United States District Court, D. New Jersey
May 5, 2005.
ERNEST C. BRIGGS, Plaintiff,
JOHNNIE MOORE, et al., Defendants.
The opinion of the court was delivered by: STANLEY CHESLER, Magistrate Judge
Plaintiff Ernest C. Briggs ("Briggs"), currently confined at
the Monmouth County Jail in Freehold, New Jersey, seeks to bring
this action in forma pauperis pursuant to 28 U.S.C. § 1915
(1998). Based upon, his affidavit of indigence and institutional
account statement, the Court will (1) grant Plaintiff's
application to proceed in forma pauperis; (2) direct the
Clerk of the Court to file the Complaint without pre-payment of
the filing fee; (3) assess the $250.00 filing fee against
Plaintiff; and (4) direct the agency having custody of the
Plaintiff to forward payments from Plaintiff's institutional account to the Clerk of the Court each
month the amount in the account exceeds $10.00, until the $250.00
filing fee is paid in full, regardless of the outcome of the
litigation. See 28 U.S.C. § 1915 (a), (b) (1), (b) (2), (b)
Pursuant to 28 U.S.C. §§ 1915 (e) (2) and 1915A, the Court has
reviewed the Complaint to identify cognizable claims. The Court
will permit the claim of imprisonment without probable cause to
proceed at this time as against Defendants Moore, Jordan, and
Green; permit the conspiracy claim to proceed as against
Defendants Moore, Jordan, and Green; and dismiss the Complaint as
against the remaining Defendants.
Plaintiff brings this action pursuant to 42 U.S.C. § 1983
seeking damages for alleged violations of his rights secured by
the Constitution and laws of the United States.*fn1
Defendants appear to be Johnnie Moore; employed by the Asbury
Park Police Department; Louis Jordan, Asbury Park Police
Director; Patricia Green, a police administrator; Judge Mark
Apostolou; prosecutors Barbara Suppa and Sean Brennan; Judge Ira
Kreizman; and attorney James Kinarney. (Compl., Caption and and ¶
5.) Plaintiff's asserts the following facts in support of his
claims: He was arrested on or about May 7, 2003. (Compl. ¶ 8.)
About that time, Defendants Moore, Jordan and Green placed a
notation of probable cause on the complaint against him. (Id.)
According to Plaintiff, Judge Apostolou did nothing when informed
in writing on June 11, 2003, that Plaintiff would be submitting a
probable cause motion. (Id.) Plaintiff thereafter filed a
motion for suppression of evidence in the Superior Court. (Id.)
Plaintiff asserts that at the date of hearing on the motion
(February 27, 2004) "my attorney (Defendant Kinarney) did not
defend me at all." (Id.). In addition, Defendants "Sean Brennan
and Barbara Suppa did not prove on the record any fact that I had
a probable cause hearing. (Id.) Defendant Judge Ira Kreizman
"let this happen knowing that I did not have a probable cause in
the courts of Asbury Park . . . (Id.) Plaintiff concludes that
Defendants conspired to violate his Fourth Amendment rights on
February 27, 2004. (Id.)
The Prison Litigation Reform Act, Pub.L. No. 104-134, §§
801-810, 110 Stat. 1321-66, 1321-77 (1996), requires the Court,
prior to docketing or as soon as practicable after docketing, to
review a complaint in a civil action in which a prisoner is
proceeding in forma pauperis or seeks redress against a
government employee, 28 U.S.C. §§ 1915 (e) (2); 1915A. The Act
requires the Court to 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. Id. A. Standard for Dismissal
Rule 8(a)(2) requires a complaint to include "a short and plain
statement of the claim showing that the pleader is entitled to
relief." Fed.R.Civ.P. 8 (a) (2); accord Leatherman v.
Tarrant County Narcotics Intelligence and Coordination Unit,
507 U.S. 163, 168 (1993). Plaintiff is "required to `set forth
sufficient information to outline the elements of his claim or to
permit inferences to be drawn that these elements exist.'" Kost
v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (quoting 5A
Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 1357, at 340 (2d ed. 1990)). The Court "must
determine whether, under any reasonable reading of the pleadings,
the plaintiff? may be entitled to relief, and . . . must accept
as true the factual allegations in the complaint and all
reasonable inferences that can be drawn therefrom." Nami v.
Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (citing Holder v.
Allentown, 987 F.2d 188, 194 (3d Cir. 1993)); Eli Lily & Co. v.
Roussel Corp., 23 F. Supp.2d 460, 474 (D.N.J. 1998) (citing
Nami and Holder).
A pro se complaint is held to less stringent standards than
formal pleadings drafted by lawyers. Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972); Then v. I.N.S., 58 F. Supp.2d 422, 429 (D.N.J. 1999),
aff'd sub nom. Then v. Quarantino, 208 F.3d 206 (3d Cir.
2000). "Under our liberal pleading rules, during the initial
stage of litigation, a district court should construe all
allegations in a complaint in favor of the complainant" and give
"credit to the allegations of the complaint as they appear? in
the complaint." Gibbs v. Roman, 116 F.3d 83, 86 (3d Cir. 1997);
see also Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir.
1992). But a court need not credit a complaint's "bald
assertions" or "legal conclusions" when deciding whether
dismissal is appropriate. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997); see also
Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th
Cir. 1993) ("[C]onclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to prevent a
motion to dismiss."). "When it appears beyond doubt that no
relief could be granted under any set of facts which could be
proved consistent with the allegations of the complaint, a
dismissal pursuant to Rule 12(b)(6) is proper." Robinson v.
Fauver, 932 F. Supp. 639, 642 (D.N.J. 1996) (citing Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)). See also Barrett v. City
of Allentown, 152 F.R.D. 50, 54 (E.D.Pa. 1993) (Complaint
providing no facts whatsoever to support claim asserted does not
contain the requisite specificity for a civil rights complaint,
even granting Plaintiffs leniency in light of their pro se
Section 1983 of Title 42 does not confer substantive rights,
but provides a remedy for the deprivation of rights protected by
federal law. Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985);
see also Sameric Corp. of Delaware, Inc. v. City of
Philadelphia, 142 F.3d 582, 590 (3d Cir. 1998). To establish a
violation of 42 U.S.C. § 1983, the Plaintiff must demonstrate
that the challenged conduct was committed by a person acting
under color of state law and that the conduct deprived him of
rights, privileges, or immunities secured by the Constitution or
laws of the United States. See West v. Atkins, 487 U.S. 42,
48-49 (1988); 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).
Plaintiff also must assert and prove some causal connection
between a Defendant and the alleged wrongdoing in order to
recover against that Defendant. See Mt. Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977);
Lee-Patterson v. New Jersey Transit Bus Operations, Inc., 957 F. Supp. 1391, 1401-02 (D.N.J. 1997). "A
defendant in a civil rights action must have personal involvement
in the alleged wrongs; liability cannot be predicated solely on
the operation of respondeat superior." Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing
Parratt, 451 U.S. at 537 n. 3).
The Court will liberally construe the Complaint as raising
claims under 42 U.S.C. § 1983 for (1) participation by various
Defendants in Plaintiff's arrest and imprisonment without
probable cause in violation of the Fourth and Fourteenth
Amendments; and (2) conspiracy to violate Plaintiff's Fourth and
Fourteenth Amendment rights. The Court will now analyze
Plaintiff's claims to determine whether dismissal pursuant to
28 U.S.C. §§ 1915(e)(2)(B) and 1915A is warranted.
B. Arrest and Imprisonment Without Probable Cause
Construed liberally, the Complaint alleges claims of arrest
without probable cause, and false imprisonment against various
Defendants. The Fourth Amendment prohibits a police officer from
seizing a citizen except upon probable cause. Albright v.
Oliver, 510 U.S. 266, 274-75 (1994); Orsatti v. New Jersey
State Police, 71 F.3d 480, 483 (3d Cir. 1995). "To find that
there was an unlawful arrest in violation of the Fourth
Amendment, the jury need only have found that under the facts and
circumstances within [the officer's] knowledge, a reasonable
officer could not have believed that an offense had been or was
being committed by the person to be arrested." Mosley v.
Wilson, 102 F.3d 85, 94-5 (3d Cir. 1996); Orsatti,
71 F.3d at 483. "The proper inquiry in a section 1983 claim based on false
arrest . . . is not whether the person arrested in fact committed
the offense but whether the arresting officers had probable cause
to believe the person arrested had committed the offense." Groman v. Township of
Manalapan, 47 F.3d 628, 634 (3d Cir. 1995) (citation omitted).
See also Palma v. Atlantic Cty., 53 F. Supp.2d 743, 755 (D.N.J.
1999) (citing Sharrar v. Felsing, 128 F.3d 810, 817-18 (3d Cir.
1997)). "Probable cause is defined in terms of facts and
circumstances sufficient to warrant a prudent man in believing
that the suspect had committed or was committing an offense."
Sharrar, 128 F.3d at 817-18 (citing Gerstein v. Pugh,
420 U.S. 103, 111 (1975)). Where probable cause to make an arrest
does not exist, the Plaintiff also has a § 1983 claim "for false
imprisonment based on a detention pursuant to the arrest." Id.
(quoting Groman, 47 F.3d at 636). Where probable cause to make
an arrest does exist, Plaintiff may not recover under
42 U.S.C. § 1983. See, e.g. McDermott v. City of New York, 2002 WL
265127, *7 (S.D.N.Y.) (because probable cause to arrest existed,
Plaintiff's false arrest and invasion of privacy claims were
Applying these principal to the case at bar, Plaintiff is
asserting that Defendants More, Jordan, and Green deliberately
acted to imprison him without probable cause by wrongfully
altering relevant paperwork. As this question will involve the
further determination of facts relevant to the existence of
probable cause and other issues, the Court will permit this claim
to proceed at this time as against Defendants Moore, Jordan, and
Green. See Gerstein v. Pugh, supra; McDermott v. City of New
The Court will also permit the conspiracy claim to proceed at
this time against these Defendants. In the conspiracy context,
the requirement of personal participation in the alleged
wrongdoing means that there must be evidence of (1) an actual
violation of a right protected under § 1983 and (2) actions taken
in concert by defendants with the specific intent to violate that
right. Williams v. Fedor, 69 F.Supp.2d 649, *664-66 (M.D.Pa.),
aff'd, 211 F.3d 1263 (3rd Cir. 2000) (citing Kerr v. Lyford, 171 F.3d 330, 340 (5th Cir.
1999)). See also Kelley v. Myler, 149 F.3d 641, 648-49 (7th
Cir. 1998); (an agreement or an understanding to deprive the
plaintiff of constitutional rights must exist); Strength v.
Hubert, 854 F.2d 421, 425 (11th Cir. 1988) (plaintiff must show
that the defendants "`reached an understanding to violate [his]
rights'"); Parkway Garage, Inc. v. City of Phila., 5 F.3d 685,
700 (3d Cir. 1993) (plaintiff must show that two or more
conspirators reached an agreement to deprive him or her of a
constitutional right'under color of law). Plaintiff will have the
opportunity to develop facts relating to this claim.
C. Other Defendants
The Court also notes that the Asbury Park Police Department and
New Jersey Superior Court are not proper Defendants under
42 U.S.C. § 1983. See Will v. Michigan Dept. of State Police,
491 U.S. 58, 70 (1989) (states and governmental entities
considered arms of the states are not "persons" under § 1983);
PBA Local No. 38 PBA Local No. 38 v. Woodbridge Police Dept.,
832 F.Supp. 808, 825-26 (D.N.J. 1993) (police department not a
"person" under § 1983). The Monmouth County Prosecutor's Office
is not a government entity which can be sued under § 1983
separate from the individual who is the county prosecutor or the
governmental entity that the county prosecutor serves. See,
e.g., N.J. Const., art. VII, § 2, ¶ 1 (establishing county
prosecutor); N.J.S.A. 2A:158-1 et seq. (setting forth
appointment process, term, powers and duties of the county
prosecutor); Buchanan v. City of Kenosha, 57 F. Supp. 2d 675,
678 (E.D. Wisc. 1999) (district attorney's office cannot be sued
as an entity separate from the individual holding the office or
the governmental unit on whose behalf the district attorney
acts); Hancock v. Washtenaw County Prosecutor's Office,
548 F. Supp. 1255, 1256 (E.D. Mich. 1982) (county prosecutor's office is not an entity subject to suit under §
1983). For this reason, any claims attempted to be asserted
against the Prosecutor's Office also fail.
Respecting Defendants Brennan and Suppa, claims against these
individual prosecutors also fail because a prosecutor is
absolutely immune from a damage action under § 1983 for
"initiating and pursuing a criminal prosecution." Kalina v.
Fletcher, 522 U.S. 118 (1997) (quoting Imbler v. Pachtman,
424 U.S. 409, 410 (1976)).
As to Defendants Apostolou and Kreizman, the United States
Supreme Court has recognized that a judge acting in his judicial
capacity is absolutely immune from suits, unless he acts without
any colorable claim of jurisdiction. Such immunity cannot be
overcome by allegations of bad faith or malice. See Mireles v.
Waco, 502 U.S. 9, 11 (1991); Stump v. Sparkman, 435 U.S. 349,
356-57 (1978); Pierson v. Ray, 386 U.S. 547, 553-55 (1967);
see also Gallas v. Supreme Court of Pennsylvania,
211 F.3d 760, 768 (3d Cir. 2000) ("The Supreme Court long has recognized
that judges are immune from suit under § 1983 for monetary
damages arising from their judicial acts.").
Finally, Defendant Kinarney appears to be either a private
attorney or public defender. Private attorneys do not act under
color of state law for purposes of § 1983. See Pierce v.
Bartley, 2005 WL 975428, *2 (D.Del.April 27, 2005) (citing
cases). "Since plaintiff's claim arises solely from his
attorney's actions as his criminal defense lawyer, plaintiff
cannot maintain a § 1983 claim against his attorney". Pierce,
supra. See also Polk County v. Dodson, 454 U.S. 312 (1981)
(claims asserted against individual public defenders fail as a
matter of law because these defendants were not acting under
color of state law). III. CONCLUSION
Based on the foregoing, the Court will (1) permit the claim of
imprisonment without probable cause to proceed at this time as
against Defendants Moore, Jordan, and Green; (2) permit the
conspiracy claim to proceed as against Defendants Moore, Jordan,
and Green; and (3) dismiss the Complaint as against the remaining
An appropriate Order accompanies this Opinion.