HARVEY v. CHOW et al, No. 2:2005cv03430 - Document 2 (D.N.J. 2005)
Court Description: OPINION . Signed by Judge Jose L. Linares on 7/19/2005. (ji, )
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HARVEY v. CHOW et al Doc. 2 Case 2:05-cv-03430-JLL Document 2 Filed 07/20/2005 Page 1 of 8 NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CLOSED JEFFREY JEROME HARVEY, Plaintiff, v. MARTIN W. CHOW, Esq, et al., Defendants. : : : : : : : : : : Civil Action No. 05-3430 (JLL) OPINION APPEARANCES: Jeffrey Jerome Harvey, Plaintiff pro se #131626 H.C.C.C. 35 Hackensack Avenue South Kearny, NJ 07032 LINARES, District Judge Plaintiff Jeffrey Jerome Harvey, a prisoner currently confined at Hudson County Correctional Center, seeks to bring this action in forma pauperis pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. Based on his affidavit of indigence and the absence of three qualifying dismissals within 28 U.S.C. § 1915(g), the Court will grant Plaintiff s 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. Dockets.Justia.com Case 2:05-cv-03430-JLL Document 2 Filed 07/20/2005 Page 2 of 8 At this time, the Court must review the Complaint 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. I. BACKGROUND The following factual allegations are taken from Plaintiff s Complaint and are accepted as true for purposes of this review. Plaintiff was arrested on a parole violator warrant which led to revocation of his parole. Defendant Martin W. Chow, Esquire, and staff of his New York and New Jersey offices represented Plaintiff as assigned pro bono counsel. Plaintiff contends that the state has miscalculated his max-out date of February 21, 2006. He contends that the Defendants have failed to evaluate the calculation of his max-out date and have failed to properly represent him in determining his correct release date. Plaintiff contends that he has been detained beyond his proper release date.1 Plaintiff seeks damages and all other just and proper relief. 1 The Court does not construe the Complaint as a habeas petition under 28 U.S.C. § 2254. Plaintiff already has such a habeas petition pending before this Court. See Harvey v. Aviles, 04-cv-5418 (WGB). 2 Case 2:05-cv-03430-JLL II. Document 2 Filed 07/20/2005 Page 3 of 8 STANDARDS FOR A SUA SPONTE DISMISSAL This Court must dismiss, at the earliest practicable time, certain in forma pauperis and prisoner actions that are frivolous, malicious, fail to state a claim, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C. § 1915A (actions in which prisoner seeks redress from a governmental defendant); 42 U.S.C. § 1997e (prisoner actions brought with respect to prison conditions). 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 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. A pro se complaint may be dismissed for failure to state a claim only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines, 404 U.S. at 521 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Milhouse v. Carlson, 652 F.2d 3 Case 2:05-cv-03430-JLL 371, 373 (3d Cir. 1981). Document 2 Filed 07/20/2005 Page 4 of 8 Where a complaint can be remedied by an amendment, a district court may not dismiss the complaint with prejudice, but must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34 (1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996). III. 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 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). 4 Case 2:05-cv-03430-JLL Document 2 IV. Filed 07/20/2005 Page 5 of 8 ANALYSIS Plaintiff contends that by failing to represent him properly in this parole revocation proceeding, the Defendant and his associated staff have violated his constitutional rights. Based on the facts alleged in the Complaint, this ineffectiveassistance-of-counsel claim is not yet ripe. 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. In Preiser, state prisoners who had been deprived of good-conduct-time credits by the New York State Department of Correctional Services as a result of disciplinary proceedings brought a § 1983 action seeking injunctive relief to compel restoration of the credits, which would have resulted in their immediate release. 411 U.S. at 476. The prisoners did not seek compensatory damages for the loss of their credits. U.S. at 494. 411 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 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. In Heck v. Humphrey, 512 U.S. 477 (1994), the Court addressed a corollary question to that presented in Preiser, 5 Case 2:05-cv-03430-JLL Document 2 Filed 07/20/2005 Page 6 of 8 whether a prisoner could challenge the constitutionality of his conviction in a suit for damages only under § 1983, a form of relief not available through a habeas corpus proceeding. Again, the Court rejected § 1983 as a vehicle to challenge the lawfulness of a criminal judgment. [I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. 512 U.S. at 486-87 (footnote omitted). The Court further instructed district courts, in determining whether a complaint states a claim under § 1983, to evaluate whether a favorable outcome would necessarily imply the invalidity of a criminal judgment. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit. 6 Case 2:05-cv-03430-JLL Document 2 512 U.S. at 487 (footnotes omitted). Filed 07/20/2005 Page 7 of 8 The Court further held that a § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated. Id. at 489-90. Plaintiff s claim against his counsel presents the type of claim addressed in Heck; that is, a finding that Plaintiff s current imprisonment is a result of ineffective assistance of counsel which would necessarily imply the invalidity of his imprisonment. See Strickland v. Washington, 466 U.S. 668 (1984) (describing the standards by which to judge a contention that the Constitution requires that a criminal judgment be overturned because of the actual ineffective assistance of counsel ). As Plaintiff does not contend that his imprisonment has been invalidated, these claims have not yet accrued. In addition, Plaintiff pleads no facts to suggest that his counsel is a state actor. [A] lawyer representing a client is not, by virtue of being an officer of the court, a state actor under color of state law within the meaning of § 1983. County v. Dodson, 454 U.S. 312, 318 (1981). Polk Similarly, a public defender does not act under color of state law when performing a lawyer s traditional functions as counsel to a defendant in a criminal proceeding. Polk Co. v. Dodson, 454 U.S. at 325. Accordingly, Plaintiff s claims must be dismissed for failure to state a claim. 7 Case 2:05-cv-03430-JLL Document 2 V. Filed 07/20/2005 Page 8 of 8 CONCLUSION For the reasons set forth above, the Complaint must be dismissed without prejudice as premature and for failing to state a claim. It does not appear that Plaintiff could amend the Complaint to state a claim at this time. /s/ Jose L. Linares Jose L. Linares, United States District Judge Dated: July 19, 2005 8
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