CARTER v. STATE OF NEW JERSEY et al
Filing
26
OPINION filed. Signed by Judge Freda L. Wolfson on 11/22/2011. (eaj)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
AUDREY CARTER,
Plaintiff,
v.
STATE OF NEW JERSEY, et al.,
Defendants.
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Civil Action No. 11-439(FLW)
OPINION
APPEARANCES:
AUDREY CARTER, Plaintiff pro se
1701 Salem Road, Apt. N-12
Burlington, New Jersey 08106
LUANH LLOYD D’MELLO, ESQ.
OFFICE OF THE NJ ATTORNEY, STATE OF NEW JERSEY
DIVISION OF LAW
25 West Market Street, P.O. Box 112
Trenton, New Jersey 08625
Counsel for Defendants, the State of New Jersey and Paula
Dow
ROCKY LEE PETERSON, ESQ.
HILL WALLACK, LLP
202 Carnegie Center, CN 5226
Princeton, New Jersey 08543-5226
Counsel for Defendants Mercer County Prosecutor’s Office and
Assistant Prosecutor John Jingoli
WOLFSON, District Judge
Plaintiff Audrey Carter (hereinafter “Plaintiff”), brings
this action in forma pauperis.
The Court has considered
Plaintiff’s application for indigent status in this case and
concludes that she is permitted to proceed in forma pauperis
without prepayment of fees or security thereof, in accordance
with 28 U.S.C. § 1915(a).
However, having reviewed the
Complaint, filed on January 21, 2011, and the amended Complaint,
filed on January 24, 2011, pursuant to 28 U.S.C. § 1915(e)(2),
and for the reasons set forth below, this Court finds that this
action should be dismissed for failure to state a claim upon
which relief may be granted, pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii).
On May 24, 2011, defendant Mercer County Prosecutor’s Office
filed a motion to dismiss this action pursuant to Fed.R.Civ.P.
12(b)(6).
Because the Court has screened this action, sua
sponte, pursuant to 28 U.S.C. § 1915(e)(2), and has determined
that the matter should be dismissed for failure to state a claim,
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), as set forth below,
defendant’s motion is hereby rendered moot.
BACKGROUND
On September 1, 2009, this Court ordered that Plaintiff “is
barred and enjoined from filing any document or pleading of any
kind with the Court as a pro se litigant, except in pending
litigation, unless Plaintiff (1) first seeks leave of the Court
granting Plaintiff written permission to file any such document
or pleading and (2) a Judge of the Court grants Plaintiff leave
to file such document or pleading.”
Carter v. New Jersey State,
et al., Civil No. 09-3704 (FLW)(Docket entry no. 6).
2
Further, in
its September 1, 2009 permanent injunction, the Court established
that it would consider granting such approval only if Plaintiff
submits to the Court a certification taken under oath stating:
“(1) that the complaint is not frivolous or vexatious, nor
repetitive or violative of a court order, (2) that all claims
presented have never been raised in this Court before and
disposed of on the merits, and that it is not barred by
principles of claim or issue preclusion, (3) that the proposed
filing can survive a challenge under Fed.R.Civ.P. 12, (4) that
all facts alleged in the complaint are believed to be true by
Plaintiff, (5) that Plaintiff has no knowledge or belief that her
claims are for any reason foreclosed by controlling law, and (6)
that the pleading is in compliance with Fed.R.Civ.P. 11.”
(Id.)
In the instant matter, Plaintiff submitted her Complaint and
amended Complaint for filing without complying with this Court’s
September 1, 2009 Order.
In particular, Plaintiff brings this
action asserting that her civil rights were violated and seeking
monetary damages based on general claims of gender, race and
disability-based discrimination by the following defendants: the
State of New Jersey; Attorney General of New Jersey Paula Dow;
the Trenton Public Defender’s Office; the Mercer County
Prosecutor’s Office; Attorney Steve Hallett; Prosecutor Bert
Scott; Judge Williams; Public Defender Supervisor Vernon Clash;
3
and Prosecutor Supervisor John Jingoli.
(Complaint, Caption,
opening paragraph).
Plaintiff alleges that these defendants did violate her
civil rights, presumably under 42 U.S.C. § 1983, in the Trenton
Municipal Court during the months from 2009 through January 13,
2011.
She generally claims that the defendants discriminated
against her based on her disabilities, and was shown malice in
court.
Plaintiff alleges that she paid for a public defender,
provided by the State of New Jersey, who then failed to represent
her in court three times.
Plaintiff further alleges that there
was a “conflict of interest” due to the public defender’s
personal and public affiliation with defendant Steve Hallett.
She also alleges that the Judge, Prosecutor and public defender
did “illegal court proceedings and failed to allow [her] a fair
hearing, speedy trial after three court appearances.”
(Compl.,
Cause of Action).
In the brief and amended brief submitted by Plaintiff, she
admits that defendant Steve Hallett had filed a complaint against
Plaintiff in state court.
It is from this municipal court action
that the incidents and allegations derive.1
1
Plaintiff alleges that she had a personal relationship
with Hallett, that he had proposed marriage to her, that he had
asked her to run an ad in the newspaper about the proposed
marriage, which she did, and that he then called the wedding off
and married another. After the ad in the newspaper was
published, Hallett filed his complaint against Plaintiff, seeking
a restraining order against Plaintiff. This Court is well
4
In particular, Plaintiff enumerates the following alleged
wrongful conduct by defendants:
(1) violation of freedom to walk. (2) failure to have a
speedy hearing or trial. (3) differential treatment. (4)
discrimination of gender and disabilities. (5) failure to
give proper representation by the public defenders office
after payment during all court hearings. (6) failure to
transfer court case to another county or court without
conflict of interest app. 3 times. (7) illegally forcing
defendants to move out of the State to live by showing
discrimination by no contact order. (8) discrimination by
Judge, the Plaintiff [Hallett], Prosecutor and public
defender comments during court proceedings knowing I was not
being properly represented and the defendant was a[n]
attorney and a[n] acquaintance. (9) failure to give a
timely hearing. (10) fair hearing, caused the defendant
embarrassment and humiliation in court by prejudice and
favoring the plaintiff without [a] hearing each time. (11)
allowed extensive time period six months to bring the case
back in for a hearing on January 13, 2011. (12) asked the
defendant questions about legal representation. (13) the
public defenders stated a conflict of interest and still
proceeded in court app 3 times after defendant requested the
case be moved to another County the first time. (14) public
defenders office failed to talk to me about my case each
time and proceeded in court app 3 times. (15) the
prosecutor refused to drop the criminal charges and
proceeded when she knew the state had made errors and still
proceeded and did not do there [sic] job in having the case
move out of County. (16) Last Judge Williams violated my
rights telling me I should of [sic] left a public place
after I had been seated, paid for my items and was enjoying
familiar with Plaintiff’s frivolous actions against Hallett in
the recent past, many of which served as a basis for the Court’s
issuance of the September 1, 2009 All Writs Injunction Order.
Indeed, Plaintiff filed numerous complaints against Hallett that
were dismissed for failure to state a claim or because they
contained frivolous and/or delusional allegations against him.
See See Carter v. New Jersey State, et al., Civil No. 09-512
(AET); Carter v. State of New Jersey, et al., Civil No. 09-1047
(AET); Carter v, United States District Court, et al., Civil No.
09-2314 (JBS); Carter v. New Jersey State, et al., Civil No. 093704 (FLW); and Carter v. Judge Brown, et al., Civil No. 10-5714
(FLW).
5
myself. Judge Williams then told me in court on January 13,
2011, after the situation I was in, meaning the charges I
was to leave the place, as soon as Attorney Steve Hallett
entered. He wanted my life style confined.
(Plaintiff’s Amended Brief, dated January 24, 2011, Docket entry
no. 2).
On May 24, 2011, defendant Mercer County Prosecutor’s Office
filed a motion to dismiss the Complaint pursuant to Fed.R.Civ.P.
12(b)(6).
(Docket entry no. 4).
The motion asserts that the
Complaint should be dismissed because the Complaint fails to
state a claim upon which relief may be granted, because the
prosecutor defendants are entitled to prosecutorial immunity
under federal law, and because the prosecutor defendants are
entitled to immunities under the New Jersey Tort Claims Act.
(Id.).
On July 6, 2011, Plaintiff filed a motion to have all
municipal court transcripts heard in Court and added to the
record.
(Docket entry no. 9).
On July 8, 2011, Plaintiff filed
another motion to allow the use of the municipal court
transcripts in this case and for recusal of judges from this
case.2
Namely, Plaintiff seeks to have this Court and the
Honorable Tonianne J. Bongiovanni, U.S.M.J. recuse themselves
from this case because it is a “conflict of interest” for them
“to handle this civil matter, along with Judge Garrett Brown.”
2
Also on July 8, 2011, Plaintiff filed an application for
appointment of counsel. (Docket entry no. 11).
6
(Docket entry no. 10, at pg. 1).
In her motion, Plaintiff also
asserted arguments in opposition to the motion filed by
defendant, Mercer County Prosecutor’s Office.
reply brief on July 14, 2011.
Defendant filed a
(Docket entry no. 13).
On July 18, 2011, Plaintiff filed another letter brief in
opposition to defendant’s motion to dismiss.
14).
(Docket entry no.
On July 20, 2011, Plaintiff submitted copies of the
municipal court transcripts regarding the claims raised in this
matter.
(Docket entry no. 15).
On July 21, 2011, Plaintiff filed yet another motion for
miscellaneous relief and to add two new parties to this action.
(Docket entry no. 16).
The two new parties are the public
defenders, Jason Hageman and Dwayne Williamson, who represented
Plaintiff at her municipal court hearing dates.
(Id.).
On July 25, 2011, defendant Mercer County Prosecutor’s
Office filed a supplemental reply letter.
(Docket entry no. 17).
Also on July 25, 2011, Plaintiff filed a request for summary
judgment.
(Docket entry no. 18).
Plaintiff asks to be awarded damages in the amount of
$200,000.00 for pain and suffering, differential treatment and
discrimination.
(Complaint, Demand).
7
DISCUSSION
A.
Standard of Review
The Complaint by a litigant proceeding in forma pauperis is
subject to sua sponte dismissal by the court if the Complaint is
frivolous or malicious, fails to state a claim upon which relief
may be granted, or seeks money damages from defendants who are
immune from such relief.
28 U.S.C. § 1915(e)(2)(B).
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)).
F.2d 39, 42 (3d Cir. 1992).
See also United States v. Day, 969
The Court must “accept as true all
of the allegations in the complaint and all 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).
The Court need not, however,
credit a pro se plaintiff’s “bald assertions” or “legal
conclusions.”
Id.
A complaint is frivolous if it “lacks an arguable basis
either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319,
325 (1989) (interpreting the predecessor of § 1915(e)(2), the
former § 1915(d)).
The standard for evaluating whether a
8
complaint is “frivolous” is an objective one.
Deutsch v. United
States, 67 F.3d 1080, 1086-87 (3d Cir. 1995).
A pro se complaint may be dismissed for failure to state a
claim only if it appears “‘beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief.’”
Haines, 404 U.S. at 521 (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)).
See also Erickson, 551 U.S.
at 93-94 (In a pro se prisoner civil rights complaint, the Court
reviewed whether the complaint complied with the pleading
requirements of Rule 8(a)(2)).
However, recently, the Supreme Court revised this standard
for summary dismissal of a Complaint that fails to state a claim
in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009).
The issue before
the Supreme Court was whether Iqbal’s civil rights complaint
adequately alleged defendants’ personal involvement in
discriminatory decisions regarding Iqbal’s treatment during
detention at the Metropolitan Detention Center which, if true,
violated his constitutional rights.
Id.
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.”
Fed.R.Civ.P. 8(a)(2).3
Citing its recent opinion in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), for the
3
Rule 8(d)(1) provides that “[e]ach allegation must be
simple, concise, and direct. No technical form is required.”
Fed.R.Civ.P. 8(d).
9
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 identified two
working principles underlying the failure to state a claim
standard:
First, the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice ... . Rule 8 ... does not unlock the doors of
discovery for a plaintiff armed with nothing more than
conclusions. Second, only a complaint that states a
plausible claim for relief survives a motion to dismiss.
Determining whether a complaint states a plausible claim for
relief will ... be a context-specific task that requires the
reviewing court to draw on its judicial experience and
common sense. But where the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not
“show[n]”-“that the pleader is entitled to relief.” Fed.
Rule Civ. Proc. 8(a)(2).
Iqbal, 129 S.Ct. at 1949-1950 (citations omitted).
The Court further explained that
a court considering a motion to dismiss can choose to begin
by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.
When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.
Iqbal, 129 S.Ct. at 1950.
Thus, to prevent a summary dismissal, civil complaints must
now allege “sufficient factual matter” to show that a claim is
facially plausible.
This then “allows the court to draw the
10
reasonable inference that the defendant is liable for the
misconduct alleged.”
Id. at 1948.
The Supreme Court’s ruling in
Iqbal emphasizes that a plaintiff must demonstrate that the
allegations of his complaint are plausible.
Id. at 1949-50; see
also Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC Shadyside,
578 F.3d 203, 210(3d Cir. 2009).
Consequently, the Third Circuit observed that Iqbal provides
the “final nail-in-the-coffin for the ‘no set of facts’ standard”
set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),4 that
applied to federal complaints before Twombly.
at 210.
Fowler, 578 F.3d
The Third Circuit now requires that a district court
must conduct the two-part analysis set forth in Iqbal when
presented with a motion to dismiss:
First, the factual and legal elements of a claim should be
separated. The District Court must accept all of the
complaint’s well-pleaded facts as true, but may disregard
any legal conclusions. [Iqbal, 129 S.Ct. at 1949-50].
Second, a District Court must then determine whether the
facts alleged in the complaint are sufficient to show that
the plaintiff has a “plausible claim for relief.” [Id.] In
other words, a complaint must do more than allege the
plaintiff’s entitlement to relief. A complaint has to
“show” such an entitlement with its facts. See Phillips,
515 F.3d at 234-35. As the Supreme Court instructed in
Iqbal, “[w]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct,
the complaint has alleged-but it has not ‘show [n]’-‘that
4
In Conley, as stated above, a district court was
permitted to summarily dismiss a complaint for failure to state a
claim only if “it appear[ed] beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief. Id., 355 U.S. at 45-46. Under this “no set of
facts” standard, a complaint could effectively survive a motion
to dismiss so long as it contained a bare recitation of the
claim’s legal elements.
11
the pleader is entitled to relief.’” Iqbal, [129 S.Ct. at
1949-50]. This “plausibility” determination will be “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Id.
Fowler, 578 F.3d at 210-211.
This Court is mindful, however, that the sufficiency of this
pro se pleading must be construed liberally in favor of
Plaintiff, even after Iqbal.
(2007).
See Erickson v. Pardus, 551 U.S. 89
Moreover, a court should not dismiss a complaint with
prejudice for failure to state a claim without granting leave to
amend, unless it finds bad faith, undue delay, prejudice or
futility. See Grayson v. Mayview State Hosp., 293 F.3d 103, 110111 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 117 (3d Cir.
2000).
B.
Standard on Motion to Dismiss
Similarly, on a motion to dismiss for failure to state a
claim pursuant to Fed.R.Civ.P. 12(b)(6), the Court is required to
accept as true all allegations in the Complaint and all
reasonable inferences that can be drawn therefrom, and to view
them in the light most favorable to the non-moving party.
See,
e.g., Iqbal, 129 S.Ct. at 1949-50; Twombly, 550 U.S. at 555;
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384
(3d Cir. 1994).
A complaint should be dismissed only if the
alleged facts, taken as true, fail to state a claim.
S.Ct. at 1950.
Iqbal, 129
The question is whether the claimant can prove
any set of facts consistent with his or her allegations that will
12
entitle him or her to relief, not whether that person will
ultimately prevail.
Semerenko v. Cendant Corp., 223 F.3d 165,
173 (3d Cir. 2000), cert. denied, Forbes v. Semerenko, 531 U.S.
1149 (2001).
Thus, for a complaint to survive dismissal under Rule
12(b)(6), it “must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
face.’”
570).
Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at
In determining the sufficiency of a complaint, the Court
must accept all well-pleaded factual allegations in the complaint
as true and draw all reasonable inferences in favor of the nonmoving party.
See Phillips v. County of Allegheny, 515 F.3d 224,
234 (3d Cir. 2008).
But, “the tenet that a court must accept as
true all of the allegations contained in a complaint is
inapplicable to legal conclusions [;][t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.”
Iqbal, 129 S.Ct. at 1949.
Additionally, in evaluating a plaintiff’s claims, generally “a
court looks only to the facts alleged in the complaint and its
attachments without reference to other parts of the record.”
Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261
(3d Cir. 1994).
13
C.
Section 1983 Actions
Plaintiff appears to assert jurisdiction in this matter
pursuant to 42 U.S.C. § 1983, by alleging generally that the
defendants “[d]id violate [her] civil rights and other rights
within the [Trenton municipal] court during months of 2009
through January 13, 2011.”
(Compl., “Jurisdiction”).
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
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 state a claim for relief under § 1983, a plaintiff must
allege, first, the violation of a right secured by the
Constitution or laws of the United States and, second, that the
alleged deprivation was committed or caused by a person acting
under color of state law.
West v. Atkins, 487 U.S. 42, 48
(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.
1994).
Consequently, any claim Plaintiff may be asserting against
defendant Steve Hallett must be dismissed because he is not a
state actor.
14
D.
Judicial Immunity
Generally, a judicial officer in the performance of his or
her duties has absolute immunity from suit.
Mireless v. Waco,
502 U.S. 9, 12, 112 S.Ct. 286, 116 L. Ed.2d 9 (1991).
This
immunity extends to judges of courts of limited jurisdiction,
such as New Jersey municipal court judges.
Figueroa v.
Blackburn, 39 F. Supp.2d 479, 484 (D.N.J. 1999), aff’d, 208 F.3d
435, 441-43 (3d Cir. 2000).
Further, “[a] judge will not be
deprived of immunity because the action he took was in error, was
done maliciously, or was in excess of his authority.”
Stump v.
Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 55 L. Ed.2d 331
(1978).
Judicial immunity serves an important function in that
it furthers the public interest in judges who are “at liberty to
exercise their functions with independence and without fear of
consequences.”
Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213,
18 L. Ed.2d 288 (1967).
Judicial immunity is an immunity from
suit, not just from ultimate assessment of damages.
Mireless,
502 U.S. at 11.
Courts have repeatedly emphasized the extensive scope of
judicial immunity, holding that immunity applies “‘however
injurious in its consequences [the judge's action] may have
proved to the plaintiff’.”
Gallas v. Supreme Court, 211 F.3d
760, 769 (3d Cir. 2000)(quoting Cleavinger v. Saxner, 474 U.S.
193, 199-200 (1985)).
“Disagreement with the action taken by the
15
judge ... does not justify depriving that judge of his
immunity.... The fact that the issue before the judge is a
controversial one is all the more reason that he should be able
to act without fear of suit.”
Stump, 435 U.S. at 363-64.
Further, highlighting its expansive breadth, the court explained
“the public policy favoring the judicial immunity doctrine
outweighs any consideration given to the fact that a judge’s
errors caused the deprivation of an individual’s basic due
process rights.”
Figueroa, 39 F. Supp.2d at 495.
There are two circumstances where a judge’s immunity from
civil liability may be overcome.
These exceptions to the
doctrine of judicial immunity are narrow in scope and are
infrequently applied to deny immunity.
The first exception is
where a judge engages in nonjudicial acts, i.e., actions not
taken in the judge’s judicial capacity.
208 F.3d at 440.
Id.; see also Figueroa,
The second exception involves actions that,
though judicial in nature, are taken in the complete absence of
all jurisdiction.
at 440.
Mireless, 502 U.S. at 11; Figueroa, 208 F.3d
Neither exception is applicable in the present case.
In light of the foregoing, Plaintiff’s Complaint must be
dismissed with respect to the named defendant, Judge Williams of
the Trenton Municipal Court.
16
E.
Prosecutorial Immunity
Plaintiff also brings this action against state prosecutor
defendants, namely, Bert Scott and John Jingoli.
“[A] state
prosecuting attorney who act[s] within the scope of his or her
duties in initiating and pursuing a criminal prosecution” is not
amenable to suit under § 1983.
410 (1976).
Imbler v. Pachtman, 424 U.S. 409,
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.
Burns v. Reed, 500 U.S. 478, 492 (1991).
Similarly, “acts undertaken by a prosecutor in preparing for the
initiation of judicial proceedings or 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 Kalina v.
Fletcher, 522 U.S. 118 (1997) (prosecutor is protected only by
qualified immunity for attesting to the truth of facts contained
in certification in support of arrest warrant, as in her
provision of such testimony she functioned as a complaining
witness rather than a prosecutorial advocate for the state);
Burns, 500 U.S. at 492-96 (the provision of legal advice to
police during pretrial investigation is protected only by
17
qualified immunity); Buckley, 409 U.S. at 276-78 (prosecutor is
not acting as an advocate, and is not entitled to absolute
immunity, when holding a press conference or fabricating
evidence).
See also Yarris v. County of Delaware, 465 F.3d 129
(3d Cir. 2006)(where the Court of Appeals for the Third Circuit
presents a 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,
holding, for example, that a prosecutor is not entitled to
absolute immunity for deliberately destroying highly exculpatory
evidence, but is entitled to immunity for making the decision to
deliberately withhold exculpatory evidence before and during
trial, but not after the conclusion of adversarial proceedings).
Here, Plaintiff’s meager allegations against Scott and
Jingoli plainly fall within the scope of their prosecutorial
duties in initiating and pursuing a criminal prosecution against
plaintiff.
There are absolutely no allegations that appear to
fall outside the scope of their prosecutorial role, and this
Court is hard-pressed to find any allegation of wrongdoing or
prosecutorial misconduct of any kind.
See Imber, 424 U.S. at
424-47 (finding absolute immunity for prosecutor’s knowing use of
perjured testimony in judicial proceedings).
Further, to the extent that Plaintiff may be alleging a
claim of conspiracy by the prosecutor defendants and others,
18
including Steve Hallett and the public defender defendants, the
Complaint consists of nothing more than threadbare, conclusory
statements that fail to satisfy the pleading requirements under
Rule 8.
See Iqbal, 129 S.Ct. at 1949-50.
Accordingly, the
claims against the prosecutor defendants, Scott and Jingoli, for
their conduct and actions during the municipal court prosecution
of Plaintiff must be dismissed with prejudice for failure to
state a cognizable claim under § 1983.
F.
Public Defender Defendants
Next, Plaintiff appears to assert a claim against the Public
Defender’s Office, Supervisor Vernon Clash and the individual
assigned counsel, alleging ineffective assistance of counsel
during plaintiff’s municipal court criminal proceedings in
violation of her Sixth Amendment rights.
This claim is not
actionable at this time in a § 1983 action.
First, defendants
are not subject to liability under § 1983 because they are not
state actors.
A public defender “does not act under color of
state law when performing a lawyer’s traditional functions as
counsel to a defendant in a criminal proceeding.”
Polk Co. v.
Dodson, 454 U.S. 312, 325 (1981) (a public defender performing a
lawyer’s traditional functions as counsel to a defendant, such as
determining trial strategy and whether to plead guilty, 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
19
color of state law).
Even if defendants were privately retained
lawyers, they would not be subject to liability under § 1983.
Steward v. Meeker, 459 F.2d 669 (3d Cir. 1972) (privatelyretained counsel does not act under color of state law when
representing client).
Moreover, even if Plaintiff had pleaded facts establishing
that her assigned attorneys were acting under color of state law,
any claim concerning a violation of plaintiff’s right to
effective assistance of counsel must first be raised in
plaintiff’s ongoing state criminal proceedings.
A federal court
generally will not intercede to consider issues that the
plaintiff has an opportunity to raise before the state court.
See Younger v. Harris, 401 U.S. 37 (1971).5
Therefore, plaintiff’s Complaint asserting any liability
against the public defender defendants under § 1983, as to an
ineffective assistance of counsel claim, must be dismissed for
failure to state a claim, pursuant to 28 U.S.C. § 1915A(b)(1).
5
Further, to the extent that Plaintiff’s criminal trial is
no longer pending, and she has been sentenced on any state
charges, which is not apparent from the Complaint, any claim of
ineffective assistance of counsel in this regard must first be
exhausted via state court remedies, i.e., by direct appeal or
other available state court review; and then, if appropriate, by
filing a federal habeas application, under 28 U.S.C. § 2254, to
assert any violations of federal constitutional or statutory law,
namely, her claim of ineffective assistance of counsel. Preiser
v. Rodriguez, 411 U.S. 475 (1973).
20
G.
Claims Against State of New Jersey and Dow
Finally, this Court will dismiss the Complaint with respect
to defendants, the State of New Jersey, and the N.J. Attorney
General Paula Dow, because Plaintiff has asserted no factual
allegations of any kind, let alone, wrongdoing by these
defendants.
See Iqbal, 129 S.Ct. at 1949-50.
Plaintiff simply
alleges that the defendants violated her civil rights, and that
they did discriminate against her during her municipal court
proceedings.
These bare allegations are nothing more than a
legal conclusion wholly unsupported by any factual allegation,
which is insufficient to state a claim under Iqbal.
See Iqbal,
129 S.Ct. at 1950.
Moreover, the Complaint against these defendants is barred
under the Eleventh Amendment.
The Eleventh Amendment to the
United States Constitution provides that, “The Judicial power of
the United States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of the United
States by citizens of another State, or by Citizens or Subjects
of any Foreign State.”
As a general proposition, a suit by
private parties seeking to impose a liability which must be paid
from public funds in a state treasury is barred from federal
court by the Eleventh Amendment, unless Eleventh Amendment
immunity is waived by the state itself or by federal statute.
See, e.g., Edelman v. Jordan, 415 U.S. 651, 663 (1974).
21
The
Eleventh Amendment protects states and their agencies and
departments from suit in federal court regardless of the type of
relief sought.
Pennhurst State School and Hospital v. Halderman,
465 U.S. 89, 100 (1984).
Thus, based on the doctrine of
sovereign immunity, states cannot be sued in federal court,
unless Congress has abrogated that immunity or the State has
waived it.
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66
(1989).
Similarly, absent consent by a state, the Eleventh Amendment
bars federal court suits for money damages against state officers
in their official capacities.
159, 169 (1985).
See Kentucky v. Graham, 473 U.S.
This immunity extends to state agents or
officials when the “action is in essence one for the recovery of
money from the state, the state is the real, substantial party in
interest and is entitled to sovereign immunity from suit even
though individual officials are nominal defendants.”
Regents of
the Univ. of Cal. v. Doe, 519 U.S. 425, 431 (1997).
Section 1983
does not override a state’s Eleventh Amendment immunity.
v. Jordan, 440 U.S. 332 (1979).
Quern
Therefore, “[a]s a matter of
law, suits against individuals acting in their official
capacities are barred by the Eleventh Amendment.”
Taylor, 604 F. Supp.2d 692, 699 (D. Del.
2009).
v. New York, 316 F.3d 93, 101 (2d Cir. 2002).
22
Holland v.
See also Davis
Consequently, the Court will dismiss the Complaint with
prejudice, in its entirety, as against the defendants, the State
of New Jersey and N.J. Attorney General Paula Dow, pursuant to
the Eleventh Amendment.6
H.
Preclusion Order
Alternatively, this Court concludes that this action should
be dismissed because it was filed in violation of this Court’s
September 1, 2009 All Writs Injunction Order.
See Carter v. New
Jersey State, et al., Civil No. 09-3704 (FLW), Docket entry no.
6.
6
Additionally, Plaintiff’s Complaint against defendant Dow
would appear to be based solely on a claim of supervisory
liability. As a general rule, government officials may not be
held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior. See Iqbal,
129 S.Ct. at 1948; Monell v. New York City Dept. Of Social
Servs., 436 U.S. 658, 691 (1978)(finding no vicarious liability
for a municipal “person” under 42 U.S.C. § 1983); Robertson v.
Sichel, 127 U.S. 507, 515-16 (1888)(“A public officer or agent is
not responsible for the misfeasances or position wrongs, or for
the nonfeasances, or negligences, or omissions of duty, of
subagents or servants or other persons properly employed by or
under him, in discharge of his official duties”). In Iqbal, the
Supreme Court held that “[b]ecause vicarious or supervisor
liability is inapplicable to Bivens and § 1983 suits, a plaintiff
must plead that each Government-official defendant, through the
official’s own individual actions, has violated the
Constitution.” Iqbal, 129 S.Ct. at 1948. Thus, each government
official is liable only for his or her own conduct. The Court
rejected the contention that supervisor liability can be imposed
where the official had only “knowledge” or “acquiesced” in their
subordinates conduct. Id., 129 S.Ct. at 1949.
Here, in the instant Complaint, there are no allegations of
any wrongful conduct with respect to defendant Dow, other than a
broad allegation based on her supervisory title as Attorney
General of the State of New Jersey. Accordingly, any § 1983
claim must be dismissed as against Dow.
23
I.
Recusal Motion
Plaintiff recently filed a motion to have this Court and the
Honorable Tonianne J. Bongiovanni, U.S.M.J. recuse from handling
this matter because it is a “conflict of interest... to handle
this civil matter, along with Judge Garrett Brown.”
entry no. 10, at pg. 1).
(Docket
This motion is decided without oral
argument pursuant to Federal Rule of Civil Procedure 78.
Title 28 U.S.C. § 455(a) provides, “[a]ny justice, judge or
magistrate judge of the United States shall disqualify himself in
any proceeding in which his impartiality might reasonably be
questioned.”
The other applicable recusal statute, 28 U.S.C. §
144, provides “[w]henever a party to any proceeding in a district
court makes and files a timely and sufficient affidavit that the
judge before whom the matter is pending has a personal bias or
prejudice either against him or in favor of any adverse party,
such judge shall proceed no further therein.”7
Under 28 U.S.C. §
455(a), it is not the case that a judge should recuse himself
7
Here, Plaintiff fails to explicitly move under either
§ 455(a) or § 144. However, the Court is satisfied that the
motion can be analyzed by this Court under both § 455(a) and
§ 144. If a recusal motion is made pursuant to § 455, the
questioned judge is entitled to rule upon the motion. If the
motion is made pursuant to § 144, another judge must rule on the
recusal motion so long as the supporting affidavit meets the
“sufficiency test.” In re Kensington Int’l Ltd., 353 F.3d 211,
224 (3d. Cir. 2003). The Court is satisfied that, because no
supporting affidavit was filed by Plaintiff to satisfy the
“sufficiency test,” this motion for recusal may be ruled upon by
this Court.
24
where, in his/her opinion, sitting would be inappropriate.
The
correct inquiry is whether the judge’s impartiality has been
reasonably questioned.
In re Prudential Ins. Co. Of Am. Sales
Practice Litig. Agent Actions (Krell), 148 F.3d 283, 343 (3d Cir.
1998), cert. denied 525 U.S. 1114 (1999).
The alleged prejudice
usually obtains from an extrajudicial source; a judge’s prior
adverse ruling alone is not sufficient cause for recusal.
“[J]udicial rulings alone almost never constitute a valid basis
for a bias or partiality motion. ... [They] can only in the
rarest circumstances evidence the degree of favoritism or
antagonism required ... when no extrajudicial source is involved.
Almost invariably, they are proper grounds for appeal, not
recusal.”
In re Levi, 314 Fed. Appx. 418, 419 (3d Cir.
2008)(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).
An alternative means of recusal is governed under 28 U.S.C. §
144, which enables recusal upon timely submission of an affidavit
and supporting certificate of good faith.
The Court of Appeals for the Third Circuit has held that the
challenged judge must determine only the sufficiency of the
affidavit, not the truth of the assertions.
F.2d 415, 417 (3d Cir. 1976).
Mims v. Shapp, 541
The Third Circuit also has held
that the allegations in a § 144 affidavit must convince a
reasonable person of the Judge’s partiality.
25
United States v.
Dansker, 537 F.2d 40, 53 (3d Cir. 1976), cert. denied 429 U.S.
1038 (1977).
Here, Plaintiff has failed to submit a certified or
notarized
affidavit.
Rather, she provides only a motion
alleging grounds for recusal based on unsupported, conclusory
statement that it is a “conflict of interest [for this Court] to
handle this civil matter, along with Judge Garrett Brown.”
Plaintiff provides no basis for her conclusory statement.
Indeed, the motion is completely bare of any factual grounds to
support recusal with respect to this Court or with respect to
Judge Bongiovanni.
Consequently, this Court is not convinced that recusal is
appropriate under either 28 U.S.C. § 455(a) or 28 U.S.C. § 144.
The Court declines to recuse itself under § 455, as the Court is
not convinced that its impartiality has been reasonably
questioned.
The Court is satisfied that a reasonable person
would not be convinced of the Court’s alleged bias after reading
Plaintiff’s moving papers.
Plaintiff’s motion is simply
conclusory and devoid of any factual allegations that would
render recusal appropriate.
Liteky, 510 U.S. at 555.
removal under 28 U.S.C. § 144 is not appropriate.
Similarly,
Section 144
requires an affidavit of fact that must convince a reasonable
person of the Judge’s partiality.
Dansker, 537 F.2d at 53.
Here, Plaintiff’s motion, as stated above, merely concludes that
26
judicial bias and collaboration has occurred, without including
assertions of fact in support of this conclusion, based only on
the bare assertion that this Court and Judge Bongiovanni sit
along with Judge Brown.
for recusal.
A conclusory affidavit is not sufficient
Smith v. Vidonish, 210 Fed. Appx. 152, 155 (3d Cir.
2006)(holding that conclusory statements in a recusal affidavit
need not be credited).
It is well-established that a court need
not credit conclusory allegations or legal conclusions.
See
Iqbal, 129 S.Ct. at 1949-50.
Moreover, to the extent that Plaintiff makes this
application based on this Court’s prior rulings dismissing
several of Plaintiff’s earlier-filed actions, such ground is not
a basis for recusal.
A party’s disagreement with a Court’s
ruling is not a basis for recusal; otherwise any unsuccessful
litigant would be able to disqualify the Judge who rendered the
unfavorable ruling.
In re TMI Litig., 193 F.3d 613, 728 (3d Cir.
1999), cert. denied 530 U.S. 1225 (2000).
Accordingly, as Plaintiff has not met the requirements of 28
U.S.C. § 455(a) or 28 U.S.C. § 144, her motion for recusal must
be denied.
CONCLUSION
For the reasons set forth above, this Court will dismiss
with prejudice Plaintiff’s Complaint, in its entirety, as against
all named defendants, for failure to state a claim upon which
27
relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Plaintiff’s motion for recusal (Docket entry no. 10) is denied.
Finally, all other motions filed by Plaintiff and defendants in
this action are denied as moot.
An appropriate Order accompanies
this Opinion.
/s/ Freda L. Wolfson
FREDA L. WOLFSON
United States District Judge
Dated: November 22, 2011
28
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