesses’ perjurious
testimonies fostered by prosecutors.
See Rose v. Bartle, 871
F.2d 331, 345 (3d Cir. 1989) (“charges that the prosecutors
induced witnesses to commit perjury are barred by the immunity
doctrine”) (quoting Heidelberg v. Hammer, 577 F.2d 429, 432 (7th
Cir. 1978)); see also Jennings v. Shuman, 567 F.2d 1213, 1221-22
(3d Cir. 1977) (“[A] prosecutor is entitled to absolute immunity
'while performing his official duties' as a officer of the court,
even if, in the performance of those duties, he is motivated by a
corrupt or illegal intention”) (citation omitted); accord Buckley
v. Fitzsimmons, 509 U.S. 259, 273 (1993) (“acts undertaken by a
prosecutor in preparing for the initiation of judicial
proceedings or for trial” enjoy absolute immunity).11
11
Even the allegation of conspiracy between the prosecutor
and other defendants, e.g., police officers, comes within a
prosecutor's absolute immunity. See Dory v. Ryan, 25 F.3d 81, 83
(2d Cir. 1994) (“absolute immunity protects a prosecutor from §
1983 liability for virtually all acts, regardless of motivation,
associated with his function as an advocate. This would even
include . . . allegedly conspiring to present false evidence at a
criminal trial. The fact that such a conspiracy is certainly not
something that is properly within the role of a prosecutor is
immaterial, because ‘[t]he immunity attaches to his function, not
to the manner in which he performed it.’ Barrett v. United
States, 798 F.2d 565, 573 (2d Cir. 1986). . . . As much as the
idea of a prosecutor conspiring to falsify evidence disturbs us .
. . we recognize that there is a greater societal goal in
protecting the judicial process by preventing perpetual suits
against prosecutors for the performance of their duties”); Davis
v. Grusemeyer, 996 F.2d 617, 628 n.20 (3d Cir. 1993)(“engaging in
Page -19-
Analogously, allegations that a prosecutor, while acting as
an advocate for the State, failed to disclose evidence
potentially favorable to a criminal defendant are barred by
prosecutorial immunity, see Broam v. Bogan, 320 F.3d 1023, 1030
(9th Cir. 2003)(“A prosecutor's decision not to preserve or turn
over exculpatory material before trial, during trial, or after
conviction is a violation of due process under Brady v. Maryland,
373 U.S. 83, 87 (1963).
It is, nonetheless, an exercise of the
prosecutorial function and entitles the prosecutor to absolute
immunity from a civil suit for damages”), and this rule has been
long adopted and faithfully enforced in this Circuit.
See Yarris
v. County of Delaware, 465 F.3d 129 (3d Cir. 2006) (where the
Court of Appeals detailed and nuanced analysis of when a
prosecuting attorney is, and is not, entitled to absolute
immunity for allegedly wrongful acts in connection with a
prosecution and held that a prosecutor is entitled to immunity
for making the decision to deliberately withhold exculpatory
evidence before and during trial).
Therefore, all Plaintiff’s
claims against Defendant Bryce should be dismissed.
a conspiracy to maliciously prosecute does not affect
prosecutor's absolute immunity from liability for the damages
resulting from the malicious prosecution”) (citing Rose v.
Bartle, 871 F.2d 331, 347 (3d Cir. 1989)), abrogation on other
grounds recognized by, Knight v. Poritz, 157 Fed. App’x 481, 487
(3d Cir. 2005)).
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G.
Plaintiff’s Claims Are Barred by the Younger Abstention
Here, the goal of Plaintiff’s aforesaid challenges is selfevident: Plaintiff is asking this Court to award him damages,
implicitly finding that, if Plaintiff is convicted, his
conviction would be unduly obtained because of his inability to
present the box cutter, sheetrock knife, duct tape, the victim’s
post-attack photographs and the lid of the toilet tank.
While
Plaintiff’s claims are not subject to the bar articulated in Heck
v. Humphrey, 512 U.S. 477 (1994), see Dique v. N.J. State Police,
603 F.3d 181, 187 (3d Cir. 2010), all of Plaintiff’s vaguely
articulated challenges to hypothetical due process deficiencies
of his upcoming trial are barred by the abstention doctrine
articulated in Younger v. Harris, 401 U.S. 37, which “espouse[s]
a strong federal policy against federal-court interference with
pending state judicial proceedings absent extraordinary
circumstances.”
Middlesex County Ethics Committee v. Garden
State Bar Ass'n, 457 U.S. 423, 431 (1982).
“Younger abstention,”
as the Court's teaching is known, “is premised on the notion of
comity, a principle of deference and 'proper respect' for state
governmental functions in our federal system.”
Evans v. Court of
Common Pleas, Delaware County, Pa., 959 F.2d 1227, 1234 (3d Cir.
1992), cert. dismissed, 506 U.S. 1089 (1993).
Comity concerns
are especially heightened when, as here, the ongoing state
governmental function is a criminal proceeding.
Page -21-
See id.
The specific elements of the Younger abstention are: “(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 federal claims.”
Cir. 1989).
hand.
Schall v. Joyce, 885 F.2d 101, 106 (3d
All three Younger criteria are met in the case at
First, Plaintiff's claim concerns the separate pending
criminal case.
Second, based upon the fact that Plaintiff is
attempting to raise due process issues concerning the validity of
his upcoming trial and potential conviction, the proceeding
clearly implicates important state interests.
Third, the State
forum affords Plaintiff an adequate opportunity to raise his due
process challenges.12
Therefore, all Plaintiff’s challenges
(i.e., those that were included and those that were not expressly
included within the above-provided extensive discussion of all
Plaintiff’s claims) are subject to dismissal on the Younger
grounds, since every statement in the Complaint implicates – in
one way or another – the issue of legality of Plaintiff’s
criminal proceedings of his potentially upcoming conviction and
12
Plaintiff has not asserted that he is unable to present
his federal claims in his related state court proceedings. Thus,
this Court may assume that the state procedures will afford an
adequate remedy. See Kelm v. Hyatt, 44 F.3d 415, 420 (6th Cir.
1995) (citing Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 17
(1987)) (“Initially, we must presume that the state courts are
able to protect the interests of the federal plaintiff”).
Page -22-
sentence.
H.
Leave to Amend Will Be Futile
Generally, even “[w]hen a plaintiff does not seek leave to
amend a deficient complaint . . . , the Court must inform the
plaintiff that he has leave to amend within a set period of
time,” Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.
2002), that is, “unless amendment would be . . . futile.”
Id.;
see also Foman v. Davis, 371 U.S. 178, 182 (1962) (ordinarily,
the plaintiff may be granted “leave [to amend,] . . . when
justice so requires”); In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1434 (3d Cir. 1997) (futility of amendment occurs
when the complaint, even if amended, would not be able to state a
claim upon which relief can be granted).
Here, Plaintiff already submitted his original complaint and
his instant amended Complaint at bar.
and 4.
See Docket Entries Nos. 1
The amended Complaint at hand names eleven persons and
entities as Defendants and details the facts underlying
Plaintiff’s challenges on four and a half single-spaced pages.
See Docket Entry No. 4.
However, every aspect of the Complaint
indicates that each Plaintiff’s allegation against every person
or entity is deficient, usually on multiple grounds, and these
deficiencies are conclusively fatal to Plaintiff’s position
Page -23-
against each and every Defendant.13
Therefore, here, grant of leave to amend appears wholly
futile.
For these reason, Plaintiff’s amended Complaint, Docket
Entry No. 4, will be dismissed with prejudice.
IV.
CONCLUSION
The Court will grant Plaintiff’s application to file the
amended Complaint in forma pauperis and will dismiss Plaintiff’s
claims with prejudice.
An appropriate Order accompanies this
Opinion.
/s/ Joel A. Pisano
JOEL A. PISANO
United States District Judge
Dated:
June 27, 2011
13
E.g., Plaintiff’s amendment of his allegations against
entities not qualified as “persons” for the purposes of Section
1983 action would not alter the “non-person” status of these
entities; Plaintiff’s amendment of claims against persons who,
under the detailed facts of the Complaint, could not have been
personally involved in the events alleged in the Complaint would
not alter the pure respondeat superior nature of Plaintiff’s
challenges; Plaintiff’s amendment of claims suggesting malicious
prosecution challenges would not alter the fact that, at this
juncture, Plaintiff cannot establish that he was innocent of the
crimes underlying his currently ongoing prosecution; Plaintiff’s
amendment of untimely claims would not turn time backward;
Plaintiff’s amendment of claims barred by prosecutorial or
witness immunity would not change the legal principles of
absolute immunity; and the totality of Plaintiff’s challenges –
unambiguously inviting this Court to render on the validity of
Plaintiff’s currently ongoing criminal proceedings and his
potentially upcoming conviction and sentence – would continue
implicating the Younger bar regardless of how Plaintiff would
paraphrase the finer details of his claims.
Page -24-
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