-AMD CORTES v. AGUILAR, No. 1:2009cv06293 - Document 3 (D.N.J. 2010)

Court Description: OPINION. Signed by Judge Renee Marie Bumb on 4/26/2010. (drw, )(n.m.)

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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY WILLIAM COLON CORTES, Plaintiff, v. OMAR AGUILAR, Defendant. : : : : : : : : : : : Civil No. 09-6293 (RMB) O P I N I O N APPEARANCES: William Colon Cortes, Pro Se # 592136/569043B Fletcher Half Way Back 517 Penn Street Camden, NJ 08102 BUMB, District Judge Plaintiff, William Colon Cortes, currently confined at the Fletcher Half Way Back, Camden, New Jersey, seeks to bring this action in forma pauperis, without prepayment of fees, pursuant to 28 U.S.C. § 1915. Based on plaintiff s affidavit of indigence and institutional account statement, the Court will grant his application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) and order the Clerk of the Court to file the complaint. At this time, the Court must review the complaint pursuant to 28 U.S.C. § 1915(e)(2) 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 following reasons, plaintiff s complaint will be dismissed. BACKGROUND Plaintiff seeks to sue Omar Aguilar, his public defender, who represented him at a drug court hearing in the Superior Court of New Jersey. Plaintiff states that defendant Aguilar was involved in his resentencing after a violation of parole. Defendant told Plaintiff that Plaintiff would receive a large amount of gap time credits, 585 days, on his five-year flat sentence, but Plaintiff at sentencing only received 69 days of credit. Plaintiff has tried to reach out to Defendant about the credit issue, and has written letters to judges as well. He states he is being ignored, and that he was lied to by Defendant concerning the gap time credit. Plaintiff seeks relief in the form of the promised gap time credit, credit for time served, and for monetary damages. DISCUSSION A. Standard of Review 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 is required to identify cognizable claims and to sua sponte 2 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. §§ 1915(e)(2)(B) and 1915A. See 28 U.S.C. This action is subject to sua sponte screening for dismissal under both 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, because plaintiff is a prisoner and is proceeding as an indigent. 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)). v. Day, 969 F.2d 39, 42 (3d Cir. 1992). See also United States 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. Recently, the Supreme Court refined this standard for summary dismissal of a complaint that fails to state a claim in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). 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 3 statement of the claim showing that the pleader is entitled to Fed. R. Civ. P. 8(a)(2).1 relief. Citing its recent opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), for the 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 held that, to prevent a summary dismissal, 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. See id. at 1948. The Supreme Court s ruling in Iqbal emphasizes that a plaintiff must demonstrate that the allegations of his complaint are plausible. See id. at 1949-50; see also Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC Shadyside, 578 F.3d 203, 2009 WL 2501662, *4 (3d Cir., Aug. 18, 2009). B. 42 U.S.C. § 1983 A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of his or her constitutional rights. Section 1983 provides in relevant part: 1 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). 4 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 establish a violation of 42 U.S.C. § 1983, a plaintiff must demonstrate that the challenged conduct was committed by (1) a person acting under color of state law and (2) that the conduct deprived him of rights, privileges, or immunities secured by the Constitution or laws of the United States. See Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). C. Plaintiff s Request for Release Will Be Dismissed. To the extent that Plaintiff requests release on time served due to the miscalculated jail credits, the claim will be dismissed. In a series of cases beginning with Preiser v. Rodriguez, 411 U.S. 475 (1973), the Supreme Court has analyzed the intersection of 42 U.S.C. § 1983 and the federal habeas corpus statute, 28 U.S.C. § 2254. The Court held that "when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination 5 that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus." Id. at 500. Thus, if plaintiff asserts that there were violations in his sentencing calculations and seeks release, his claims are not cognizable in this § 1983 action; rather, Plaintiff must file a habeas petition, pursuant to 28 U.S.C. § 2254, after exhaustion of his state court proceedings. The Court further notes that Defendant Aguilar is not a proper defendant in this § 1983 action. As a public defender, Defendant Aguilar is not a state actor for purposes of § 1983. See Polk County v. Dodson, 454 U.S. 312, 325 (1981) (holding that public defenders do not act under color of state law); Steward v. Meeker, 459 F.2d 669 (3d Cir. 1972) (privately-retained counsel does not act under color of state law when representing client); Thomas v. Howard, 455 F.2d 228 (3d Cir. 1972) (court-appointed pool attorney does not act under color of state law). Additionally, liberally construing the complaint, Plaintiff may be alleging that he received ineffective assistance of counsel at his sentencing. However, Plaintiff has not plead that his conviction has been overturned or reversed on appeal or other collateral review, to allow him to be awarded monetary damages. See Heck v. Humphrey, 512 U.S. 477 (1994). 6 CONCLUSION Based upon the foregoing, Plaintiff s complaint will be dismissed. The Court will file an appropriate order. s/Renée Marie Bumb RENà E MARIE BUMB United States District Judge Dated: April 26, 2010 7

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