COHEN v. VALENTIN et al, No. 3:2011cv01942 - Document 3 (D.N.J. 2011)
Court Description: OPINION. Signed by Judge Peter G. Sheridan on 11/9/2011. (gxh)
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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY LAWRENCE J. COHEN, Plaintiff, v. LUIS A VALENTIN, et al., Defendants. : : : : : : : : : : : Civil No. 11-1942 (PGS) OPINION APPEARANCES: LAWRENCE J. COHEN, Plaintiff pro se Monmouth County Correctional Institution One Waterworks Road Freehold, New Jersey 07728 SHERIDAN, District Judge Plaintiff, Lawrence J. Cohen, a state inmate confined at the Monmouth County Correctional Institution in Freehold, New Jersey, at the time he submitted the above-captioned Complaint for filing, seeks to bring this action in forma pauperis. Based on his affidavit of indigence, the Court will grant plaintiff s application to proceed in forma pauperis ( IFP ) pursuant to 28 U.S.C. § 1915(a) (1998) and order the Clerk of the Court to file the Complaint. At this time, this Court must review the Complaint, pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, to determine whether the Complaint 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 should be dismissed with prejudice. I. BACKGROUND Plaintiff, Lawrence J. Cohen ( Cohen ), brings this civil action, pursuant to 42 U.S.C. § 1983, against the following defendants: the Luis A. Valentin, Prosecutor; Kevin Clark, Assistant Prosecutor; John Sosdian, Asbury Park Police Detective; and Donna Wrenn, Public Defender Office. ¶ 4b). (Complaint, Caption and 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 veracity of plaintiff s allegations. Cohen alleges that the defendant prosecuting attorneys and police detective openly lied in court before a judge and grand jury so as to obtain an arrest warrant, search warrants and an indictment. Cohen also appears to assert a claim of ineffective assistance of counsel against his public defender, Donna Wrenn. Cohen does not specify the type of relief he seeks in his Complaint, i.e., whether it is for monetary damages, declaratory relief or injunctive relief. II. STANDARDS FOR A SUA SPONTE DISMISSAL The Prison Litigation Reform Act ( PLRA ), Pub. L. No. 104134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996), 2 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 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. 28 U.S.C. §§ This action is subject to sua sponte screening for dismissal under both 28 U.S.C. § 1915(e)(2)(B) an § 1915A. 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)). States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). See also United 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 complaint is frivolous if it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (interpreting the predecessor of § 1915(e)(2), the 3 former § 1915(d)). The standard for evaluating whether a complaint is frivolous is an objective one. Deutsch v. United States, 67 F.3d 1080, 1086-87 (3d Cir. 1995). 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)). See also Erickson, 551 U.S. at 93-94 (In a pro se prisoner civil rights complaint, the Court reviewed whether the complaint complied with the pleading requirements of Rule 8(a)(2)). However, recently, the Supreme Court revised this standard for summary dismissal of a Complaint that fails to state a claim in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). The issue before the Supreme Court was whether Iqbal s civil rights complaint adequately alleged defendants personal involvement in discriminatory decisions regarding Iqbal s treatment during detention at the Metropolitan Detention Center which, if true, violated his constitutional rights. Id. 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 statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2).1 Citing its recent opinion in Bell 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 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 identified two working principles underlying the failure to state a claim standard: First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice ... . Rule 8 ... does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n] - that the pleader is entitled to relief. Fed. Rule Civ. Proc. 8(a)(2). Iqbal, 129 S.Ct. at 1949-1950 (citations omitted). The Court further explained that a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Iqbal, 129 S.Ct. at 1950. Thus, to prevent a summary dismissal, civil complaints must now allege sufficient factual matter to show that a claim is 5 facially plausible. This then allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 1948. The Supreme Court s ruling in Iqbal emphasizes that a plaintiff must demonstrate that the allegations of his complaint are plausible. Id. at 1949-50; see also Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC Shadyside, 578 F.3d 203, 210(3d Cir. 2009). Consequently, the Third Circuit observed that Iqbal provides the final nail-in-the-coffin for the no set of facts standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),2 that applied to federal complaints before Twombly. at 210. Fowler, 578 F.3d The Third Circuit now requires that a district court must conduct the two-part analysis set forth in Iqbal when presented with a motion to dismiss: First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint s well-pleaded facts as true, but may disregard any legal conclusions. [Iqbal, 129 S.Ct. at 1949-50]. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief. [Id.] In other words, a complaint must do more than allege the plaintiff s entitlement to relief. A complaint has to show such an entitlement with its facts. See Phillips, 515 F.3d at 234-35. As the Supreme Court instructed in Iqbal, [w]here the well-pleaded facts do not permit the 2 In Conley, as stated above, a district court was permitted to summarily dismiss a complaint for failure to state a claim only if it appear[ed] beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Id., 355 U.S. at 45-46. Under this no set of facts standard, a complaint could effectively survive a motion to dismiss so long as it contained a bare recitation of the claim s legal elements. 6 court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show [n] - that the pleader is entitled to relief. Iqbal, [129 S.Ct. at 1949-50]. This plausibility determination will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Id. Fowler, 578 F.3d at 210-211. This Court is mindful, however, that the sufficiency of this pro se pleading must be construed liberally in favor of Plaintiff, even after Iqbal. (2007). See Erickson v. Pardus, 551 U.S. 89 Moreover, a court should not dismiss a complaint with prejudice for failure to state a claim without granting leave to amend, unless it finds bad faith, undue delay, prejudice or futility. See Grayson v. Mayview State Hosp., 293 F.3d 103, 110111 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 117 (3d Cir. 2000). III. SECTION 1983 ACTIONS Plaintiff brings this action pursuant to 42 U.S.C. § 1983. 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 7 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). IV. A. ANALYSIS Prosecutorial Immunity Cohen asserts a claim against the prosecutor defendants, Luis A. Valentin and Kevin Clark, with respect to their handling of recent arrest and search warrants and indictment of plaintiff. To the extent that Cohen is asserting that these defendants violated his constitutional rights in their prosecution of Cohen, such claim must be dismissed. [A] state prosecuting attorney who act[s] within the scope of his duties in initiating and pursuing a criminal prosecution is not amenable to suit under § 1983. U.S. 409, 410 (1976). Imbler v. Pachtman, 424 Thus, a prosecutor s appearance in court as an advocate in support of an application for a search warrant and the presentation of evidence at such a hearing are protected by absolute immunity. Burns v. Reed, 500 U.S. 478, 492 (1991). Similarly, acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity. Fitzsimmons, 509 U.S. 259, 273 (1993). 8 Buckley v. A prosecutor is not entitled to absolute immunity, however, for actions undertaken in some other function. See Kalina v. Fletcher, 522 U.S. 118 (1997) (prosecutor is protected only by qualified immunity for attesting to the truth of facts contained in certification in support of arrest warrant, as in her provision of such testimony she functioned as a complaining witness rather than a prosecutorial advocate for the state); Burns, 500 U.S. at 492-96 (the provision of legal advice to police during pretrial investigation is protected only by qualified immunity); Buckley, 409 U.S. at 276-78 (prosecutor is not acting as an advocate, and is not entitled to absolute immunity, when holding a press conference or fabricating evidence). See also Yarris v. County of Delaware, 465 F.3d 129 (3d Cir. 2006)(where the Court of Appeals for the Third Circuit presents a detailed and nuanced analysis of when a prosecuting attorney is, and is not, entitled to absolute immunity for allegedly wrongful acts in connection with a prosecution, holding, for example, that a prosecutor is not entitled to absolute immunity for deliberately destroying highly exculpatory evidence, but is entitled to immunity for making the decision to deliberately withhold exculpatory evidence before and during trial, but not after the conclusion of adversarial proceedings). Here, Cohen s allegations against these prosecutorial defendants plainly fall within the scope of their prosecutorial duties in initiating and pursuing a criminal prosecution against 9 plaintiff. There are no allegations that appear to fall outside the scope of the defendants prosecutorial role, and this Court is hard-pressed to find any allegation of wrongdoing or prosecutorial misconduct of any kind. B. Claim Against Public Defender Defendant Next, Cohen appears to assert a claim against his assigned counsel from the Public Defender s Office, defendant Donna Wrenn, alleging ineffective assistance of counsel during plaintiff s state court criminal proceedings in violation of his Sixth Amendment rights. § 1983 action. This claim is not actionable at this time in a First, defendant is not subject to liability under § 1983 because she is not a state actor. 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. 312, 325 (1981) (a public defender performing a lawyer s traditional functions as counsel to a defendant, such as determining trial strategy and whether to plead guilty, is not acting under color of state law); Thomas v. Howard, 455 F.2d 228 (3d Cir. 1972) (court-appointed pool attorney does not act under color of state law). Even if defendant was a privately retained lawyer, she would not be subject to liability under § 1983. Steward v. Meeker, 459 F.2d 669 (3d Cir. 1972) (privately-retained counsel does not act under color of state law when representing client). 10 Moreover, even if Cohen had pleaded facts establishing that his attorney was acting under color of state law, any claim concerning a violation of plaintiff s right to effective assistance of counsel must first be raised in plaintiff s ongoing state criminal proceedings. A federal court generally will not intercede to consider issues that the plaintiff has an opportunity to raise before the state court. See Younger v. Harris, 401 U.S. 37 (1971). Further, to the extent that Cohen s criminal trial is no longer pending, and he has been sentenced on any state charges, which is not apparent from the Complaint, any claim of ineffective assistance of counsel in this regard must first be exhausted via state court remedies, i.e., by direct appeal or other available state court review; and then, if appropriate, by filing a federal habeas application, under 28 U.S.C. § 2254, to assert any violations of federal constitutional or statutory law, namely, his claim of ineffective assistance of counsel. Preiser v. Rodriguez, 411 U.S. 475 (1973). Therefore, plaintiff s Complaint asserting any liability against defendant Wrenn under § 1983, as to an ineffective assistance of counsel claim, must be dismissed for failure to state a claim at this time, pursuant to 28 U.S.C. §§ 1915A(b)(1) and 1915A(b)(1). 11 C. Claim Against Defendant Sosdian Finally, it appears that Cohen is asserting a claim against Asbury Park Police Detective Sosdian with regard to his alleged false testimony and documents at plaintiff s state criminal trial proceedings, namely, before the grand jury and other initial proceedings in court. Thus, to the extent that the Complaint against Sosdian is based on the officer s testifying falsely before a grand jury or a court, such claims must be dismissed because a witness enjoys absolute immunity from damages under § 1983 for false testimony. See Briscoe v. LaHue, 460 U.S. 325, 330-346 (1983)(police officer who testifies in criminal trial enjoys absolute witness immunity for false testimony); Kulwicki v. Dawson, 969 F.2d 1454, 1467 and n. 16 (3d Cir.1992)(witness who testifies in judicial proceeding is absolutely immune for false testimony); Williams v. Hepting, 844 F.2d 138, 143 (3d Cir.1988) (witness is entitled to absolute immunity from civil liability under § 1983 for perjured testimony at preliminary hearing and suppression hearings). 12 V. CONCLUSION For the reasons set forth above, the Complaint will be dismissed without prejudice, in its entirety, as against all named defendants, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and 1915A(b)(1), for failure to state a claim upon which relief may be granted at this time. An appropriate order follows. s/Peter G. Sheridan PETER G. SHERIDAN, U.S.D.J. November 9, 2011 13
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