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Dorko v. White


October 6, 1998


The opinion of the court was delivered by: Joel A. Pisano United States Magistrate Judge



Before the Court is Plaintiff's application for appointment of counsel. Defendant has not filed opposition, and the Court decides the matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons set forth below, Plaintiff's application is denied.


At 3:15 a.m. on March 29, 1995, a Somerville police officer pulled over a car that had just made an illegal right turn at a red traffic light. The car sped away before the investigative traffic stop was complete. The officer gave chase and later ascertained through investigation that the driver had been Russell Dorko. Several months later police arrested Dorko and charged him with motor vehicle offenses and eluding a police officer. Dorko was convicted in January 1996 of second-degree eluding in the Superior Court of New Jersey, Somerset County. The jury also found Dorko guilty of third-degree eluding. A person who, while operating a motor vehicle, flees or attempts to elude a police officer commits the crime of eluding in the third degree. See N.J.S.A. 2C:29-2(b). If he also "creates a risk of death or injury to any person," then he commits the same crime in the second degree. See id.

Dorko appealed his conviction and the appellate division concluded that there were "substantial grounds for reversal" of the second-degree eluding conviction. See State v. Dorko, 298 N.J. Super. 54, 61 (App. Div. 1997). Essentially, the court held that the trial court improperly instructed the jury as to the elements of second-degree eluding. See id. at 59-61. The appellate division had no doubt that the jury properly convicted Dorko of third-degree eluding and, thus, remanded the matter for either resentencing on the third-degree conviction or a new trial as to second-degree eluding. See id. at 61. It appears from the record that the state did not retry Dorko for second-degree eluding and that he is currently serving his sentence for the third-degree conviction.

Plaintiff Dorko then commenced this action pursuant to 42 U.S.C. § 1983, claiming that a number of individuals and entities conspired to deprive him of a fair trial. Specifically, Dorko alleged that Defendant Timothy Van Hise destroyed exculpatory tape recordings and police reports. In March 1998, Judge Walls dismissed the complaint without prejudice because Dorko's claims would impermissibly call into question the third-degree eluding conviction. See Judge Walls's Letter Order, June 10, 1998, at 3-4 (citing Heck v. Humphrey, 512 U.S. 477 (1994)). Pursuant to the court's instructions and in order to avoid the strictures presented by Heck v. Humphrey, *fn1 Dorko filed a "Request for Reconsideration and Amended Complaint" that did not call into question his remaining conviction.

Judge Walls concluded on June 10, 1998, that Dorko's newest filing did not call into question his conviction for third-degree eluding. The court, however, instructed Dorko to file an amended complaint that comported with federal pleading rules and provided a short and plain statement of his claims against Van Hise and the Somerset County Prosecutor's Office. On July 8, 1998, Dorko filed his amended complaint.

The complaint alleges that Van Hise destroyed "relevant taped transmission recordings, and/or written Police reports that summarily would have shown that the plaintiff's only acts of eluding did not create a risk of death or injury . . . ." (Am. Compl., Statement of Claims, ¶ 1) Plaintiff Dorko also alleges that the Somerset County Prosecutor's Office "deliberately and maliciously suppressed said material in order to secure a Second Degree Conviction . . . ." (Am. Compl., Statement of Claims, ¶ 2) Essentially, Plaintiff accuses Van Hise and the prosecutor's office of the same misconduct, namely destruction and suppression of exculpatory evidence.

Also on July 8, 1998, Plaintiff filed an application for appointment of counsel, pursuant to 28 U.S.C. § 1915(d).


A plaintiff in a civil suit has neither a constitutional nor a statutory right to counsel. A court, however, has the discretionary authority to appoint counsel to represent an indigent plaintiff under 28 U.S.C. § 1915 (d). See Ray v. Robinson, 640 F.2d 474, 477 (3d Cir. 1981). When deciding whether to appoint counsel under Section 1915, the Court must be persuaded that the plaintiff's claim has some merit in law and fact. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). If it finds the plaintiff's claim has merit, the Court must then weigh a variety of factors to decide whether it is appropriate to appoint counsel.

According to Tabron, the district court has broad discretion in deciding whether to grant a motion for appointment of counsel, pursuant to 28 U.S.C. § 1915 (d). See Tabron, 6 F.3d at 153. As a threshold matter, the Tabron guidelines state that the case must have arguable legal and factual merit. See id. at 155. If the court finds that the indigent plaintiff's claim has arguable merit in law and fact, the court then examines a number of additional factors such as the plaintiff's ability to present the case, the complexity or degree of difficulty of the legal issues involved, the degree to which factual investigation will be required and the ability of the plaintiff to pursue such investigation, and the extent to which the case will turn on credibility determinations and experts. See id. at 156. Finally, the court should consider any factors weighing against appointing counsel, the limited supply of competent lawyers willing to undertake such representation without compensation, and the value of lawyers' time. See id. at 157.



It is firmly established that prosecutors are absolutely immune for their in-court activities. See Imbler v. Pachtman, 424 U.S. 409, 427 (1975). In Imbler, plaintiff filed a claim under 42 U.S.C. § 1983, alleging that the prosecutor knowingly used false testimony and suppressed material evidence at plaintiff's murder trial. See id. at 413. Specifically, the district court that later issued a writ of habeas corpus found, among other acts of misconduct, that a police fingerprint expert suppressed evidence favorable to plaintiff. See Imbler, 424 U.S. at 414-15. A federal court later overturned plaintiff's criminal conviction, and plaintiff filed suit seeking money damages for the alleged constitutional Brady violations. See id. at 413 & n.7 (citing Brady v. Maryland, 373 U.S. 83 (1963)). In his civil rights action, plaintiff asserted that the fingerprint expert's actions were "chargeable" to the prosecutor. See id. at 416.

The Imbler Court's analysis surveyed the history of government officers' immunities and determined that prosecutors should enjoy absolute immunity from suit for money damages. See id. at 427; see also Ernst v. Child & Youth Servs., 108 F.3d 486, 494-95 (3d Cir. 1997) (setting forth in detail Imbler's six primary public-policy considerations that support absolute immunity for prosecutors). In Part IV of Imbler, the Court explained what activities qualify for absolute immunity. Essentially, the Court held that a prosecutor's "activities . . . intimately associated with the judicial phase of the criminal process" are absolutely immune. Imbler, 424 U.S. at 430. Most significantly for analysis of the case at bar, the Supreme Court noted that the duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom. A prosecuting attorney is required constantly, in the course of his duties as such, to make decisions on a wide variety of sensitive issues. These include questions of whether to present a case to a grand jury, whether to file an information, whether and when to prosecute, whether to dismiss an indictment against particular defendants, which witnesses to call and what other evidence to present. Preparation, both for the initiation of the criminal process and for a trial, may require the obtaining, reviewing, and evaluation of evidence. Id. at 431 n.33 (emphasis added).

Later, in Burns v. Reed, 500 U.S. 478 (1990), the Court clarified which prosecutorial functions qualify for absolute immunity. Burns involved a prosecutor who (1) advised investigating police officers that it was permissible to hypnotize a suspect and (2) failed to inform the judge at a probable cause hearing that the suspect was under hypnosis when she confessed to shooting her children. See Burns, 500 U.S. at 482.

The Supreme Court held that when a prosecutor is acting as advocate for the State he enjoys absolute immunity. See id. at 491-92. The Court also explained that prosecutors are absolutely immune for actions that are "`intimately associated with the judicial phase of the criminal process.'" See id. at 492 (quoting Imbler, 424 U.S. at 430). On the other hand, when he acts as an administrator or an investigative officer, a prosecutor enjoys only qualified immunity. See id. at 492- 96.

The Court further explained itself in Buckley v. Fitzsimmons, 509 U.S. 259 (1993), a Section 1983 case in which plaintiff alleged that the prosecutor manufactured false evidence by shopping for experts until he found one who would provide an opinion favorable to the State. See id. at 272. The Supreme Court rejected the view that the absolute immunity conferred by Imbler extends only to a prosecutor's initiation of the case and to the prosecutor's courtroom conduct. See id. Rather, the Court explained that, as quoted supra in this Opinion, the prosecutor's role as advocate often involves actions preliminary to the initiation of prosecution and can involve actions outside the courtroom. See id. (quoting Imbler, 424 U.S. at 431 n.33).

Having set forth these rules, the Court must now determine whether Defendant Van Hise would likely enjoy absolute immunity for the actions alleged by Plaintiff Dorko. Plaintiff asserts that Van Hise suppressed and destroyed police tapes and records that would show Plaintiff did not create a risk of death or injury as defined under N.J.S.A. 2C:29-2(b); if that is so, Plaintiff could not be found guilty of second-degree eluding. Although this is a close case, it appears to the Court that Plaintiff's allegations are not likely to support liability against Defendant Van Hise. The prosecutor in this case will probably enjoy absolute immunity.

It is the province of the prosecutor to comply with discovery orders, present evidence to the jury, and try the case. Even if the alleged police tapes and records did exist and were destroyed by Van Hise, he will likely not be subject to monetary liability. The Supreme Court has spoken clearly on this subject. See Imbler, 424 U.S. at 431 n.34. Deciding whether or not to present evidence is "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430 (1975). It should be noted that this Court shares the Supreme Court's sense of outrage that a prosecutor might destroy and suppress evidence. See id. ("The conduct . . . is reprehensible, warranting criminal prosecution as well as disbarrment."). As a matter of law, however, a prosecutor enjoys absolute immunity for his prosecutorial actions. This case is not one in which the prosecutor was simply performing administrative duties or assisting in a police investigation. Cf. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Nothing in the record suggests that Van Hise had any extra-judicial agreement to destroy tapes or records or that he was acting in concert with the police to destroy the records.

Concluding, the Court finds that Van Hise will probably enjoy absolute immunity for his treatment of the evidence. Plaintiff has made no showing that would support the conclusion that Van Hise should enjoy only qualified immunity. See generally, Harlow v. Fitzgerald, 457 U.S. 800 (1982). Therefore, because Van Hise will probably be deemed absolutely immune, it is unlikely that Plaintiff Dorko's claim against Van Hise has legal or factual merit. The first prong of the Tabron analysis is not satisfied with regard to Van Hise.


Municipalities provide many essential services such as police, fire, education, and sanitation; thus, there are many opportunities for local governments to violate federal laws. The Supreme Court recognized that municipalities are subject to Section 1983 liability in Monell v. Department of Social Services, 436 U.S. 658, 690 (1978). Thus, it is firmly established that Section 1983 applies to municipalities and other local government units. Cf. id. In the next breath, the Court clarified those actions for which a municipality or government unit may be held liable:

Congress [in Section 1983] did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor--or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory. Id. at 691 (emphasis in original).

Rather, a municipality or government unit can only be held liable for an unconstitutional official policy; ordinance; regulation; official decision; or custom. See id. at 690-91. Stated another way, there are five possible methods of proving the existence of a policy necessary to impose Section 1983 liability: showing (1) action by a municipal legislative body, (2) agency action pursuant to delegated authority, (3) action by an individual with final decisionmaking authority, (4) a policy of inadequate training or supervision, or (5) the existence of a custom. See Erwin Chemerinsky, Federal Jurisdiction § 8.5.1 (2d ed. 1994).

Dorko's only apparent avenue of pursuit would be to show that someone with final decisionmaking authority at the Somerset County Prosecutor's Office directed the suppression and destruction of exculpatory evidence. In his papers, Dorko makes no relevant references to anyone except Defendant Van Hise. The inquiry, therefore, appears to be whether Van Hise was one with final authority for making the alleged decision to suppress exculpatory evidence. In determining who possesses policymaking authority for the purposes of Section 1983 liability, our analysis must be governed by state law. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989).

The Court's research reveals no New Jersey case or statute that sets forth in detail the powers and authority of an assistant county prosecutor. Although N.J.S.A. 2A:158-18 is entitled "Powers and duties of assistant prosecutors," the statute does not actually contain any helpful instruction. It is doubtful nonetheless that Van Hise possessed final decisionmaking authority for the alleged destruction of evidence. Assuming Defendant did possess such power, however, Plaintiff encounters another formidable obstacle to his showing of legal and factual merit.

"When county prosecutors engage in classic law enforcement and investigative functions, they act as officers of the State." Coleman v. Kaye, 87 F.3d 1491, 1505 (3d Cir. 1996); see also Cashen v. Spann, 66 N.J. 541, 552 (1975) (concluding that Morris County prosecutor was agent of the State when investigating criminal activity). In this case thus far, Plaintiff asserts no claim against the State of New Jersey, but names only the Somerset County Prosecutor's Office. Extrapolating from the agency principles announced in Coleman v. Kaye, Plaintiff is unlikely to exact any damages from Somerset County. Plaintiff is not likely to succeed on the merits of his claim against the Somerset County Prosecutor's Office. Having arrived at this conclusion, the Court is warranted in denying Plaintiff's request for counsel.


In order to go forward with the analysis, the Court must assume arguendo that Plaintiff is likely to succeed on the merits. As discussed supra, Tabron instructs that if Plaintiff shows his case has legal and factual merit the Court must then consider additional factors in deciding whether or not to appoint counsel. Even if Plaintiff has established legal and factual merit, the additional Tabron factors do not enure to the Plaintiff.

Plaintiff's pleadings in this case have been succinct and concise. Further, Plaintiff seems able to understand the detailed instructions issued by the Court. Plaintiff was able to reform his pleadings so as to avoid the strictures of Heck v. Humphrey, and when Judge Walls directed Plaintiff to re-file an amended complaint, Plaintiff had little difficulty doing so. Plaintiff ensured that, as directed by Judge Walls, his amended complaint was cogent, containing simply a short and plain statement of the facts upon which he based his claims.

Plaintiff appears to have an adequate mastery of written English, cf. Tabron v. Grace, 6 F.3d at 156, and should have little difficulty presenting his case. This case is not complex and will likely turn on whether or not Defendant Van Hise possessed final decisionmaking authority. Finally, there is likely little need for an expert witness in making Plaintiff's case.

In summary, the Court is confident that Plaintiff can manage his case without the assistance of counsel. As such, the appointment of counsel is not appropriate, and the Plaintiff's motion is denied.


For the reasons stated above, Plaintiff's application for appointment of counsel is denied. An appropriate Order follows.

Orig: Clerk

cc: Hon. William H. Walls

All parties




Before the Court is Plaintiff's application for appointment of counsel. Defendant has not filed opposition, and the Court decides the matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons set forth in the accompanying Opinion, Plaintiff's application is



Orig: Clerk

cc: Hon. William H. Walls

All parties


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