GOFAN JUNIOR v. PEREKSTA et al

Filing 7

MEMORANDUM AND ORDER that all § 1983 claims against Defendants Edward A. Belmount, Kathleen Redpath Perez, Mark A. Fury, Alson Riddick, Vernon Clash, Stephen E. Slaven, Laura Allison Yeade, Davit L. Soffer, Jessica Lyons, Anthony Cowell, Kevin M itchell, Darlene J. Pereksta, and Thomas M. Brown are DISMISSED WITH PREJUDICE. that Plaintifrs claims regarding malicious prosecution, withholding of exculpatory evidence, conspiracy, and fraudulent concealment are DISMISSED WITHOUT PREJUDICE. Defen dants Edward A. Belmount, Kathleen Redpath Perez, Mark A. Fury, Alson Riddick, Vernon Clash, Stephen E. Slaven, Laura Allison Yeade, Davit L. Soffer, Jessica Lyons, Anthony Cowell, Kevin Mitchell, Darlene J. Pereksta, Thomas M. Brown, Laura Kotarb a, Kathleen Petrucci, Skylar Weissman, Stacey Guerds, Cyntha Liccardo, and Angelo J. Onofri are DISMISSED from the case. The 3 Motion for bail reduction is DENIED. The Clerk shall issue summons. The Clerk shall serve a copy of this Order upon Plaintiff by regular mail. Signed by Judge Peter G. Sheridan on 2/2/2017. (mps)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

HENRY SAYE GOFAN JUNIOR,
Civil Action No. 16-8559 (PGS)

Plaintiff,
v.

:

MEMORANDUM AND ORDER

DARLENE J. PEREKSTA, et al.,
Defendants.
This matter comes before the Court on a civil rights Complaint filed by Plaintiff Henry
Saye Gofan Junior.

Plaintiff appears to be a pretrial detainee who is being prosecuted for

unspecified crimes by the State of New Jersey. ECF No. 1 at 2. Most of the claims
in the
Complaint appear to center around this criminal prosecution, although there are few
a
conditions
of confinement claims regarding his incarceration, most notably excessive force claims
against
certain correctional officers. ECF No. 1 at 61. The Complaint names 45 defendants.
As Plaintiff
has been granted in forma pauperis status, the Court must review the Complaint
to see if it is
subject to dismissal under 28 U.S.C. §1915(e)(2)(B), on the account that it is
frivolous or
malicious, fails to state a claim on which relief may be granted, or seeks monetary relief
against a
defendant who is immune from such relief. It appearing:
1. A plaintiff can pursue a cause of action under

§

1983 for certain violations of his

constitutional rights. Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom
, or
usage, of any State or Territory. subjects, or causes to be subjected, any citizen
of the United States or other person within the jurisdiction thereof to the deprivation
of any 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
.

.

.

.

.

42 U.S.C.

§ 1983. Thus, to state a claim for relief under § 1983, a plaintiff must establish, 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. Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50-1 (1999); Morrow v. Balaski, 719 F.3d 160, 1667 (3d Cir. 2013).

2. Defendants Edward A. Belmount, Kathleen Redpath Perez, Mark A. Fury, Alson Riddick,
Vernon clash, Stephen E. Slaven, Laura Allison Yeade, Davit L. Soffer, Jessica Lyons, Anthony
Cowell, and Kevin Mitchell are all either attorneys from the Public Defender’s Office (“PDO”) or
private attorneys who at one time or another defended Plaintiff in the criminal proceedings
(collectively referred to as “PDO Defendants”). However, neither public defenders nor private
attorneys are state actors liable under

§ 1983, because they are not persons acting under the color

of law. See Vermont v. Brillon, 556 U.S. 81, 91(2009) (“[TIhe relationship between a defendant
and the public defender representing him is identical to that existing between any other lawyer and
client. Unlike a prosecutor or the court, assigned counsel ordinarily is not considered a state
actor.”) (citation and quotation omitted); Rieco v. Hebe, No. 15-2323, 2015 WL 9583987, at *2
(3d Cir. Dec. 31, 2015) (“Public defenders are generally not considered state actors for

§ 1983

purposes when acting in their capacities as attorneys.”) (quoting Polk Cly. v. Dodson, 454 U.S.
312, 325 (1981)); Jackson v. City of Erie Police Dep’t, 570 F. App’x 112, 113 (3d Cir. 2014)
(“[P]rivate defense attorney cannot be construed as a person acting under the ‘color of state law’
within the meaning of § 1983”) (citing Polk Cty., 454 U.S. at 3 17-25); Bullock v. Sloane Toyota,
Inc., 415 F. App’x 386, 389 (3d Cir. 2011) (private attorney not liable under

§ 1983 because

plaintiff has not set forth any facts to demonstrate that her attorney was a state actor or acted under

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color of state law). As such, all claims against the PDO Defendants are dismissed prejudice, and
the PDO Defendants are dismissed from the case.
3. Defendants Darlene J. Pereksta and Thomas M. Brown are judges who either presided or
is presiding over Plaintiffs criminal case. However, judges are absolutely immune from suit for
actions taken in their judicial capacity. Mireles v. Waco, 502 U.S. 9, 11(1991); Kaplan v. Miller
,
653 F. App’x 87, 89 (3d Cir. 2016) (“[Jjudges are immune from suit under section 1983
for
monetary damages arising from their judicial acts.”) (quoting Gallas v. Supreme Ct. of Pa.,
211
F.3d 760, 768 (3d Cir. 2000)). “[J]udicial immunity is not overcome by allegations of bad
faith or
malice, the existence of which ordinarily cannot be resolved without engaging in discov
ery and
eventual trial.” Mireles, 502 U.S. at 11. Here, all of the allegations against Defend
ants Pereksta
and Brown are acts they have taken in their capacity as judges, so they are immun
e from Plaintiffs
claims. As such, all claims against them are dismissed with prejudice, and they are dismis
sed from
the case.
4. The vast majority of the claims of in the Complaint concern Plaintiffs allegat
ions that he
was falsely accused and prosecuted. The Court construes these claims against variou
s defendants
as raising claims of malicious prosecution. To state such a claim, Plaintiff is require
d to plead that
“(1) the defendant initiated a criminal proceeding; (2) the criminal proceeding ended
in plaintiffs
favor; (3) the proceeding was initiated without probable cause; (4) the defend
ant acted maliciously
or for a purpose other than bringing the plaintiff to justice; and (5) the plainti
ff suffered deprivation
of liberty consistent with the concept of seizure as a consequence of a legal
proceeding.” Kossler
v. Crisanti, 564 F.3d 181. 1 86 (3d Cir. 2009) (en banc) (internal quotation marks
omitted). Here,
it is clear from the Complaint that the criminal prosecution is ongoin therefo
g,
re no outcome
favorable to Plaintiff could have occurred. Furthermore, with regard to Plainti
ffs claims against

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Defendants Laura Kotarba, Kathleen Petrucci, Skylar Weissman, Stacey Guerds, Cyntha Liccardo,
and Angelo J. Onofri, prosecutors from the Mercer County Prosecutor’s Office, “[t]he arrest of a
criminal defendant and the filing of charges are at the core of the prosecutorial function, and ‘[a]
prosecutor is absolutely immune when making [the decision to initiate a prosecution], even where
he acts without a good faith belief that any wrongdoing has occurred.” Munchinski v. So/oman,
618 F. App’x 150, 154 (3d Cir. 2015) (quoting Kuiwicki v. Dawson, 969 F.2d 1454, 1464 (3d Cir.
1992)). Thus, the Complaint fails to plead an essential element of the malicious prosecution
claims, and those claims are dismissed from the case without prejudice.
5. The Complaint also asserts that various defendants withheld exculpatory evidence from
Plaintiff However, because the omission of exculpatory evidence implicates a defendant’s right
to fair trial, such omission is not a cognizable claim under

§

1983 unless the plaintiff has been tried

for a crime, and such trial implicates the omission—without a trial, the concept of “exculpatory
evidence” would make no logical sense, and Plaintiff would suffer no injury. See Anderson v.
Venango Ciy., Pa., 458 F. App’x 161, 164 (3d Cir. 2012) (finding that to prevail on a

§

1983 claim

predicated on the omission of evidence, ‘the plaintiff must show that the government’s alleged
pretrial misconduct resulted in an unfair trial,” so there can be no claim if the plaintiff was never
tried); cf Renda v. King, 347 F.3d 550, 557 (3d Cir. 2003) (“[A] plaintiff may not base a

§

1983

claim on the mere fact that the police questioned the plaintiff in custody without providing
Miranda warnings where there is no claim that the statements obtained in violation of Miranda
were used against the plaintiff[.]”). As the Complaint alleges that Plaintiff is a pretrial detainee,
he has not been tried for any crime as a result of the alleged omission. Hence, Plaintiff fails to
state a claim upon which relief may be granted on his omission of evidence claims.

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6. The Complaint further asserts claims of conspiracy and fraudulent concealment against
various defendants, but those claims consist of only conclusory allegations, without a single factual
allegation that would imply that such fraud claims are plausible. Fraud claims are subject to the
heightened pleading requirements under Federal Rule of Civil Procedure 9(b), which the
Complaint does not appear to meet. Poihill v. FedEx Ground Package Sys., 604 F. App’x 104,
106 (3d Cir. 2015) (“Poihill would have to comply with Rule 9(b)’s particularity requirement in
setting forth the alleged misconduct [of fraudulent misrepresentation and concealment].”). For
example, Plaintiff alleges that “whatever secret plan they prosecutor, judges, probation officer, and
public defenders came up with before I came in the court room was fraudulent and also deceitful,
with the intent to deceive me out of my constitutional rights to liberty.” ECF No. 1 at
27.
Essentially, Plaintiff’s theory is that because he did not understand what was going on, and bad
things happened to him, there must have been conspiracy and fraud. The Court will not
accept
such conclusory allegations. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding that
courts
are free to ignore factually unsupported accusations that merely state “the-defendant-unlaw
fullyharmed-me”).

Accordingly, Plaintiffs conspiracy and fraudulent concealment claims are

dismissed without prejudice as unsupported by plausible factual allegations. Defendants
Laura
Kotarba, Kathleen Petrucci, Skylar Weissman, Stacey Guerds, Cyntha Liccardo, and
Angelo J.
Onofri are dismissed from the case now that all claims against them, based on the
Court’s
construction of the Complaint, have been dismissed.
7. The remaining claims in the Complaint, including but not limited to claims of false arrest,
illegal seizure, denial of access to the courts, and excessive force, are permitted to proceed.
8. Finally, the Court addresses Plaintiffs motion for bail reduction, ECF No. 3. The Court
construes the motion as asserting that Plaintiffs bail, set by the state court, was excessive.

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However, the relief Plaintiff seeks, a reduction of his bail, is essentially a challenge to his current
confinement, which must be raised in a federal habeas petition, not in a civil rights action. See
Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (“[W]hen a state prisoner is challenging the very
fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is
entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy
is a writ of habeas corpus.”). Hence, the motion is denied.
IT IS therefore on this
OREDERED that all

2—

,VD

day of

,

2017,

§ 1983 claims against Defendants Edward A. Belmount, Kathleen

Redpath Perez, Mark A. Fury, Alson Riddick, Vernon Clash, Stephen E. Slaven, Laura Allison
Yeade, Davit L. Soffer, Jessica Lyons, Anthony Cowell, Kevin Mitchell, Darlene J. Pereksta, and
Thomas M. Brown are hereby DISMISSED WITH PREJUDICE; it is further
ORDERED that Plaintifrs claims regarding malicious prosecution, withholding of

exculpatory evidence, conspiracy, and fraudulent concealment are hereby DISMISSED
WITHOUT PREJUDICE; it is further
ORDERED that Defendants Edward A. Belmount, Kathleen Redpath Perez, Mark A.

Fury, Alson Riddick, Vernon Clash, Stephen E. Slaven, Laura Allison Yeade, Davit L. Soffer,
Jessica Lyons, Anthony Cowell, Kevin Mitchell, Darlene J. Pereksta, Thomas M. Brown, Laura
Kotarba, Kathleen Petrucci, Skylar Weissman, Stacey Guerds, Cyntha Liccardo, and Angelo J.
Onofri are hereby DISMISSED from the case; it is further
ORDERED that the motion for bail reduction, ECF No. 3, is hereby DENIED; it is further

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ORDERED that, pursuant to 28 U.S.C.

§ 19 15(d), the Clerk shall issue summons and the

United States Marshal shall serve summons, the Complaint and this Order upon Defendants, with
all costs of service advanced by the United States’; it is further
ORDERED that, pursuant to 42 U.S.C.

§ 1997e(g)(2), Defendants shall file and serve an

answer, see Fed. R. Civ. P. 12(a)(l)(A); it is further
ORDERED that, pursuant to 28 U.S.C.

§ 1915(e)(1) and § 4(a) of Appendix H of the Local

Civil Rules, the Clerk shall notify Plaintiff of the opportunity to apply in writing to the assigned
judge for the appointment of pro bono counsel; and it is further
ORDERED that, if at any time prior to the filing of a notice of appearance by Defendants,
Plaintiff seeks the appointment of pro bono counsel or other relief pursuant to Fed. R. Civ. P.
5(a)
and (d), Plaintiff shall (1) serve a copy of the application by regular mail upon each party at his
last known address and (2) file a Certificate of Service.
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ORDERED that the Clerk shall serve a copy of this Order upon Plaintiff’ by regular mail.

Peter G. Sheridan, U.S.D.J.

Alternatively, the U.S. Marshal may notify defendants that an action has been commenced
and request that the defendants waive personal service of a summons in accordance with Fed.
R.
Civ. P. 4(d).
2

After an attorney files a notice of appearance on behalf of a Defendant, the attorney will
automatically be electronically served all documents that are filed in the case.
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