BROCKINGTON v. SPANO et al

Filing 6

OPINION filed. Signed by Judge Joel A. Pisano on 4/26/2013. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

THOMAS J. BROCKINGTON,

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:
:
:
:
:
:
:
:
:
:

Plaintiff,
v.
DETECTIVE ANDREW SPANO,
et al.,
Defendants.

Civil Action No. 11-6429 (JAP)

OPINION

APPEARANCES:
THOMAS J. BROCKINGTON, Plaintiff pro se
SBI #842973A
Southern State Correctional Facility
4295 Rt. 47
Delmont, New Jersey 08314
PISANO, District Judge
Plaintiff, Thomas J. Brockington, a state inmate confined
at the Southern State Correctional Facility, at the time he
filed

this

pauperis.

Complaint,
On

May

administratively

seeks

24,

to

bring

2012,

terminating

this

this

this

Court

case

action

in

forma

entered

an

Order

because

Plaintiff

had

failed to pay the requisite filing fee or submit a complete in
forma

pauperis

account

application

certified

by

a

with

prison

his

six-month

official

at

the

institutional
prison

where

Plaintiff was then confined.
24,

2012

Order

allowed

(See Docket entry no. 2.)

Plaintiff

to

re-open

his

case

The May
if

he

submitted a complete in forma pauperis application or paid the
filing fee.

(Id.)

On June 21, 2012, Plaintiff submitted a

complete in forma pauperis application with a letter asking that
his action be re-opened.

(See Docket entry nos. 3, 4.)

Based

on his affidavit of indigence, the Court will grant Plaintiff’s
application to proceed in forma pauperis (“IFP”) pursuant to 28
U.S.C. § 1915(a)(1998) and order the Clerk of the Court to reopen this case and file the Complaint accordingly.
At this time, the Court must review the Complaint, pursuant
to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, 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 set forth below, the Court concludes

that the Complaint should be dismissed.
I.

BACKGROUND
Plaintiff, Thomas J. Brockington (“Plaintiff”), brings this

civil action, pursuant to 42 U.S.C. § 1983, against Detective
Andrew Spano; Detective Davie Dehler; Robert J. Rosenthal, Esq.;
Jill G. Viggiano, Esq.; and Beata Andrezejczak.
Caption, ¶ 6.)

(Complaint,

The following factual allegations are taken from
2

the Complaint, and are accepted for purposes of this screening
only.

The Court has made no findings as to the veracity of

Plaintiff’s allegations.
Plaintiff

alleges

that,

on

or

about

February

10,

2008,

Detective Spano filed a false complaint against Plaintiff, and
arrested Plaintiff based on a composite sketch allegedly made
after

Plaintiff’s

apprehension

by

Spano.

Plaintiff

further

alleges that Defendants Spano and Dehler conducted a suggestive
identification

with

witness,

Defendant

Andrezejczak,

who

allegedly changed her prior description of her assailant and
robber on February 9, 2008, to fit Plaintiff.

Plaintiff alleges

that Andrezejczak made “a false police report of a crime that
never happen[ed.]”
Plaintiff

(Compl., ¶ 6.)

further

alleges

that

Spano

filed

a

false

supplemental report on March 19, 2008, to support his reckless
and false arrest of Plaintiff, knowing that Plaintiff did not
fit

the

original

Andrezejczak.

description

of

the

robber

given

by

(Id.)

Plaintiff also alleges that the prosecutors for the State,
Defendants
police

Viggiano

misconduct

and
by

Rosenthal,

keeping

the

“purposely
arresting

witness stand and hiding the dispatch records.”

3

covered
officer
(Id.)

up

the

off

the

Plaintiff

seeks

$10

million

in

damages

for

emotional

distress and post-traumatic stress disorder, asserting claims of
false

arrest,

false

racial profiling.
II.

imprisonment,

malicious

prosecution,

and

(Compl., ¶ 7.)

STANDARDS FOR A SUA SPONTE DISMISSAL
The Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-

134, §§ 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

sua

is

required

to

identify

cognizable

claims

and

to

sponte dismiss any claim that is frivolous, malicious, fails to
state

a

claim

upon

which

relief

may

be

granted,

or

seeks

monetary relief from a defendant who is immune from such relief.
28 U.S.C. §§ 1915(e)(2)(B) and 1915A.

This action is subject to

sua

under

sponte

screening

for

dismissal

both

28

U.S.C.

§

1915(e)(2)(B) and § 1915A.
For a complaint to survive dismissal, it “must contain
sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’”

Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009)(quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 554, 570 (2007)).

“The plausibility standard is not

akin to a ‘probability requirement,’ but it asks for more than a
4

sheer possibility that a [party] has acted unlawfully.”
556 U.S. at 678.

Iqbal,

Notably, the court is not required to accept

“legal conclusions,” and “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements,
do not suffice.”

Iqbal, 556 U.S. at 678.

In other words, 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.”

Fowler v. UPMC Shadyside,

578 F.3d 203 (3d Cir. 2009)(citing Iqbal, 556 U.S. at 676).

See

also Bistrian v. Levi, 2012 WL 4335958, *8 (3d Cir. Sept. 24,
2012)(allegations

that

are

no

more

than

conclusions

are

not

entitled to the assumption of truth; a court should “look for
well-pled factual allegations, assume their veracity, and then
‘determine whether they plausibly give rise to an entitlement to
relief.’”)(quoting, Iqbal, 556 U.S. at 679).
The Third Circuit recently cautioned, however, that Twombly
and Iqbal “do not provide a panacea for defendants,” rather,
“they merely require that plaintiff raise a ‘plausible claim for
relief.’”

Covington v. International Association of Approved

Basketball Officials, ___ F.3d ___, 2013 WL 979067, *2 (3d Cir.
March 14, 2013)(quoting Iqbal, 556 U.S. at 679).

Thus, factual

allegations

the

must

be

more

than

speculative,
5

but

pleading

standard

“is

not

akin

to

a

‘probability

requirement.’”

Covington, supra (quoting Iqbal, 556 U.S. at 678; Twombly, 550
U.S. at 556).

Finally, 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); see also United States v. Day, 969 F.2d 39, 42 (3d
Cir. 1992).
III.

SECTION 1983 ACTIONS
Plaintiff brings this action pursuant to 42 U.S.C. § 1983.

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).

See also Malleus v. George, 641 F.3d 560, 563 (3d

Cir. 2011).
6

This Complaint will be dismissed with prejudice, in its
entirety, as against Defendant Beata Andrezejczak, for failure
to state a claim, because Defendant is not, and was not at the
time of the incident, a person acting under color of state law.
The

Complaint

fails

to

allege

any

facts

to

show

that

this

Defendant was a state actor, and indeed, the allegations plainly
show that Defendant was the victim and witness of the crime for
which Plaintiff was arrested.
IV.
A.

DISCUSSION
False Arrest and False Imprisonment Claim
Plaintiff

first

asserts

claims

of

false

arrest

and

imprisonment stemming from his February 10, 2008 detention by
the police.

“To state a claim for false arrest under the Fourth

Amendment, a plaintiff must establish: (1) that there was an
arrest;
cause.”1

and

(2)

that

the

arrest

was

made

without

probable

James v. City of Wilkes–Barre, 700 F.3d 675, 680 (3d

1

A claim for false imprisonment arises where a person is
arrested without probable cause and subsequently detained
pursuant to that unlawful arrest.
Adams v. Selhorst, 449 Fed.
Appx. 198, 201 (3d Cir. 2011)(quoting Groman v. Twp. of
Manalapan, 47 F.3d 628, 636 (3d Cir. 1995)).
See also Wallace
v. Kato, 549 U.S. 384, 389 (2007)(to state a claim for false
imprisonment, plaintiff must show that (1) he was detained; and
(2)
the
detention
was
unlawful);
O’Connor
v.
City
of
Philadelphia, 233 Fed. Appx. 161, 164 (3d Cir. 2007); and see
Wildoner v. Borough of Ramsey, 162 N.J. 375, 389 (N.J.
2000)(recognizing the existence of probable cause as a complete
defense to false imprisonment).
7

Cir. 2012); see also Albright v. Oliver, 510 U.S. 266, 274–75
(1994);

Ferry

v.

Barry,

No.

(D.N.J. Sept. 19, 2012).

12–009,

2012

WL

4339454,

at

*5

Probable cause is an “absolute defense

to ... false arrest, false imprisonment and § 1983 claims.”
Wildoner

v.

Borough

(2000).

“Probable cause to arrest exists when the facts and the

circumstances
sufficient

in

within

of

Ramsey,

the

themselves

162

arresting
to

warrant

N.J.

375,

officer’s
a

744

A.2d

1146

knowledge

reasonable

person

are
to

believe that an offense has been or is being committed by the
person to be arrested.”
F.3d

782,

788

(3d

Merkle v. Upper Dublin Sch. Dist., 211

Cir.

2000)(internal

quotation

marks

and

citations omitted); accord Revell v. Port Authority of New York,
New Jersey, 598 F.3d 128, 137 n. 16 (3d Cir. 2010); Orsatti v.
New Jersey State Police, 71 F.3d 480, 482 (3d Cir. 1995).

The

arresting officer must only reasonably believe at the time of
the arrest that an offense is being committed, a significantly

Notably, the period of false arrest and imprisonment is
very short: a claim under § 1983 for false imprisonment based on
a detention pursuant to that arrest, refers only to the period
of incarceration lasting from the moment of arrest until the
first legal action, e.g., an arraignment.
See Groman, 47 F.3d
at 636.
Indeed, the Supreme Court explained that, “[f]alse
arrest and false imprisonment overlap; the former is a species
of the latter,” Wallace, 549 U.S. at 388, and the damages
recoverable under such claims are limited to those ensuing from
the period of detention until the first legal action.
See
Connelly v. Wren, 2013 WL 74233, *4 (D.N.J. Jan. 4, 2013).
8

lower burden than proving guilt at trial.

Wright v. City of

Phila., 409 F.3d 595, 602 (3d Cir. 2005).
A § 1983 claim for false arrest typically accrues on the
date of the plaintiff’s arrest.

See Montgomery v. De Simone,

159 F.3d 120, 126 (3d Cir. 1998); Rose v. Bartle, 871 F.2d 331,
348–51 (3d Cir. 1989).

An arrestee can file suit as soon as the

allegedly wrongful arrest occurs; the limitations period begins
to

run,

however,

only

when

the

allegedly

false

imprisonment

ends, that is, when the arrestee becomes held by legal process,
for example, when he is “bound over by a magistrate or arraigned
on criminal charges.”

Wallace v. Kato, 549 U.S. 384, 388–90

(2007).
Federal

courts

look

to

state

limitations period for § 1983 actions.
387–88.

law

to

determine

the

See Wallace, 549 U.S. at

A complaint pursuant to § 1983 is “characterized as a

personal injury claim and thus is governed by the applicable
state’s

statute

of

limitations

for

personal-injury

claims.”

Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010)
(citing Cito v. Bridgewater Twp. Police Dep’t, 892 F.2d 23, 25
(3d Cir. 1989)); see also Wallace, supra; Wilson v. Garcia, 471
U.S. 261, 276 (1985).
to

New

Jersey’s

injury actions.

In New Jersey, § 1983 claims are subject

two-year

statute

of

limitations

on

personal

See Dique, 603 F.3d at 185; see also N.J. Stat.
9

Ann.

§ 2A:14–2.

Accordingly, Plaintiff’s § 1983 claims are

subject to this two-year period.
While

state

law

governs

the

applicable

statute

of

limitations, federal law controls when a § 1983 claim accrues.
Wallace, 549 at 388.

Accrual occurs “when the plaintiff has a

complete and present cause of action.”

Id. (citations omitted)

(internal

Here,

period

quotation

for

marks

Plaintiff’s

omitted).

false

arrest

and

the

limitations

imprisonment

claims

began when he became “detained pursuant to legal process.”

Id.

at 397; see also Dique, 603 F.3d at 185–86; Montgomery v. De
Simone, 159 F.3d 120, 126 (3d Cir. 1998).

The Complaint alleges

that Plaintiff was arrested on February 10, 2008, but it does
not state the date of his arraignment on his state criminal
charges.

Accordingly,

although

it

appears

that

Plaintiff’s

action for false arrest and imprisonment may have accrued in
February 2008, and would thus be time-barred because Plaintiff
did not file this Complaint until November 2, 2011, the Court is
disinclined to dismiss these claims as untimely because without
the date of arraignment, the Court cannot be certain as to when
Plaintiff’s false arrest and false imprisonment claims actually
accrued for statute of limitation purposes.
Nevertheless,
lack

of

merit

these

because

claims

are

Plaintiff
10

subject

has

not

to

dismissal

demonstrated

for
that

probable cause was lacking during arrest.

“Probable cause does

not require the same type of specific evidence of each element
of the offense as would be needed to support a conviction.”
Adams v. Williams, 407 U.S. 143, 149 (1972).
standard

for

probable

cause

is

“[T]he evidentiary

significantly

lower

than

the

standard which is required for conviction.”

Wright, 409 F.3d at

602.

and

“[T]he

kinds

and

degree

of

proof

the

procedural

requirements necessary for a conviction are not prerequisites to
a valid arrest.”

Michigan v. DeFillippo, 443 U.S. 31, 36 (1979)

(citations omitted); see also Wilson v. Russo, 212 F.3d 781, 789
(3d Cir. 2000)(holding that probable cause only requires a “fair
probability” that a person committed the relevant crime).

“In

other words, the constitutional validity of the arrest does not
depend on whether the suspect actually committed any crime.”
Wright, 409 F.3d at 602.
2013

WL

“later

203410

dismissal

insufficient

(3d
of

Cir.
the

evidence

See also Fiore v. City of Bethlehem,
Jan.18,
charges

equates

to

2013)(rejecting
against
a

claim

[plaintiff]

determination

that

due

to

that

no

probable cause existed for his arrest,” since “probable cause
does not require the same type of specific evidence as would be
needed

to

support

a

conviction”)(citations

quotation marks omitted).

11

and

internal

Although

the

question

of

probable

cause

is

generally

a

question for the jury, a district court may conclude summarily
“that probable cause exists as a matter of law if the evidence,
when

viewed

reasonably
Merkle,

211

in

the

would
F.3d

light

most

not

support

at

788–789

favorable
a

contrary

(internal

to

the

factual

quotation

plaintiff,
finding.”
marks

and

citation omitted).
In this case, Plaintiff acknowledges that he was arrested
pursuant to a witness/victim complaint and composite sketch, and
a

witness/victim

identification.2

The

Court

finds

that

the

2

This Court takes judicial notice of State v. Brockington, 2012
WL 254241 (N.J.Super. A.D. Jan. 30, 2012), the unreported
decision of the Superior Court of New Jersey, Appellate Division
on Plaintiff’s direct appeal from his conviction on the charges
that
are
the
subject
of
Plaintiff’s
false
arrest
and
imprisonment and malicious prosecution claims herein.
The
Appellate Division recited pertinent facts relating to the
events leading up to Plaintiff’s arrest on February 10, 2008, as
follows:
On the morning of February 10, Andrezejczak went to the
Linden Police Department and had a sketch artist draw a
sketch of her assailant. She returned that evening, where
she was shown a photo array by Detective David Dehler.
After
the
detective
read
her
the
photo
display
instructions, the detective and Andrezejczak signed the
instructions. The detective showed each of the six photos
in the array individually, through the use of a photo box.
Andrezejczak asked to look at photograph number two twice
and indicated she was “about 95 percent sure” that was her
attacker. The photograph was of defendant, but he was not
wearing a hooded sweatshirt.
After identifying defendant,
Andrezejczak saw a second photograph of him, this time
wearing a hooded sweatshirt.
Andrezejczak testified she
12

witness/victim’s
defendants,

identification

implicating

of

Plaintiff

in

Plaintiff
the

to

crime,

police

establishes

probable cause for Plaintiff’s arrest and detention.

See Merkle

v. Upper Dublin School District, 211 F.3d 782, 790 (3d Cir.
2000)(a credible report from a person who witnessed a crime is
sufficient to establish probable cause); Sharrar v. Felsing, 128
F.3d 810, 818 (3d Cir. 1997)(probable cause exists where witness
to

an

alleged

crime

makes

a

reliable

identification).

Therefore, the Court finds that there was probable cause to
arrest

Plaintiff,

and

his

claim

for

false

arrest

and

imprisonment will be dismissed with prejudice accordingly.
B.

Racial Profiling Claim
Plaintiff next asserts a general claim of racial profiling.

To make a Fourteenth Amendment equal protection claim based upon
selective enforcement or racial profiling, a plaintiff must show
that law enforcement actions: “(1) had a discriminatory effect
and (2) were motivated by a discriminatory purpose.”

Bradley v.

United States, 299 F.3d 197, 205 (3d Cir. 2002).

To prove

discriminatory

he

effect,

a

plaintiff

must

“show

that

is

a

member of a protected class and that he was treated differently

was then “definitely 100 percent” sure that defendant was
her attacker.
State v. Brockington, 2012 WL 254241, *2 (N.J.Super. A.D. Jan.
30, 2012).
13

from similarly situated individuals in an unprotected class.”
Id. at 206.

That effect “may be proven by naming similarly

situated members of an unprotected class who were not selected
for

the

same

[treatment]

or,

in

statistical evidence of bias.” Id.
455

Fed.

Appx.

171,

177

(3d

some

cases,

by

submitting

See also Alvin v. Calabrese,

Cir.

Dec.

22,

2011);

Suber

v.

Guinta, __ F. Supp.2d __, 2013 WL 754694, *13 (E.D.Pa. Feb. 28,
2013).
Here, the Complaint is completely devoid of any factual
allegations to support a racial profiling claim.

This Court is

not required to accept Plaintiff’s bare “legal conclusion” or
“label”, without “sufficient factual matter” to show that the
claim is facially plausible.

Iqbal, 556 U.S. at 678.

Moreover,

as discussed above, Plaintiff was identified to police by the
victim/witness through composite sketch and photo identification
procedures based on her physical description of her attacker.
Consequently, there is no factual basis on which Plaintiff can
establish a racial profiling claim, and this claim of racial
profiling will be dismissed with prejudice, for failure to state
a claim, accordingly.
C.

Prosecutorial Immunity
Plaintiff

also

alleges

a

claim

of

malicious

prosecution

against the state prosecutor defendants, Robert J. Rosenthal,
14

Esq. and Jill G. Viggiano, Esq.

Before considering whether

Plaintiff has adequately alleged the elements of a malicious
prosecution claim, the Court will address the threshold issue of
prosecutorial immunity.

In Imbler v. Pachtman, 424 U.S. 409

(1976), the Supreme Court held that a prosecutor is absolutely
immune from damages under § 1983 for acts that are “intimately
associated with the judicial phase of the criminal process,” id.
at 430–31, including use of false testimony and suppression of
evidence favorable to the defense by a police fingerprint expert
and investigating officer.

Since Imbler, the Supreme Court has

held that “absolute immunity applies when a prosecutor prepares
to

initiate

a

judicial

proceeding,

or

appears

in

court

to

present evidence in support of a search warrant application.”
Van de Kamp v. Goldstein, 555 U.S. 335, 343 (2009)(citations
omitted).

The Court of Appeals for the Third Circuit recently

confirmed prosecutorial immunity in § 1983 actions in LeBlanc v.
Stedman, 483 Fed. Appx. 666 (3d Cir. 2012)(non-precedential).
In

this

absolutely
alleged

by

Defendants

case,

immune

Defendants

from

Plaintiff
plainly

a

claim

because

were

functions as prosecutors.

taken

Rosenthal

and

of

malicious

the

alleged

in

exercise

Viggiano

are

prosecution

as

acts
of

by

these

their

core

See Rehberg v. Paulk, –––U.S. ––––, –

–––, 132 S.Ct. 1497, 1504, 182 L.Ed.2d 593 (2012); Imbler, 424
15

U.S. at 430–31.

That much is obvious from the Complaint.

In an

excess of caution, however, this Court also reviewed the claims
and allegations raised by Plaintiff on direct appeal from his
conviction,

as

set

forth

in

the

state

Appellate

Division

decision, State v. Brockington, 2012 WL 254241 (N.J.Super. A.D.
Jan. 30, 2012), and this Court finds nothing there to alter its
conclusion.
Complaint

Therefore, because the misconduct alleged in the

against

the

prosecutors

consists

of

acts

taken

in

their role as advocates for the state, the § 1983 damages claims
against

them

must

be

dismissed

on

grounds

of

absolute

prosecutorial immunity.
D.

Malicious Prosecution Claim
Alternatively, even if the prosecutor defendants were not

immune from suit, this Court would find that the Complaint fails
to state a viable claim of malicious prosecution under § 1983.
The elements of the state-law tort of malicious prosecution are
incorporated in an analogous federal § 1983 claim.

See Kossler

v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009)(en banc)(applying
the

Restatement

(Second)

of

Torts

§§

659,

660

to

determine

whether a § 1983 malicious prosecution claim was deemed to have
terminated in favor of the accused); see also Donahue v. Gavin,
280 F.3d 371, 383 (3d Cir. 2002)(same); Hilfirty v. Shipman, 91
F.3d 573 (3d Cir. 1996)(same).

Thus, to state a § 1983 claim
16

for malicious prosecution, a plaintiff must allege the following
essential

elements:

(1)

defendant

initiated

a

criminal

proceeding; (2) the criminal proceeding ended in the plaintiff's
favor; (3) defendant initiated the criminal proceeding without
probable cause; (4) defendant acted maliciously or for a purpose
other than bringing the plaintiff to justice; and (5) plaintiff
suffered deprivation of liberty consistent with a violation of
the Fourth Amendment or a violation of another explicit text of
the Constitution.

Johnson v. Knorr, 477 F.3d 75, 81–82 (3d.

Cir. 2007)(citing Estate of Smith v. Marasco, 318 F.3d 497, 521
(3d Cir. 2003)).

See also McKenna v. City of Philadelphia, 582

F.3d 447, 461 (3d Cir. 2009)(reciting federal law); Stolinski v.
Pennypacker, 772 F. Supp.2d 626, 640 (D.N.J. 2011)(reciting New
Jersey law).

As to the second critical element, which requires

that the criminal proceeding have terminated in favor of the
accused,

such

termination,

if

accomplished

by

compromise

or

agreement, is not considered a favorable termination sufficient
to support a malicious prosecution claim.

Pittman v. Metuchen

Police Dept., 441 Fed. Appx. 826, 829 (3d Cir. 2011)(holding
that withdrawal of criminal charges pursuant to a compromise or
agreement does not constitute “favorable termination” required
under Heck to allow 1983 claims based on lack of probable cause

17

to proceed); Troso v. City of Atlantic City, 2013 WL 1314738
(D.N.J. March 28, 2013).
In this case, Plaintiff’s malicious prosecution claim fails
as a matter of law because he has not alleged that his state
criminal proceeding terminated in his favor.

In fact, as noted

by this Court, see this Opinion, at fn. 2, supra, Plaintiff was
convicted on these charges and his conviction was affirmed on
direct

appeal.

See

State

v.

Brockington,

(N.J.Super. A.D. Jan. 30, 2012).
preceding

section

demonstrated

the

of

lack

this
of

WL

254241

Moreover, as stated in the

Opinion,

probable

2012

Plaintiff

cause

initiation of his criminal proceedings.

for

his

has

not

arrest

and

Consequently, he cannot

support a claim for malicious prosecution, and the claim will be
dismissed for failure to state a claim.3

3

This dismissal is without prejudice to Plaintiff filing an
amended Complaint should he eventually prevail on a federal
habeas claim in the future.
It would be futile, however, for
Plaintiff to attempt to amend his Complaint unless or until he
is successful in a habeas application on this claim. Plaintiff
should note that when an amended complaint is filed, it
supersedes the original and renders it of no legal effect,
unless the amended complaint specifically refers to or adopts
the earlier pleading. See West Run Student Housing Associates,
LLC v. Huntington National Bank, No. 12-2430, 2013 WL 1338986,
*5 (3d Cir. April 4, 2013)(collecting cases).
See also 6
Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1476 (3d ed. 2008). An amended complaint may adopt
some or all of the allegations in the original complaint, but
the identification of the particular allegations to be adopted
must be clear and explicit. Id. To avoid confusion, the safer
18

V.

CONCLUSION
For the reasons set forth above, the Complaint will be

dismissed
Beata

with

prejudice,

Andrezejczak,

in

because

its

entirety,

Defendant

subject to suit under § 1983.

is

against

not

a

Defendant

state

actor

Further, Plaintiff’s false arrest

and imprisonment, and racial profiling claims will be dismissed
with

prejudice,

defendants,

in

their

pursuant

to

entirety,

28

U.S.C.

as

§§

against

all

named

1915(e)(2)(b)(ii)

and

1915A(b)(1), for failure to state a claim upon which relief may
be granted.
defendants

However, Plaintiff’s claim against the prosecutor
alleging

malicious

prosecution

will

be

dismissed

without prejudice, pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(ii)
and 1915A(b)(1), for failure to state a claim at this time.

An

appropriate order follows.

/s/ Joel A. Pisano
JOEL A. PISANO
United States District Judge
Dated: April 26, 2013

course is to
itself. Id.

file

an

amended

complaint
19

that

is

complete

in