ITIOWE v. THE TRENTONIAN et al
OPINION. Signed by Judge Joel A. Pisano on 10/20/2014. (jjc)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
THE TRENTONIAN OWNER AND CEO, JOHN
PATON OF JOURNAL REGISTER COMPANY,
JOURNAL REGISTER COMPANY, THE STATE
OF NEW JERSEY IN CARE OF THE CITY OF
TRENTON, OFFICE OF THE GOVERNOR, THE
CITY OF TRENTON, MR. MACK/ACTING
Civil Action No. 13-cv-5779 (JAP)
PISANO, District Judge
Currently pending before the Court are three (3) motions: (1) Defendants, the City of
Trenton and former Mayor Mack’s (collectively “Defendants”) motion to dismiss [docket #30];
(2) Plaintiff, Christiana Itiowe’s (“Plaintiff”) motion to amend her complaint [docket #33]; and (3)
Plaintiff’s motion to change venue [docket #44]. The Court considered the papers filed by the
parties and rules on the written submissions without oral argument pursuant to Federal Rule of
Civil Procedure 78. For the reasons that follow, this Court GRANTS Defendants’ motion to
dismiss [docket #30]; DENIES Plaintiff’s motion to amend her complaint [docket #33]; and
DENIES Plaintiff’s motion to change venue [docket #44].
Plaintiff’s pro se amended Complaint, received by the Court on December 3, 2013,
arguably consists of a first amendment violation.1 The claims in Plaintiff’s Complaint suffer from
vagueness and ambiguity that make it difficult to discern their legal or factual basis. The following
allegations are taken from Plaintiff’s Complaint and are accepted as true for purposes of this
Court’s review only. Plaintiff alleges that her and her sister, Victoria Itiowe’s freedom of the press
rights were violated when Plaintiff was allegedly terminated from WIMG 1300AM radio station.
It appears as though Plaintiff believes her rights were violated when she was pursuing a former
lawsuit, docket no. 12-cv-6977, and was terminated in light of this suit and because she was
attempting to care for her sister. Further, Plaintiff alleges that she was attacked when she tried to
discuss her former lawsuit on the air, and was retaliated against and harassed because she made a
report regarding Trenton’s police force. Plaintiff claims that in terminating her, Defendants’ failed
to “car[e] a bit about [her] life just as they did not give a crap about [her] sisters stance of being
born with sickle cell disease either.” Although it is often unclear which act or Defendant Plaintiff
is attributing various facts to, Plaintiff contends that her and her sister’s first amendment freedom
of the press rights were violated.
“Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain ‘a short and
plain statement of the claim showing that the pleader is entitled to relief,’ in order to give the
defendants fair notice of what the . . . claim is and the grounds on which it rests.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). While pro se plaintiffs are not held to same strict standards
Plaintiff has made numerous subsequent submissions to the Court and given Plaintiff’s pro se status, the Court
liberally construes the Complaint and Plaintiff’s other submissions together in ruling on the pending motions. See
Wallace v. Fegan, 455 Fed.Appx. 137, 139 (3d Cir. 2011). For the purpose of clarity, the Court hereinafter refers to
all of Plaintiff’s pleadings and submissions collectively as Plaintiff’s Complaint.
as attorneys, “they also cannot be excused from compliance with the plain text of the federal rules.”
Joseph v. Lopez, No. 05-1640, 2007 WL 1135297, at *2 (D.N.J. Apr. 11 2007).
A. Dismissal Pursuant to Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint if the
plaintiff fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In
determining the sufficiency of a pro se complaint, the Court must be mindful to construe it liberally
in favor of the Plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United States v. Day, 969
F.2d 39, 42 (3d Cir. 1992). 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 Sch. Dist., 132 F. 3d 902, 906 (3d Cir. 1997).
However, the Court need not credit a pro se plaintiff’s “bald assertions” or “legal conclusions.”
Id. The factual allegations must be sufficient to raise a plaintiff’s right to relief above a speculative
level, such that it is “plausible of its face.” Twombly, 550 U.S. 544 at 555.
Even after taking into account Plaintiff’s pro se status and reading the Complaint liberally,
the Court finds that Plaintiff’s pleadings lack a “short and plain statement” of the grounds for
jurisdiction and fail to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). Plaintiff’s extensive pleadings are confusing and contain mostly
unintelligible allegations asserting a variety of seemingly unrelated claims and fail to provide
defendants with fair or adequate notice of the claims against them or establish that Plaintiff is
entitled to relief as required by Federal Rule of Civil Procedure 8(a)(2). See Twombly, 550 U.S.
544 at 555. Accordingly, the Court finds that the substantial deficiencies in Plaintiff’s pleadings
warrant dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6).
B. Dismissal Pursuant to Rule 12(b)(1)
Plaintiff’s complaint is also subject to dismissal for lack of subject matter jurisdiction.
Federal courts are of limited jurisdiction and are bound to determine whether they have jurisdiction
even if none of the parties to an action have made a jurisdictional challenge. Upp v. Mellon Bank,
N.A., 510 U.S. 964 (1993). Pursuant to Federal Rule of Civil Procedure 12(b)(1), the Court must
dismiss a complaint, in whole or in part, if the plaintiff fails to establish that the Court has
jurisdiction over the claim.
“Standing is a threshold jurisdictional requirement, derived from the ‘case or controversy’
language of Article III of the Constitution.” Pub. Interest Research Grp. Of N.J., Inc. v. Magnesium
Elektron, Inc., 123 F.3d 111, 117 (3d Cir. 1997). The party invoking federal jurisdiction bears the
burden of establishing constitutional standing at the outset of the litigation. Lujan v. Defenders of
Wildlife, 504 U.S. 551, 561 (1992). If the minimum requirements of Article III standing are not
met, “a federal court does not have subject matter jurisdiction to address a plaintiff’s claims, and
they must be dismissed.” Storino v. Borough of Point Pleasant Beach, 322 F.3d 293, 296 (3d Cir.
For a plaintiff to have standing, the following three requirements must be met: (1) the
plaintiff must have suffered an injury in fact that is (a) concrete and particularized and (b) actual
or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged
action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528
U.S. 167, 180-81 (2000).
Plaintiff states that she is bringing this lawsuit on behalf of herself and her sister, Victoria
Itiowe. Specifically, Plaintiff alleges that “[her] sister’s freedom of speech rights” were violated.
While the Court makes no judgment as to the merits of Victoria Itiowe’s potential claims, the Court
finds that Plaintiff has failed to demonstrate that she has personally suffered an “injury in fact” in
all claims alleging an injury to Victoria Itiowe, and thus has not met her burden of establishing
constitutional standing. In light of Plaintiff’s failure to establish an “injury-in-fact,” the Court finds
that it lacks jurisdiction to hear Plaintiff’s claims brought on behalf of her sister. Therefore, any
and all claims brought by Plaintiff alleging an injury suffered by Victoria Itiowe are dismissed
Plaintiff’s Motion to Amend
Federal Rule of Civil Procedure 15(a) requires that leave to amend the pleadings be granted
freely “when justice so requires.” Long v. Wilson, 393 F.3d 390, 400 (3d Cir.2004). Therefore,
motions to amend should be liberally granted, absent substantial prejudice, unless “denial can be
grounded in bad faith or dilatory motive, truly undue or unexplained delay, repeated failure to cure
deficiencies by amendments previously allowed or futility of amendment.” Lundy v. Adamar of
New Jersey, Inc., 34 F.3d 1173, 1196 (3d Cir.1994) (internal citation omitted).
In deciding whether to grant leave to amend, “prejudice to the non-moving party is the
touchstone for the denial of the amendment.” Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir.1989)
(quoting Cornell & Co., Inc. v. Occupational Health and Safety Review Comm'n, 573 F.2d 820,
823 (3d Cir.1978)). To establish prejudice, the non-moving party must make a showing that
allowing the amended pleading would (1) require the non-moving party to expend significant
additional resources to conduct discovery and prepare for trial, (2) significantly delay the
resolution of the dispute, or (3) prevent a party from bringing a timely action in another
If a complaint is subject to dismissal under Rule 12(b)(6), “a district court must permit a curative amendment unless
such an amendment would be inequitable or futile.” Phillips v. Cnty. of Allegheny, 515 F. 3d 224, 234 (3d Cir. 2008).
Plaintiff’s lack of standing to bring claims on behalf of her sister cannot be cured by amendment. Thus, the Court
concludes that allowing Plaintiff to amend the claims brought on behalf of Victoria Itiowe would be futile.
jurisdiction. See Long, 393 F.3d at 400. Further, a proposed amendment is appropriately denied
where it is futile. An amendment is futile if it “is frivolous or advances a claim or defense that is
legally insufficient on its face.” Harrison Beverage Co. v. Dribeck Imps., Inc., 133 F.R.D. 463,
468 (D.N.J.1990) (internal quotation marks and citations omitted). In determining whether an
amendment is “insufficient on its face,” the Court employs the Rule 12(b)(6) motion to dismiss
standard. See Alvin, 227 F.3d at 121. Under Rule 12(b)(6), a motion to dismiss will be granted if
the plaintiff fails to articulate “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). When
determining whether a claim should be dismissed under Rule 12(b)(6), the Court accepts as true
all of the allegations contained in the complaint and draws reasonable inferences in favor of the
plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007).
Here, even construing Plaintiff’s proposed amended complaint liberally in her favor,
Plaintiff fails to state a claim for relief. As an initial matter, the Court has already granted Plaintiff
one opportunity to amend her complaint by way of her in forma pauperis filing, and Plaintiff failed
to cure the deficiencies in her pleading. Further, aside from making threatening remarks towards
the Court and Defendants surrounding who is “scared to lose their stance in life,” Plaintiff’s
amended complaint merely requests that criminal charges be brought against Defendants. This
cannot withstand the standard(s) set forth in Rule 8 or Rule 12(b)(6) as a private plaintiff cannot
force a criminal prosecution since the “authority to initiate a criminal complaint rests exclusively
with state and federal prosecutors.” See Collyer v. Darling, 98 F.3d 211, 222 (6th Cir.1996);
Mercer v. Lexington Fayette Urban County Gov't., 52 F.3d 325 (6th Cir.1995); Forney v.
Woodridge Hosp. & Johnson City Med. Ctr., 2005 U.S. Dist. LEXIS 37257, at *6 (E.D.Tenn. Sept.
14, 2005); see also United States ex rel. Savage v. Arnold, 403 F.Supp. 172 (E.D.Pa.1975) (stating
that a private party cannot, on his own, commence a criminal proceeding for failure to meet to
comply with the requirements of Rules 3 and 4 of the Rules of Criminal Procedure and citing
United States v. Blierley, 331 F.Supp. 1182 (W.D.Pa.1971); Brown v. Duggan, 329 F.Supp. 207
(W.D.Pa.1971); United States ex rel. Spader v. Wilentz, 25 F.R.D. 492 (D.N.J), aff'd, 280 F.2d 422
(3d Cir.), cert. denied 364 U.S. 875 (1960)).
The Court is also without authority to direct the filing of criminal charges on Plaintiff's
behalf, since “[i]t is well established that private citizens can neither bring a direct criminal action
against another person nor can they petition the federal courts to compel the criminal prosecution
of another person.” See Maine v. Taylor, 477 U.S. 131, 137 (1986); Heckler v. Chaney, 470 U.S.
821, 832 (1985); Leeke v. Timmerman, 454 U.S. 83, 86-87 (1981); United States v. General
Dynamics Corp., 828 F.2d 1356, 1366 (9th Cir.1987). Accordingly, “the district court [is obligated
to] refus[e] fil[ing] criminal charges or ... compel[ing] prosecution based on those charges.” Ellen
v. Stamm, 1991 U.S.App. LEXIS 30558 (9th Cir. Dec. 19, 1991) (emphasis supplied), cert. denied,
Montalvo v. Stamm, 506 U.S. 1047 (1993). As such, the Court finds that Plaintiff’s proposed
amendment is futile and therefore, Plaintiff’s motion to amend her complaint is DENIED.
For the foregoing reasons, Defendants’ motion to dismiss [docket # 30] is GRANTED;
Plaintiff’s motion to change venue [docket # 44] is DENIED as it is now moot; and Plaintiff’s
motion to amend her complaint [docket #33] is DENIED. Plaintiff’s Complaint is DISMISSED
without prejudice, with the exception of all claims brought on behalf of Victoria Itiowe, which are
dismissed with prejudice. An appropriate Order accompanies this Opinion.
Date: October 20, 2014
/s/ Joel A. Pisano
JOEL A. PISANO
United States District Judge
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