EDWARDS v. BILLMEIER et al

Filing 10

OPINION filed. Signed by Judge Anne E. Thompson on 10/19/2018. (mps)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MACK EDWARDS,

HONORABLE ANNE E. THOMPSON

Plaintiff,
V.

Civil Action
No. 18-1857 (AET-LHG)

ROBERT BILLMEIER, et al.,
OPINION
Defendants.

APPEARANCES:
Mack Edwards, Plaintiff Pro Se
243036E
N orthem State Prison
PO B0X2300
168 Frontage Road
Newark, NJ 07114

RECEIVED

OCT 1 9 2018
AT

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THOMPSON, District Judge:

I. INTRODUCTION
Before the Court is Mack Edwards' ("Plaintiff') civil rights complaint pursuant to 42
U.S.C. § 1983. Complaint, Docket Entry 1. At this time, the Court must review the complaint,
pursuant to 28 U.S.C. §§ 1915(e)(2) 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 will be dismissed. Plaintiff shall be granted leave
to file an amended complaint.

II.

BACKGROUND
Plaintiff brings this civil rights action against New Jersey Superior Court Judge Robert

Billmeier, Assistant Mercer County Prosecutor Michael Grillo, Assistant Mercer County
Prosecutor Michelle Gasparian, Detective Mercello Masseroni, Mercer County Correctional
Center ("MCCC") Warden Charles Ellis, and MCCC Deputy Warden Phyllis Oliver. The
following factual allegations are taken from the complaint and are accepted for purposes of this
screening only. The Court has made no findings as to the truth of Plaintiffs allegations.
Plaintiff states he was arrested by the Trenton Police on murder charges in January 2011.
Complaint ,r 18. He was placed in the MCCC in approximately March 2011. Id. According to
Plaintiff, Judge Billmeier ordered Plaintiff to be removed from general population on October 4,
2016 as the Mercer County Prosecutor's Office had charged him with witness tampering. Id.
Plaintiff alleges Judge Billmeier ordered him to be placed in solitary confinement and for his
phone communications, visits, and incoming and outgoing mail to be suspended. Id.

,r 19.

Plaintiffs cell was searched by a Mercer County Prosecutor's Office detective pursuant
to a warrant on October.6 and 16, 2016. Id.

,r 20. The detective seized discovery material from

Plaintiffs criminal case in addition to all of Plaintiffs personal effects. Id. Plaintiff complained
to Judge Billmeier, and the judge ordered the return of the discovery material. Id. , 21. Plaintiff
states he never received any of the material back from the prosecutor's office or the MCCC. Id.
Plaintiff alleges that Judge Billmeier's order only permitted visits from Plaintiffs
daughter. The order did not permit any other family member to accompany her. Id.

,r 22. He

further alleges he was only afforded limited access to his attorney and all phone calls and visits
had to be conducted in Deputy Warden Oliver's presence. Id.

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,r,r 24-25.

He also makes various allegations about being denied access to the courts due to
insufficient legal supplies, access to his attorney, and interference with his legal mail. Id.

,r,r 26-

28. He asserts Warden Ellis and Deputy Warden Oliver confiscated his mail and did not comply
with prison procedures regarding confiscated mail. Id.

,r,r 28-29. He further claims personal items

were seized from his cell and were used as evidence in his trial. Id.

,r,r 30-32.

Plaintiff raises claims of malicious prosecution, unlawful search and seizure, interference·
with his access to the courts, perjury, and negligent failure to protect. In addition to monetary
damages, he asks the Court to order the Mercer County Prosecutor's Office to "[r]emove all
perjured testimony from the records of the Grand Jury Proceeding in the Tampering with a
Witness case" and "[r]emove tampered evidence and all derivative evidence that was recovered
for the violation involving defendants Grillo, and Gasparian." Id. at 13(B)(2) & (4)

III. STANDARD OF REVIEW
A. Standards for a Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 132166 to 1321-77 (April 26, 1996) ("PLRA"), district courts must review complaints in those civil
actions in which a prisoner is proceeding informa pauperis, see 28 U.S.C. § 1915(e)(2)(B),
seeks redress against a governmental employee or entity, see 28 U.S.C. § 1915A(b), or brings a
claim with respect to prison conditions, see 42 U.S.C. § 1997e. The PLRA directs district courts
to sua sponte dismiss any claim that is frivolous, is 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. This action is subject to sua sponte screening for dismissal under 28 U.S.C. §
1915(e)(2)(b) because Plaintiff is proceeding informa pauperis.

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According to the Supreme Court's decision in Ashcroft v. Iqbal, "a pleading that offers
'labels or conclusions' or 'a formulaic recitation of the elements of a cause of action will not
do."' 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To survive sua sponte screening for failure to state a claim, 1 the complaint must allege
"sufficient factual matter" to show that the claim is facially plausible. Fowler v. UPMS

Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted). "A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Fair Wind Sailing, Inc. v. Dempster, 764
F.3d 303, 308 n.3 (3d Cir. 2014) (quoting Iqbal, 556 U.S. at 678).
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)); see also United States v. Day, 969 F.2d
39, 42 (3d Cir. 1992). Although prose pleadings are liberally construed, plaintiffs "still must
allege sufficient facts in their complaints to support a claim." Mala v. Crown Bay Marina, Inc.,
704 F.3d 239,245 (3d Cir. 2013) (citation omitted).
B. Section 1983 Actions

A plaintiff may have a cause of action under 42 U.S.C. § 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

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"The legal standard for dismissing a complaint for failure to state a claim pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6)." Schreane v. Seana, 506 F. App'x 120, 122 (3d Cir. 2012)
(citing Allah v. Seiverling, 229 F.3d 220,223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App'x
230, 232 (3d Cir. 2012) (discussing 42 U.S.C. § 1997e(c)(l)); Courteau v. United States, 287 F.
App'x. 159, 162 (3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)).
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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 ....
§ 1983. 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. See West v.

Atkins, 487 U.S. 42, 48 (1988); Malleus v. George, 641 F.3d 560,563 (3d Cir. 2011); Piecknick
v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994).
IV. ANALYSIS
A. Judicial Immunity

Plaintiffs claims against Judge Billmeier are clearly barred by judicial immunity. 2 "It is a
well-settled principle of law that judges are generally 'immune from a suit for money damages."'

Figueroa v. Blackburn, 208 F.3d 435,440 (3d Cir. 2000) (quoting Mireles v. Waco, 502 U.S. at
11, 9, 112 S. Ct. 286 (1991)). "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 (1978).; see also Ga/las v. Supreme Court ofPa., 211 F.3d 760, 769 (3d Cir.
2000) ("[I]mmunity will not be lost merely because the judge's action is 'unfair' or
controversial."). "A judge is absolutely immune from liability for his judicial acts even if his
exercise of authority is flawed by the commission of grave procedural errors." Stump, 435 U.S.
at 359.

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The relief portion of the complaint only requests a declaratory judgment that Judge Billmeier's
conduct was unconstitutional. "The purpose of a declaratory judgment is to 'declare the rights of
litigants.' The remedy is thus by definition prospective in nature." CMR D.N. Corp. v. City of
Phi/a., 703 F.3d 612, 628 (3d Cir. 2013) (quoting Wilton v. Seven Falls Co., 515 U.S. 277, 286
(1995)). Plaintiff"cannot obtain declaratory relief for past alleged wrongs." Capozzi v. Bledsoe,
560 F. App'x 157, 159 (3d Cir. 2014). The Court liberally construes Plaintiffs prose complaint
as requesting damages from Judge Billmeier.
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"[Judicial] immunity is overcome in only two sets of circumstances." Mireles, 502 U.S.
at 11. "First, a judge is not immune from liability for nonjudicial acts, i.e., actions not taken in
the judge's judicial capacity." Id. In determining whether an act qualifies as a 'judicial act,"
courts look to "the nature of the act itself, i.e., whether it is a function normally performed by a
judge, and to the expectation of the parties, i.e., whether they dealt with the judge in his [or her]
judicial capacity." Stump, 435 U.S. at 362. "Second, a judge is not immune for actions, though
judicial in nature, taken in the complete absence of all jurisdiction." Mireles, 502 U.S. at 12.
Judge Billmeier's order was issued in the context of Plaintiffs criminal trial and in
response to charges of witness tampering. This order "was a judicial act not undertaken in the
complete absence of jurisdiction." Gallas, 211 F.3d at 772. All claims against Judge Billmeier
are dismissed with prejudice.
B. Malicious Prosecution

Plaintiff asserts claims of malicious prosecution against Assistant Prosecutors Grillo and
Gasparian as well as Detective Mercello Masseroni for "falsifying a claim of tampering with [a]
witness .... " Complaint ,r 46.
Assistant Prosecutors Grillo and Gasparian are immune from suit under § 1983 for
malicious prosecution. The Supreme Court has held that "in initiating a prosecution and in
presenting the State's case, the prosecutor is immune from a civil suit for damages under s 1983."
Imbler v. Pachtman, 424 U.S. 409, 431 (1976). "This is true even where a prosecutor has acted

maliciously or dishonestly." Mujaddid v. Wehling, 663 F. App'x 115, 119 (3d Cir. 2016).
Although prosecutors are not entitled to absolute immunity for actions taken in their
administrative or investigatory roles, Plaintiffs malicious prosecution claims against Assistant
Prosecutors Grillo and Gasparian are clearly for actions taken in their "quasi-judiciar' roles as he

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alleges they "falsiflied] a claim of tampering with witness ...." Complaint ,r 46. The claims are
dismissed with prejudice as against the assistant prosecutors.
Plaintiff has failed to state a malicious prosecution claim against Detective Masseroni.
To prevail on a § 1983 malicious prosecution claim, Plaintiff must set forth facts indicating
Detective Masseroni (1) initiated a criminal proceeding; (2) the criminal proceeding ended
Plaintiffs favor; (3) the proceeding was initiated without probable cause; (4) Detective
Masseroni acted maliciously or for a purpose other than bringing Plaintiff to justice; and (5)
Plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence
of a legal proceeding. See Woodyard v. Cty. ofEssex, 514 F.App'x 177, 182 (3d Cir. 2013)

(citingMcKenna v. City ofPhi/a., 582 F.3d 447,461 (3d Cir. 2009)).
Here, it is not clear that criminal proceedings have ended in Plaintiffs favor, and there
are no facts indicating Detective Masseroni acted maliciously and without probable cause. As
Plaintiff may be able to correct these deficiencies, this claim is dismissed without prejudice.

C. Access to the Courts
Plaintiff raises various allegations about defendants interfering with his access to the
courts by denying him the use of the law library, "tampering" with evidence, seizing his
discovery materials, etc. Plaintiff has failed to allege enough facts to state a claim for denial of
access to the courts. An access to the courts claim requires a plaintiff to plead facts indicating
"he has suffered an actual injury to his ability to present a claim. A prisoner can show an actual
injury only when a nonfrivolous, arguable claim is lost." Henry v. Moore, 500 F. App'x 115, 117
(3d Cir. 2012) (citing Christopher v. Harbury, 536 U.S. 403,415 (2002); Lewis v. Casey, 518
U.S. 343, 352-54 (1996)). Plaintiff has not alleged how defendants' actions directly caused him
to lose either a nonfrivolous criminal or civil rights matter. Moreover, he has not stated how no

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other remedy ''will potentially compensate for the lost claim." Henry, 500 F. App'x at 117 (citing

Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008)).
As Plaintiff may be able to allege facts that would state an access to the courts claim, the
Court will grant leave to amend this claim.
D. Fourth Amendment and Due Process
To the extent Plaintiff attempts to raise an unlawful search and seizure claim under the
Fourth Amendment for the confiscation of his property, he has failed to state a claim.
"Where the alleged Fourth Amendment violation involves a search or seizure pursuant to
a warrant, the fact that a neutral magistrate has issued a warrant is the clearest indication that the
officers acted in an objectively reasonable manner or, as we have sometimes put it, in 'objective
good faith."' Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (quoting United States v.

Leon, 468 U.S. 897, 922-23 (1984)). An exception exists when "the warrant was 'based on an
affidavit so lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable."' Id. at 547 (quoting Leon, 468 U.S. at 923). "[T]he threshold for
establishing this exception is a high one[.]" Id. Plaintiff has not provided any facts suggesting the
warrant used to seize his property was based on an obviously deficient affidavit.
Plaintiff also has not stated a Due Process violation for failure to return any of his
property. "In order to determine whether an individual has been deprived of his property without
due process 'it is necessary to ask what process the State provided, and whether it was
constitutionally adequate."' Revell v. Port Auth. ofNew York, New Jersey, 598 F.3d 128, 138 (3d
Cir. 2010) (quoting Zinermon v. Burch, 494 U.S. 113, 126 (1990)). Plaintiff "cannot prevail on
his due process claim if the state's post-deprivation procedures, including state tort remedies, are
adequate." Id. at 139.

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New Jersey state law provides several different procedures by which to either recover
seized property, see, e.g., N.J. Ct. R. 3:5-7 (motion for return of wrongfully seized property in
criminal case); N.J. Ct. R. 4:61-1 (writ of replevin), or to be compensated for the value oflost
property, see, e.g., N.J. Stat. Ann.§ 59:1-1 et seq. (New Jersey Tort Claims Act). Plaintiff "has
failed to explain why New Jersey's state procedures to recover ... seized property, such as the
ability to move in the criminal action for return of his property or the ability to file a separate
action for a writ ofreplevin, are insufficient." Revell, 598 F.3d at 139 (citing Staie v. One 1986
Subaru, 576 A.2d 859 (N.J. 1990)). See also McKenna v. Portman, 538 F. App'x 221,225 (3d
Cir. 2013) (affirming dismissal of due process claim because state's failure to provide affidavit in
support of search warrant did not prevent plaintiffs from using state court remedies for seized
property). Because there are multiple, adequate state post-deprivation remedies available to
Plaintiff, he has not stated a federal due process claim against defendants.
E. Perjury

Plaintiff alleges perjury in connection with the grand jury proceedings. Complaint ,r ,r 3336. In addition to the allegations being vague, there is no claim under 42 U.S.C. § 1983 for

perjury.
F. Failure to Intervene

The last of Plaintifr s federal claims is a failure to intervene claim against Assistant
Prosecutors Grillo and Gasparian. Although "there is no case law in the Third Circuit holding a
prosecutor liable for a failure to intervene in the conduct of police officers, there is case law
supporting this premise in at least one other jurisdiction." Weimer v. Cty. ofFayette, Pa., No. 171265, 2018 WL 4404049, at *13 (W.D. Pa. Sept. 14, 2018) (citing Serrano v. Guevara, 315 F.
Supp. 3d 1026, 1038 (N.D. Ill. 2018); Harris v. City of Chicago, No. 15-3859, 2015 WL

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5445012, at *4 (N.D. Ill. Sept. 15, 2015)). However, Plaintiff has not supported his claim with
any facts. To plead a failure to intervene claim, Plaintiff must plead facts indicating that: (1) the
defendant failed or refused to intervene when a constitutional violation took place in his or her
presence or with his or her knowledge; and (2) there was a "realistic and reasonable opportunity
to intervene." Smith v. Mensinger, 293 F.3d 641, 650-51 (3d Cir. 2002). Nothing in the
complaint indicates the assistant prosecutors were aware of any alleged constitutional violations
by other defendants and failed to intervene despite having a realistic opportunity to do so.
This claim is dismissed without prejudice.
G. State law claims

The Court declines to exercise supplemental jurisdiction over any remaining state law
claims as all federal claims are being dismissed. 28 U.S.C. § 1367(c)(3).
H. Leave to Amend

Generally, "plaintiffs who file complaints subject to dismissal under [§ 1915] should
receive leave to amend unless amendment would be inequitable or futile." Grayson v. Mayview
State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). As Plaintiff maybe able to provide facts
supporting his allegations, he may move to amend his complaint within 30 days of this Opinion
and Order.
Plaintiff should note that when an amended complaint is filed, the complaint no longer
performs any function in the case and cannot be utilized to cure defects in the complaint, unless
the relevant portion is specifically incorporated in the new complaint. 6 Wright, Miller & Kane,
Federal Practice and Procedure 1476 (2d ed. 1990) (footnotes omitted). The amended complaint
may adopt some or all of the allegations in the complaint, but the identification of the particular
allegations to be adopted must be clear and explicit. Id. To avoid confusion, the safer course is to

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file an amended complaint that is complete in itself. Id. Plaintiffs new complaint may not
include claims that were dismissed with prejudice.

V. CONCLUSION
For the reasons stated above, the complaint is dismissed. Plaintiff may move to amend his
complaint within 30 days.
An appropriate order follows.

~Ji<tjiit
Date
U.S. District Judge

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